Bird v Uniting Church in Australia Property Trust (Q) [2015] QDC 243
DISTRICT COURT OF QUEENSLAND
CITATION: Bird v Uniting Church in Australia Property Trust (Q) [2015]
QDC 243
PARTIES: LORRAINE MAY BIRD
(plaintiff)
v
UNITING CHURCH IN AUSTRALIA PROPERTY
TRUST (Q)
(defendant)
FILE NO/S: 170/09
DIVISION: Civil
PROCEEDING: Trial
DELIVERED ON: 2 October 2015
DELIVERED AT: District Court at Maroochydore
HEARING DATE: 2 April 2012, 15-17 April 2013, 26 August 2013 and 29
November 2013
JUDGE: Long SC DCJ
ORDER: Judgment for the defendant.
CATCHWORDS: PERSONAL INJURIES – whether any injury to the
plaintiff’s right shoulder area and/or cervical spine,
particularly in the nature of aggravation of a degenerative
condition of the cervical spine and/or right shoulder occurred
in the course of her employment as a respite carer was caused
by any breach of duty on the part of the defendant, to take
reasonable care to avoid injury to her and to provide her with
a safe system of work –whether there was any unreasonable
failure by the defendant to avoid exposure of the plaintiff to
any unnecessary risk of injury – whether the plaintiff should
not, particularly given her known physical limitations, have
been put in that situation or have been warned as to any
heightened risk
Coca-Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA
45
Crisa v John Shearer Ltd (No. 2) (1981) 28 SASR 422
Findley v State of Victoria & Ors [2009] VSCA 294
Hegarty v Queensland Ambulance Service [2007] QCA 366
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240
CLR 1
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2
Marshall v Queensland Rehabilitation Services Pty Ltd
[2012] QSC 168
Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR
486
Paris v Stepney Burra Council [1951] AC 367
Stitz v Manpower Services & Anor [2011] QSC 268
Turner v South Australia (1982) 56 ALJR 839
Vairy v Wyong Shire Council (2005) 233 CLR 422
Wilkinson v BP Australia Pty Ltd [2008] QSC 171
Wyong Shire Council v Shirt (1980) 146 CLR 40
COUNSEL: J P Mould for the plaintiff
A S Mellick for the defendant
SOLICITORS: Chris Reeve and Co Solicitors for the plaintiff
BT Lawyers for the defendant
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Index
Introduction ........................................................................................................................3
The basis of the claim ........................................................................................................4
Reliance on Workplace Health and Safety obligations ..................................................9
Pre-existing degenerative conditions ..............................................................................12
The plaintiff’s case ............................................................................................................17
Assessment of the plaintiff’s case ....................................................................................27
Reliance on absence of warning as to increased risk .....................................................27
Reliance on a broader case ............................................................................................29
Reliance on an incident at the client’s residence on 29 August 2005 ............................30
Is there support in the medical evidence? ......................................................................36
Is there any independent confirmation or support for the plaintiff? .............................44
Conclusion as to liability .................................................................................................52
Assessment of damages ..................................................................................................53
Orders ..............................................................................................................................66
Introduction
[1] By claim filed on 29 June 2009, the plaintiff sues for damages for personal injury,
alleged to have been suffered by her in the course of her employment with the
defendant, on 29 August 2005.
[2] The plaintiff was born on 17 August 1948 and was therefore aged 57 on 29 August
2005 and is now aged 67.
[3] In the pleadings, it is admitted that the defendant:
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(a) is capable of being sued, as a body corporate established pursuant to
the Uniting Church in Australia Act 1977 (Qld);
(b) carried on business under the registered business name “Blue Care”;
and
(c) employed the plaintiff pursuant to a written agreement dated 15
February 2005, to assist elderly people at their homes, including at
1/57 Lorikeet Drive, Peregian Beach.
[4] In these proceedings, it was established that Blue Care was a business conducted for
the purpose of providing a range of services in the community, including respite care.
For that purpose, the defendant employed nursing staff and carers and on 29 August
2005, the plaintiff was employed and engaged to provide respite care in respect of the
since deceased, Rudolph Nosalek,1 and so that his wife, Wendy Hynson, was relieved
of her position as his primary carer, for a period of some hours.
[5] It can be noted at the outset, that this case was litigated without reference to the Civil
Liability Act 20032 and there was no contention that attention was required to any
provision of the Workers’ Compensation and Rehabilitation Act 2003, for the
purposes of deciding any issue as to liability or quantum.
The basis of the claim
[6] The gravamen of the plaintiff’s claim is that she suffered personal injuries in the
nature of:
(a) an injury to her right shoulder area;
(b) an injury to her cervical spine; and
(c) aggravation of a degenerative condition of her cervical spine and/or
right shoulder.
It was contended that this was a result of her assisting Mr Nosalek to get up in order
to move to the bathroom and when and in doing so, he grabbed and placed most of
his weight on her right arm. In her evidence, the plaintiff described the incident, as
follows:
“And what's happened during that period of care?-- Well, this time he
was downstairs. In the lounge. And he was reclined on the lounge,
1 He had passed away prior to the trial.
2 Presumably having regard to s 5 of that Act and the evidence of payment of workers’ compensation
benefits to the plaintiff: see Ex.27.
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watching television. We said, ‘Hullo’, and I went about making him
lunch. Wendy had left instructions as to what to do. And then - I can't
recall whether it was before lunch or after lunch, he asked to go to the
toilet. And I went - he was laying on the lounge suite, he sat up and
put his feet on the floor. And where - he was on the sort of - you know
the lounges that are like a bed. So - the lounge is there, and this is a
bed. And he sat up and put his feet on the floor, and Wendy had told
me the week before to stand beside his left side, so I went and stood
beside his left side, waiting for him to stand up and then go with him
to the bathroom, which was just over there. And before I realised it, he
grabbed my arm, pulled himself up on my arm, and pushed himself up
on my shoulder. And I remember you know, gasping with pain, but I
couldn't go anywhere, because to my left - or in front of me, was a
glass coffee table, and a glass window, because we were upstairs. And
that was up one floor, and I think there was a cupboard or something
behind me, so I couldn't go back. So I couldn't get away from him; I
was constrained by the environment that I was in.
Mmm. So which arm does he grab?-- He grabbed my right arm,
because I was on his left side. And then, because there was no-one else
in the home, and he wanted to go to the toilet, I went with him to the
bathroom, and then once I got to the rails, he just took himself into the
bathroom. The bathroom went in, and around, and then to the toilet.
But he was able to negotiate that himself.”3
[7] Although also couched as a breach of an implied term of the employment agreement,
the plaintiff alleges that her injuries were suffered as a consequence of breach of her
employer’s common law duties, to take reasonable care to avoid injury to her and to
provide her with a safe system of work.
[8] As was pointed out for the plaintiff, that duty is a non-delegable duty,4 which extends
beyond merely the provision of such a system, to a duty to maintain and enforce it.5
[9] In another case and where that claim was also based on breach of employment
contract and negligence, McMeekin J provided the following helpful summary of
relevant principles as to the ascertainment of whether any such duty has been
breached:
“[13] Mr Stitz bases his claim on breach of the employment contract
and negligence. The duty owed by an employer was explained by
Windeyer J in Vozza v Tooth & Co Ltd in this way: ‘[F]or a plaintiff
to succeed it must appear that the defendant unreasonably failed to
3 T1A – 40.23-52. It can be noted that as far as reference to the evidence given at the trial is
concerned, there are two days which have been transcribed and paginated as Day 1. Accordingly, the
references herein will adopt the methodology, also adopted in the submissions of the parties, to refer
to the transcription for 2/4/12, as Day 1A and the transcription for 15/4/13, as Day 1B.
4 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, at 32-3.
5 McLean v Tedman (1985) 155 CLR 306.
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take measures or adopt means, reasonably open to him in all the
circumstances, which would have protected the plaintiff from the
dangers of his task without unduly impeding its accomplishment.’
[14] In Hamilton v Nuroof (WA) Pty Ltd it was said that the duty of an
employer is ‘... to take reasonable care to avoid exposing [its]
employees to unnecessary risks of injury’.
[15] Those statements make plain, that an employer is not required to
guard against all risks of injury.
[16] On the question of breach Mason J’s formulation in Wyong Shire
Council v Shirt explains the response expected of a reasonable man,
there being a foreseeable risk of injury:
“A risk of injury which is quite unlikely to occur, such as
that which happened in Bolton v Stone, 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.’”6 (Citations omitted)
[10] Further and whilst this trial proceeded upon an amended statement of claim7 and in
which express reference to a claim based on breach of statutory duty pursuant to the
Workplace Health and Safety Act 1995 (“WHSA”), was deleted, nevertheless there
6 Stitz v Manpower Services & Anor [2011] QSC 268, at [13]-[16].
7 Filed on 8/2/11.
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7
remained in the pleading, significant reliance on aspects of the obligations placed on
employers under the WHSA. In particular and in addition to the more generally
expressed allegations as to the employer’s duties in paragraph 5 of the amended
statement of claim, the following further allegations were made:
“7A Prior to, and on 29 August 2005, the defendant:-
(a) pursuant to the WHSA had a duty to ensure the plaintiff’s
safety;
(b) did not properly manage exposure to the risk of injury by
identifying hazards which existed as a result of the plaintiff
performing people handling work;
(c) did not assess the risks as was required by s 27A of the
WHSA;
(d) did not decide on appropriate control measures to prevent
or minimize the level of the risks as was required by s 27A of
the WHSA;
(e) did not implement those measures as was required by s
27A of the WHSA;
(f) did not consult with workers, including the plaintiff, in
relation to their respective manual handling tasks as was
required by Part 2 of the Standard;
(g) did not provide any or any appropriate training in people
handling as was required by Part 7 of the Standard;
(h) did not provide any or any appropriate training in people
handling of people falling suddenly as was required by Part 7
of the Standard;
(i) did not carry out any or any appropriate risk assessment
process in relation to people handling as required by Part 2-5
of the Standard;
(j) did not develop any risk management plan in relation to
people handling as required by Part 2 of the Standard;
(k) did not identify the risks in the workplace as required by
Part 3 of the Standard;
(l) did not assess the risk as required by Part 4 of the Standard;
(m) did not control the risks as required by Part 5 of the
Standard;
(n) did not review the risks as required by Part 6 of the
Standard”.
The response in the further amended defence8 is:
“3. As to paragraph 7A of the statement of claim, the defendant:
(a) admits the allegation contained in paragraph 7A of the
Statement of Claim
(b) says that the client of the defendant upon whom the
plaintiff was attending at 1/57 Lorikeet Drive, Peregian
Beach was Rudolph Nosalek (“the client”).
8 Filed on 2/3/11.
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(c) admits that as at 29 August 2005 the Defendant had not
prepared a detailed care plan assessing the mobility and care
requirements of the client;
(d) otherwise denies the allegations contained therein as:
(i) the Defendant had identified risks associated with
the provision of care to clients of the Defendant with
restricted mobility;
(ii) as a consequence thereof, the Defendant had
devised a system for the regular assessment of client
by a physiotherapist and registered nurse to devise a
care plan setting out appropriate strategies and
techniques for providing assistance to such client with
transfers and other aspects of personal care; and
(iii) the Defendant decided upon appropriate control
measures to prevent and minimise the levels of risk,
being the development of care plans, the provision of
training and instruction and the provision of
appropriate mechanical and manual assistance as
required;
(iv) the Defendant consulted with workers in relation
to the development of appropriate manual handling
strategies by various methods including the
maintaining of regular and detailed progress notes
relating to individual clients of the Defendant and
regular manual handling training sessions for
employees of the Defendant;
(v) the Defendant provided appropriate training to its
employees in respect of tasks involving handling of
people and assistance with transfers;
(vi) the Defendant trained its employees as to the
appropriate measures to take in the event of a client
who is being assisted or transferred falling suddenly,
being to fall with the client to the floor in a controlled
manner to minimise the harm caused, rather than to
attempt to prevent the fall;
(vii) the Defendant assessed the risks associated with
the provision of care and assistance to its clients,
including assistance with transfers, on a client by
client basis and developed care plans as a result of
such risk assessments;
(viii) the Defendant provided a safe place to work;
(ix) the Defendant provided a safe system of work;
(x) the Defendant therefore complied with the
requirements of the Workplace Health and Safety Act
and manual tasks involving the Handling of People
Advisory Standard.”9
[11] Otherwise, it may be noted that the defendant expressly admitted that:
9 It was accepted as common ground that the reference in subparagraph (a) to “paragraph 7A”, should
be read as “paragraph 7A(a)”.
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“2. The plaintiff was a ‘worker’ as that term is defined in the WHSA.
3. The defendant was an ‘employer’ as that term is defined in the
WHSA.
4. At all material times the plaintiff worked for the defendant assisting
elderly people at their homes including at 1/57 Lorikeet Drive,
Peregian Beach in the state of Queensland (“the workplace”) which
was a ‘workplace’ as that term is defined in the WHSA.
5. At all material times the plaintiff’s employment with the defendant
involved ‘people handling’ as that term is defined in the Manual Tasks
Involving the Handling of People Advisory Standard 2001
(Standard).
6. The Standard was an advisory standard within the meaning of the
WHSA.”10
Reliance on Workplace Health and Safety Obligations
[12] It can be seen that the deletion of reliance on allegations of breach of statutory duty11
but continued reliance on the statutorily imposed workplace health and safety
obligations, is consistent with the following observations in Miljus v Watpow
Constructions Pty Ltd,12 in reference to the decision of the High Court in Leighton
Contractors Pty Ltd v Fox:13
“[116] As to the latter, it is not the case (as Mr Gross' submissions
tended to suggest) that the statutory obligation, which applies
regardless of fault, is simply transposed into the duty to exercise
reasonable care. As the High Court observed in Leighton Contractors
v Fox at [49]:
‘While it is true that obligations under statutory or other
enactments have relevance to determining the existence
and scope of a duty, it is necessary to exercise caution in
translating the obligations imposed on employers,
principal contractors and others under the OHS Act and
the Regulation into a duty of care at common law. This is
because, as Gummow J explained in Roads and Traffic
Authority (NSW) v Dederer ‘whatever their scope, all
duties of care are to be discharged by the exercise of
reasonable care. They do not impose a more stringent or
onerous burden’.’”
[13] As pointed out by the defendant, the plaintiff’s particularised allegation as to breach
of duty, in terms of “failing (sic) ensure the plaintiff’s safety”,14 is misplaced. As
10 Amended statement of claim, filed on 8/2/11, at [2]-[6] and further amended defence, filed 2/3/11, at
[1].
11 Relevantly precluded by s 37A and s 197 of the WHSA, which is now repealed and replaced by the
Work Health and Safety Act 2011; cf: s 267.
12 [2012] NSWCA 96.
13 [2009] HCA 35; 240 CLR 1.
14 Amended statement of claim, filed on 8/2/11, at [10(h)].
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noted by McMeekin J in Stitz v Manpower Services & Anor,15 whilst such a test may
be found in workplace health and safety legislation, it does not reflect the common
law test.
[14] The non-delegable duty of an employer to its employees, is to use reasonable care to
avoid injury which is reasonably foreseeable16 and this includes guarding against
those risks which are possibilities. As Gibbs CJ observed, in Turner v South
Australia:17
“Where it is possible to guard against a foreseeable risk which,
although perhaps not great, nevertheless cannot be called remote or
fanciful, by adopting a means which involves little difficulty or
expense, the failure to adopt such means will in general be negligent.”
[15] As noted by McMeekin J in Wilkinson v BP Australia Pty Ltd,18 the onus on the
plaintiff is to demonstrate that:
1. there was a risk of injury that was reasonably foreseeable;
2. the defendant could have taken steps to remove that risk; and
3. the failure to take such steps was unreasonable.19
[16] It was further and correctly contended that the plaintiff also had the further onus of
demonstrating that her injury was caused by any such breach of duty on the part of
the defendant.
[17] As to the issue of breach of duty, each party referred to Wyong Shire Council v Shirt,20
in identification of factors that bear on what might be a reasonable response to
foreseeable risk, including the magnitude of the risk, the degree of probability of its
occurrence and the expense, difficulty and inconvenience of minimising or alleviating
the risk and any other conflicting responsibilities of the defendant.
15 [2011] QSC 268, at [70] and [103]. His Honour specifically made reference to s 28(1) of the WHSA
but that act is now repealed and replaced by the Work Health and Safety Act 2011.
