Downes v Affinity Health Pty Ltd [2015] QDC 197

DISTRICT COURT OF QUEENSLAND CITATION: Downes v Affinity Health Pty Ltd [2015] QDC 197 PARTIES: DIANE ROSEMARY DOWNES (plaintiff) v AFFINITY HEALTH PTY LTD ABN 53106722347 (defendant) FILE NO/S: Maroochydore D305/09 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Maroochydore DELIVERED ON: 12 August 2015 DELIVERED AT: District Court at Maroochydore HEARING DATE: 18 – 22 November 2013 JUDGE: Long SC DCJ ORDER: Judgment for the defendant CATCHWORDS: PERSONAL INJURIES – whether the injury to the plaintiff’s back in the course of her employment as a nurse, was a foreseeable risk in her being placed in any avoidable situation where manual handling of a patient became necessary – whether the plaintiff’s injury was caused by any breach of duty on the part of the defendant, by unreasonably failing to take steps to avoid or minimize the risk of injury to the plaintiff, particularly by any failure to give the plaintiff any appropriate instruction, training or warning in relation to the risk of injury in the performance of her work – damages assessed Workplace Health and Safety Act 2011, 28(1) Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Fox v Wood (1981) 148 CLR 438 Hegarty v Queensland Ambulance Service [2008] QCA 366 Hopkins v WorkCover [2004] QCA 155 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 -- 1 of 47 -- 2 Wright v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 86 Wyong Shire Council v Shirt (1980) 146 CLR 40 COUNSEL: L Smith for the plaintiff R Treston QC for the defendant SOLICITORS: Hawkes Lawyers for the plaintiff McInnes Wilson for the defendant -- 2 of 47 -- 3 Introduction [1] The plaintiff was born on 29 May 1945 and was aged 62, when the incident which is the subject of these proceedings occurred, in the course of her employment, by the defendant, as a registered nurse at the Selangor Private Hospital in Nambour. The plaintiff had worked at that hospital since 21 June 1982 and mostly in the surgical ward. That employment was terminated on 3 November 2008. [2] By claim filed on 30 October 2009, the plaintiff claims damages for negligence in relation to an incident which occurred in the early hours of 25 July 2007. It is admitted that the defendant required the plaintiff to perform night shift duties on 24 and 25 July 2007 and that this included the supervision of an elderly patient (named “Beryl”), who had undergone a hip replacement operation on 24 July 2009. The Claim [3] The incident upon which the plaintiff’s claim is based, is pleaded in terms that “at around 2.30 a.m. on 25 July 2007”: (a) she “found Beryl attempting to get out of bed”; (b) she “stopped Beryl from getting out of bed”; (c) she “sought assistance from a co-worker”; (d) she and the co-worker (Nurse Newell) “lifted Beryl back into the centre of the bed”; and (e) that as a result she “suffered injury to her lumbar spine”. [4] As is pointed out for the plaintiff: (a) it is admitted on the pleadings that the defendant owed to the plaintiff the duties to: (i) provide her with a safe system of work and safe place of work (both as an implied term of the contract of employment and at common law); (ii) ensure her health and safety at work, pursuant to s 28(1) Workplace Health and Safety Act 2011; -- 3 of 47 -- 4 (iii) ensure the workplace and any activities performed at the workplace were as safe for the plaintiff as reasonable skill and care could make them; (b) it was further admitted on the pleadings that prior to the incident, the defendant: (i) knew that Beryl had a history of hallucinations post-anaesthetic; (ii) had conducted a risk assessment in relation to Beryl’s risk of fall and had concluded that she represented a moderate fall risk and, more particularly, was at risk of collapse post-procedure and on her first walk after the surgical procedure and required an alert symbol to be placed above her bed and that her bed be lowered to the lowest possible point when staff were not present; (iii) knew that Beryl had a very poor memory and would require much prompting and supervision post-operatively; (c) the evidence also established that prior to the incident, the defendant knew that Beryl: (i) was functionally deaf; (ii) suffered short term memory loss; and (iii) had difficulty understanding instructions. [5] From those considerations the plaintiff relies upon the principles to be drawn from Wyong Shire Council v Shirt1 to the effect that the measure of discharge of the defendant’s duty of care to the plaintiff, in such circumstances, is judged by assessment of what a reasonable person would, in all the circumstances, do by way of response to the foreseeable risk. It is expressly recognised that the exercise is a prospective rather than retrospective one2 and that factors bearing on what might be a reasonable response include 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 which the defendant may have. 1 (1980) 146 CLR 40 at 47-8. 2 See Hegarty v Queensland Ambulance Service [2008] QCA 366 at [49]. -- 4 of 47 -- 5 [6] The plaintiff’s case focuses upon the risk of injury to her from patient handling and contends that such a risk of injury was not only foreseeable but was foreseen by the defendant by the implementation of specific training for staff (albeit on the plaintiff’s case inadequately) to minimise such risk. [7] Essentially, the plaintiff’s case was put on three bases: (a) The plaintiff should never have been placed in the position of having to “catch” Beryl or lift her back into the bed. Beryl should have been better managed so that she was not permitted to get into the position of almost toppling out of bed; (b) The plaintiff was not properly notified of Beryl’s difficulties at the commencement of her shift, and as such was unaware of the need to exercise a greater level of supervision; and (c) The plaintiff was not properly trained to deal with the situation with which she was confronted, and to the extent training was provided, it was not properly implemented, maintained or enforced in the workplace. [8] It can be noted at the outset, that this case was litigated without reference to the Civil Liability Act 20033 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 incident in context [9] At 10.15 p.m. on 24 July 2006, the plaintiff commenced her rostered night shift with one other nurse, Ms Wendland,4 in the surgical ward at the Selangor Private Hospital. In accordance with usual practice she was provided with and listened to an audio cassette, on which was recorded the information as to the handover from the nursing staff on the previous shift.5 It is pointed out that this was in accordance with a written policy of the hospital, referred to as a “clinical practice guideline”, and which 3 Presumably having regard to s 5 of that Act and the evidence of payment of workers’ compensation benefits to the plaintiff: see Ex.1/8. 4 Also referred to in the material by her maiden surname: Newell. 5 T1-13.33-38. -- 5 of 47 -- 6 specifically and amongst other matters referred to in the “checklist” of matters to be dealt with (as appropriate to the care of each patient) included: “Mobility Level of mobility and any changes Need for physiotherapy involvement Falls risk Waterlow Score and significant issues”6 [10] Consequently the two nurses for the shift in this ward split the responsibility for the care of particular patients.7 It is admitted that one of the patients within the primary care responsibility of the plaintiff, was the 89 year old female, named Beryl, who had that day undergone a right-sided, total hip replacement. It is noted that on admission she had been weighed at 41kg.8 [11] The plaintiff gave evidence of her familiarity with the protocols or written requirements of Beryl’s treating orthopaedic surgeon (Dr Winstanley)9 and accordingly a requirement that this patient remain in bed during her shift or otherwise be put at risk of injuring her hip. This was because she was not permitted to get out of bed until assisted to do so, on the second day post-operatively, and then with the assistance of a physiotherapist.10 She was not supposed to move her legs but rather remain immobile with a “Charnley pillow” between and supporting her legs.11 [12] Further, the uncontradicted evidence of the plaintiff was that there was no specific communication or notification or instruction, in the handover recording, as to any issue in respect of the care of Beryl, save that she had tried to get out of bed earlier that evening and was confused and had been given morphine for sedation and pain relief and was sleeping.12 [13] After this, the plaintiff did her normal rounds by checking on the immediate needs of the patients for whom she was primarily responsible, particularly as to medication and this took until approximately midnight. From then and until about 2.30 a.m. on 25 July 2007, she was engaged in various administrative duties at the nurses’ station 6 Ex.1/10. 7 As Ex.1/10 evidences a total of 14 patients, this was seven patients each. 8 Ex.1/5, at p 9. 9 Ex.1/22. 10 T1-26 – 1-27. 11 T1-27.12-17. 12 T1-14 – 1-19. -- 6 of 47 -- 7 in the ward.13 She had not, by then, had an opportunity to thoroughly review Beryl’s chart.14 [14] The room in which Beryl was accommodated was quite close to the nurses’ station and when, at about 2.30 a.m., the plaintiff heard a noise from that direction, she immediately went to investigate and found that Beryl was then in a sitting position at the side of her bed and towards the foot of the bed and in the gap between the foot and siderail of the bed. She was proceeding to lean forward and the height of the bed was such that Beryl’s feet were not touching the ground and she was “teetering”.15 The appearance was that Beryl was trying to retrieve her walker, which was positioned in the vicinity. [15] The plaintiff described her response: (a) She ran to the patient and “hugged” her in order to prevent her falling forward. She had to lean forward to support and hold Beryl and was twisting her body while doing so;16 (b) She continued to support Beryl and called out for Nurse Wendland to come to assist and continued to try to maintain Beryl in the one position and avoid movement of her hip;17 (c) It took Nurse Wendland about a minute to arrive and she assisted by lowering the cot side.18 The plaintiff then described a process whereby Beryl was returned to her bed. This involved Nurse Wendland taking her legs, whilst the plaintiff supported Beryl’s upper body, and the two of them first lifting or moving Beryl onto the bed, by about 10 to 12 inches, and then lifting her further up the bed, by about two feet or so.19 [16] It was the plaintiff’s evidence that she felt back pain, which she described as “quite severe pain”, when she was at first holding Beryl and twisting and attempting to 13 T1-22.15-25. 14 T1-22.4-6. 15 T1-27.25 – 1-28.19. 16 T1-28.25 – 1.29-27. 17 T1-29.30-36. 18 T1-29.38 – 1-30.2. 19 T1-30.20-32. -- 7 of 47 -- 8 prevent movement of her hips and that there was continued, dull pain when she and Nurse Wendland were lifting Beryl back onto the bed.20 [17] Following that, Beryl was settled and the plaintiff returned to her normal duties. She described having ongoing back pain for the remainder of her shift but not a lot, as “it just seemed to settle down.” She also said that there were no other tasks required of her that might have injured her back.21 [18] The plaintiff seeks to explain her only entry in Beryl’s chart and an appearance of absence of support, by way of contemporaneous notation of the incident on which she relies, by explaining that she did not commence to make any notation in that chart until 4.00am and that the note that she then completed, at about 4.30am, also deals with another incident when Beryl stirred again, about 4.15am, and when there was a need to contact and obtain approval, from the registered medical officer, to administer further morphine.22 [19] After her shift concluded on 25 July 2007, the plaintiff had three rostered nights off, during which period she rested at home, taking pain relief and using hot packs. She returned to work on 28 July 2007 and worked three further shifts.23 At the conclusion of her shift on 31 July 2007, she completed an incident report.24 In these proceedings, she was confronted with the necessity to explain why she then described what happened, in the following terms: “Heard the noise of walking frame and ran into the room and patient was out of bed using frame. So I picked her up to support her and called for the other nurse (this was the night of the total hip replacement – patient was confused, should have been resting in bed)”. [20] Her explanation was to the effect that where it may appear to depart from or conflict with her evidence, the form is inaccurate, in the sense of being poorly expressed and including what she had recalled as to what she thought Beryl was attempting to do at the time, rather than actually doing. [21] It was also pointed out that the form was completed as a result of her raising her ongoing back pain (which she described as “quite severe” and “really bad” by then) 20 T1-30.34-38 and 1-34.46 – 1-35.30. 