16 Kondis v State Transport Authority (1984) 154 CLR 672.
17 (1982) 56 ALJR 839 at 840.
18 [2008] QSC 171, at [28].
19 The plaintiff adopted an essentially similar formulation, as drawn from a reference by McMeekin J,
in Wright v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 86 at [3], to Glass McHugh
and Douglas, The Liability of Employers, 2nd Edition at p 16: see plaintiff’s written submissions, at
[20] and fn 44.
20 (1979) 146 CLR 40.
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[18] The exercise is one conducted in a prospective and not retrospective sense and
influence by benefit of hindsight must be avoided and the court must apply the test of
reasonable foresight at a time prior to the incident. As observed by Hayne J, in Vairy
v Wyong Shire Council:21
“[124] In an action in which a plaintiff claims damages for personal
injury it is inevitable that much attention will be directed to
investigating how the plaintiff came to be injured. The results of those
investigations may be of particular importance in considering
questions of contributory negligence. But the apparent precision of
investigations into what happened to the particular plaintiff must not
be permitted to obscure the nature of the questions that are presented
in connection with the inquiry into breach of duty. In particular, the
examination of the causes of an accident that has happened cannot be
equated with the examination that is to be undertaken when asking
whether there was a breach of a duty of care which was a cause of the
plaintiff’s injuries. The inquiry into the causes of an accident is wholly
retrospective. It seeks to identify what happened and why. The inquiry
into breach, although made after the accident, must attempt to answer
what response a reasonable person, confronted with a foreseeable risk
of injury, would have made to that risk. And one of the possible
answers to that inquiry must be ‘nothing’.
[125] There are fundamental reasons why the inquiry cannot be
confined to where the accident happened or how it happened. Chief
among them is the prospective nature of the inquiry to be made about
response to a foreseeable risk.
[126] When a plaintiff sues for damages alleging personal injury has
been caused by the defendant’s negligence, the inquiry about breach
of duty must attempt to identify the reasonable person’s response to
foresight of the risk of occurrence of the injury which the plaintiff
suffered. That inquiry must attempt, after the event, to judge what the
reasonable person would have done to avoid what is now known to
have occurred. Although that judgment must be made after the event
it must seek to identify what the response would have been by a person
looking forward at the prospect of the risk of injury.”
[19] Before moving to other considerations, it is also necessary to note that in relation to
the plaintiff’s reliance upon the statutory provisions as to workplace health and safety,
this included reliance on what was described as an applicable advisory standard,
promulgated pursuant to such statutory provisions. Accordingly, reference was made
to what is described as the “Manual Tasks Involving the Handling of People Advisory
Standard 2001”, said to be Exhibit 10. However, and whilst that document is entitled
21 (2005) 223 CLR 422, at [124]-[126]. See also Hegarty v Queensland Ambulance Service [2007]
QCA 366, at [49].
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“Manual Tasks Involving the Handling of People, Code of Practice 2001”, as is
indicated on the second page, it is a copy of the code of practice preserved, pursuant
to s 284 of the Work Health and Safety Act 2011 and as varied on 27 November 2011
and commencing on 1 January 2012.22 Notwithstanding express reference is made for
the plaintiff, to parts of Exhibit 10,23 there is merit in the defendant’s contention that
the plaintiff “made no effective use” of Exhibit 10 in relation to the issue of breach
of duty of care. In particular, it can be noted that the comfort sought by reference to
Calvert v Mayne Nickless Ltd,24 appears to be referrable to a different document and
a different context, where a statutory cause of action was available.
Pre-existing degenerative conditions
[20] The plaintiff also points to her pre-existing state of health and her susceptibility to
injury of the type for which she claims, particularly in the nature of aggravation of a
degenerative condition of her cervical spine and/or right shoulder.
[21] However, the pre-existing state of the plaintiff’s health was also an issue of particular
concern to the defendant, mostly as far as it related to the plaintiff’s credibility. As
the defendant points out, Exhibit 9 includes extensive medical records, many of which
relate to the plaintiff’s pre-accident medical history and most of this was not in
contest.25 It suffices, as the defendant catalogued,26 to note that the plaintiff conceded:
(a) a right shoulder injury in 1982;27
(b) injury to her spine at C1 and T1 in 1995;28
(c) the subsequent development of fibromyalgia;29
(d) a further right shoulder injury in 1997; 30 and
(e) that because of the combination of injuries and fibromyalgia she was
not always coping and that prior to 29 August 2005, she was only
working part time.31
22 See defendant’s written submissions, at [13].
23 See plaintiff’s written submissions, at [62].
24 [2004] QSC 449, at [56].
25 Defendant’s written submissions, at [40]-[41].
26 Ibid at [42].
27 T1A-54.17-20.
28 T1A-53.50-1A-54.11.
29 T1A-54.15-17.
30 T1A-55.7-16.
31 T1A-55.32-40.
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[22] Dr Weber, who as a general practitioner at the Pomona Medical Centre, had seen the
plaintiff frequently, in the years 2005 and 2006, explained that the plaintiff “used to
come with lots of sore aches and pains in multiple, sort of, areas”32 and that she had
“quite widespread degenerative joint problems but also fibromyalgia”.33
[23] Some context to the plaintiff’s employment with the defendant is that:
(a) At some stage in 2003 she ceased part time work at a nursing home
(Eventide) and went overseas and was overseas “for a large part of
2004”;34
(b) Upon return to Australia, she sought Centrelink benefits. In the
treating doctor’s report, which was lodged by her for this purpose, a
general practitioner certified that the plaintiff was “temporarily unfit
for work/study from 6/12/04-6/3/05 inclusive”, due to a diagnosis of
fibromyalgia and noted a history of general pain or effort, current
symptoms of “generalised muscle/joint pain”, with an effect that
activities were limited;35
(c) The plaintiff’s application for a disability support pension was rejected
on 3 February 2005. The conclusion, noted as having then been
provided to the plaintiff, was that her impairment rating for the
medical conditions “fibromyalgia” and “shoulder and upper arm
disorder” did not qualify for the pension that was sought and that her
conditions were considered temporary and such as to enable her to be
able to perform her usual work or be reskilled to work for more than
30 hours per week, within the following two years;36
(d) On 18 February 2005 and it appears in conjunction with her being
interviewed for the position with the defendant, the plaintiff completed
what was described as a “formal application form” for part time
employment with the defendant, as a casual personal carer. In that
application, reference is made to her qualifications in the form of an
associate diploma of arts (recreation studies) and a bachelor of social
science, human services (stream of disability). She described her
32 T2-36.15-50.
33 T2-43.10-15.
34 T3-11.25-30.
35 See Ex.9, folder 1, at pp 240-247.
36 Ibid, at 219-220.
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current position as being as an “O.T. and physio assistant,” at the
Eventide nursing home. As the defendant points out, there is no
suggestion that the Centrelink application or any of the material put
forward in support of it, was brought to the defendant’s attention. On
the contrary, it is pointed out that in the application form, the plaintiff
has expressly indicated “no” to the question:
“Do you have any legal or personal restrictions which
would prevent you from competently and efficiently
working in a manner which is safe to yourself, your
fellow workers and the public generally?”; and37
(e) On 21 February 2005, another general practitioner completed a
treating doctor’s report, for the obvious purpose of further pursuit of
the application to Centrelink. This report indicated that in relation to a
diagnosis of “fibromyalgia”, there was a history of “generalised
myalgias noted after MVA 1995” with current symptoms of “severe
aches and pains when involved in repetitive tasks”, with the effect that
the plaintiff was “unable to do repetitive tasks over a long period of
time, needs to alternate tasks”. There was also a second diagnosis of
neck pain, which had been noted after a motor vehicle accident in
1995, with symptoms being “neck pain worse after prolonged lifting,
bending and repetitive movements” and the effect that she was “unable
to lift a lot” and “unable to sit in one position for long”. For each
condition, the impact on “the patient’s ability to function” was
indicated to be “3-24 months” and expected to “improve somewhat”
over the following two years.
[24] The plaintiff confirmed that the information included in the treating doctor’s reports
for her application for the disability support pension was consistent with the history
she provided to those doctors,38 but when specifically asked if she accurately told Dr
Todman, when she saw him in March 2008, that when working for Blue Care she was
relatively free of neck and shoulder girdle symptoms, she ultimately responded:
“When I was active I was okay but often I suffered at night time.”39
37 See Ex.25.
38 T3-12.30 –3-18.10.
39 T3-14.37-38.
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[25] It was the evidence of each of the defendant’s employees, who interviewed the
plaintiff and therefore involved in the process of employment of the plaintiff, that
they were not informed as to her application to Centrelink.40 However and in respect
of notice of her past medical history, the plaintiff points to her letter of application,
addressed to Ms Hanrahan and dated 17 November 2004,41 and in which she states:
“I did have experience of assisting in nursing when I worked for two
weeks as an AIN for Wooloowin Nursing Home before starting the
position of Diversional Therapist in charge in 1993/4. However, since
a massive vehicle accident in 1995, I have been advised only to lift
more than five kilograms for only very short periods due to sustained
soft tissue injury to the neck.”
[26] For the defendant, it was submitted that the notice that it had as to the plaintiff’s
condition “was subsequently rendered irrelevant by the formal application” (Exhibit
25), and reference was made to Crisa v John Shearer Ltd42 and Uehlin v Standard
Telephones and Cables Pty Ltd,43 for the proposition that, if a worker insists on doing
a job for which he or she is not fit, the employer is under no obligation to dismiss that
employee for their own good or to find other work for which the employee is fit.
[27] For the plaintiff, the contention was that in the assessment of the issue of breach of
duty, in the sense of whether there was an unreasonable failure to act to avoid
exposure of the plaintiff to any unnecessary risk of injury, the relevant principle is, as
was recognised in Marshall v Queensland Rehabilitation Services Pty Ltd,44 stated by
Kirby J in New South Wales v Fahy:45
“[103] Merely prescribing a safe system is not enough to discharge the
obligation that is owed to employees. The system must be enforced.
This must be done even against employee resistance. Although an
employer may not always have to take active steps to acquaint itself
with special or unique weaknesses or predispositions to injury and
damage on the part of particular employees, where the employer
becomes aware that there is such a susceptibility, or should be so
aware in the ordinary course of reasonable conduct, special
precautions need to be taken by it, to fulfil the duty of care that is
inherent in the employment relationship.” (Citations omitted).
Earlier and after noting the obligation on an employer “affirmatively to establish and
enforce a safe system of work”, Kirby J also referred to the responsibility “for taking
40 T4-106.40-4-107.9 (per Ms Hanrahan) and T5-10.22-5 (per Ms Crichton).
41 Ex.1.
42 (1981) 27 SASR 422, at 434-5.
43 (1964) 80 WN (NSW) 1600, at 1602.
44 [2012] QSC 168, at [51].
45 [2007] HCA 20; (2007) 232 CLR 486, at [103].
-- 15 of 66 --
16
positive action to consider and respond to, the needs of accident prevention in
accordance with changing ideas of justice and increasing concern with safety in the
community”.46
[28] The observations of Kirby J may be seen as generally consistent with the import of
contemporary workplace health and safety legislation and the extent to which such
requirements, remain relevant to the assessment of the existence and scope of an
employer’s duty of care. Further, there is not necessarily any conflict between the
authorities to which respective reference has been made. It can be particularly noted
that in stating the principle to which the plaintiff refers, Kirby J expressly cited Paris
v Stepney Burra Council47 and that the full passage in Crisa v John Shearer Ltd (No.
2)48 and to which the defendant refers, is:
“The appellant’s case before us was put in four ways and I shall deal
with them in turn. First, it was said that the respondent failed to
provide a safe system of work and reference was made to all the well-
known cases on this subject. In particular it was argued that this was
not a proper system of work for this man. He had suffered back injuries
four times previously in accidents at the work-place of this respondent
and it was argued on the authority of Paris v. Stepney Borough
Council that, because of the appellant's known back infirmity, that a
special duty was owed to him by the respondent. I agree with that,
stated as a matter of law, but like the learned Judge I cannot see that
there was anything that the respondent did or failed to do which made
the system of working unsafe. It is not suggested that the respondent
could have put the appellant onto other work with lighter duties or
indeed that the appellant would have accepted it if that was what was
done. As the Court of Appeal said in Kossinski v, Chrysler United
Kingdom Ltd:
‘The duty of reasonable care does not impose on an
employer the necessity to say to an employee: You are not
fit for this properly planned work because of your physical
condition and therefore despite your own desire to
continue at it we must dismiss you. Nor is there a duty on
them to stop the appellant from doing that work and find
him other work.’
As the Court of Appeal points out in that case, in certain circumstances
a duty of warning might arise depending on the circumstances of the
case. I do not think there is any duty to warn in relation to work which
the appellant knew well and which he was doing all the time. This
ground of appeal therefore fails.”
46 As above n 45, at [102], noting the specific reference to Bankstown Foundry Pty Ltd v Braistina
(1986) 160 CLR 301, at 309.
47 [1951] AC 367.
48 (1981) 28 SASR 422, at 434-5.
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17
[29] Accordingly, the knowledge that the defendant had as to the plaintiff’s pre-existing
condition, cannot be simply ignored and neither, as will be noted below, was it
ignored, having regard to the evidence of the responsible employees of the defendant.
The application of the principles to be drawn from the cases to which reference has
been made, will necessarily depend upon the particular circumstances of a given case.
The plaintiff’s case
[30] It is correctly pointed out by the defendant that, leaving aside the particulars added
by amendment, in sub-paragraphs 10(l)-(v) of the amended statement of claim,49 the
remaining particulars, as to breach of duty, are couched in only broad or general
terms. Further and as the case for the plaintiff was opened and as clearly as it was
explained to the Court, it was put on the following bases, as to breach of duty:
“There was a failure to warn my client of the increase, substantial
increase and significant increase of risk … risk that my client would
sustain an injury as a consequence of this fellow deteriorating and
falling as he did. … When I say fall, he lost power in his legs, therefore
he’s pulling – he’s pulling himself up … we also rely upon the
suggestion that it was an unsafe workplace in relation to my client’s
pre-existing condition … she had very limited physical capacity
initially and was unreasonably placed in this position which became
even more unreasonable when this fellow’s position – his condition
deteriorated without notice to my client. Other steps could have been
taken by the employer, such as providing an additional nurse or not –
not allocating my client to that home at all, instead of simply having
her there, not warning her of the increased danger and putting her in
the peril which resulted in a foreseeable injury.”50
[31] The defendant also points to the observations in Coca-Cola Amatil (NSW) Pty Ltd v
Pareezer51 and Findley v State of Victoria & Ors52 identifying the necessity, in cases
of alleged breach by omission, for proof not only of what should alternatively have
been done and how it was unreasonable in the circumstances not to do it but also, in
order to prove causation, to demonstrate how such an alternative course of action
would have averted the loss or damage that is alleged.
[32] In opening the plaintiff’s case and when pressed to identify what should have been
done differently, it was contended:
49 See para [11], above.
50 T1A-11.42-1A-12.18.
51 [2006] NSWCA 45, per Mason P, at [3].
52 [2009] VSCA 294, per Maxwell P, at [2]-[3].
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18
“Well, we say she either wouldn’t have been rostered there at all – in
fact, the defendant, we say would probably not have offered any
respite service by anyone; or alternatively, not – certainly not by our
client; or, thirdly, there would have been, albeit with some funding
restrictions, an additional staff member there.”53
[33] The suggestion as to a second carer may be immediately dealt with. The reference to
“albeit with some funding restrictions” was never clarified and neither was any
attempt made to examine the cost or feasibility of this alternative. Also and as the
defendant contented, it was not demonstrated how, given the sudden and unexpected
nature of the plaintiff’s explanation of Mr Nosalek grabbing hold of her,54 that the
attendance of a further carer on 29 August 2005 would have avoided the incident
described by the plaintiff. As she said:
“It all happened so quickly, I didn’t have a chance to do anything.”55
In reality, this contention added nothing to the gravamen of the plaintiff’s case which,
and particularly as it was pressed in final submissions, was that once it was or should
have been known that Mr Nosalek’s condition had deteriorated, so that there was a
significantly heightened risk of him needing or seeking physical assistance with his
mobility, then the plaintiff should not, particularly given her known physical
limitations, have been put in that situation or that, at least, she should have been
warned as to the heightened risk.
[34] As to the issue of the defendant’s knowledge of the plaintiff’s physical limitations,
Ms Hanrahan, who was at the relevant time responsible for the rostering arrangements
and therefore allocation of Mr Nosalek, as a client, to the care of the plaintiff on 29
August 2005, identified that she was aware of the indication of the plaintiff’s
limitation in Exhibit 1. She and Ms Crichton, who was the Workplace Health and
Safety Officer for the defendant, had interviewed the plaintiff as an applicant for her
position and Ms Crichton’s evidence was that she “knew she couldn’t carry anything
particularly heavy”. Ms Crichton continued that although it was not her “decision to
be made overall”, her reaction was that the plaintiff, “possibly wasn’t suitable for the
job”, particularly “for somebody who had no mobility at all and required full assist”.56
53 T 1A-19.37-42.
54 See T1A-40.20-45.
55 T 3- 85.22-23.
56 T5-16.20-5 -17.10.
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19
[35] Moreover and when asked as to the effect of an “Activities of Daily Living
Assessment”, conducted for the defendant, by a registered nurse on 31 August 200557
and which assessed Mr Nosalek’s level of mobility and needs in respect of toileting
and bathing as requiring “full assistance … (totally dependent)” and that he “cannot
transfer without some physical assistance (may include use of lifting device)”,
Ms Crichton conceded that it would not have been appropriate to send the plaintiff to
care for Mr Nosalek, if that information had been available prior to then.58
[36] There was also a falls risk assessment done on 31 August 2005 and this further
indicated that Mr Nosalek was assessed to be in the “high risk category”.59 The
plaintiff points to Ms Crichton’s evidence that she had seen two falls risk assessments
that were done in respect of Mr Nosalek:
“One was conducted in late 2004 and he was assessed as between a
zero and 1, meaning occasional rare assist, otherwise observation and
prompting. And the second one, which was done on the 31st, which
was after the incident in question, he was assessed as high fall risks
between 3 and 4, needed full assist for mobilisation, et cetera. So he
had changed quite considerably from one assessment to the next.”60
[37] As has been noted above, it was common ground that on the morning of 29 August
2005 and prior to the arrival of the plaintiff, a registered nurse employed by the
defendant, Ms Walloch, had attended upon Mr Nosalek and had completed a
continence assessment61 and a “medical aids subsidy scheme continence aids
application” form.62 The plaintiff particularly relies on some notations in that part of
the form which relates to Ms Walloch’s clinical assessment of Mr Nosalek and
specifically notes his position, as an elderly patient with cognitive deficits and
impaired mobility and further specifically noting that he “falls”.
[38] Further, there is reliance on Ms Crichton’s evidence, conceding that had this
information come to her attention on 29 August 2005 and before the plaintiff went
there, she would not have been sent to care for Mr Nosalek.63 She then gave the
following evidence:
“So what are the procedures then in relation to making sure that people
like yourself in the office are appraised of relevant information in a
57 See Ex.46.
58 T5-45.1-37.
59 Ex.47.
60 T5-17.20-25 and see also T5-25.46-47.
61 Ex.40 and a notation in Ex.39 indicates this occurred at 8.45am.
62 Ex.41.
63 T5-35.29-34.
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20
timely way?-- We do rely on the personal carers and the registered
nurses who go into the home to update conditions, et cetera, there so
we know who we’re sending in and what to expect on their arrival.
… So Trish making a call could well have prevented the
accident?-- Yes, possibly so. It would have definitely prevented
Ms Bird from – from going.”64
[39] It was not established as to when the results of Ms Walloch’s assessment came to the
attention of the defendant’s officers, who had responsibility for the allocation of work
to the plaintiff. All that may be concluded is that it was likely to have been no later
than the evening of 29 August 2005 and when it might be expected that Ms Walloch
had returned to the office with the information.65
[40] Ms Hanrahan had no recollection of any conversation with Ms Walloch on 29 August
2005 or, by implication, of the relevant details of Ms Walloch’s assessment being
brought to her attention.66 Her position as to how she would have dealt with that
information, had she been aware of it before the plaintiff went there on 29 August
2005, was that she would have warned the plaintiff about Mr Nosalek’s condition and
negotiated with her as to whether she was prepared to provide the respite care.67
[41] The potential significance of this evidence to the plaintiff’s pleaded case, may be
gathered from the following, in the amended statement of claim:
“8A. Prior to the incident:-
(a) on or about 29 August 2005 Walloua attended at the
workplace;
(b) Walloua completed a clinical assessment of the
patient following the said attendance noting:
(i) the patient was elderly and suffered cognitive
defects;
(ii) impaired mobility and ‘falls +’;
(iii) ‘tried to walk and falls’;
(c) the said clinical assessment was not placed on the file
at the workplace;
(d) parts of the patient’s file were removed from the
workplace;
64 T5-35.36-46.
65 See T5-35.5-20.
66 T4-101.39-44.
67 T4-101.13-33.
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21
(e) Walloua did not advise or warn the plaintiff of the
results of the clinical assessment, and nor did any
other representative of the defendant;
(f) due to the patient’s cognitive difficulties, at all
material times his wife (the patient’s wife) was his
next of kin and the primary person who advised the
defendant and its employees about the medical
condition of the patient;
(g) the patient’s wife was aware that the patient had
suffered from falls since the plaintiff had last seen
him;
(h) the said patient’s wife did not advise the plaintiff of
the said falls.”
Further and by amendment to paragraph 10 of the statement of claim and in relation
to the allegation of breach of duty, the following was added to the earlier and more
broadly or generally expressed particulars:
“(i) Walloua’s failure to warn the plaintiff of the results of her
clinical assessment; or leave a copy of the said clinical
assessment on the file at the workplace when a reasonable
person would have, for whose actions the defendant is
vicariously liable;
(j) requiring or permitting the plaintiff to work with the patient
when it knew or ought to have known that his care required
heavy manual handling, which was beyond the capacities of
the plaintiff;
(k) failing to implement or enforce a system of work whereby:-
(i) clinical assessments were left on the file at the
residence of the patient;
(ii) patient’s files or parts thereof were to remain at the
patient’s premises at all times;
(iii) the results of clinical assessments were immediately
communicated to the employees dealing with the
patient concerned;
(iv) warnings were placed on the file at the premises of the
resident about foreseeable risks arising from clinical
assessments;
(v) patients and the next of kin for all patients were told
to immediately report deteriorations in the medical
condition of patients to the defendant.”68
68 See amended statement of claim filed 8/2/11; noting that it was common ground that the reference to
“Walloua” should be taken to be a reference to “Walloch”.
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22
[42] However and of particular interest to the defendant, were some entries made by the
plaintiff, as progress notes at Mr Nosalek’s house, on the only prior occasion that she
went there to provide care, on 22 August 2005.69
[43] By way of context, it is first necessary to note some aspects of the plaintiff’s evidence:
(a) On the first occasion that she went there on 22 August 2005, she
described that on that day, Mr Nosalek “was able to stand up and then
he would shuffle his way to the bathroom and I’d just walk beside him
… just in case he fell …”;70
(b) The plaintiff described that when she arrived there on 22 August 2005,
there was no file for Mr Nosalek, and that his wife merely pulled out
a pile of documents from a drawer and that she subsequently recorded
some information which she extracted from those documents, in the
form of progress notes;71
(c) The plaintiff described that her only instructions, before attending on
Mr Nosalek, were that it was respite care and that his wife had an
appointment. Otherwise she explained that she was given instructions
by Mr Nosalek’s wife:
“So she instructed me and showed me what was
needed to – to be done with her husband, and took him
to the bathroom and once he was in the bathroom he
was capable of handling himself, and then just to go
with him back to his seat. And so, yeah, there was no
problem and I just cooked him – made his lunch for
him. There was no – there were no issues involved
there at all.”72
She went on and said it was further explained:
“… that he could stand up on his own – to go with
him as he shuffled, just to be there in case he was
about to fall and you could ease him down to the floor
or into a chair or whatever; and that once he was in
the bathroom, he was able to handle the bathroom
’cause he had rails.”73
And further, that she did actually accompany him to the bathroom on
one occasion by herself;74
69 See Ex.3 and cf. Ex.39.
70 T1A-34.40-42.
71 T1A-35.30-35 and T1A-37.27-40.
72 T1A-36.25-31.
73 T1A-37.8-14.
74 T1A-37.8-21.
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23
(d) As for 29 August 2005, it was the plaintiff’s evidence that she was
some 10 minutes late and that Mr Nosalek’s wife was angry and left
immediately “so any conversation with her was held afterwards”.75
The plaintiff further identified her notation in the progress notes made
on 29 August 2005 and it was her evidence that she “supposed” that
she would have written that after Mr Nosalek’s wife returned.76 This
is because the plaintiff’s evidence was that there had been a change in
Mr Nosalek’s mobility from 22 to 29 August 2005, “in the fact that he
was unable, on the 29th, to stand without aid”77 and that:
“… when his wife returned, that I asked her had he
changed? And that’s when she told me, yes, he had
changed overnight. That he was a lot, he was putting
too much weight on her; he was too heavy.”;78
(e) The notation, identified as recorded by the plaintiff on 29 August
2005, appears in three parts, each signed or initialled by the plaintiff,
as follows79:
“Wendy advised that Ruddy fell last Friday (on her
birthday) and again last night; Ruddy has 2 black eyes
and suffered a large bump on his forehead; lump has
dissipated but around eyes extremely bruised; Wendy
advised his specialist. …
1.40pm. Advised R/N @ Blue Care re falls and
difficulty in transferring and complained of eyesight
problems during transfer to toilet. …
R/N advised a Nurse to call on Tuesday, 30/08/05 re
issues.”
[44] As has been noted, it was a central aspect of the plaintiff’s evidence and case, that
there had been a substantial change in Mr Nosalek’s condition between 22 and 29
August 2005.80 The defendant called Mr Nosalek’s wife, Ms Hynson, and whilst her
evidence was to the effect that there had been no such deterioration or change in her
husband’s condition,81 it may otherwise be observed that her observations as to her
husband’s condition, might not be regarded as entirely consistent with the
75 T1A-39.1-10.
76 T1A-38.50-1A-39.1.
77 T1A-42.45-46.
78 T1A-41.3-6.
79 See Ex.3 and 39.
80 T1A-42.45-46.
81 See Ex.53.
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24
assessments of Ms Walloch and Ms Taylor. However, the following aspects of her
evidence may be noted:
(a) she described her husband as having been diagnosed with “myasthenia
gravis”, in the late 1990s and with “dementia”, in about 2001. She
described “myasthenia gravis” as a:
“neurological condition that had the result that his
body did not always move as he wanted it. By way of
example, if he wanted to get up from a seated position,
the message from the brain did not always seem to go
to the relevant parts of the body”;
(b) she confirmed an incident when her husband fell on the evening of 26
August 2005, when they were on a sidewalk, near a restaurant they
attended at Coolum. She put this down to uneven ground and whilst
her husband had some minor injuries, she said it was not necessary to
seek any medical treatment for him. She said this was the only matter
that was required to be brought to the attention of the Court and that
no particular difficulties or anything requiring any action on her part,
was brought to her attention by the carer who attended on 22 and 29
August 2005; and
(c) earlier during 2005, respite care for Mr Nosalek had been organised
through “Coolum Respite”, on a twice weekly basis. There had been
some intermittent contact with the defendant (Blue Care) and they had
undertaken some continence reviews. However, she did not recall the
provision of any respite care prior to 22 August 2005 and explained
that by that time she was dealing with “Ozcare” as Mr Nosalek was on
a waiting list to be admitted to their facility. It was her recollection
that it was through “Ozcare” that arrangements were made for respite
care to be provided, through the defendant, from 22 August 2005.82
[45] When specifically asked about aspects of the evidence of the plaintiff and as to their
conversation on Ms Hynson’s return on 29 August 2005, Ms Hynson was prepared
to accept that the plaintiff may have asked her if her husband had changed but she
absolutely rejected the suggestion that she had said “he changed overnight”.
Although she doubted saying something to the effect that he was putting too much
weight on and was too heavy, she conceded that “that would depend on the day …
82 See Ex.53.
-- 24 of 66 --
25
yeah. He was very ill.”83 She also said that she did not remember saying that he had
fallen on her birthday and also the previous night and when it was suggested that there
was some discussion about him having black eyes and bump on his forehead, she said
that it was too long ago and she could not remember but made the obvious comment
that the plaintiff would have seen any such injury.84
[46] There was difficulty in obtaining any clear explanation from the plaintiff as to her
making the notations in the progress notes for 29 August 2005. Earlier in her
evidence, the plaintiff had described that whilst she had spoken to Mr Nosalek’s wife
on the phone to explain that she was going to be 10 minutes late and that the only
contact at the house was at the door, with Ms Hynson saying, “You’re late.”85 Later
and after referring to the significant change in Mr Nosalek’s condition, the following
evidence was given:
“How on the - how could you have been notified of this change?-- Via
the file if it had been in the house and there had been a note by the
previous nurse doing an assessment that said that he had changed. But
the file - the notes, the previous notes that I had written, they were in
Wendy's file. So I didn’t have access to that until she came home so
there was no Blue Care file.
So where was the file on the 29th of August?-- My progress notes or
the Blue Care file?
Well, both, please?-- Well, the Blue Care file would have been - been
upgraded for - because of an assessment that had been done. Where -
my-----
And were you aware of that at the time?-- No, not fully, I - I didn’t
know at the time that that's would happen if there was no file in the
house.
Mmm-hmm.
HIS HONOUR: Well, what did you have access to when you went
there on the 29th?-- No - Wendy didn’t leave the file out that I recall,
so I didn’t have anything to go by.
All right. Were your - were these progress notes of yours, were they
still there?-- They were there in Wendy's file. So when Wendy came
home and she told me he'd changed, then I probably asked her. But
83 T6-12.40-6-13.30.
84 T6-13.32-47.
85 T1A-40.1-15.
-- 25 of 66 --
26
she - she - we had no interaction when I arrived at the house. She just
went out the other door.”86
Subsequently, the plaintiff further explained:
“Actually, I had forgotten that I had written the notes on the 29th-----
On the-----?-- -----but when came home the first thing I asked her was,
once she sort of - you know, came into the kitchen and calmed down
and - I asked her had her husband changed 'cause I needed to know
from her what was - what her - what was the situation 'cause I was - I
was concerned about her husband and her being his carer, and she's
only a little lady - she was. And she said, yes, he had changed and he
was too much. And I said, "Well, can I use your phone again, I've
already used it twice. Can I use your phone again and let Blue Care
know because they need to know that this is urgent.”87
[47] Although the plaintiff initially confirmed that she had recorded the information that
she had obtained from Mr Nosalek’s wife and then subsequently at 1.40 p.m., noted
that she had advised Blue Care about the difficulty that had been raised with her, she
later said that whilst the later notation was made after Ms Hynson returned home and
provided her with the information that she had first recorded, it related to her earlier
contact with Ms Hanrahan at 1.40pm.88
[48] As has been noted, in the plaintiff’s case, much emphasis was placed upon her
contention that there had been a marked deterioration in the condition of Mr Nosalek,
between 22 and 29 August 2005 and that this situation and therefore notice of the
particular risks to her in caring for him, had been ascertained by the defendant, due
to Ms Walloch’s assessment on 29 August 2005 and prior to the plaintiff attending
his residence. In that regard, further particular emphasis was placed on the fact that
no copy of Ms Walloch’s assessment and notation of the risks of falls and physical
dependence of Mr Nosalek, were left for the plaintiff to see and therefore provided as
a warning to her.
[49] For the plaintiff, specific reference was made to the principle that in respect of an
alleged breach of duty to warn, there is necessity for proof that it is more probable
86 T1A-43.1-30.
87 T1A-44.3-15.
88 T1A-45.13-41.
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27
than not that had the warning been given, the alleged loss or injury would not have
been suffered.89
[50] As has been noted and as it was pleaded, the particular information or warning that it
was said had been denied to the plaintiff, were the notations that:
“(i) the patient was elderly and suffered cognitive defects;
(ii) impaired mobility and ‘falls +’;
(iii) ‘tried to walk and falls’”90
[51] Broadly related to this issue, the plaintiff gave the following evidence:
“MR MOULD: Thank you. Now, can you describe how - can you
describe the difference between Mr Nosalek's mobility from the 22nd,
to the 29th of August, 2005?-- There was a change in the fact that he
was unable, on the 29th, to stand without aid.