21 T1-35.5-10. 22 Ex.1/5 at p 30; T1-22.27-1-24.6. 23 T1-36.5-29. 24 Ex.1/14. -- 8 of 47 -- 9 with her supervisor, Nurse Billman and that she was then requested to complete the incident form, so that there was a record of the incident to which she had linked her pain.25 Accordingly the form was completed at about 6.30am on 31 July 2007 and after the plaintiff had completed a night shift and then raised the issue of her painful back with her supervisor. She sought to explain that the form was hurriedly completed, so that she could go home and was “just to record that I had hurt my back with that patient”.26 [22] Subsequently to that notification, the relevant sequence of events was that: (a) On 3 August 2007, the plaintiff attended a mandatory annual in- service training program, from 8.00am to 5.00pm. She said she had considerable back pain and required Capadex in order to attend;27 (b) On 5 August 2007, she commenced and on 6 August 2007 completed, her next shift. But by the end of it, she complained to Nurse Billman as to her pain and her intention to consult a doctor (which she had not done prior to then) and she was then requested to fill out an application for Workers Compensation;28 (c) On 6 August 2007, the plaintiff consulted Dr McKenzie, as was noted, in respect of: “Twisted back at work Wednesday 2 weeks ago.” She returned to see her regular general practitioner, Dr Cooke, on 10 August 2007, when it was noted that she: “Presents re lumbar strain done at work around 3 weeks ago catching a patient who was falling out of bed…” She was then given another week off work and referred for review by a physiotherapist;29 and (d) That began a sequence of medical consultations and investigations and a consequence that the plaintiff did not return to work in the surgical ward at the hospital, or apart from a short period of an attempted return to work, to work at the hospital at all. 25 T1-36.30-1-37.26. 26 T2-35.45-2-36.8. 27 T1-39.11-25. 28 T1-39.33-1-40.3 and Ex.1/19. 29 Ex.1/16. -- 9 of 47 -- 10 The plaintiff’s injury [23] The plaintiff’s claim for an injury in the nature of aggravation of underlying lumbar spondylosis, is supported by all of the medical evidence, on the basis of a broad history of acting to prevent a patient from falling from a bed and in doing so, twisting her back, on 25 July 2007. X-rays taken on 17 August 2007, disclosed degenerative changes in the plaintiff’s lumbar spine and a CT scan on 21 August 2007, demonstrated significant L4/5 degenerative spinal stenosis. Each of the relevant opinions to this effect, depended on acceptance of the history and evidence of the plaintiff that, prior to the incident on 25 July 2007, her back had been asymptomatic.30 Apart from as hereinafter noted, for present purposes, little turns on particular differences in the opinions expressed by those doctors. [24] Dr Keays, an orthopaedic surgeon who examined the plaintiff in October 2007 and again in January 2008, expressed a view that the asymptomatic state of the plaintiff’s back appeared unusual given the severity of the degenerative changes.31 However, his examination revealed excellent mobility of the back and only slight pain on full extension. When he examined her again on 8 January 2008 and in the context of noting that there had been a further episode of twisting of the plaintiff’s back, in the course of some physiotherapy treatment and that it was reported that she could only manage 6 out a normal 28 hour working week, he considered her position as stable and stationary. In evidence he summarised his opinion: “I felt that physical findings were unremarkable when I examined her in January ’08. She had slight restriction of extension. There was slight asymmetry of movement. There were no neurological signs. There was no radiculopathy. And because of that, I classified her as a DRE II and with a five per cent impairment. I should have allocated in my report apportionment which was roughly fifty-fifty.”32 [25] Another orthopaedic surgeon, Dr Labrom, examined the plaintiff, for the defendant, on 29 January 2009 and 20 October 2011. When he first saw her and as he noted, she had ceased work and was in receipt of the aged pension. In his report dated 29 November 2011, he opined: “This lady’s employability has been affected. She has not worked since 2008 and it is my opinion that she will not return to work as a Nurse based upon her subjective symptoms of pain. I think that this is 30 As Dr Labrom expressly conceded was possible: T2-78.36-43. 31 Ex.14, report dated 4/10/07 at p 5(8). 32 T4-91.17-21. -- 10 of 47 -- 11 a suitable approach and that returning in the Nursing sector will be deemed impossible for this person.”33 [26] Dr Labrom consistently assessed an impairment of function at 5% (whole of person), with half being equally attributable to the incident on 25 July 2007 and the pre- existing condition. He explained: “It would be reasonable to assume that this severe stenosis and degenerative process has been happening for many years, and that this process would have been made worse with a physical activity as mentioned at her workplace incident on 25 July 2007, or in a similar event that may have happened at home or in another place. Accordingly, I would share the proportion of impairment between her pre-existing severe spondylosis and the workplace incident on 25 July 2007.”34 He also said: “This lady can no longer work as a Registered Nurse due to this low back ache with severe stenosis. She is currently on an aged pension. Fortunately she has reached an age where she is eligible for a pension, and is at a suitable retirement age.”35 [27] Although there was an issue as to Dr Labrom having expressed a view, as a matter of clinical experience, as to an expectation of pre-existing symptoms or pain from the underlying degeneration, he ultimately agreed that acceptance of an asymptomatic condition prior to 25 July 2007, would not change any of his expressed opinions. However, he did confirm that he had specifically noted having history of the plaintiff experiencing severe back pain at the time of the incident of supporting a patient who was falling out of bed awkwardly and he confirmed that his opinions were based upon the history of experience of severe pain at the time of the incident.36 [28] Earlier in his evidence and after agreeing that “simplistically put the easiest way to look at it”, was in identifying an exacerbation, in the sense of making her condition symptomatic, he further explained: “…. I suppose, making it very simply put, my understanding is that this lady has radiological features of some degeneration in her spine. And I’ve been privy to an MRI scan recently that shows that…… I also would say that the MRI scan has findings which are quite really typical of someone of her age and stage in terms of seeing some disc bulging and some facet arthropathy, which is degeneration. There’s no evidence of a pressed nerve, and there’s no evidence of a slipped 33 Ex.7 report dated 29/11/11 at p 6. 34 Ex.7 report dated 20/02/09 at p 5. 35 Ibid. 36 T2-87.30-46. -- 11 of 47 -- 12 vertebrae, or a spinal deformity, or structural changes in that definition I meant earlier. So, to answer your question a little clearer, my assessment of this has always been that this person has suffered some pain when she had that episode of supporting a patient in July of 2007. But it was my opinion, and it remains my opinion, that that would be related more to an event that should leave someone with a fairly temporary degree of muscular strain that would be recoverable within weeks to months after such an event, and not years. Moreover, I think the MRI scan recently that the patient had has proven that there wasn’t any acute disc prolapse or solid reason why, in that process, the spondylosis, which presumably was asymptomatic before this event, had suddenly become structurally different, and therefore more symptomatic over time. And that’s where the quandary is. I can accept every part of her story. I can understand very much the mechanism.The mechanism – I’ve used words such as trivial or low velocity, low force, words like that. It’s certainly not trivial to this person. Trivial means that nature of the forces applied to that patient at time of injury. A better way to put it, perhaps, would be that there’s been an injury at the time of that event. It relates to asymptomatic lumbar spondylosis, which is degeneration. And I think it relates to embarrassment of muscles in the lower spine. And I’ll point out very carefully in the reports that I’ve made previously with regards to this lady, a very significant deficiency and insufficiency of her anterior abdominal muscles. She’s got significant abdominal muscle scarring, due to multiple anterior abdominal surgeries, which makes her muscular envelope at the front of her spine much weaker than average. And in my opinion, very much more prone to having a back condition made worse with certain muscular requirements forced upon her, such as catching a patient or, you know, lifting a bin, or moving a chair…”37 This was then followed by the following passage: “MR SMITH: And that is based on the view, Dr Labrom, that Ms Downes did not feel any pain in her back til later. So she didn’t - - -?---Well that’s exactly the point. And I think, during that period of time there would have been a potential for her spondylosis to be, if you like, made worse, and uncovered by the embarrassment that she would have had in that muscular strain in her lower back muscles. And then that, you know, confounding anterior abdominal muscular wall insufficiency, because of her multiple anterior abdominal surgeries, equals what physiotherapists describe as an uncovering of micro-instability. In other words, the segments in the lumbar spine become relatively unstable in a micro sense. The neural structures holding them outside are not longer able to hold them, and then they’ve got, you know, some underlying, if you like, asymptomatically brewing degenerate pathology, which is typical for her age. And then low and behold, the patient spirals into this downward period of low back ache. And then, you know, with poor rehabilitation and poor understanding and all of these other things that surrounded this, you know, unfortunate event, her symptoms 37 T2-84.26-2-85.13. -- 12 of 47 -- 13 become worse. And then, you know, perhaps then chronic in terms of pain. And I think that’s exactly what’s happened. So you would agree that if she did experience a sharp pain at the time the incident occurred, that would alter your opinion?........... Insofar as that she may have sustained an acute injury that has been longer lasting than the course of the normal lumbar spondylosis?--- Well, no. I suspect that she did have some muscular back pain at the time. I suspect that that was probably experienced. And I don’t – I can’t – I’d get to my records and try and look for that nuance in the history. But no doubt there’s been a delay in terms of the identifiable focus of back pain described at that sort of L4/5, L5/S1 level in the lower spine. Which then becomes the focus of everyone’s investigations, radiologically, and therefore becomes the focus of this diagnosis. And I think I’ve just touched upon there, Mr Smith, some very important co-morbidities which surround why we could explain there’s been this, if you like, slow burn deterioration in symptoms over days post-injury, then into months, and now into years, post-injury, where there’s been there’s confounders in her recovery because of those muscular deconditioning issues: abdominal surgeries; you know, core muscle weakness; general aerobic deconditioning; you know, body habit has changes in terms of extra tissue. Those things are all the reasons why she’s where she is today. But you would agree that she would not necessarily be in the position that she is today if not for this incident?---I can’t deny the incident has been a change for her, for sure. This has been a significant event.”38 [29] The plaintiff called Dr Searle, another orthopaedic surgeon. He examined the plaintiff on 2 May 2009 and 23 July 2011. His evidence was relied upon in support of the plaintiff’s pleaded case that the subject incident had been the cause of not just an aggravation of lumbar spondylosis, (in the sense of making a previously unsymptomatic condition, patently symptomatic) but also, specifically, an L4/5 disc protrusion, as identified by CT scan.39 [30] It can be noted that the report of an MRI examination, conducted on 14 November 2011 identified: “L4/5 level: moderate sensile canal narrowing is seen at this level due to a combination of facet joint and ligamentum flavum hypertrophy and mild posterior disc bulge. Mild narrowing of the interverbral formina is seen at this level, however, the existing nerve roots do not appear compressed.”40 38 T2-85.22-2-86.17. 39 Although and as was canvassed with Dr Searle, the report referred to a “disc bulge” and there may be an issue of semantics involved (cf: T 3-72.15 – 3-73.25), the critical issues are dealt with as follows. 40 Ex.8, copy of MRI lumbar spine dated 15/11/15 at p 2. -- 13 of 47 -- 14 [31] It suffices to note that the evidence of Dr Searle involved a number of difficulties with the opinions expressed in support of the additional thesis. It can also be noted that this view was less categorically expressed than his opinion (consistently with the other medical evidence) of an aggravation of the underlying and pre-existing condition.41 Further such a conclusion was not pressed in the final submissions made on behalf of the plaintiff.42 [32] Dr Searle had assessed a 12% whole of person impairment, as a consequence of the incident on 25 July 2007 and although he considered it normal to deduct one tenth for the pre-existing symptomless condition (on the basis of an expressed understanding that is what is done in New South Wales),43 his expressed opinion was that the degenerative changes which pre-dated the injury were caused by the nature and conditions of her work as a nurse and therefore no deduction was necessary. This position also appeared to be related to “the relative importance of the disc protrusion”, as part of his assessment.44 [33] Dr Searle’s opinion also depended on his conclusion, in contradiction of the other orthopaedic specialist opinion, that there were signs of radiculopathy in the plaintiff’s presentation. As he conceded, there were difficulties with such a conclusion, including the absence of indication of the same on one of the better tests for it.45 Dr Searle also conceded that in his first report, dated 10 May 2009 and provided in reference to his first examination of the plaintiff, he had observed only the early signs of radiculopathy, “but not enough to make a full diagnosis”, yet in his next report, dated 5 June 2009 and provided without any further examination of the plaintiff and in response to a request to make an assessment in accordance with the AMA5 guidelines, he specifically referred to the involvement of radiculopathy.46 He had earlier agreed that the higher category into which he had assessed the plaintiff, under those guidelines, required “clear evidence of radiculopathy, which “is similar to saying there needs to be clear evidence of neurological compression”.47 Not only was there an absence of such clear evidence but Dr Searle’s explanation was: 41 T3-60-3-73. 42 T5-29.23-35. 43 T3-67.33. 44 T3-67.35-3-68.5. 45 T3-60.40-3-61.10. 46 T3-75.12-38. 47 T3-60.35-42. -- 14 of 47 -- 15 “Well, I have accepted that the signs I found there were sufficient to give a diagnosis of radiculopathy, because there was some diminished sensation in the correct dermatome and there appeared to be slight depressions in the left ankle reflex. I would say there is enough there to have a strong suspicion of radiculopathy.”48 Although, he also gave the following evidence: “MR SMITH: Yes. Doctor, you said that you do not – that the MRI – the fact that the report does not stem – demonstrate nerve root compression and that you said that you do not need nerve root compression to have radiculopathy, can you explain that?---Yes, for a long time it was thought that the sciatica that occurs because a disc is out of place was because the disc itself was pressing on the nerve. It has been shown many years ago now that the disc does not actually have to reach the nerve, because when the disc is damaged the way it is, it gives out certain biochemical markers which are irritating to the nerve root, so you can get a type of neuritis from the exudate from the disc.”49 [34] Although there may be a need to return to some particular aspect of the medical evidence, in respect of dealing with any assessment of damages, it sufficies at this juncture, to note a preference for the generally consistent evidence of Dr Keays and Dr Labrom and to the effect that any injury that was suffered by the plaintiff in the subject incident was in the nature of an aggravation of pre-existing degenerative changes in her lumbar spine and that an appropriate assessment is of a resultant impairment in the order of 5% (on a whole person basis) and that half of that impairment may be attributed to the underlying and pre-existing condition. However and before concluding any finding as to the incidence of such an injury in the subject incident, it is necessary to examine the plaintiff’s evidence, generally and particularly that prior to the subject incident, her lumbar spine was asymptomatic and therefore that an effect of the aggravation of her condition was to make it symptomatic. The plaintiff’s evidence [35] For the plaintiff, it was contended that the court should regard her as an unsophisticated woman, who “demonstrated that she is not a stickler for details” and that she had not taken great care with past descriptions of the incident due to lack of appreciation of the full consequences.50 Notwithstanding what is pointed to by the defendant as to many different or inconsistent versions she has provided, as to the 48 T3-75.40-44. 49 T3-76.1-9. 50 Plaintiff’s written submissions, at [16] and [88]. -- 15 of 47 -- 16 subject incident, it was contended that her evidence to the court should be accepted as credible. [36] It is not necessary to traverse all of the many assertions by the plaintiff in this regard and which are recorded in the evidence. A number of them are explained by apparent terseness and generality, and in that sense they simply lack specific detail and may be dependent on the circumstances in which they were provided. Others are in the nature of a summary of the plaintiff’s contention, expressed in the words of another person. Such circumstances do not substantially detract from the plaintiff’s credibility. [37] However, the following considerations (some of which exhibit the obviously more concerning feature of positive but inconsistent assertions by the plaintiff) are of more significance: (a) In an “Incident and Investigation Notification Report”, in respect of the incident and dated 31 July 2007, the plaintiff recorded: “Heard the noise of walking frame and ran into the room and patient was out of bed – using frame. So I picked her up to support her and called for the other nurse …”;51 (b) In an application for workers’ compensation completed by the plaintiff on 6 August 2007, she describes the incident as “bending to catch a patient before she fell over”;52 (c) In a separate application for workers’ compensation, completed by the plaintiff on 9 August 2007 and in response to Question 29, “How did the injury happen?”, the plaintiff wrote: “Trying to prevent a lady from falling to the floor – holding her up and bending to catch her.” Then and in response to Question 33, “Was there any object or other person involved in the event that caused your injury?”, she further wrote: “Wheelie walker – pt was trying to walk with it”;53 (d) In documented information provided to the Caloundra Spinal and Sports Medicine Centre, by the plaintiff and in answer to Question 6, “How and when did the pain arise?”, the following is recorded: 51 Ex.1/14 (first page). 52 Ex.1/19 (first page). 53 Ex.1/19 (p 2 of 4). -- 16 of 47 -- 17 “Pt out of bed after total … caught her as she fell to the floor – July 26th”;54 (e) Although the plaintiff said she did not remember saying it55 in his report dated 4 October 2007 and relating to his examination of the plaintiff on 4 October 2007, Dr Keays had recorded, under the heading “Mechanism of Injury”: “On 25.07.07 she sustained an aggravation of lumbar spondylosis whilst on night duty as a registered nurse. A 92 year old lady who had had a total hip replacement five hours previously, climbed out of bed and was confused and disoriented. She raced up to prevent the patient from falling and caught her. As she did so, she twisted her back. There was slight pain. She finished her shift and went on rostered days off. However, her backache increased and she was unable to continue working after two further nights.”56 [38] The version recorded by Dr Keays is problematic, in that it was never established that the words “climbed out of bed” are to be specifically attributed to the plaintiff and it can be noted that in his later report, dated 8 January 2008, Dr Keays attributes to the plaintiff a version that: “She caught the patient who was falling out of bed and as she did so she twisted her back. After that she developed back pain which increased over the next few days.”57 Further, this is the recording, notwithstanding that at p 4 of both reports, the same earlier form of history, with the words “climbing out of bed”, are recorded, under the heading: “History as related by Diane Downes”. [39] An important aspect of the version provided to Dr Keays, lies in the more specific recording as to the onset of pain. In that regard there is a conflict with the report to Dr Labrom in February 2009 and which, as has already been noted, was of some specific importance to that doctor’s opinions, that: “At the time Ms Downes says that she was supporting a patient who was falling out of bed awkwardly, the patient was an elderly patient, at 89 years of age. The patient had had a total hip replacement, and was disoriented post-operatively and was climbing out of bed. 54 This document is part of Ex.2 and it is apparent that it is a photocopy where part of the right hand side of the document has not been copied and, relevantly to this extract, whatever appears immediately after the word “total” has not been copied; cf. T1-80.9-21. 55 T1-80.23-25. 56 Ex.14, report dated 14/10/07, at p 2. 