How on the - how could you have been notified of this change?-- Via
the file if it had been in the house and there had been a note by the
previous nurse doing an assessment that said that he had changed. But
the file - the notes, the previous notes that I had written, they were in
Wendy's file. So I didn’t have access to that until she came home so
there was no Blue Care file.”91
And:
“MR MOULD: So, Madam, what would you have done if you'd been
made aware of this deteriorated condition prior to attending on the
29th of August?-- Prior to attending? I would have asked for extra
help if I'd known that he needed support. There should have been two
people - when I did - initially did my training, if a person was
dependant we usually - two of us would work together”.92
Assessment of the plaintiff’s case
Reliance on absence of warning as to increased risk
[52] As is correctly pointed out by the defendant, there is substantial difficulty in the
plaintiff’s case in this regard. The plaintiff was cross-examined about the entries she
had made in the progress notes for 22 August 2005, being in respect of the earlier and
only other occasion on which she provided respite care for Mr Nosalek. In particular
89 The plaintiff specifically referred to Hallmark-Miltex Pty Ltd v Rvarczyk [1998] QCA 254, at [34].
See also Qantas Airways Limited v Cameron (1996) 66 FCR 246, at 293-4 and 298, Chappel v Hart
(1998) 195 CLR 232, at [34] and Rosenberg v Percival (2001) 205 CLR 434.
90 Amended statement of claim, at [8A(b)(i)-(iii)].
91 T1A-42.43-6 –1A-43.7.
92 T1A-47.20-28.
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28
and whilst it may be accepted that the first approximate one and a half pages of entries
relates to information that may have been drawn from an ACAT assessment, which
the plaintiff described she then found at the house, the plaintiff’s evidence as to the
basis upon which she made these notes and their significance otherwise lacks
credence.
[53] First she was questioned about entries that may well have been taken and recorded as
a summary of the ACAT assessment and which assessment she noted as having been
dated 11 February 2005. Those notations included the following:
“4. Toilet – assistance required due to poor mobility”;
“7. Ambulation – single prong stick with hands-on assist/multiple
falls!”;
“8. Transfers – difficulty at all times, hands-on assist”; and
“13. Independence – at present DEPENDENT for all activities”.93
(emphasis as in original)
[54] The plaintiff maintained that these notes were not an accurate representation of
Mr Nosalek’s abilities on 22 August 2005 and in effect, that she had written these
things down so that:
“… they could be aware that this is what has happened in the past, and
then I’ve just added what’s happening today. On the page 3.”94
Whilst it is true that at the top of the third page there are notes that are introduced by
the word “Today” and which include the observation that Mr Nosalek was “able to
negotiate walking from verandah to bed, bed to bathroom/toilet”, as the defendant
contends, there is no indication as to whether or not assistance was involved.
[55] Secondly, the particular problem for the plaintiff’s contentions are to be found in the
entries in the lower half of the second page of these notes. Those entries begin with
the following heading:
“Recommendations: - (from interactions with carer and personal
observations)”.
Under that heading, the notations include the following:
“(2) Physio … re manual handling issues/whole weight on carer while
transferring/walking – need for training”.
[56] It can be accepted, as the defendant contends, that this entry (particularly in the
context of related entries exhibiting a hallmark of being derived, as the heading
93 See Ex.3, first page.
94 T2-115.14-20.
-- 28 of 66 --
29
indicated, from the plaintiff’s interactions with and observations of Mr Nosalek)
appears to be inconsistent with and contradictory of the plaintiff’s earlier evidence.95
Further, it may be observed that when pressed about the entries under the
“recommendations” heading,96 the plaintiff prevaricated and eventually sought to
take somewhat variable positions. First, “that Mr Nosalek, once he stood up, he was
putting his whole weight on mine – on my body”97 and secondly: “… he must have
been – I know that he stood on his own on the 22nd. He did not grab hold of you and
pull himself up on your arm. He stood on his own and then he just to steady himself,
he put his whole on me and then he – he would shuffle through to the bathroom.
Yeah.”98
[57] This was evidence given in respect of a particularly important aspect of the plaintiff’s
case and it must have been observed that this was a particularly unimpressive aspect
of the plaintiff’s presentation as a witness. More significantly for present purposes,
the evidence as to the plaintiff’s observations of Mr Nosalek’s condition and abilities
on 22 August 2005 and the fact that she recorded that his state of injury with black
eyes and another head injury on 29 August 2005, obviously denies her case in so far
as it is based on the contention of denial of warning as to any deterioration in
Mr Nosalek’s condition, as noted by Ms Walloch on the morning of 29 August 2005
or otherwise, or indeed as to any absence of warning or identification as to the risks
that were involved in her attending to care for Mr Nosalek on 29 August 2005.
Reliance on a broader case
[58] It may be recognized that notwithstanding it is, to an extent, inconsistent with and
was overshadowed by the insistence in the plaintiff’s evidence on the case based on
a deterioration in Mr Nosalek’s condition and the defendant’s failure to warn her of
this, before she attended on 29 August 2005, the pleaded case for the plaintiff did
raise a broader contention, based on the defendant’s failure to properly assess the
needs of caring for Mr Nosalek and particularly the risks in sending the plaintiff to
do so, in the light of what was known as to her disabilities.
95 See, paragraph [43].
96 T2-117.9 – 2-120.3.
97 T2-119.10-15.
98 T2-119.57-2-120.3.
-- 29 of 66 --
30
[59] Such a contention is supported not only by the evidence of the defendant’s employees
and relevant managers of the plaintiff, who were aware of the plaintiff’s restrictions,
that as Mr Nosalek’s condition was identified through either the assessments
conducted on 29 or 31 August 2005, it was not a suitable assignment for the plaintiff
but also by the admission that prior to 22 August 2005 and when the plaintiff went
there to provide the first instance of respite care involving this client, there had been
no care plan done and therefore no assessment done of the needs of this client and the
risks presented to the carer.
[60] Consideration of this broader contention might necessitate some more detailed
attention to the workplace health and safety requirements embodied in the legislation,
in order to consider whether a relevant breach of the employer’s duty of care to the
plaintiff, is established. However, even such a broader contention depends on the
proof of the critical incident that the plaintiff alleges occurred in the course of her
duties in the care of this client, on 29 August 2005 and that incident, particularly in
terms of any occasioning of significant injury to the plaintiff, was disputed and if the
plaintiff is not to be accepted as to such an occurrence, then there is no need to further
consider the broader case or any alternative contention that is made by the defendant
as to contributory negligence, in respect of that contention.
Reliance on an incident at the client’s residence on 29 August 2005
[61] Accordingly, assessment of the plaintiff’s evidence is of critical significance and that
begins with her evidence in explanation of her notations in respect of Mr Nosalek and
dealing with him on 22 as well as 29 August 2005.
[62] As has been noted, the plaintiff’s case depends upon proof that she suffered injury as
a consequence of an incident that occurred when she was performing her work duties,
at Mr Nosalek’s residence, on 29 August 2015 and that this was an iteration of
avoidable risk to which she was unreasonably exposed by her employer. Critically,
her case then depends on the acceptance of her evidence of such an incident, as the
only living witness to what occurred in her dealings with Mr Nosalek.
[63] The defendant challenges the plaintiff’s account and contends that the evidence points
to a conclusion that she has fabricated her contention that she suffered injury in the
course of assisting Mr Nosalek on 29 August 2005.
-- 30 of 66 --
31
[64] At the very least, it can be accepted that as contended by the defendant, there were
obvious difficulties in the plaintiff’s evidence and has is noted above, she was
unimpressive as a witness in dealing with the notations she made as to her dealings
with Mr Nosalek. As a general observation she tended to wax and wane between
presenting as a verbose person and prone to respond, at times, in a way that was
unrelated to a direct response to questioning and often in a sense of providing
unnecessary information,99 and a presentation of evasiveness, or, at least,
unpreparedness to attempt to explain apparently difficult or incongruent features of
her case.
[65] More concerning, are some considerations which, at the very least, raise particular
need for caution as to the plaintiff’s evidence and, at the very least, are indicative of
a need to look for some contextual or circumstantial support, before acceptance of the
plaintiff’s essential contention.
[66] In particular, there is some difficulty in reconciling the plaintiff’s evidence as to there
being a traumatic incident in relation to her arm and an immediate sense of painful
trauma, with the evidence of her general practitioner, Dr Weber, and as can be noted
from the following evidence, it is apparent that the plaintiff was conscious of this
difficulty:
“All right. Now, what, if any, medical advice had you sought after
you sustained this injury?-- I don’t recall seeking medical advice
straight away other than maybe I - I knew that I was going - I took - I
remember that I took, you know, some days off because I was in so
much pain and-----
Do you remember how many days that was, sorry?-- No, I don’t recall.
Probably three or four days.
HIS HONOUR: Well, can you just explain - when did
you-----?-- Mmm.
-----first become aware of any difficulty?-- Well, pain initially and
then-----
When you say ‘initially’, what do you mean?-- Well, when - when the
client grabbed my arm and pulled himself up on my arm and then
pushed himself up on my shoulder, there was extreme pain and
discomfort-----
99 Or as the defendant contends “over inclusive responses”: see defendant’s written submissions, at
[83].
-- 31 of 66 --
32
Where?-- In my - in my arm and my shoulder and my neck and my
jaw. So - and I had prior injury and I did have prior jaw problems as
well, but not to that extent. And - but - because I had been working
fairly vigorously for you know an hour and a-half beforehand, I - I sort
of put it down to the fact that I was tired, I was exhausted, and that this
- yeah.”100
…
“MR MOULD: All right. Well, what contact did you make with any
doctor?-- I - I - I did go to see my doctor at the time at clinic and-----
And who was that?-- No, I can't recall her name.
What clinic?-- At the Pomona Medical Centre. Often I would - I didn’t
always see that one doctor, I often would see whoever was available.
Do you remember-----?-- It was a female.
Do you remember when you saw the doctor?-- No.
Okay?-- But I know - I - I did tell her the whole story but, yeah, but
probably she - she may not have-----
All right, well-----?-- -----taken note of the whole story.
Okay?-- Okay.
And so when was that, that you saw her - in contact-----?-- I think
within two weeks of the incident.
Mmm-hmm?-- Injury, yeah.”101
Then and when asked to explain what she meant by “the whole story” and what she
told the doctor was the reason for the consultation, the plaintiff said:
“Okay. I was possibly asking for a medical certificate to have time off
work, 'cause you know I'd - they were relying on me to - to do other
work, I was part of a team. So, I was probably there for a medical
certificate and - so I was asking her for that and I was explaining that
I was having ongoing pain, that the - I thought it was the fibromyalgia
but the pain wasn’t going away and maybe I needed a referral to a
physio, and I think she did refer me to a physio straight away.
MR MOULD: What did you, if at all, say to her in relation to what
had happened that day on the 29th?-- I believe I told her the whole
story of the prior job and that-----
HIS HONOUR: What's ‘the whole story’, what do you mean?-- That
the - the - I - I didn’t just tell her about what - how the injury, the
incident happened, I told her that I was exhausted by the time I got
there because of the prior job and that Wendy hadn't given me any
100 T1A-48.8-33.
101 T1A-48.43-1A-49.9.
-- 32 of 66 --
33
direction and she'd gone out the door without telling me that he'd
changed. But - yeah, and I'm - do babble on at times, apparently. I've
been told. So, she may not have got all the details.”102
[67] Dr Weber, who explained that she had a clear memory of the plaintiff, as a patient,
said she had consulted with her on many occasions at the Pomona Medical Centre, in
2005 and 2006.103 Dr Weber confirmed104 that she saw the plaintiff on 30 August
2005, in respect of two issues. Dr Weber explained that the primary reason for the
consultation was, as she recorded in the notes: “Domestic Violence Issues”. Dr Weber
also referred to the immediately preceding entry in the records, which in accordance
with the usual practice of record keeping, indicated a note recorded, at 2.30pm on 29
August 2005, by the registered nurse at the medical practice and in relation to a
telephone call from the plaintiff, in the following terms:
“Phone requesting APPT with doctor today – said it was urgent. On
questioning she needed to speak to Dr Weber re situation at home. Not
in immediate danger, concerned re husband’s drinking, gambling and
other things. Wanted a referral to a psychologist. Suggested lifeline
may be able to help now. Appointment made for Tuesday with Dr
Weber.”
[68] On the next day, Tuesday 30 August 2005, Dr Weber saw the plaintiff from about
1.11pm and she referred to her contemporaneous notes, which recorded the following:
“Two issues today
1. injured right shoulder
This is an old injury, occurred many years ago, occasional flair up
when overdoes things, was doing heavy cleaning job yesterday, now
right shoulder throbbing, usually results with heat packs, acupuncture,
hydrotherapy, exercise – will start doing these things ASAP, also
suggested hot packs
Needs certificate for light duties at work
2. marital problems, stress levels high
Husband, Noel, is gambling away a lot of money (approx. 14 thousand
dollars), drinking daily, aggressive, has been physically abusive on
three occasions, puts her down, emotionally abusive
Had enough, feels can’t cope anymore”.105
[69] In relation to that consultation, Dr Weber gave the following evidence:
“Was there any discussion at that time about an incident dealing with
a respite patient?-- No, not at that time. And I feel confident of that
because if she had discussed that with me, I really - I would have done
the consultation differently. So, if she had given me that history of -
102 T1A-49.16-37.
103 T2-36.25-48.
104 With particular reference to notes in the Pomona Medical Centre records for the plaintiff: Ex.9,
folder 2, at p 290.
105 Ex.9, folder 2, at p.290.
-- 33 of 66 --
34
of a client pulling down on her shoulder, I would have been looking
immediately for an acute shoulder injury, a rotator cuff tear for
example. And I would have ordered an ultrasound probably on that
day of the shoulder, looking for an acute shoulder injury with that kind
of history, thinking of - because it would raise different diagnostic
possibilities than just an overuse sort of injury in terms of you know,
heavy cleaning. The second reason I'm pretty confident that she didn't
tell me that, because if she'd given me that history, where there was
some really acute you know, incident at work, I wouldn't have been
saying to her, ‘Well, have a think about whether you want to claim
Workcover’. I would have said to her, ‘This is a Workcover injury;
you need to claim Workcover’ and I would have started the Workcover
claim on the day. The fact that I - I didn't and I sort of talked to her
about whether it should be or not, you know, I would never have done
that, if she'd had - if she'd presented with a clear-cut history of you
know, a client sort of pulling down on her shoulder, because if she'd
said that and she'd said she'd had immediate pain, I would have said,
‘Okay. Well, that's Workcover, let's get that going.’
All right?-- And I sort of prevaricated there because she gave the
history of it - of having no previous shoulder injuries and having a
flare of that injury. So, because I was sort of, like, okay, you know,
there wasn't an acute history of a trauma, or injury at work, that's why
I sort of said to her, ‘Well, you might be able to claim at Workcover
but you know, you may not’ because I didn't necessarily think she's
been successful in a claim an that's why I said to her, ‘Go away and
have a think about it. If you do want to go down that - that path then
we can activate a Workcover claim’ which is - which is what we did.
And as I said, you know, if she'd given that acute history, I would have
almost certainly ordered a shoulder ultrasound on that day-----
Now?-- -----but I didn't.”106
[70] Dr Weber also said that although she saw the plaintiff again on 15 and 30 September
2005, it was not until 18 October 2005 that the plaintiff raised any complaint about
neck pain.107 Dr Weber then referred her for an x-ray and the plaintiff returned on 7
November 2005 and, as Dr Weber explained:
“Can you just explain again what they were?-- Yes. So, she - she came
back to discussing ongoing neck and shoulder pain and she'd, I think,
read the X-ray report and she was quite concerned about - about the -
the report which basically said that she had some degeneration through
multiple joints through - through the neck. So, we discussed the - the
X-ray report. And she also was reporting that she had a sore right
knee, at that point. I - I confess that Mrs Bird used to come with lots
of sore aches and pains in multiple, sort of, areas that at times - she's a
lady who has quite wide-spread degenerative joint problems but also
fibromyalgia, so, she - as you can see through my notes and my lists I
106 T2-38.1-42.
107 T2-41.15-2-42.50.
-- 34 of 66 --
35
often saw her about various sore bits for joints or for muscles, et
cetera.”108
[71] Dr Weber also gave the following concerning evidence:
“Doctor, I could take you then to the one entry where you've said you
depended - that’s 11 September '06-----?-- Mmm-hmm.