57 Ex.14, report dated 8 January 2008, at p 2. -- 17 of 47 -- 18 Ms Downes experienced severe back pain at the time, though continued working for around one week after the incident. She had increasing amounts of low back pain, with right sided buttock and leg pain …”58 [40] Obviously, gaining an understanding as to the onset of pain, was likely to have been a matter of some particular interest to the doctors and the situation is then further complicated by reference to Dr Searles’ report, dated 10 May 2009, and where the plaintiff is recorded as describing that: “While [she] was at work she took hold of a small lady who was attempting to get out of bed. She was being helped by another but was aware of a twisting effect on her back. Within about two hours she had low back pain but she managed to finish her shift.”59 [41] No doubt and due to such variations in past description and having regard to the full implications of the incident whereby the patient was returned to her desired position in the bed, the plaintiff sought a report in respect of workplace safety and ergonomics (“the Intersafe Report”) and as to which Dr Ludcke, a mechanical engineer, gave evidence at trial.60 It was as a result of that report that the plaintiff amended her pleading, to include what was referred to as “the lifting case”. [42] For present purposes, it is only necessary to note that in the Intersafe Report, there is specific notation that the plaintiff had, in interviews, provided detail as to the incident, including: “18. During the incident of supporting and placing Beryl back into bed, Ms Downes could recall a twisting action on her back. Immediately following the incident Ms Downes could not recall feeling any pain. Several hours later, she experienced an onset of pain in her lower back, which did not subside. The shift had involved minimal other manual tasks, and as such, she attributed it to the incident involving Beryl.”61 [43] Despite this and as pointed out by the defendant, the plaintiff confirmed, in cross- examination, that she was “definitely certain” that: “… it’s at that point that you are holding her under the arms and you are holding her under the arms and she is sitting on the edge of the bed. It’s at that point whilst you’re supporting her that you twisted yourself around to your right… 58 Ex.7, report dated 20/2/09, at p 2. 59 Ex.1/4, at p 1. 60 See Ex.1/2; with another acknowledged author of the report being Mr Dargusch, a mechanical engineer. 61 Ibid, at p 8. -- 18 of 47 -- 19 And it’s at that point that you felt this sudden pain that you described to us this morning.”62 Yet and in a statement given to her solicitors and adopted by her on 4 November 2008, she had stated, “I didn’t feel any pain in my back until later.” Some further context to that assertion should also be noted: “9. She was hanging out of the bed with her feet down trying to get out. I believe she was trying to get to her walker. She was completely deaf. We hadn’t been told until after the event that she was deaf. I tried to grab her around the waist to stop her from falling. She is only a little lady but I was very worried about twisting her hip which had just been operated on. She had played up after the operation before I came on shift and had been given morphine and obviously the morphine had worn off. 10. I didn’t bend at the knees but I didn’t have to go over far enough for that to be an issue. I didn’t feel any pain in my back until later. I yelled to Sam as I grabbed the lady.”63 [44] The situation is further complicated by evidence called by the defendant from the only other living witness to any point of the subject incident,64 Nurse Samantha Wendland.65 After describing that she particularly remembered the shift because it partly occurred on her birthday and that the plaintiff had given her a birthday card at the conclusion of it,66 she explained: “I heard – Di called out to me and I walked into the room. As I walked into the room I saw the patient with Mrs Downes on a mobility device headed in the direction towards the bathroom. I assisted Di to move the patient back on to the bed. I don’t recall exactly how we moved the patient back up into her position. I would have been on the right side – hand – right side of the bed to help as the patient had a right hip replacement, so they would have needed support to get that leg back up the bed. At that time I noticed that there was a drain pulled out of the patient also.”67 [45] Nurse Wendland went on to describe that the patient was “half a metre to a metre” from the bed and that the “mobility device” was “a wheelie walker” and that the patient was “[s]tanding upright on the wheelie walker and Di was to either side. I’m not sure which side she was on.”68 She further indicated that she went from another 62 T1-78.11-18. 63 Ex.3, at pp 2-3. 64 The patient was deceased by the time of the trial. 65 At the time she was known by her maiden surname: Newell. 66 T4-46.16-18. 67 T4-46.35-41. 68 T4-46.47-4-47.21. -- 19 of 47 -- 20 part of the ward to the incident as soon as she heard the plaintiff call out and was there in 10 seconds, and that the reason why she recalled that “the patient was definitely standing up on the walking aid” is that she had a specific recollection of making an observation to the patient’s orthopaedic surgeon, Dr Winstanley, on his round the next morning and jokingly saying, “You did a really good job. The patient walked very well.” She went on to explain that she recalled then immediately doubting the appropriateness of her comment to the doctor.69 [46] Although she could not actually recall how it was that she and the plaintiff had manoeuvred the patient back into bed, Nurse Wendland’s evidence was to disagree with the description given by the plaintiff and as recorded in the Intersafe Report,70 on the basis that: “I’ve never moved a patient like that. I would never move a patient like that. I would do injury to myself if I was to practice in that way.”71 [47] However, some similar problems also emerged in relation to the evidence of this witness. In a statement she had provided to a WorkCover investigator, on 12 July 2011, she had said: “I can’t recall for sure now whether the patient was fully, partially or at all out of the bed. However, I do recall assisting the claimant to get the patient back into position on the bed.”72 [48] Nurse Wendland’s evidence was that what she had then said was true and that she had acknowledged that it was true and correct at the time of making the statement. She further explained that she had been quite particular in giving the statement, because of her concerns that prior to this and in respect of an approach from the plaintiff’s solicitors, she had a sense of pressure to give information that they wanted. Her explanation for this conundrum was: “Since then I have remembered what I said to Dr Winstanley and remembered that the patient was up on a – the wheelie walker, headed towards the bathroom.”73 However, she also agreed that, at the plaintiff’s request, she had provided an earlier version, which was also true and correct and which she had also prepared herself and 69 T4-47.40-4-48.5. 70 See Ex.1/2, at p 8. 71 T4-49.22-24. 72 T4-58.30-4.59.45 and Ex.12, at [9]. 73 T4-60.1-3. -- 20 of 47 -- 21 which was ultimately put in typewritten form and signed by her. This was done between July and December 2008 and in that statement she said: “On entering the room I observed Di assisting the post-operative joint replacement/repair patient back to bed, Di was positioned next to the bed with patient, I recall either an intravenous drip or a surgical drain was no longer insitu, I assisted Di to continue transferring and re-positioning the patient onto the bed. Di informed post-incident that she had heard a noise and when she entered room to view patient, the patient had gotten out of bed, and was walking towards bathroom. I am unable to recall any other specific details of the incident.”74 [49] It can be observed that neither this witness nor the plaintiff, gave the impression of being dishonest witnesses. However and given the marked inconsistencies in the versions each of them have provided as to the circumstances of the critical incident, each of them must be regarded as unreliable, at least as to those circumstances. [50] Critically, the plaintiff’s evidence confronts the striking obstacle that her first recorded version, in the incident report dated 31 July 2007, contains the positive assertion that “the patient was out of bed using frame”. That is critically inconsistent with the version upon which the plaintiff’s case is based and her purported explanation for it,75 is unconvincing and unacceptable. Similarly, the inconsistent statements as to the onset of pain are both clear and critical. Applicable principles [51] As has been noted, the defendant concedes its non-delegable duty to its employees, to use reasonable care to avoid injury which is reasonably foreseeable,76 and acknowledges that the risks against which an employer should guard include those which are mere possibilities. Express reference was made to the observations of Gibbs CJ in Turner v South Australia:77 “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.” 74 T4-60.23-4-62.30 and Ex.11. 75 See paragraph [19], above. 76 Kondis v State Transport Authority (1984) 154 CLR 672. 77 (1982) 56 ALJR 839 at 840. -- 21 of 47 -- 22 [52] Further and by reference to the decision of McMeekin J in Wilkinson v BP Australia Pty Ltd,78 the defendant characterised the onus of the plaintiff in terms of having 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.79 [53] 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. [54] As to the issue of breach of duty, each party referred to Wyong Shire Council v Shirt,80 in identification of factors that bear on what might be a reasonable response to foreseeable risk, as 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. [55] As the plaintiff accepted,81 the exercise is one conducted in a prospective and not retrospective sense and, as emphasised by the defendant,82 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: “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. 78 [2008] QSC 171 at [28]. 79 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. 80 (1979) 146 CLR 40. 81 By reference to Hegarty v Queensland Ambulance Service [2007] QCA 366 at [49]. 82 By reference to Vairy v Wyong Shire Council (2005) 233 CLR 422 at [49], [60]-[61], [79], [105], [124]-[129] and [160], and Mulligan v Coffs Harbour City Council (2005) 233 CLR 486 at [50]. -- 22 of 47 -- 23 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’. 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. … 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.”83 (emphasis as in original) Discussion [56] Whilst for the defendant it was accepted that it is generally unnecessary for a plaintiff to establish that the precise manner in which he or she was injured was reasonably foreseeable,84 it was contended that the plaintiff had to establish “some factual matrix before a court could be satisfied that the risk to which the plaintiff was exposed was not farfetched or fanciful but rather real and therefore foreseeable”.85 Further, and by reference to Vozza v Tooth & Co Ltd,86 the defendant submits: “It is therefore necessary, in order for the plaintiff to succeed, to demonstrate by direct evidence or reasonable inference that the defendant unreasonably failed to take measures or adopt a means reasonably open to it in all of the circumstances which would have protected the plaintiff from the dangers of her task without unduly impeding the task’s accomplishment.”87 83 As above fn 82, Vairy v Wyong Shire Council at [124]-[126]. 84 Chapman v Hearse (1961) 106 CLR 112, at 120-121, and Rosenberg v Percival (2001) 205 CLR 434, at [64], are referred to: see defendant’s written submissions at [26] and fn 31. 85 Cf: Wyong Shire Council v Shirt (1980) 146 CLR 40, at 47-48. 86 (1964) 112 CLR 316, at 319. 87 See defendant’s written submissions at [29]. -- 23 of 47 -- 24 [57] At the most basic level, the plaintiff’s case is premised on the foreseeability of risk of injury, particularly to her back, by being placed in any avoidable situation where manual handling of a patient became necessary. In this regard and in recognition of the different versions of the incident provided by the plaintiff, it was contended, for her, that: “Whatever the version it is not contentious that the plaintiff sustained a back injury in the event involving ‘catching Beryl’ and lifting her back into the bed.”88 The full effect of that submission cannot be accepted. For example the question as to whether the plaintiff sustained any back injury in the incident did remain in contention and further the reference to “catching Beryl” depends upon the ability of the court to form some conclusion as to the physical actions that were involved in the plaintiff’s interaction with the patient. However, there is some merit in the contention that, if such a situation is established, then it may not matter as to precisely how that occurred. In this regard and notwithstanding the observations which have been made as to the reliability of each of the witnesses to the incident and as to precisely what did occur, both the plaintiff and Nurse Wendland gave evidence that there was an incident that involved the plaintiff first coming into contact with the patient, by way of some manual handling and that both of them were then involved in further manual handling of her in order to return her to bed. [58] I will return to that aspect of the plaintiff’s case, but for present purposes it may be seen that there is a particular difficulty in the failure of the plaintiff to establish any more precise circumstances of that manual handling, let alone any precise mechanism of injury, in that this serves to deny her attempt to prove that her injury was caused by any breach of duty in respect of her particular manual handling techniques or in the setup of the patient’s bed. [59] In particular, the allegation which is based upon a failure of the defendant to ensure that the patient’s bed was put at its lowest level and such as would have allowed her to steady herself by using her unaffected leg upon the ground and when she was at the side of her bed, critically depends upon a finding that the plaintiff was involved in supporting her at the side of her bed and when she was attempting to move from it and to a standing position on the floor. 88 Plaintiff’s written submissions at [95]. -- 24 of 47 -- 25 [60] In relation to the issue of manual handling of patients generally, the plaintiff pointed to the training that she was given in what was referred to as the “O’Shea No Lift System” and the adopted hospital policy as to avoidance of manual handling of patients so as to place strain or pressure on the bodies and particularly the backs of nursing staff. For instance, reference was made to the use of slide sheets, in order to move patients within or upon a bed.89 [61] For the plaintiff, her case was pleaded on the basis of a failure of the defendant to give the plaintiff any appropriate instruction, training or warning in relation to the risk of injuries in the performance of her work and as to how to avoid those injuries, and the particulars attached to that allegation specifically alleged that the training that was given was confined to controlled situations and not as to how to handle an emergent situation.90 In final submissions, a number of criticisms were made as to the implementation of the no lift policy and particularly in respect of any follow up or monitoring of the training which had been provided and the supervision of the plaintiff in that regard, particularly in order to assess and correct any inappropriate or incorrect technique or approach she had to risk management in this context.91 [62] However, one particular problem is that, in the absence of reliable evidence as to precisely what the plaintiff did by way of manually handling this patient, there is an obvious difficulty in establishing that any such breach duty and which allowed her to adopt an inappropriate or incorrect technique, caused her any injury. [63] Moreover and as was demonstrated by Exhibit 4 and other evidence given,92 the defendant had implemented a thorough training process and particularly with a view to identifying the issue of risk management in respect of patient handling and that the management of such risk was taken seriously and implemented in the workplace. In fact the plaintiff agreed there was a thorough training process, which her employer took seriously.93 89 Although it can be noted that the uncontradicted evidence of the plaintiff was that there was no slide sheet in this patient’s room at the time of the incident, it was also her evidence that in the situation she described, it was not appropriate to use such an aid: T1-32-10.40. 90 See amended statement of claim at [6a]. 91 See plaintiff’s written submissions at [59]-[72]. 92 For example, see the evidence of Ms Gregory. 93 T2-15-1-3. -- 25 of 47 -- 26 [64] Also, the nomenclature of the training program, whilst appropriate to the recognition of the risks posed by manual handling, is potentially misleading. As would necessarily be the case, neither the training nor the defendant’s policies were directed at the absence of manual handling by nursing staff. Rather and as described by Mr Robertson94 in evidence, the training was directed at providing nursing staff with the tools to enable them to carry out common duties in the safest possible manner and to be able to confront less common and more emergent tasks by utilisation of the tools in the risk management to be applied, as far as practicable and in order to minimise the risk of injury. [65] As to the lifting involved in the repositioning of the patient on the bed, the defendant accepted the proposition that there is a risk of injury inherent in the method of manual handling described in the plaintiff’s evidence and reflected in the Intersafe Report and Mr Ludcke’s evidence.95 However and as further pointed out by the defendant, there is absence of evidence in that report or from Mr Ludcke that identified any particular deficiency in the training that had been provided to the plaintiff in this regard or as to anything that ought to have been done differently in order to address this risk of injury.96 It was of course, the defendant’s position that the lifting that was described was inconsistent and incompatible with the training that had been provided. [66] To the extent that it was suggested that there was an absence of follow up or monitoring in order to ensure correctness of approach and technique in accordance with the training and policies of the defendant, that confronts the problem of the absence of reliable evidence as to what actually occurred. As to the suggestions made by Mr Ludcke as to the use of aids, such was clearly addressed in the training provided to the plaintiff and in any event, she rejected the contention that such aids could have been used, in the situation that confronted her.97 [67] Moreover, and to the extent that plaintiff sought to make something out of her cause in this respect, in the evidence of Mr Robertson,98 that also depended upon the plaintiff’s description as to what she had done by way of manual handling of this patient. 94 T4-71.30-36. 95 Defendant’s written submissions at [93]. 96 Ibid at [96] – [97]. 97 T1-31.41-45 and T1-32.10-47 and see Ex.4/2 (page 31 and 32). 98 See T4-75-4-77. -- 26 of 47 -- 27 [68] In any event, it was not established that the training provided to the plaintiff was inadequate. It is not to the point that there may be nothing in the training which expressly addresses the situation described by the plaintiff, as occurring with this patient. As has been noted, the training was appropriately designed to provide the tools to be adapted to situations as they arose. The plaintiff agreed that she had been undergoing clinical training programs, on an approximately yearly basis over the last ten years of her employment and that this had included training in how to care for her back and prevent pain by the teaching of techniques, which might prevent injury.99 [69] For the plaintiff, it was pointed out that there was an absence of compliance with the express expectations of the O’Shea No Lift System, because the plaintiff’s competency in the taught techniques was not afterwards further assessed or monitored in accordance with the express expectations or generally. In particular and in reference to the defendant’s reliance on supervision or oversight by the plaintiff’s manager, Nurse Billman, it is correctly pointed out that around the relevant time, their shifts only overlapped for about the final 15 minutes of the plaintiff’s shift. The following submission is then made: “in the premises, to the extent it is alleged that the plaintiff’s injuries are due to her non-compliance with the ‘no-lift policy’ it is submitted that the O’Shea No Lift System was not properly implemented. Further any deficiencies in the plaintiff’s manual handling techniques should have been identified during formal reviews of her manual handling techniques and/or during task observation by her supervisor (in line with what is alleged to have occurred by the defendant but in fact did not).”100 [70] Once again an underlying problem for the plaintiff is the absence of reliable evidence as to what actually occurred. This aspect of the plaintiff’s case also confronts the plaintiff’s evidence that there was no realistic option but to act as she said she had, in the circumstances. Further, the only aspect of that course of action, which could be said to unequivocally have been non-complaint with the ‘no-lift policy’ were the actions in lifting the patient in order to reposition her in the bed. Accordingly, a further obstacle to this aspect of the case, is the absence of evidence that would enable a finding that it was this aspect of the plaintiff’s actions which caused her injury. It was, as has already been noted, the plaintiff’s evidence that she had experienced pain when supporting the patient at the side of the bed and at an earlier stage of the 99 T2-2.45-2-3.45. 100 Plaintiff’s written submissions at [72]. -- 27 of 47 -- 28 incident. Although the plaintiff did not adduce any evidence as to the angles or forces thereby involved and Mr Ludcke expressed some surprise that the plaintiff would suggest twisting at that point as the source of her injury, rather than the lifting of the patient on the bed, it was, as is also been noted, commonly accepted by the orthopaedic specialists that this was an acceptable mechanism of the plaintiff’s injury. In this respect, it can also be noted that there was evidence that in the context of the nature of the plaintiff’s underlying or pre-existing condition of her lumbar spine, it might be expected that only relatively slight exertion of force or insult to that part of the body, could explain the injury in the nature of the aggravation of that condition. [71] Accordingly, this case devolves to an assessment of the proposition that was conceded by Mr Robertson, that “the best way to manage particular risk is to eliminate it, if that is possible and that in the context of the circumstances that were outlined in the plaintiff’s evidence and the manual handling of the patient that was involved, the best risk management strategy was to take steps to avoid putting her in the position in the first place.”101 [72] As to this aspect of the plaintiff’s case, it is pointed out that in the pleadings, the defendant admits that prior to the subject incident, it: (a) knew or had been alerted that this patient had a past history of hallucinations post-anaesthetic; (b) had conducted a falls risk assessment in relation to the patient and had concluded and recorded that the patient:102 (i) was specifically at risk of collapse on her first walk after the surgical procedure; and (ii) was generally at risk of collapse, post procedure and was assessed at a moderate falls risk; and (c) recorded that in the context of that risk assessment, the actions implemented or to be implemented, included: (i) an alert symbol placed above her bed; (ii) lowering her bed to the lowest possible point when staff were not present; and 101 T4-72.10-4-73.30. 