-----and - now do you have an independent recollection of this
issue?-- I certainly do.
And why's that?-- Because I was a bit gobsmacked to be asked to write
this letter in the context of-----
Well, just slow down. Now, who asked you to write a letter?-- Mrs
Bird asked me to write a letter to her - she'd applied for life insurance
and she'd been knocked back because she hadn't declared neck or
shoulder injuries previously and she wanted me to write a letter to the
insurance company stating that those were not pre-existing conditions
prior to her application for the insurance in November '05.
Mmm?-- And, you know, I - I said - I said to her, as - as I've
documented, that there was no way I - I could do that, because I had
so - so much - so many consultations with her talking about her neck
and her shoulder, and also this previous - you know, prior to the 30th
of - of August, you know, in old records I had history of - of old
problems there. So, I said to her I was absolutely not prepared to do
that, because it - I thought it was dishonest.
All right. Well, you weren't prepared to certify she was a cleanskin at
that time?-- No, that's exactly right, 'cause she wasn’t. And so that's
why it sticks in my mind, because I was really surprised because we'd
been through all these multiple, you know, consultations of, you know,
well, prior to November '05 with - with complaints. And then she
wanted me to write a letter to say that they weren't pre-existing.
So-----
Yes?-- -----it stuck in my mind at the time, 'cause I - I really was very
surprised to be asked.”109
[72] Although and perhaps surprisingly, given the apparent implication in the plaintiff’s
evidence in chief that she may not have initially complained about the incident with
Mr Nosalek, to Dr Weber, some attempt was made to establish discrepancy in Dr
Weber’s evidence on that point. However, there was no challenge to Dr Weber’s
evidence as to the request for a false letter. Such evidence may give rise to
considerable concern as to the veracity of the plaintiff’s evidence and may tend to
108 T2-43.3-15.
109 T2-44.27-2-45.10.This incident had also been contemporaneously noted by Dr Weber: see Ex.9,
folder 2, at p 299.
-- 35 of 66 --
36
permeate the whole case, given the ordinary reliance in cases of this type, upon
acceptance of the honesty of a plaintiff’s reporting as to the incidents and effect of
injury to their body.110
Is there support in the expert medical evidence?
[73] In addition to the omission (prior to 18 October 2005) of specific complaint to Dr
Weber as to any pain specifically associated with the plaintiff’s neck, when the
orthopaedic surgeon, Dr Winstanley, saw her on 23 November 2005, for treatment
purposes, he identified her main discomfort in the right trapezius muscle. In his report,
dated 3 January 2006, Dr Winstanley recorded the following history in respect of that
consultation:
“Mrs Bird presents with discomfort within her cervical spine and right
shoulder areas. She relates she developed symptomatology present
within her cervical and shoulder areas in an incident on the 29th August
2005. She works as a Carer/Diversional therapist for Blue Care. She
was walking a client to the bathroom when the client pulled on her arm
and she had immediate onset discomfort present within the right side
of her cervical spine and shoulder area.
She has had persistent symptomatology present within her shoulder
and cervical area since the time of the incident.”111
Further, Dr Winstanley then relevantly stated the following opinion:
“I am of the opinion the patient has aggravated pre-existing
degenerative pathology present within her cervical spine and right
shoulder associated with a work related incident on the 29th August
2005.
She has had ongoing discomfort present within her cervical spine and
right shoulder since the incident.”112
[74] On 10 January 2011, Dr Winstanley made a medico-legal assessment of the
plaintiff.113 He expressed the opinions that:
“… from the history given to me by Mrs Bird and examination of the
patient both initially and after the incident in 2005 and subsequently,
that the diagnosis is aggravation of underlying degenerative process
present within her cervical spine.”;
“… the effects of this injury have ceased. She has ongoing pain present
within her cervical spine and right shoulder area which relates to
underlying degenerative process and Fibromyalgia.”114
110 See: Cooper v Hodds [2013] NSWCA 70, at [78] and Bell v Mastermyne [2008] QCA 331, at [19].
111 Ex.9, volume 4, p 1084.
112 Ibid, at p 1085.
113 Ex.9, folder 4, pp 1086-90.
114 Ibid, at p 1089.
-- 36 of 66 --
37
He then proceeded to make an assessment of permanent impairment under the
American Medical Association Guide to Permanent Impairment (“AMA Guide”), at
5% for the neck injury, with 2% associated to the 29 August 2005 incident and 3% to
the underlying degenerative process. For the shoulder symptomatology, he assessed
only a soft tissue injury and noted a free range of motion in her shoulder and therefore
no permanent impairment. In coming to those conclusions Dr Winstanley specifically
noted the following history:
“Mrs Bird presents with symptomatology associated with her cervical
spine right shoulder area relating to an incident which occurred on 29
August 2005.
On 29 August 2005 Mrs Bird was working as a personal carer for Blue
Care at Noosa. She was with a client to was known to have
Alzheimer’s disease. She had been informed that this patient required
only some guidance to use the toilet.
On this occasion the person required to use the bathroom. He was
sitting down and he pulled himself up on Mrs Bird’s right arm with
direct pressure placed on her right shoulder when arising from the
sitting position to stand to attend the bathroom.
Mrs Bird had an acute onset of pain present within the right side of her
cervical spine and right shoulder area following the incident. She had
some intermittent paraesthesia associated with her right upper limb.
Her symptomatology was persistent after the event but she was able to
continue with her day’s activity.”115; and
“She has a past history of having had rotator cuff injury to the right
hand side in the mid-1990’s. She had a motor vehicle accident in 1995
injuring her right shoulder and cervical area which settled with
conservative measures. She was diagnosed as having Fibromyalgia in
1997.”116
[75] However and in his evidence, Dr Winstanley noted that he was also given a different
or new history, as he recorded in his report dated 19 March 2007 and addressed to a
different general practitioner at the Pomona Medical Centre. That history was of the
plaintiff having “had chronic pain present within her cervical area since 1995”.117 He
also appropriately conceded that any absence of contemporaneous complaint as to
neck symptomatology, as a consequence of any incident on 29 August 2005, would
make it difficult to maintain the conclusion of any harm done to the neck then.118
[76] However, Dr Winstanley did give evidence that the plaintiff’s injury was consistent
with the mechanism described to him, whereby, weight was suddenly placed on her
115 As above n 113, at p 1087.
116 Ibid, at p 1088.
117 See Ex.9, folder 4, at p 822 and T2-14.50-2-15.35.
118 T2-15.35-2-16.35.
-- 37 of 66 --
38
right arm and was unlikely to be the result of doing normal cleaning, although “it
[would depend] on the history of exactly what happened at cleaning”. 119
[77] The other orthopaedic specialist called by the plaintiff, Dr Gillett, also assessed a 5%
permanent impairment (with 2% of that attributable to the 29 August 2005 incident
and 3% to the pre-existing pathological process) in accordance with the AMA Guide,
in his report dated 26 October 2006.120 He also then assessed a minor permanent
impairment, in respect of the right shoulder (1% whole body function/2% impairment
of upper limb function).121
[78] However, and similarly to Dr Winstanley’s evidence, those conclusions were
acknowledged to be based on a history that as a consequence of the described
interaction with Mr Nosalek, she had “developed pain in the region of her neck and
right shoulder and right arm and then saw a doctor about ten days after the injury”122
and that whilst she had similar symptoms following a motor vehicle accident in 1995,
“those symptoms did reduce from 1995, over time” and that:
“Before 9 August 2005 in general terms she noted that she had
restrictions associated with her neck and right arm. She believed she
had a rotator cuff problem and she was careful how she did things.
However she was functional in daily life.”123
[79] Prior to giving evidence at the trial, Dr Gillett was provided with additional
information and consequently provided a supplementary report, dated 30 July
2012.124 In the light of the additional information, Dr Gillett revised his opinion as to
impairment of the plaintiff’s shoulder. He then concluded that there was no such
impairment.125 As to any neck injury, Dr Gillett expressly noted the necessary
reliance upon “the accuracy of the history, the honesty of the claimant and of course
the mechanism of the injury”. In evidence to the Court, Dr Gillett agreed that in
expressing a view in his report dated 26 October 2006, that the effect of the claimed
incident on the plaintiff was an acceleration of a condition that was going to occur in
three to five years, he had relied upon her account of an immediate impact of neck
and shoulder pain.126
119 T 2-11.54 -2-12.6.
120 Ex.9, folder 4, pp 1073-8.
121 Ibid, at p 1077.
122 Ibid, at p 1074.
123 Ibid, at p 1075.
124 Ex.29.
125 Ibid, at p 4.
126 T3-51.10-35.
-- 38 of 66 --
39
[80] Dr Gillett explained that an issue that also arose from his review of the additional
material, was as to how symptomatic the plaintiff’s degenerative neck was prior to
the event in question.127 Then and after being specifically referred to the material
relating to the plaintiff’s application for a disability support pension, in early 2005
and also being asked to assume the sequence of presentation as noted by Dr Weber,
with the first reference to neck pain being on 18 October 2005 and also the difference
in history given to Dr Winstanley as between 24 November 2005 and 11 March 2007,
he gave the following evidence:
“Doctor, if you assume those matters that I have listed in respect of
her presentations and complaints in February '05 and the matters
following it, assuming all that, it's difficult, isn't it, to sustain a view
that if there was any neck injury on the 29th of August '05, it was an
acceleration by three to five years of an inevitable condition?-- I think
you would assume that the acceleration to be less than that. The issue
post the event in relation to the right shoulder complaint, doesn't
exclude neck pathology but it's obviously a better diagnosis made if
neck and shoulder are linked together. So, just on the history of pain
in the region of the right shoulder, people refer to symptoms in the
right shoulder in a wide area. So, often people complain that they're
shoulder is sore and when you specifically get them to localise the
pain, you as a clinician will think it's referred from the neck or it's part
of the neck. But the history you have outlined in relation to all those
issues would be that the acceleration period, particularly the symptom
complex prior to the event, if - if injury has occurred, then the
acceleration period would have to be less than I have opined in that
report.”128
[81] Dr Gillett later clarified that the concerns he had, as arising from the additional
materials, was as to the level of symptoms experienced by the plaintiff, prior to any
accident and that his opinions were otherwise expressed upon acceptance that there
was such an accident, appropriately recognising that any question in that regard was
a matter for the Court.129
[82] As the defendant correctly points out the orthopaedic surgeon called by them, Dr
Boys, had the unique advantage of examining the plaintiff before and after 29 August
2005. In a report to the workers compensation board, dated 12 February 1996, which
included specific reference to a history that included involvement in a motor vehicle
accident on 13 March 1995 and also cervical spine radiographs, he diagnosed:
“1. Age related osteoarthritic degenerative change cervical spine.
127 T3-51.39-44.
128 T3-54.18-38.
129 T3-57.25-47.
-- 39 of 66 --
40
2. Nonspecific defused myalgic and arthralgic symptoms.”
He further noted that:
“1. The history as related to me is of a woman with various nonspecific
complaint previously attributed to Ross River fever and glandular
fever which pre-existed the motor vehicle accident of the 13/3/1995.
No specific injuries can be recounted at that time and a tenuous link
would appear to have been made by a therapist to this incident some 6
months after the event in question.
2. Clinical findings are completely unremarkable with nonspecific
tenderness of arm and scapula musculature noted.
3. I can determine non ongoing work relationship to the current
presentation.
4. No objective impairment of bodily function is evident.
5. This lady’s various nonspecific muscular strain symptoms do not
require ongoing orthopaedic care.”130
[83] Dr Boys examined the plaintiff on 10 February 2009.131 As he noted, that presentation
was complicated by the further history of the plaintiff’s involvement in another motor
vehicle accident in 2007 and in which, she claimed to have suffered “extreme
whiplash”.132
[84] Again, as is clear, this doctor’s opinions are also premised on there having been an
incident with Mr Nosalek, of the type described by the plaintiff and which occasioned
her pain in her right shoulder region and the expressed conclusions were:
“Utilising AMA 5 assessment criteria I believe it would be reasonable
to assess this lady as suffering a 5% impairment of bodily function
referable to the cervical spine (Diagnosis Related Estimate Cervical
Category II, range 5% to 8%, Table 15.5, page 392). I believe that this
assessable impairment reflects, predominately, the effects of a
degenerative condition of the neck pre-dating the 29th August 2005. I
believe it would be reasonable to apportion a 3% to 5% impairment to
the consequences of the degenerative disk disease within the neck pre-
dating the current claim. In the context of an enhanced reported
subjective complaint referable to the neck subsequent to the 29th
August 2005 it might be reasonable to apportion a 0% to 2%
impairment of bodily function to this event. I note however the prior
assessments relating to chronic pain and in the light of the described
mechanism of injury I believe that this lady would be best assessed at
the lower end of the range with the incident on 29th August 2005 giving
rise to no or minimal specific permanent impairment referrable to the
neck.
Over the years this lady would appear to have had various appellations
attached to complaints in the right shoulder region including
130 Ex.9, folder 3, pp 659-661.
131 See report dated 10/2/09: Ex.9, folder 4, pp 1056-63.
132 Ibid, at p 1058.
-- 40 of 66 --
41
fibromyalgia. It is probable that Ms Bird did experience ongoing
symptoms referrable to degenerative tendonopathy right rotator cuff
and developing osteoarthrosis of the right glenohumeral joint in the
period prior to 29 August 2005. It would be my opinion that any soft
tissue injury sustained specifically to the right shoulder region on that
date has not given rise to ongoing disability or assessable impairment
which would not have been present in any event.
I do not believe that the work related incident of 29 August 2005 has
given rise to an ongoing requirement for medical treatment or any
potential for any future deterioration of this lady’s domestic or work
capacity…”133
[85] As the defendant correctly points out,134 Dr Boys concluded, when he examined the
plaintiff on 10 February 2009, that “her impairment and ongoing problems were
wholly or nearly wholly referable to her longstanding pre-existing conditions” and
that whilst “[s]he certainly could have suffered neck and/or right shoulder injuries in
the circumstances she describes with respect to the incident on 29/8/05”, his opinion
was that “the incident that occurred in August 2005 was a minor incident therefore
the ongoing nature of the complaints that she was complaining of were related to the
longstanding pre-existing conditions”. There could possibly have been a strain and if
she did suffer a neck injury then it was a temporary aggravation of preceding
conditions, for perhaps three to four months.135
[86] In closing submissions, the plaintiff sought to place particular reliance on the
evidence of a neurologist, Dr Todman, and, in particular, his diagnosis, upon an
examination of the plaintiff on 18 March 2008, of “a specific injury, namely chronic
musculo-ligamentis strain to the cervical spine” and his assessment having regard to
the AMA Guide that:
“this represents an eight percent whole person impairment which is
the upper part of the range of five to eight percent based on the level
of symptoms and effects on ADL’s as well as noting muscle spasm,
restricted movement and radicular complaints. Of this impairment
seven percent is due to the incident of August 2005 and 1% is pre-
existing.”136
Prior to that, Dr Todman had summarised the considerations upon which his
conclusion was based:
133 As above n 131, at p 1062.
134 Written submissions, at [149]-[150].
135 See Ex.11 and 12 and T1B-49.55-1B-50.30.
136 Ex.9, folder 4, at p 1068.
-- 41 of 66 --
42
“Mrs Lorraine May Bird has sustained injuries in the work-related
incident on 29.08.2005. At the time an incident occurred when a
patient suffering from Alzheimer’s disease forcibly pulled on her right
arm. She developed right sided neck and shoulder girdle pain which
has been a continuing symptom directly related to this incident.
The accident as described is consistent with causing trauma to the right
cervical spine and potentially to the right shoulder joint. Structures that
may be affected in the cervical spine would include muscles, ligaments
and cervical facet joints.
There had been a prior injury in 1995 to her cervical spine. This had
responded well to treatment and her ongoing symptoms are due
principally to the accident of August 2005. In view of the magnitude
of ongoing symptoms, I have recommended an MRI scan of the
cervical spine. This will be performed by Queensland X-ray and I will
provide a supplementary report with the test results and treatment
recommendations.”