102 Ex.1/5, at p 25. -- 28 of 47 -- 29 (iii) for two staff to be involved in transferring the patient to the shower or toilet on the first day, with the use of a shower chair. [73] There is also evidence that in conjunction with the pre-admission assessment done on 18 July 2007 and her admission to hospital on 24 July 2015, that the defendant became aware that the patient: (a) was functionally deaf;103 (b) suffered short-term memory loss;104and (c) had difficulty in responding to questions.105 [74] Whilst it may be noted that there is a clear implication that these assessments and recordings are directed at the nursing care to be provided to this patient, they also serve the purpose of identification of the particular risks that the patient may present to the staff who will provide this care. In the context of the evidence as to and the defendant’s own emphasis on, the provision of extensive training to its nursing staff, in terms of avoiding or minimising the risk of injury from patient handling, it is not difficult to conclude that a risk of injury to the defendant’s nursing staff was reasonably foreseeable, if appropriate steps were not taken to avoid or minimise the risk of such staff being put in a position where some manual handling of this patient was required and particularly if this occurred in a sudden or unusual way. [75] The questions that then arise are as to whether it is established that: (a) the defendant unreasonably failed to take steps to remove or guard against the risk; and (b) if so, whether any such breach of duty caused the plaintiff’s injury. [76] As to steps that were unreasonably omitted, the plaintiff contended that: (a) the defendant should have had a bed with full length side rails; (b) the patient’s bed should have been but was not lowered to the lowest level; (c) no alert symbol was placed above her bed; and (d) generally and as was required in respect of this patient she was not provided with more than a standard level of care or nursing attention. 103 Ex.1/5, at pp 11, 14 and 22. 104 Ex.1/5, at pp 11 and 29. 105 Ex.1/5, at pp 22 and 24. -- 29 of 47 -- 30 The patient’s bed [77] As has already been noted and in respect of a failure to ensure that the patient’s bed had been lowered to the lowest level, such an omission could only have significance as a causative factor in the plaintiff’s injury, if it were accepted that the injury occurred as a consequence of some involvement of the plaintiff in manually handling the patient, where such a failure was a relevant circumstance. That is if it was accepted, for instance, that the plaintiff was involved in supporting the patient when she was teetering on the side of the bed and unable to reach the floor and thereby assisting in stabilising herself, in that situation. [78] Logically this contended failure is an alternative to the further contention that a bed with full length cot rails or side rails should have been used for this patient. The plaintiff’s submission is: “In the premises, it is submitted that there was no reason that Beryl could not have been place [sic] in a bed with full length cot rails. Had Beryl been place [sic] in a bed with full length cot rails it is unlikely that Beryl would have been successful in getting out of bed to the point she was teetering on the edge. Even if she had of [sic] attempted to get up with full length cot rails the plaintiff would have heard and attended to her needs (as she in fact did) prior to her making good her escape and as such would not have been exposed to the situation that led to her injury.”106 Underlying that submission was the contention: “The plaintiff does not allege that every bed in the hospital should have full length cot rails, simply that a small number should be available for high risk patients.”107 [79] The defendant summarised its position in this regard as follows: “110. As to the allegation that the defendant ought to have provided a different bed, Mr Ludke did not produce any evidence as to the cost of providing a different bed for this patient. However the enquiry that is directed to replacing the bed for this particular patient is, with respect, an incorrect approach. It assumes that the defendant ought to have made available for each such class of persons as this patient, elderly, hard of hearing, at real risk of confusion post-anaesthetic, and a hip replacement patient in a bed on each such occasion while they were in hospital. 111. The evidence of Ms Billman is that the hospital performed 160 such hip replacement operations each year. A significant 106 The plaintiff’s written submissions at [44]. 107 Ibid at [43]. -- 30 of 47 -- 31 proportion of those persons were elderly and hard of hearing. No doubt many other elderly people having different surgeries fell into the same category. The suggestion that the hospital ought to have had an adequate number of beds without a gap in the side of the rails is entirely uncosted. 112. As to the issue of negligence in relation to the failure to replace the bed, Mr Ludke, somewhat surprisingly, was not even able to explain, from a design perspective, why the bed had such a gap. Ms Billman said that it was consistent with Australian standards. In those circumstances the plaintiff has failed to show that it would have been a reasonable response to the risk to replace the bed. 113. In any event if Mr Ludke’s suggestion were to find some support, it seems he recommends nothing more than replacing one suitable bed with another suitable bed. The cost associated with doing so having regard to the magnitude of the risk has not been established by the plaintiff to be reasonable.”108 [80] However and for the plaintiff it is also correctly pointed out that: (a) the bed in which the plaintiff was placed had a gap of approximately 450 mm between the end of the cot rail and the upright panel at the foot of the bed and that on the plaintiff’s evidence, it was through this gap that the patient attempted to exit the bed; (b) the uncontradicted evidence of the plaintiff was that beds with full length cot rails were available and in fact used in the intensive care ward at the hospital; and (c) the Australian Standard to which the defendant refers,109 post-dates the incident but in any event provides that the distance between the head panel or foot panel and side rail must be either less than or equal to 60 mm or greater than or equal to 235 mm.110 [81] Again and to the extent that the plaintiff seeks to engage this contended failure or omission, as a causative factor in her injury, based on her evidence as to her engagement with manually handling the patient in a position where she was teetering on the edge of the bed, in the gap between the panel at the foot of the bed and to the side rail, she also confronts the absence of reliable evidence in proof of those facts. Further and to the extent that there is a broader contention, that a precaution of having placed the patient in a bed with full length side rails would not have exposed the 108 Defendant’s written submissions at [110]-[113]. 109 AS3200.2.38: 2007 – Ex 13/2. 110 Ibid at p 24. -- 31 of 47 -- 32 plaintiff to the situation that led to her injury, the contention is otherwise speculative. Whilst it may be considered that a bed with a full-length side rail may have presented a greater obstacle or impediment to an attempt by the patient to get out of the bed, it does not follow that it would have been sufficient to prevent any such attempt or that the presence of such an impediment may not have provided potential for the situation of the plaintiff being brought into a position of manually handling the patient in an even more precarious situation of attempting to climb over the side rails. Dealing with the patient [82] What remain are the plaintiff’s complaints as to how she was exposed to the risk of injury, due to the way that her employer dealt with this patient and as to the level of nursing care that was provided and the omission of warning as to specific risk factors for the nursing staff in dealing with her. [83] A submission made for the plaintiff is that: “… the defendant ought to have provided adequate numbers of nursing staff to allow continuous or frequent observation of Beryl in the overnight period following her surgery.”111 [84] The plaintiff’s case in this respect, gains some support from the evidence of Dr Barnett, an experienced surgeon. Particular reliance was placed on that doctor’s opinion, expressed after a review of the hospital records for the patient, that: “The immediate and continuing post-operative behaviour of this patient could have been confidently predicted from the history given pre-operatively. The patient’s deafness, short-term memory loss, limited mobility and history of disorientation/hallucinations following previous anaesthetics and surgery should have signalled a state of confusion and limited cognitive ability following the operation in July 2007, for all the reasons given in answer to earlier questions. Adequate numbers of nursing staff to provide continuous or frequent observation of such a patient, for a minimum period of 12 hours post operatively, particularly during an overnight phase, would not only have been appropriate but should, sensibly, be regarded as a minimal standard of care.”112 [85] As the defendant was careful to establish with Dr Barnett, there was nothing noted in the observations of the patient, post-surgery and up to the point of the subject incident, to indicate any particular difficulty in her care or any indication of need for more intensive supervision and care or any particular concern as to her care at all. But it is 111 Plaintiff’s written outline at [58]. 112 Ex.1/3, at p 5. -- 32 of 47 -- 33 necessary to understand that Dr Barnett’s opinion is based on broader considerations. In addition to the pre-admission and admission notations, Dr Barnett explained, when pressed with the suggestion that: “you wouldn’t have predicted anything unusual to have occurred with this patient, even knowing her history, in the first eight to ten hours post-surgery”, he agreed but then explained as follows: “…My experience would suggest that it is usually when whatever was used to provide pain relief during the operative procedure finally dissipates, and there is a period when there is – there are a combination of factors presenting, that is, recrudescence of pain or presentation of pain, inadequate or no analgesia in the narcotic form, and the – and in her – this lady’s particular circumstance, her age, frailty, deafness, would make her – her frightened as she awoke from sedation and was presented with strange situation and pain. But in that sense – in that context, it’s merely that she is an elderly patient waking up in an unfamiliar environment, in the hospital post- operatively, that would make you predict that there might be some issue with her post-operative course in that 10 hour plus period?---That’s – that’s a predictable possibility or high risk – high possibility, not just mine, but – but the literature would attest to that, the confusion and up to – whatever is decided as delirium can occur up in to 60 per cent of elderly patients from their mid-70s on in that – after that time period. I see?---Often the initial few hours are the quietest.113 [86] Further and when asked to identify “the features that might have predisposed her to some confusion” in that period, Dr Barnett identified: “Her age, her deafness and difficulty in understanding – hearing what is said to her, and her frailty… at 40kg. She sustained some recorded blood loss…”114 [87] Apart from the recorded blood loss those were features that were identified prior to and at the point of admission. As to the potentiality of blood loss, Dr Barnett indicated that it was possible to predict or make an “educated assessment” as to the likely extent of blood loss, without complications in surgery. [88] Accordingly and in addition to the general considerations adverted to by Dr Barnett, the defendant had specific information as to some particular risks involved in caring for Beryl, post-operatively. The assessment of those risks had resulted in the identification of a number of measures to be implemented in response. This included 113 T2 – 92.27 – 43. 114 T2 – 93.2-4. -- 33 of 47 -- 34 the use of an alert symbol, which may have served as a form of notification to the plaintiff and others of a need to pay more than usual attention to this patient’s needs. [89] More particularly, it is the plaintiff’s case that the particular needs of this patient, and therefore the risk of having to manually handle her, were not brought to her attention, so that she could avoid or minimise that risk and any consequent harm to herself. [90] In her evidence, the nurse unit manager, Ms Billman, expressly conceded that she did not have regard to the available information, for the purpose of assessing staffing requirements for the shifts involving the care of Beryl115 and also that it would not be expected that any nurse, including the plaintiff, would access that information from the plaintiff’s charts in conjunction with the shift handover. 116 [91] Moreover, Nurse Billman described an approach on the ward that would place little weight on such information and which was more reactive, rather than proactive, in approach and based on a patient’s presentation, as the nursing care proceeded.117 However, she also indicated that awareness of the recorded information would have led to it being passed on to other nursing staff, as an indication of a need to be careful.118 [92] One difficulty with Nurse Billman’s evidence is that it came from an obviously defensive position. First, in respect of her decision as to the staffing requirements for the shift, during which the subject incident occurred. Secondly, in respect of her notation on the incident and investigation notification report119 and as her incident investigation findings, in terms that: “Patient confused condition contributed to post-operative period which was not able to be pre-determined” Her explanation for that entry was: “And that’s your writing you’ve already confirmed. And where it says, “Patient confused, condition contributed to post op period which was not able to be predetermined”, what do you mean by that?---We assume the majority of people don’t get confused and get up and walk post operatively. There is the risk that there are some that will do it. Because this lady presented to hospital for the operation we were able 115 T4-24.37-38. 116 T4-28.35-45 and T4-3.19-28. The charts being comprised of materials kept at the end of the patient’s bed and other records kept at the nurses station. 117 T4-24.40-47. 118 T4-25.1-6. 119 Ex.1/14. -- 34 of 47 -- 35 to prepare her to go to theatre, etcetera. It didn’t seem apparent to us that she was going to be confused immediately post op.”120 “T4-5.27-32” [93] The plaintiff’s case in respect of inadequate staffing and support of the plaintiff, in order to deal with the needs of that shift and caring for Beryl, was pleaded in various ways. However and in final submissions it was pressed as follows: “The Defendant ought to have been proactive in its management of Beryl and provided an additional staff member to maintain a full time watch on Beryl during the shift when the plaintiff was injured.”121 “The Plaintiff says that the Defendant ought to have provided adequate numbers of nursing staff to allow continuous or frequent observation of Beryl in the overnight period following her surgery.”122 [94] As contended by the defendant, the plaintiff did not adduce any evidence as to the cost of doing so, which necessarily deprives the Court of an opportunity of assessing that cost against the magnitude of the risk involved. [95] Nurse Billman’s evidence, given in the context of her observation in the incident investigation report as to an unpredictable contribution of the patient’s confused condition, was, when asked as to the significance of an ability to predetermine such a risk: “If we – if we think people are going to get confused we might have them closer to the desk, because the desk is more of a central hub, so you might hear if they needed more assistance. People confused might not necessarily remember to ring the bell. Confusion – you might pop into them more frequently, but it doesn’t necessarily mean you’re going to stay in with them the whole time.”123 She further explained that the fact that Beryl was located in a room that was close to the nurses station was otherwise coincidental124 and that there was in place an ability for requests to be made for the assistance of additional staff, from other areas in the hospital and from an agency, if an appropriate need arose at any time during a shift.125 120 T4-5.27-32. 121 Plaintiff’s written submissions at [55]. 122 Ibid at [58]. 123 T4-5.45 – 4-6.2. 124 T4-6.36-37. 125 Although it was not explained how an outside agency would produce a nurse at particularly short notice. -- 35 of 47 -- 36 [96] Although it was her evidence that she had not done so prior to the subject incident, Nurse Billman was asked to reflect on her response, had she pre-admission and admission notations in respect of Beryl been considered. Her evidence was: “Having looked at that file and knowing what you know now about her pre-admission phase, knowing that there were 14 patients in the ward that night, knowing – factoring all those things into account, would you have made any assessment about the need for Beryl to have had – about the ward to have had an additional member of staff on?---No, I would not have thought it needed an extra staff member. All right. And, again, knowing all those things about this particular patient, all her pre-operative information, would you have – can you make any assessment of whether Beryl required additional care perhaps in the form of close or continuous monitoring?---I would have thought that what we would – what we do is bring them closer to the desk, have the doors open, so additional steps for observation. Yes.”126 [97] Nurse Billman also understandably accepted that as well as an assessment of the needs for the care of patients, including Beryl, there was necessity to assess the risk presented by any such patient to the health and safety of the nursing staff. But she contended that: “I didn’t feel Beryl needed extra staff on the ward or specialling at the time. When she was trying to get out of bed, then the staff – we are taught manual handling practices to try and prevent, then, injury to the patient and themselves.”127 That, of course, was in reference to the view she formed, without reference to the information which has been critically identified in this trial. [98] Otherwise and in the context of the evidence of Dr Barnett, as to medical experience in dealing with patients like Beryl, Nurse Billman’s evidence was that Beryl presented as similar in many ways to many of the 160, or so, joint replacement patients nursed by the defendant on a yearly basis128 and that, leaving aside the prior incident where the plaintiff injured her wrist, she could not recall any incident where a staff member had sustained an injury in manually handling such a patient or even where a nurse was required to deal with an incident where a patient had unexpectedly gotten out of bed.129 126 T4-40.31-47. 127 T4-43.19-22. 128 T4-42.1-47. 129 T4-43.40-4.44.13. -- 36 of 47 -- 37 [99] It is necessary to note that whilst being obviously part of any assessment of the nursing needs of patients and accordingly the necessary staffing levels, the issue in this case is as to the assessment of risk of injury to staff and therefore a matter of looking, in a prospective sense, at what the defendant should reasonably have done in response to an assessment of the risk of injury to the plaintiff, particularly in the light of the information that was available to the defendant as to the risks involved in dealing with this particular patient. [100] It can also be noted that the plaintiff did not plead nor litigate her case on any basis that relied upon any particular vulnerability or susceptibility to injury, or more particularly, any knowledge of that on the part of the defendant. Accordingly and as correctly contended by the defendant, the assessment of risk of injury to staff required regard to the position of a worker of normal health or fortitude,130 and obviously in respect of the risk of having to manually handle a 41kg patient. [101] Quite apart from the difficulties, which have been discussed above, as to any finding as to the precise mechanism of injury to the plaintiff, she has not led any evidence as to any particular degree of force to which her spine was subjected, whether abnormal or otherwise, and it is clear that the orthopaedic specialists identified her particular susceptibility to aggravation of her underlying degenerative condition to even low level stress or load, including in mundane, everyday incidents of life. [102] In these circumstances, it should be concluded that the plaintiff has not established, on the balance of probabilities, that there was any breach of duty owed to her by the defendant, in terms of failing to provide for additional staff on the shift in question and particularly, in not providing for a nurse to remain solely with the patient Beryl. [103] However, that conclusion does not entirely dispose of the plaintiff’s case. The further question is not quite as narrow as the defendant suggests, as being “concerned with whether the defendant ought to have directed the plaintiff to provide more frequent care to the patient”.131 Rather, it is concerned with what appears, given the obvious trouble to which the defendant went in obtaining it, to be an inexplicable omission to ensure that the information obtained about the particular characteristics of Beryl, was specifically isolated and brought to the attention of the nursing staff who were 130 Reference was made to Brkovic v J O’Clough & Son Pty Ltd (1983) 57 ALJR 834 at 835 and Calvert v Mayne Nickless Ltd [2006] 1 Qd R 106 at 125. 131 See defendant’s written submissions at [108]. -- 37 of 47 -- 38 required to deal with her, including by way of the recommended action of placement of an alert symbol on her bed. As Nurse Billman conceded, awareness of this information was likely to have led to identification of a need for precautionary steps and heightened vigilance in the care of Beryl. Further, the plaintiff’s evidence was: “What would you have done differently?---Well, I would have observed her very frequently to make sure she was all right, and then when I realised she had been confused in the evening as well I probably would have taken a chair and sat by the door. We had a lot of paperwork to do, but we could sit near the door and do some paperwork there, as well as get up and look after the other patients.”132 … That couldn't possibly have stopped this patient from teetering out of bed?---No, but I would have been in the room quite frequently. I would have even taken a chair and sat at the door, which we did sometimes.”133 [104] As the defendant appropriately conceded, there may not be any additional cost associated with providing a more frequent (or more constant) level of care to a particular patient, provided that such care was provided by the plaintiff herself. Accordingly and in a prospective sense and notwithstanding that it would remain a question of assessment of the magnitude or degree of risk of injury to a worker of normal health and fortitude, due to the prospect or risk of becoming involved in manually handling a 41kg patient, at some stage of a shift, a breach of duty to the plaintiff, in the sense of failing to take steps to bring to attention the particular risks involved in nursing Beryl and particularly as to the risks of having to manually handle this patient, might be more readily found. As was implicitly conceded by Nurse Billman, some risk of injury was foreseeable. Clearly the defendant could have taken steps to further minimise that risk134 and the failure to do so, by way of specific notation, for the benefit of the nursing staff, such as the plaintiff, of the information expressly gathered in the pre-admission and admission processes and therefore the need for heightened vigilance in the care of this patient, was largely unexplained and in the circumstances and more likely than not, unreasonable. [105] However and even with such a finding, the difficulty that then remains for the plaintiff, is in the proof of causation of her injury. This is particularly because any 132 T1-24.20-24. 