[87] A supplementary report, dated 7 April 2008, was provided and relevantly, Dr Todman
stated:
“The MRI scan indicates only age related degenerative changes. There
is no major structural abnormality and there is no role for surgical
intervention. For ongoing treatment I would recommend a program of
maintenance physiotherapy. This could include a fortnightly treatment
for a further six months. The impairment ratings are as noted in my
earlier report.”137
[88] In cross-examination, Dr Todman confirmed that he had relied upon the plaintiff’s
history that she was, as at August 2005, relatively free of neck or shoulder girdle
symptoms, to conclude that her presentation was referable to the incident that she
complained about.138 It was also clarified that he acted upon an understanding that
the plaintiff had experienced pain in the affected area contemporaneously with that
incident. He agreed that he had recorded, in his first report:
“in this incident she felt severe pain in the right upper arm, neck and
shoulder girdle.”139
[89] For the plaintiff particular reference was made to the second of two possible
explanations referred to by Dr Todman in response to the invitation by counsel for
the defendant to respond to a suggestion made by reference to the contradictory
material including that relating to the application for the disability support pension
and the presentation history to Dr Weber, to the effect that it was difficult to sustain
a view that there was any neck injury suffered on 29 August 2005, or alternatively,
137 Ex.9, folder 4, at p 1070.
138 T3-38.5-15.
139 T3-39.8-30 and see Ex.9, folder 4, at p 1065.
-- 42 of 66 --
43
nothing more than a transient exacerbation of a longstanding condition. Dr Todman
responded as follows:
“Well, I think in response to a long summary of events that you've just
related, I think that my comment would be that there's two possible
explanations, and one of them may be that there was no significant
neck injury in the accident of August 2005. The other possibility is
that she has an injury to her neck when there's been an injury to the
shoulder at the same time. Sometimes shoulder symptoms
overshadow a neck complaint, and I do see this regularly in patients
who suffered from both neck and shoulder injuries at the one time.
Sometimes one injury is focused on and assessed by the nature of the
symptoms. But as time evolves it's clear that there's been an injury,
not only the shoulder, but also the cervical spine. I think from what
I've discerned in the history Ms Bird gave to me that there has been an
injury to both her neck and shoulder. And one thing I'd pick on, the
comments from Dr Winstanley which I think were October 2005, was
that there was pain across the trapezium which, of course, is the
muscle at the top of the shoulder girdle which inserts into the side of
the neck, and pain in that region can occur with shoulder complaints,
but it's much more common with neck pain. And I think that what she
was experiencing is an overlap of symptoms referable to the shoulder
injury as well as to the neck. And furthermore, although she did have
some neck injury in the past, she said it was at a lower level before this
accident in August 2005, and furthermore-----
HIS HONOUR: That's to you, Doctor, that she said that?-- Of course,
and also that there have been radicular complaints in the dermatomal
distribution including those sensory symptoms and radiation of pain
into the arm which, although there may have been some neck injury
before 19 - before 2005, these symptoms were not there then. So, I
think although it's not a clear black and white situation, I think on a
probability basis, I think it is more likely than not that she's had not
only a shoulder injury, but also a neck injury in this accident.”140
[90] Otherwise the submission for the plaintiff seeks to place particular reliance on Dr
Todman’s reference to an indication of radiculopathy. It is pointed out that, although
not noted by the orthopods, this is particularly within the domain a neurosurgeon.
However, the observations are based entirely upon the plaintiff’s report of
intermittent numbness in her right hand, mainly in the fourth and fifth fingers and
when pressed about this, Dr Todman noted that in his report and in respect of his
impairment rating, he had noted that the plaintiff had muscle spasm and restricted
movements and radicular complaints and said:
“The symptoms in her fingers are transient and they’re not consistent
with what we call are radiculopathy or a pinched nerve that symptoms
140 T3-41.11-47.
-- 43 of 66 --
44
in the arm or radiation of pain into the arm is common after a neck
complaint.”
And he agreed that such might be related to the degenerative process and unrelated to
the subject injury.141
[91] It can be seen that like the other medical opinions, Dr Todman’s opinions do not
independently prove the fact of injury or the extent of any injury occasioned in the
course of dealing with Mr Nosalek. Rather, there is critical dependence on acceptance
of the plaintiff’s account and particularly upon their having been an incident whereby
she was injured in dealing with Mr Nosalek. Therefore, there is need to further
examine the contention that was raised in the defendant’s written submission in
reference to prior decisions where it is suggested that Dr Todman’s evidence was not
accepted.142 It may also be noted that nothing in this regard was raised with Dr
Todman and that, in any event, there would necessarily be an issue as whether those
decisions represent cases where problems were found with the history upon which Dr
Todman proceeded, rather than demonstrating anything relating to his credibility as
a witness.
[92] Accordingly and as this review of the significant medical evidence demonstrates, this
evidence adds nothing independently as to the determination of the question as to
whether such an incident occurred.
Is there any independent confirmation or support for the plaintiff?
[93] Therefore, it is critically necessary to examine the contentions made for the plaintiff,
that despite the apparent incongruity of her dealings with Dr Weber, the plaintiff’s
evidence is otherwise corroborated or independently supported by other evidence.
[94] For the plaintiff, reliance is placed on that part of her entry in the progress notes made
at Mr Nosalek’s residence on 29 August 2005, as follows:
“…1.40pm. Advised R/N @ Blue Care re falls and difficulty in
transferring and complained of eyesight problems during transfer to
toilet…”
There are two difficulties in that regard. First, there is no express reference to any
incident involving any injury to the plaintiff, or any concern in that regard. Secondly,
141 T3-42.18-3-43.25.
142 Defendant’s written submissions, at [153].
-- 44 of 66 --
45
there is an apparent problem with sequences, given the plaintiff’s evidence that the
information first recorded was not imparted to her until Ms Hynson, returned. Both
issues were addressed in the plaintiff’s evidence143 and it may be observed that no
particular explanation (as opposed to supposition) emerged as to the sequencing
problem. However, the plaintiff did accept the absence of specific reference to the
incident and sought to explain that she had already reported that, by telephone to the
supervising registered nurse, at Blue Care, and that this note was in relation to that
earlier contact, rather than a contemporaneous note of the contact itself.144
[95] Although the plaintiff was unspecific as to who she had contacted,145 in the
submissions for the plaintiff, it is suggested that Ms Hanrahan confirmed the
plaintiff’s contact with her. However, Ms Hanrahan did not specifically recall any
contact on 29 August 2005. But she did recall a contact which included a complaint
about the plaintiff hurting her shoulder in dealing with Mr Nosolek, as follows:
(a) In an affidavit sworn on 23 August 2010146 she had recorded:
“2. I recall a day (I cannot remember the exact date),
when the plaintiff telephoned me in my office of
employment for the defendant and she told me that she
thought she had injured her shoulder whilst caring for a
patient named Rudolph Nosalek (who has since died).
3. She said that he had wanted to go to the toilet and she
had gone over to him to help steady him, when he went
to get up he had grabbed her right arm and pulled on it
which caused immediate pain.
4. she said that she had continued with her carer’s duties,
and that subsequently Mr Nosalek’s fulltime carer had
returned and told the plaintiff that she thought Mr
Nosalek had suffered a stroke or something as his
condition had deteriorated.”
Ms Hanrahan also indicated that although she recalled making a
notation as to this contact, in an exercise book that she kept at the
office at Blue Care, she had been informed that the exercise book had
been “misplaced”;
(b) In her evidence, she attested to a recollection of the plaintiff ringing to
tell her “that she’d hurt her shoulder” but that she couldn’t remember
“if she rang me that day or the next”.147 She recalled that the plaintiff
143 T3-67.3-3.-68.55.
144 See also: T4-43.32-45.
145 T3-19.12-14.
146 Ex.37.
147 T4-79.17-18.
-- 45 of 66 --
46
had said something about hurting herself in assisting Mr Nosalek and
she thought it was “about going to the toilet, coming back from the
toilet” and her recollection was that she had hurt her shoulder;148 and
(c) Reliance was also sought to be placed on some observations of Ms
Crichton, which asserted or perhaps accepted that Ms Hanrahan had
been advised as to the incident, on 29 August 2005 or within 12 hours
of it.149 However, Ms Crichton was clear that her only contact with the
plaintiff in respect of the incident, was on 2 September 2005 and when
the incident form (Exhibit 4) was completed.150 The basis for her
assertions as to when the plaintiff had first contacted Ms Hanrahan,
was never clarified and it can be noted, was first introduced by her,
with the qualification: “apparently, I’ve heard since…”.151 Such
evidence is no substitute for, or any advancement on, the evidence of
Ms Hanrahan.
[96] Otherwise, the plaintiff relied on the evidence of her husband, Mr Noel Bird, who
related an account of his wife returning home on the day in question in an “extremely
tired and distressed” state and that after recounting her experience in having to do a
lot of cleaning work at her first job for the day,152 she told him that at the second
location and when the man she was caring for wished to go to the toilet, “he seemed
unable to get up” and “grabbed her by the right arm and attempted to lever himself
up by pulling on that arm” and “that caused her severe pain and distress at the
time”.153
[97] Curiously, the plaintiff’s evidence, in re-examination and as to speaking to her
husband on her return home, was:
“… I don’t recall exactly what I did, but I would have been helping
prepare tea and would have told Noel what happened that day, I
suppose”.154
148 T4-80.13-35.
149 See T5-20.40-46 and T5-23.21-22.
150 T5-20.35-46.
151 T5-20.42.
152 Circumstances with which he was familiar, as he had coincidentally attended there as well, in order
to provide some computer instruction to the 90 year old client.
153 T4-57.4-46.
154 T4-42.39-40.
-- 46 of 66 --
47
Further and when asked as to what she had told her husband “about the accident”, she
eventually said:
“Well, I - I would have talked to him about what we did at the - the
other residence and then I would have gone on and told him about
what happened at the - that afternoon and that I had rung - I had
to - would have had to have rung BlueCare about three times about the
situation. So that's the sort of thing that I would have told him
and - yeah.”155
[98] Mr Bird agreed, in cross-examination, that it was some years later (possibly in March
2012) that he was requested to turn his mind back to this conversation with his wife156
and that, in the intervening years he had suffered a stroke and, in the latter part of
2007 the plaintiff had become his carer, as a result.157 He did concede some memory
loss, due to age (75 years) and some stroke associated affects,158 but otherwise
maintained that he had a clear recollection of the effect but not the exact words, of
the conversation with his wife.159
[99] As the defendant contends, a difficulty that arises in respect of the credibility of Mr
Bird’s evidence, is that it is in direct conflict with the evidence as to what the plaintiff
told Dr Weber, on 30 August 2005, were features of the marital relationship. Dr
Weber’s evidence was clear as to what she was told by the plaintiff and supported by
her contemporaneous notes. The plaintiff confirmed that she had told Dr Weber of
most of the noted things, including that her husband had gambled away $14,000.160
The plaintiff also gave the following evidence:
“Now, I asked you some questions when you last here about your
husband's conduct around the time of the 29th of August '05?---Yes.
You may recall that?---Yes.
And I put to you that you discussed those things with Dr Weber on the
30th of August '05?---Yes, but I didn't recall doing so but apparently I
did, yes.
Did those problems continue after August '05, with your husband's
conduct that is?---No. No, he attended the - what the doctor
recommended was for me to go and have some counselling and the
counsellor recommended that he have counselling for gambling. And
155 T4-43.21-25.
156 T4-66.22-23.
157 T4-59-5-10.
158 T4-63.44-4-64.2.
159 T4-66.5-45.
160 T3-25.23-58.
-- 47 of 66 --
48
he attended and went to the sessions that they set up for him, yes. No,
there was no more problems, yes.”
Have there any problems at all since?---Not really, no. No, not to that
extent, no. That was horrific at the time, but he was bored.161
[100] By way of contrast, when Mr Bird was cross-examined about the contents of Dr
Weber’s notes for 30 August 2005 and whilst he had earlier conceded one distant past
incident where he had pushed his wife162 and a fondness for poker machines (but only
what he could afford),163 he described the suggestion that he had, at the end of August
2005, gambled away $14,000 as untrue and denied being aggressive or emotionally
abusive to his wife.164
[101] Further, and as the defendant then correctly contends, there arises an ironic
conundrum. Mr Bird’s evidence is only inherently plausible, if he is also accepted as
to the effective state of the marital relationship, as at 30 August 2005. However, such
a conclusion would also necessarily point to significant falsity in what the plaintiff
reported to Dr Weber on that date and, in that way, would detract from her credibility.
[102] Given the clear evidence as to the disclosed purpose for the appointment made, at
about 2.30pm on 29 August 2005 and what was then raised with Dr Weber on 30
August 2005, there is an obvious difficulty in reconciling Mr Bird’s evidence with
this sequence of events.
[103] Moreover, the critical issue is as to whether it is appropriate to accept the plaintiff’s
evidence as to what actually occurred involving Mr Nosalek. Examination of the
evidence as to what she reported to others in the aftermath, is of relevant significance.
For instance, it is objectively established that on 2 September 2005 and in the
completion of the incident report, the plaintiff asserted as the incident description:
“Client asked to be helped to the toilet; in helping him, he put all his weight
on my arms whilst transferring from bed to wall of bathroom (downstairs).
Carer had not advised, until after event, that he was more dependant, and
becoming too much for her to handle.”165
161 T4-19.17-32.
162 T4-61.33-4-62.12.
163 T4-65.12-13.
164 T4-65.30-4-66.5.
165 See, Ex.4.
-- 48 of 66 --
49
[104] However and prior to that, there is significant contradiction in that, on 30 August
2005, Dr Weber has recorded the specific attribution of her complaint as to a sore
shoulder, to her “doing a heavy cleaning job yesterday”. That is clearly capable of
being taken as a reference to the earlier of the two jobs the plaintiff had performed in
her employment with the defendant, on 29 August 2005. In her evidence, she had
described that she had arrived at Mr Nosalek’s residence late and “exhausted” from
the earlier job of “attempting to do a top-up on a spring clean”.166
[105] Also and when cross-examined about the contents of Dr Weber’s notes, the plaintiff
did not disagree that most of the matters recorded had been discussed.167 The
following may be particularly noted:
“Did you tell her , "This is an old injury, occurred many years ago. It
occasionally flares up when overdoing things. Was doing heavy
cleaning job yesterday and now the right shoulder is throbbing". Did
you give her that history?-- I remember telling her not only just about
that, but I told her about the two other jobs that Blue Care had sent me
to where they needed spring-cleaning and it was ridiculous to ask me
to do a 90 minute job. I was - I was furious about it. I can remember
complaining.
Mrs Bird-----?-- Yes.
-----let's deal with this a bit at a time. I'll break it down into small parts
and you can tell me whether or not you told her these things?-- I can't
recall whether I told her those things.
Well-----?-- I babbled on probably. Yeah.
I find that hard to believe, Mrs Bird, but look, can we just deal with
this a bit at a time. You tell her you've injured your right
shoulder?-- Mmm-hmm.
You tell her it's an old injury; do you agree?-- Yes, because it was a
rotator cuff, yes-----
Yes?-- -----and torn tendons.
Did you tell her it occurred many years ago?-- '95. Yeah.
id you tell her that-----?-- '97.
-----it occasionally flares up when you over do things?-- Yes.
166 T1-39.17-46.
167 T3-21.10-3-27.35.
-- 49 of 66 --
50
Did you tell her that you were doing a heavy cleaning job yesterday
so, that's the 29th of August '05?-- Yes, before I went to see Mr
Nosalek, yeah.
Yes?-- It was one of those spring-cleans.
Yes. Did you tell her that the right shoulder is now throbbing?-- Yes.
Did you tell her that it usually resolves with heat packs, acupuncture,
hydrotherapy, exercises?-- Yes.
Did you tell her that you'll start doing these things as soon as
possible?-- I think I probably already had started but go on, yes.
Did she also suggest to you hot packs?-- I don't recall. I already knew
about hot packs. Yeah.
And did you tell her you need a certificate of light duties at
work?-- Possibly. If - if my shoulder and arm, because it locks up if -
if I overdo it, yes.
Yes. Well, you didn't want to be-----?-- Not my shoulder, but my arm
locks up. Yeah.
You didn't want to be allocated to the - any spring-cleaning jobs while
your shoulder was throbbing; is that right?-- Well, that's why - why it
had flared up, yes.
Yes. Now-----?-- But Blue Care were aware of-----
Look, I'm not asking you about Blue Care level of-----?-- They were
aware that I had problems, yes.
I'm talking about the consultation on the 29th of August?-- Yes.
Now, you didn't, I suggest, tell her-----
HIS HONOUR: Sorry, on the 30th of August?
MR MELLICK: Sorry, the 30th of August. My apologies. You didn't,
on the 30th of August, tell Dr Weber anything about the incident
involving this alleged incident involving Mr Nosalek?-- I believe I did
and that she, because I probably overwhelmed her with all of the things
that I was complaining about, and especially about the way, the
treatment that I was getting from Blue Care and the assessment that
they were doing was wrong, probably she missed that. I don't
know.”168
168 T3-21.29-3-22.54.
-- 50 of 66 --
51
[106] Notwithstanding this uncertain state of the plaintiff’s evidence, a submission made
on her behalf is that Dr Weber’s evidence is so unreliable that it should be disregarded
by the Court.169 The main reason that was propounded is that in her letter of response
to Workcover, dated 3 January 2006, Dr Weber recorded:
“3. The mechanism of injury as stated by Lorraine was that a client
pulled her right arm after he stumbled while she was assisting
him to walk to the bathroom.”170
However, the issue is not as to whether or from where, Dr Weber obtained knowledge
that, by 3 January 2006, the plaintiff was asserting this particular form of mechanism
of injury but rather whether Dr Weber was told something inconsistent with that, on
30 August 2005.
[107] The problem was identified in Dr Weber’s response to the defendant’s solicitors,
dated 14 August 2009, as follows:
“4. Lorraine did not state to me that the exacerbation of her pre-
existing injury was attributable to a patient handling event. In
fact, she reported that it was due to a heavy cleaning job that
she had performed the day before. I would have recorded a
patient handling event in my notes if it was discussed.
…
6. I cannot recollect at what point the history that a client pulled
her arm was given to me by Lorraine. I note that my
Workcover report was done after I had received the specialist
letter from Dr Winstanley regarding Lorraine’s case. The
specialist letter described the history of Lorraine’s arm being
pulled. I cannot be certain that I did not obtain the history from
Dr Winstanley’s letter rather than Lorraine. However, I cannot
be certain as it has been four years now since I dealt with this
injury with Lorraine.”171
[108] Dr Weber’s evidence remained firm and clear as to what had been related to her on
30 August 2005. Not only is there her notation as to a quite different attribution as to
the cause or mechanism of the plaintiff’s complaint, there is the further notation under
the heading “Management”:
“Med cert done for work – will discuss with work whether should be
Workcover claim or not and let me know if is”.
As Dr Weber rationally and reasonably explained and maintained:
169 Plaintiff’s written submissions, at [36k].
170 See Ex.9, folder 2, at p 274.
171 See Ex.9, folder 2, at pp 276-7 and as was explored with her in evidence, there were other potential
sources of that information in the records that were available to Dr Weber as at 3/1/06, including a
copy of the plaintiff’s application for worker’s compensation and the letter from Workcover
requesting Dr Weber’s response (see Ex.9, folder 2, pp 407-410).
-- 51 of 66 --
52
“Was there any discussion at that time about an incident dealing with
a respite patient?-- No, not at that time. And I feel confident of that
because if she had discussed that with me, I really - I would have done
the consultation differently. So, if she had given me that history of -
of a client pulling down on her shoulder, I would have been looking
immediately for an acute shoulder injury, a rotator cuff tear for
example. And I would have ordered an ultrasound probably on that
day of the shoulder, looking for an acute shoulder injury with that kind
of history, thinking of - because it would raise different diagnostic
possibilities than just an overuse sort of injury in terms of you know,
heavy cleaning. The second reason I'm pretty confident that she didn't
tell me that, because if she'd given me that history, where there was
some really acute you know, incident at work, I wouldn't have been
saying to her, "Well, have a think about whether you want to claim
Workcover". I would have said to her, "This is a Workcover injury;
you need to claim Workcover" and I would have started the
Workcover claim on the day. The fact that I - I didn't and I sort of
talked to her about whether it should be or not, you know, I would
never have done that, if she'd had - if she'd presented with a clear-cut
history of you know, a client sort of pulling down on her shoulder,
because if she'd said that and she'd said she'd had immediate pain, I
would have said, "Okay. Well, that's Workcover, let's get that going."
All right?-- And I sort of prevaricated there because she gave the
history of it - of having no previous shoulder injuries and having a
flare of that injury. So, because I was sort of, like, okay, you know,
there wasn't an acute history of a trauma, or injury at work, that's why
I sort of said to her, "Well, you might be able to claim at Workcover
but you know, you may not" because I didn't necessarily think she's
been successful in a claim an that's why I said to her, "Go away and
have a think about it. If you do want to go down that - that path then
we can activate a Workcover claim" which is - which is what we did.
And as I said, you know, if she'd given that acute history, I would have
almost certainly ordered a shoulder ultrasound on that day-----
Now?-- -----but I didn't.
-----Doctor, the - you actually provided a letter for her that day to the
- well, a certificate?-- Yeah, for light duties.”172
Conclusion as to Liability
[109] There is no good reason to not accept Dr Weber’s evidence. On the contrary, she was
an impressive witness and she logically and rationally explained her position has to
what she was told on 30 August 2005. Further, her position was clearly confirmed
by contemporaneous notation.
172 T2-38.1-45 cf: T2-59.35-2-60.55.
-- 52 of 66 --
53
[110] An alternative submission for the plaintiff is that acceptance of Dr Weber’s evidence,
“does not then mean that the accident did not happen, for the client indicated that she
considered it to be a flare up of her fibro myalgia”.173 However, the obvious problem
is that this submission depends on the logically improbable, if not inconceivable,
premise that, as the plaintiff’s case is based, her shoulder (at least) was subjected to
an action by Mr Nosalek that immediately occasioned pain and that this was
contemporaneously reported to Ms Hanrahan and then this mechanism of injury was
specifically related to Mr Bird, subsequently on 29 August 2005, yet and when
consulting with Dr Weber about it on 30 August 2005 and in the context of a
discussion of a certificate for light duties at work, there is only specific reference to
a “heavy cleaning job” at another location.174
[111] Dr Weber’s evidence as to her consultation with the plaintiff on 30 August 2005, is
obviously a fundamental obstacle to the acceptance of the evidence of both the
plaintiff and Mr Bird. Further, neither reference to the plaintiff’s notation made at
Mr Nosalek’s residence on 29 August 2005, nor Ms Hanrahan’s evidence as to her
dealings with the plaintiff in respect of her attendance at that residence, in any way
improves the position for the plaintiff. In these circumstances and also having regard
to the unchallenged evidence of Dr Weber, as to the plaintiff’s subsequent attempt to
have Dr Weber create a letter containing known falsity as to the plaintiff’s physical
condition and in order to achieve the purpose of obtaining an insurance policy, it is
not appropriate that the plaintiff’s evidence as to what occurred when she was caring
for Mr Nosalek, be accepted or acted upon.
[112] Accordingly, the plaintiff’s claim is not established as being more probable than not
and therefore, there should be judgment for the defendant.
Assessment of Damages
[113] Notwithstanding this conclusion on liability, as is customary, it is nevertheless
desirable to make an assessment of the damages that may otherwise have been
awarded.
173 Plaintiff’s written submissions, at [35].
174 It is immaterial that this was also in respect of work performed for the defendant, as the plaintiff’s
case was neither pleaded nor litigated on the basis of anything that occurred at this location.
-- 53 of 66 --
54
[114] Although and for the defendant, it was suggested that it may not be necessary to do
so, where, as is the case, the plaintiff is not accepted as to the occurrence of the critical
injury.175 That submission was put on the basis that the finding is that “there was no
injury at all”. However and as has been discussed, the critical issue is not so simple
and is rather as to whether it has been established that she suffered injury in the way
described and in the course of caring for Mr Nosalek. Having determined that issue,
what is now required is an assessment conducted upon an assumed basis, that the
incident upon which the plaintiff’s case was based, had been established and it
remains both possible and desirable to do that, notwithstanding the notional basis of
the assessment and the difficulties confronting it and particularly as to the nature and
extent of injury established by the evidence. Such assessment will be in respect of the
condition with which the plaintiff first presented to Dr Weber, on 30 August 2015.
[115] Whilst that would be a notional situation where the plaintiff’s evidence as to such an
incident was accepted, it does not mean that she had necessarily to be accepted on
other points that are in dispute. Further, the evidence of Dr Weber would remain, as
would the evidence as to the plaintiff’s prior condition, including in respect of her
seeking the disability support pension at the beginning of 2005.
[116] As has already been pointed out, the expert medical evidence does not independently
advance the plaintiff’s position. However, it is of particular importance to deciding
the question now at issue and which largely resolves to a need to assess what level of
impact on the plaintiff’s pre-existing condition is to be reasonably allowed. As has
been noted, a particular problem with the plaintiff’s reliance on the more definitive
opinions of the medical experts, is that they are critically premised on acceptance of
the history that each had from the plaintiff and which must be regarded as an incorrect
history. In the circumstances of the available evidence, it simply cannot be accepted
that the plaintiff’s right shoulder and neck were in a largely asymptomatic state, prior
to 29 August 2005. However and in this context, the more generalized views
expressed by the experts, remain for consideration.
[117] Dr Boys had the advantage of having seen the plaintiff prior to 29 August 2005, albeit
on 12 February 1996. He then expressed the view that she had an arthritic neck,
which was a permanent condition, and that he expected that it would remain
175 See T 6-35.42 – 6-36.17.
-- 54 of 66 --
55
symptomatic. His conclusions on reassessment of the plaintiff on 10 February 2009
and again on 14 December 2012, were to incline to a view that there was only soft
tissue injury to the right shoulder and that there was no disability or assessable
impairment which would not have been otherwise present and no or minimal specific
impairment of her neck, referable to the subject incident. He was of the view that her
impairment and ongoing problems were wholly or nearly wholly referable to her
longstanding and pre-existing conditions and to the extent that there may have been
any neck injury, it was in the nature of a temporary aggravation of the preceding
condition.
[118] Each of the orthopaedic surgeons called by the plaintiff had assessed a 5% impairment
with respect to the condition of the plaintiff’s neck with an assessment of 2% being
attributable to an aggravation of the pre-existing condition. From the outset, the
treating doctor, Dr Winstanley, had assessed only soft tissue injury to the right
shoulder, which ultimately resolved to a free range of movement with no permanent
impairment. Whilst Dr Gillett, who first assessed the plaintiff on 26 October 2006,
then reported as to a minor impairment in respect of the right shoulder, that, like the
other assessments made in this case, was based upon what must be regarded as an
incorrect history and particularly that the plaintiff’s condition had been largely
asymptomatic, immediately preceding the subject incident, on 29 August 2005.
When Dr Gillett was confronted with an alternative history, in the context of giving
his evidence at the trial, he accepted that there had been recovery from the right
shoulder injury, without any permanent impairment and in respect of his assessment
of the plaintiff’s neck he appropriately identified and recognised that the difficulty
was in determining the true history, which was a matter for the Court. He said:
“In relation to this information and in relation to my report, the
information indicates that loss of motion associated with the right
shoulder from which I opined an impairment has recovered and no
impairment would be measured regarding the right shoulder.
Symptomatology relates to the neck with referred symptoms to the
right upper limb. The mechanism as described to me in the accident
would be consistent with producing an injury to the neck with referred
symptoms to the right upper limb. Consistently examiners have found
a DRE 2 impairment of the cervical spine and the question is whether
the symptom complex is ongoing due to the accident or reflects the
pre-existing pathological process. Confounding this issue reflects the
injury to the region of the neck in the motor vehicle accident post my
report but this has been assessed by Dr Winstanley, Dr Todman and
-- 55 of 66 --
56
Dr Boys. Dr Boys opined that there was a contributing factor to the
neck from the accident.
In relation to medico-legal opinion, one relies on the accuracy of the
history, the honesty of the claimant and of course the mechanism of
the injury. There is clear documentation of longstanding pre-existing
pathology involving the neck and right upper limb. The mechanism
of the accident is consistent with producing injury in these areas and
has either caused permanency assessable at the level as described by
myself and Dr Boys or it caused a temporary condition, which
eventually recovered and residual symptoms relate to the underlying
pathology as per Dr Winstanley’s opinion.
In my view there is no advantage to me reviewing the claimant and it
would be up to the court to decide what version of events would be
most accurate.”176
Dr Gillett had earlier noted that Dr Boys had also assessed a 5% impairment, with
0-2% related to the subject injury.177
[119] When specifically questioned about the materials relating to the plaintiff’s conditions
more proximate to the subject incident (both before and after) and particularly the
critical assessments as to chronic symptomatic conditions, particularly in February
2015 for the application for the disability support pension and the absence of the
raising of any specific complaint about the plaintiff’s neck with Dr Weber, until
18 October 2005,178 Dr Gillett was then asked to reflect on his earlier stated opinion
that there had been an acceleration of the pre-existing degenerative condition of the
plaintiff’s neck, by three to five years. His evidence continued as follows:
“Doctor, if you assume those matters that I have listed in respect of
her presentations and complaints in February '05 and the matters
following it, assuming all that, it's difficult, isn't it, to sustain a view
that if there was any neck injury on the 29th of August '05, it was an
acceleration by three to five years of an inevitable condition?-- I think
you would assume that the acceleration to be less than that. The issue
post the event in relation to the right shoulder complaint, doesn't
exclude neck pathology but it's obviously a better diagnosis made if
neck and shoulder are linked together. So, just on the history of pain
in the region of the right shoulder, people refer to symptoms in the
176 Ex.29, page 4.
177 It may be, notwithstanding that this was not expressly clarified with Dr Gillett, that he is, to some
extent, confusing the different views expressed by Dr Boys and Dr Winstanley, but that is beside the
point for present purposes.
178 When it may be noted that Dr Weber was told that the plaintiff was seeing a physiotherapist and
finding her neck painful when pressure was placed on C4 and then requesting an x-ray because of
her concern about damage to C4.
-- 56 of 66 --
57
right shoulder in a wide area. So, often people complain that they're
shoulder is sore and when you specifically get them to localise the
pain, you as a clinician will think it's referred from the neck or it's part
of the neck. But the history you have outlined in relation to all those
issues would be that the acceleration period, particularly the symptom
complex prior to the event, if - if injury has occurred, then the
acceleration period would have to be less than I have opined in that
report.
Well, also of course, that history is consistent with this proposition -
there may be others, but that there was no neck injury at all in the
discreet - any discreet even that occurred on 29 August
'05?-- Correct.”179
[120] It is of some importance to note that Dr Gillett later indicated that the critical concern
was as to the level of symptoms before the subject incident. A similar issue was
identified in the evidence of Dr Winstanley. In that regard it was established that his
assessment on 10 January 2011 and which is relied upon by the plaintiff, was critically
based on a past history in which the “injury to her right shoulder and cervical area
had settled with conservative measures”.180 In his evidence Dr Winstanley
acknowledged that a different history was noted in respect of his consultation and
report dated 19 March 2007. What was then noted was “chronic pain present within
her cervical area since 1995.”181 Then and after acknowledging that difference in
history,182 Dr Winstanley gave the following evidence:
“So, if she doesn't complain to you in November '05 of any neck
problems, and if, on the day after the alleged incident, when she sees
the GP, her complaint is restricted to the right shoulder, no mention of
the neck, these things tend to suggest that the contribution, if any, to
the neck impairment or to any permanent situation is tenuous; would
you agree?-- It'd depend on what's the history given by the patient on
examination on the day.
Yes?-- So, it can be variable, depending on what information we get.
Yes. But if one adds to what I'm asking you to assume, or firstly as
you well know, she says nothing to you about the neck, the first time
you see her - she says - and assume she says nothing to the GP, the
day after the incident, and in '07 you get a - you are given a history of
10 years of chronic neck pain-----?-- Mmm.
179 T3-54.18-44.
180 Ex.9, folder 4, at p 1088.
181 Ex.9, folder 4, at p 822.
182 T2-15.34-6.
-- 57 of 66 --
58
-----it's difficult, in those circumstances, isn't it, to say that there was
a - some harm done to the neck, in this incident, that has in any way
contributed to any permanent impairment?-- It is. It would make you
suspicious that there is some variation in the history, as you
describe.”183
[121] Some care is required in respect of this, as the reference to the absence of
complications as to neck problems in November 2005, is as to Dr Winstanley’s earlier
consultation with the plaintiff consequently to her raising concerns about her neck
with Dr Weber in October 2005 and, as noted in Dr Winstanley’s report in relation to
that consultation (dated 3 January 2006),184 he had noted a presentation “with
discomfort within her cervical spine and right shoulder areas”. There are two areas of
concern raised in this regard by the defendant. First, there is only reference to a past
history of a rotator cuff injury in 1997, which was noted by Dr Winstanley to have
been treated conservatively and in achieving a high level of shoulder function and
ability to manage most activities “until the recent incident”. Secondly, “her main
discomfort” was identified in her trapezius muscle. However, it was also noted:
“She had pain which was also referred into her jaw and ear area on the
right. She did not experience any significant upper limb pain or
paraesthesia or muscle weakness associated with her upper limb. She
had decreased range of motion within her shoulder which she felt was
improving as was her range of motion within her cervical spine.”
[122] However and as Dr Gillett noted, “trapezial pain usually is neck pain”.185 Also and
after a long history of the plaintiff’s condition (as drawn from the materials before
the court) was brought to Dr Todman’s attention, he responded to the suggestion made
to him, as follows:
“Doctor, if one assumes the accuracy of that history, I'd suggest to you
that it's very difficult to sustain the view there was any neck injury
suffered on the 29th of August or if there was it was anything more
than a transient exacerbation of a longstanding condition. Do you
agree with that?-- Well, I think in response to a long summary of
events that you've just related, I think that my comment would be that
there's two possible explanations, and one of them may be that there
was no significant neck injury in the accident of August 2005. The
other possibility is that she has an injury to her neck when there's been
an injury to the shoulder at the same time. Sometimes shoulder
symptoms overshadow a neck complaint, and I do see this regularly in
patients who suffered from both neck and shoulder injuries at the one
183 T2-16.10-33.
184 Ex.9, folder 4, at pp 817-8.
185 T3-55.20-45.
-- 58 of 66 --
59
time. Sometimes one injury is focused on and assessed by the nature
of the symptoms. But as time evolves it's clear that there's been an
injury, not only the shoulder, but also the cervical spine. I think from
what I've discerned in the history Ms Bird gave to me that there has
been an injury to both her neck and shoulder. And one thing I'd pick
on, the comments from Dr Winstanley which I think were October
2005, was that there was pain across the trapezium which, of course,
is the muscle at the top of the shoulder girdle which inserts into the
side of the neck, and pain in that region can occur with shoulder
complaints, but it's much more common with neck pain. And I think
that what she was experiencing is an overlap of symptoms referable to
the shoulder injury as well as to the neck. And furthermore, although
she did have some neck injury in the past, she said it was at a lower
level before this accident in August 2005, and furthermore-----
HIS HONOUR: That's to you, Doctor, that she said that?-- Of course,
and also that there have been radicular complaints in the dermatomal
distribution including those sensory symptoms and radiation of pain
into the arm which, although there may have been some neck injury
before 19 - before 2005, these symptoms were not there then. So, I
think although it's not a clear black and white situation, I think on a
probability basis, I think it is more likely than not that she's had not
only a shoulder injury, but also a neck injury in this accident.”186
[123] The defendant is critical of the second possibility suggested by Dr Todman.187
However and in the light of the evidence of Drs Winstanley and Gillett, the criticism
is misplaced and it can be noted that Dr Boys was also prepared to accept that there
may have been some temporary aggravation of the plaintiff’s neck condition.
However the essential problem that confronts the plaintiff’s particular reliance on Dr
Todman’s evidence, to the extent that it differs from that of the orthopods, is that it
critically relies on a history of an asymptomatic condition prior to the subject incident
and also as to the plaintiff reports of symptomology indicative of radiculopathy, on
his examination of her.
[124] As has already been noted, the fundamental difficulty for the plaintiff commences
with her unreliability as a historian and also in having regard to the findings already
made as to the significance of Dr Weber’s evidence as to the request for the false
letter. In considering the plaintiff’s credibility generally, it is not appropriate to act
on evidence which so critically depends on her reliability.
186 T3-41.6-47.
187 Defendant’s written submissions at [153].
-- 59 of 66 --
60
[125] However, it may be noted that an overall effect of the expert medical evidence is that
consistently with a mechanism of the kind which is the notional basis of this
assessment, it is more likely than not that there was some aggravation of the
pre-existing degenerative condition of the plaintiff’s neck, as well as some trauma to
soft tissue in her right shoulder. In this regard and as has been earlier noted, it was
this very pre-condition which was identified as making the plaintiff particularly
susceptible to injury due to weight bearing on her right upper limb.
[126] However the critical and more difficult dilemma is as to the extent of that injury and
particularly as to the duration of it. That is, as to whether it was only of a temporary
nature and for how long or alternatively, what ongoing effect it had in any more
permanent sense and how that otherwise related to an expected progression of the
pre-existing condition.
[127] For the plaintiff, it is contended that, as at 29 August 2005, she was earning $200 per
week, with the defendant.188 She was off work for one week189 but found she could
not continue with her employment with the defendant. She found she could not do
the type of cleaning work assigned to her in September 2005190 and that when she
was assigned to light duties, her hours were reduced and she sought alternative work,
at the Noosa Respite Centre.191
[128] As to the plaintiff’s evidence in this regard and respect of her condition and
limitations generally and quite independently of any complications arising due to the
evidence of the plaintiff’s subsequent motor vehicle accident and the effects of it,
another difficulty is that her evidence comes from a perspective of description of her
condition generally, without any discernment as to particular effects of any incident
that may have occurred on 29 August 2005. Moreover and as pointed out by the
defendant, another example of the basic problem in seeking to rely upon her evidence,
is demonstrated by the medical clearance that she obtained for the purpose of working
at the Noosa Respite Care Centre.
[129] In respect of the position she obtained at the Noosa Respite Centre and in the context
of the difficulties that were encountered in her employment with the defendant, when
188 Plaintiff’s written submissions, at [115] and see Ex.23.
189 T1A-59.20-22.
190 T1A-56.40-49.
191 T1A-59.30-66 and T1B-74.39-51.
-- 60 of 66 --
61
she underwent a pre-employment examination by Dr Kearney, on 13 October 2005,
the plaintiff’s condition is simply noted as:
“Painful R shoulder – should settle. WC claim Blue Care.”192
As the plaintiff herself explained, that casual work was for 2-3 days per week and it
ceased after her employer became aware of Dr Winstanley’s report.193
[130] By way of some contrast, on 10 May 2007, the plaintiff attended an examination by
Dr Nichols and he completed a treating doctor’s report to Centrelink, dated 1 June
2007 and in which he certified the plaintiff as unfit for work for more than eight hours
per week for a period of six months. He did that in respect of a diagnosis of
“fibromyalgia/musclo skeletal pain syndrome” and in reference to a history recorded
as “10 years of widespread pain, fatigue and multiple musculo-skeletal injuries
worsening underlying condition. Specialist opinion obtained multiple times.”
[131] Whilst the plaintiff led evidence of her many attempts to secure suitable employment
and also as to her attempts to retrain for that purpose, the underlying problem, as
pointed out by the defendant, is in the variability of the plaintiff’s presentation as to
her physical condition and capabilities, over time and depending on the circumstances
and apparent purpose involved. Also and as further pointed out by the defendant, there
are contradictions to be found in the plaintiff’s responses to potential employment
opportunities identified in connection with a return to work program and in the
plaintiff’s commitments to various volunteer interests.194
[132] The plaintiff called an Occupational Therapist, Mr Hoey, who had assessed her on 2
May 2008. Mr Hoey maintained the view that he then formed and to the effect that
based on her age and educational and work experience and the difficulties she had
experienced, that she was unlikely to secure employment in the foreseeable future.195
In cross-examination, he agreed that she was after 29 August 2005 and would now,
be physically capable of performing sedentary work, but that the issue would be the
preparedness of an employer to accommodate and tolerate her varying pain
experience. 196
192 Ex.9, folder 1, pp 266-7.
193 Presumably that doctor’s report dated 24/11/05, to Dr Weber: see Ex.9, folder 2, p 418.
194 See defendant’s written submissions at [173]-[174].
195 T 2-20.40-45.
196 T 2-25.8-27.
-- 61 of 66 --
62
[133] Dr Winstanley saw the plaintiff, as a treating specialist, in November 2005 and in his
report dated 24 November 2005, he concluded:
“This patient has aggravated pre-existing degenerative pathology
present within her cervical spine and right shoulder area associated
with her work related incident. There is no indication she requires
further investigation nor will she require surgery for her condition.
She requires continued conservative treatment, use of heat and
massage and a muscle strengthening program would prove beneficial
to her. I have discussed with her the long term prognosis for her
cervical spine and shoulder. She is happy to continue with
conservative measures. I have not made further arrangements to
review this patient but would be happy to do so if she has any
continuing trouble.”197
He next saw the plaintiff on 19 March 2007 and in his report of that date, he noted:
“She experiences pain present within her cervical spine, thoracic area
and within her lumbar spine. She has symptomatology present within
her cervical area since an incident in 2005. Her symptomatology has
been persistent. She recently has had an exacerbation of
symptomatology with pain within her cervical area and also within her
lumbar spine area. She also relates that she has discomfort present
within her upper limb areas. The discomfort which is present within
her cervical area is not associated with dermatomal referral into her
upper limbs. She is concerned with her ongoing incapacity.
Her presentation of symptomatology is not consistent with
dermatomal referral of pain. She has had chronic pain present within
her cervical area since 1995 and she has had a diagnosis of
fibromyalgia in the past.”198
He proceeded to conclude that there was nothing warranting surgical intervention or
an MRI scan and that “there may not be a solution to her present symptomatology”
and that she may require “pain management situation” and otherwise suggested
review by a rheumatologist.
[134] The following evidence was adduced from Dr Winstanley, for the plaintiff:
“There's a - what would you say about the - no. Now, in respect to
arthritis, can you comment whether and to what extent this patient had
arthritis and what the subject injury of 29 August 2005 would have
done in respect to that condition?-- Well, she had arthritis within her
cervical spine shoulder area prior to the incident of August. The
incident would have accelerated that process, which means that, in my
opinion, without the incident of the 25th of August, she would have
developed symptomatology to the level she had after the accident in
about three to five years.
197 Ex.9, folder 4, pp 812-813.
198 Ex.9, folder 4, p 822.
-- 62 of 66 --
63
Okay. Now, it's your opinion that the - there was a permanent
impairment of some two per cent; that the incident the subject of her
claim was a temporary aggravation of some six months; is that
correct?-- That's correct.
And that's an impairment assessment, not a disability
assessment?-- That's correct.
What's your opinion about any disability extending beyond the six-
month period?-- The effect of the accident, in my opinion, would have
reached maximum improvement after a period of six months, so the
ongoing disability and restriction she has relates to her pre-existing
pathologies.
Okay. Now, the injury is consistent with the mechanism that she
described?-- The injury was consistent”. 199
The difficulties that have affected the opinions expressed by the medical specialists
in this case, particularly having regard to the variations in medical history given to
each of them at different points in time, have already been noted. As Dr Winstanley
was engaged in November 2005, in the plaintiff’s treatment, it may be seen that the
later aspect of his observations are, in contrast to the also more speculative opinion
that is expressed earlier in the passage, based on his temporal experience with the
plaintiff and therefore not as dependent upon the vagaries of the plaintiff’s reports as
to her medical history.
[135] Accordingly, this assessment will be conducted on the basis that I am not satisfied
that the evidence has established that it is more likely than not, that any effect of any
incident that may have occurred on 29 August 2005, extended beyond the point of six
months after that date.
[136] Having regard to the various comparatives to which reference was made,200 I would
allow $6,000 for pain, suffering and loss of amenities.
[137] As far as economic loss is concerned, it follows that there may only be allowance for
past loss. The plaintiff must demonstrate that her earning capacity was diminished
by reason of the injury and that any such diminution in earning capacity was
productive of financial loss.201 There is a degree of force in the defendant’s
199 T 2-11.29-56.
200 See defendant’s written submissions, at [133] and cf: plaintiff’s written submissions, at [112].
201 See Nichols v Curtis & Anor [2010] QCA 303, at [14] and the cases therein cited.
-- 63 of 66 --
64
contention that even if there was an injury, there was no effective diminution in
earning capacity, particularly having regard to the plaintiff’s apparent unsuitability
for her employment, prior to 29 August 2005 and also Mr Hoey’s evidence that her
unchanged position was that she only had suitability for sedentary work. However,
that position may be somewhat selective as to particular aspects of the evidence and,
in the circumstances where the defendant did employ the plaintiff, notwithstanding
some knowledge of her restrictions, and where it appears that some duties which were
lighter and where her condition may have been more protected, may have been
available.
[138] However and even if it were appropriate to allow her the loss of $200 per week for
six months, less any actual earnings in that period, the position remained unclear as
to what, if any, earnings were derived from the defendant after 29 August 2005 and
the reduction in respect of the income derived from the Noosa Respite Centre, is
$4,642. Therefore, there is an excess of $558 ($5,200 - $4,642) and it would also be
appropriate to make some reduction for exigencies, including the prospect that the
plaintiff may have encountered some other event, in different circumstances, causing
her incapacity by way of aggravation of her pre-existing and underlying condition.
Therefore the most appropriate outcome is to award nothing by way of economic loss.
[139] As far as special damages are concerned, the defendant conceded only those amounts
which would comprise the statutory refund to WorkCover, in the sum of $2,890.99
and one additional attendance at the Tewantin Physiotherapy Centre, in November
2005, at the cost of $47.202 Otherwise, the defendant takes issue with the plaintiff’s
claim for an “extensive treatment regime”.
[140] As is correctly pointed out, there is a need for conclusions that there is treatment of
the plaintiff’s injury and not her pre-existing condition and that both the type of
treatment and amounts claimed are reasonable for that purpose. It is also pointed out
that, in some instances, claim is made for medications that were used prior to 29
August 2005 and that there is also a problem of absence of documentary confirmation
of actual costs and that there has been significant revision of estimates that were
earlier provided.203
202 Defendant’s written submissions, at [159].
203 Defendant’s written submissions, at [160]-[166].
-- 64 of 66 --
65
[141] However and as is contended for the plaintiff, there is some support in the medical
evidence for the plaintiff’s resort to some forms of treatment, if as was generally her
evidence, she obtained any symptomatic relief in that regard. However the plaintiff’s
submissions as to what might be allowed in this respect204 are not only premised on
very different findings to those which provide the identified basis of this notional
assessment but are also quite difficult to disentangle, in terms of identifying what
should be allowed (even if all of the defendant’s criticisms are put to one side).
[142] In these circumstances, there should be some allowance made, in addition to those
limited amounts conceded by the defendant and to allow for some other reasonable
treatment costs in the six months following 29 August 2005. Doing the best I can in
the circumstances, I would allow a total amount of $3,500 and interest on $609.01
(i.e. $3,500 less the refund to work cover of $2,890.99) for approximately 11 years at
10%.
[143] In addition, it is identified that there should be allowance for a Fox v Wood
component, in the sum of $105.27.
[144] Accordingly, the notional award of damages may be summarised as follows:
General damages $6,000
Interest at 4% for 11 years205 $2,640
Special damages $3,500
Interest at 10% for 11 years (on the out of pocket component $609.01) $669.91
Fox v Wood component $105.27
Total $12,915.18
204 Plaintiff’s written submissions, at [139]-[143].
205 The usual rationale for allowing a lesser rate and/or allowing interest on only part of the amount
allowed, do not apply to the current assessment as it is limited to recovery for only six months
beyond 29/8/05.
-- 65 of 66 --
66
Orders
[145] As earlier indicated, the plaintiff’s claim is dismissed and there will be judgment for
the defendant. In that event and was expressly and correctly conceded by the
defendant, in the light of the decision in Sheridan v Warrina Community Co-operative
Ltd & Anor206 the defendant is not entitled to costs and there will be no order as to
costs.207
206 [2005] 1 Qd R 187.
207 See defendant’s written submissions, at [183].
-- 66 of 66 --
Official source: https://www.sclqld.org.au/caselaw/QDC/2015/243