133 T1-84.30-33. 134 Noting that Neil v New South Wales Fresh Food & Ice Pty Ltd (1963) 108 CLR 362, at 370, it was noted that a risk of injury is unnecessary if by a risk the adoption of some reasonable form of precaution or safeguard it could have been eliminated or minimised. -- 38 of 47 -- 39 such breach of duty is in respect of minimising rather than eliminating or removing the foreseeable risk of injury. Whilst proof of causation of injury is not in such circumstances, precluded, it need not logically nor necessarily follow, and careful assessment of the likely responses to a situation where there was no breach of duty, is required. [106] As is clear from her evidence, the plaintiff did not suggest an approach where she would have been in a position immediately beside the patient’s bed and therefore in a position to respond as soon as she might have stirred. Whilst a position at the doorway to the room may have assisted in a faster response, it must be kept in mind that the plaintiff was not much further away at the nurses’ station, when alerted as to Beryl’s movement and said that she responded within seconds. Also it can be noted that it was the plaintiff’s evidence that the recorded handover observations had included some notification of an earlier incident, where Beryl had demonstrated confusion and was shaking the side of her cot and this had caused in her mind a thought: “Oh hope she doesn’t fall”.135 However, that did not have any result that the plaintiff adopted any particular response by way of heightened vigilance or any adapted approach to the care of this patient. [107] Further and even if the measures suggested by the plaintiff were adopted and as she acknowledged, there would always remain the prospect of having to deal with the requirements of any other patient (or to assist the other shift nurse to do so), at any time and quite apart from dealing with other duties in respect of paperwork. [108] In the circumstances, it has not been established, on the balance of probabilities, that any such breach of duty, was causative of any injury to the plaintiff. Accordingly, the plaintiff’s claim has failed and there should be judgment for the defendant. 135 T1-17.9-15. -- 39 of 47 -- 40 Assessment of damages [110] Notwithstanding this conclusion on liability, as is customary, it is nevertheless necessary to make an assessment of the damages that may otherwise have been awarded. [111] Such assessment is to be made on the basis that the plaintiff, who was born on 29 May 1945 and was therefore 62 years of age at the time, suffered an injury in the nature of an aggravation of the degenerative condition of her lower back (or lumbar spondylosis) on 25 July 2007 and that, a consequence was that a previously asymptomatic condition became a symptomatic one. [112] She first sought treatment on 6 August 2007, which included a course of physiotherapy and facet injections and at trial she described the continued experience of significant pain in the right side of her lower back and extending down her right leg, which was managed by pain relief medication. She described her condition as being exacerbated by certain activities, particularly if bending, lifting or twisting is involved and she specifically identified no longer being able to enjoy activities such as playing tennis, walking, riding an exercise bike and playing with her grandchildren. She has had to modify her approach to housework, including by the purchase of a smaller and lighter vacuum cleaner.136 [113] Although she attempted to return to work between October 2007 and 21 February 2008, it is common ground that on 3 November 2008 her employment was terminated because of her inability to obtain a clearance to return to full duties, on the basis of 56 hours per fortnight. Since 29 November 2008, she has been in receipt of the age pension, having turned 63.5 years137 and was earlier and from 1 July 2008, in receipt of a disability pension. The parties are however at odds as to whether, or perhaps as to the extent to which, the effect of all of this was that the plaintiff was forced into early retirement, as a consequence. [114] For the plaintiff, it was accepted that the appropriate assessment as to her whole person impairment was 5% and emphasis was placed on the considerations that: 136 T1-43.4-1-44.10. 137 It may be noted that pursuant to s 23(5C) of the Social Security Act 1991 (Cth) the plaintiff’s pension age was 63.5 years. -- 40 of 47 -- 41 (a) the defendant’s employment policy did not preclude the plaintiff from working to age 70 or beyond;138 (b) despite the otherwise existing state of her health, she had been managing her employment prior to the subject incident; (c) during the period over which her condition was investigated and examined, subsequently to this incident, no significant deterioration in the state of degeneration in her lower back was noted and Dr Labrom expressed the view that her condition was unlikely to deteriorate rapidly;139 (d) Dr Labrom had identified that the presentation of the plaintiff’s lumbar spine, on the MRI taken on 14 November 2011, gave the best indication of her condition (obviously post-incident) and that contrary to his earlier description, he was content to adopt a description of the degenerative changes as being mild to moderate and “as typical age related changes for a person who, at the date of the scan was 66.5 years of age”.140 [115] For the defendant, attention was drawn to the views expressed by Dr Keays as to the potentiality for the plaintiff’s return to normal duties and his assessment of only a 2% permanent impairment. However, it was also contended that there had been some deterioration in the plaintiff’s condition over the period of time of medical review and which then supported Dr Labrom’s assessment of a 5% impairment and explained his acceptance of her inability to continue in her employment. More particular emphasis was placed on: (a) Dr Labrom’s expressed view that although a person with this sort of age-related degeneration, as the plaintiff had in her lumbar spine, may have continued working until a normal retirement age, it was more likely that some other relatively low force event would have given rise to the same sort of symptomatic position and level of impairment for the plaintiff;141 (b) the plaintiff’s general state of health and in particular that she was an insulin-dependent diabetic (as a consequence of losing her spleen and 138 T4-35.12-30. 139 T2-84.1-2. 140 Ex.7, file note of conference held on 14/11/13, at [3]. 141 Ibid at [4] and [9]. -- 41 of 47 -- 42 most of her pancreas as a result of a car accident) and an asthmatic, with her medical records indicating that from 2001 and until the subject incident, in 2007, she had been a regular and frequent attender upon her general practitioners and particularly in regard to her diabetes, which was maintained by a range of medicines. There was also evidence of the incidence of other injuries: a fractured lower leg in April 1995, an injury to her right wrist (in dealing with a patient) in 2005, and a fracture of her right ankle in 2006, and she was diagnosed with a fracture in her thoracic spine in 2008;142 and (c) the evidence of Nurse Billman that the plaintiff told her, in a discussion during the period when she returned to work on reduced hours, that her intention was to work for another one to two years.143 [116] The plaintiff did not accept that she had given such an indication to Nurse Billman, but there appears to be no good reason not to accept Nurse Billman’s evidence. However, it remains necessary to understand that any such indication must have been given in the context of the plaintiff’s post-incident condition and therefore not necessarily reflective of her pre-incident intention. [117] Although there was evidence that the plaintiff had been solely maintaining a mortgage before the incident and that she subsequently had to sell her home because of inability to meet the repayments,144 the availability of the age pension is a factor that cannot be ignored in assessing her probable working life, particularly given the plaintiff’s general state of health and the prospect of advancement of the state of degeneration of her lumbar spine leaving aside any effects of the subject incident. [118] Critically, there is a need to address the common effect of the medical evidence that the plaintiff was susceptible to being placed in the same condition that was assessed post-incident, by any low impact incident that might have occurred, in any number of ways, in the ordinary course of her life. For the plaintiff, reference was made to Hopkins v WorkCover145 as an instance of the application of relevant principles in a similar situation, although that case involved a considerably younger plaintiff. The relevant principles are that: 142 T1-47.9-1-48.28. 143 T3-94.1-2. 144 T1-45.35-1-46.2. 145 [2004] QCA 155. -- 42 of 47 -- 43 (a) whilst the persuasive onus as to causation remains on the plaintiff, the significance of the existence of a pre-existing condition or its prospective results or relationship to the disabilities complained of, depends on a evidential burden on the defendant to “establish with some reasonable measure of precision what the pre-condition was and what its future effects, both as to its nature and their future development in progress, were likely to be”;146 and (b) otherwise and particularly where there is a lack of the necessary precision of proof of likely prognosis, there is the difficulty of assessing and taking into account, the degree of probability that the plaintiff would have otherwise been in the same position due to natural or other causes, without acceleration due to the subject incident.147 [119] In the application of such principles to this case, the evidence of Dr Labrom that the MRI taken on 14 November 2011 indicated a typical result for the plaintiff’s then age of 66.5 years, is of obvious significance. As was urged by the plaintiff, the evidence did not suggest marked deterioration of the plaintiff’s condition from the date of the incident to that point. Accordingly, there should be no allowance for the effects of the incident beyond that point in time. Otherwise, it will be necessary to make an appropriate reduction of the amount to be allowed, particularly for past economic loss, to take into account the prospect of some other event triggering the symptomatic nature of the plaintiff’s condition. General damages [120] Damages for pain, suffering and loss of amenities are to be assessed having regard to general principles, and the parties’ submissions were not greatly separated, after each made reference to comparable cases.148 There was evidence that the plaintiff had used both annual and long service leave entitlements in the period in which she attempted recuperation and before her employment was terminated. It was accepted 146 As above fn 145, at [30]-[31], and see: Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. 147 Ibid at [33]-[34] and [5], and see: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, at 642-3. 148 The plaintiff referred to Luck v Civil Mining and Construction Pty Ltd [2009] QSC 413 and Morrison v Thomas Borthwick and Sons (Australia) Pty Ltd [2008] QSC 93, and for the defendant, reference was made to Klein v SBD Services Pty Ltd [2013] QSC 134, Phillips v MCG Group Pty Ltd [2012] QSC 149, Hosmer v Cook Shire Council [2012] QSC 91 and Geary v REJV Services Pty Ltd & Ors [2011] QSC 419. -- 43 of 47 -- 44 that she should have some allowance for the fact of losing the benefit of those entitlements. [121] The plaintiff contended for $40,000 and the defendant $35,000, as the appropriate award. In the circumstances and particularly where the matter is largely one of assessment of comparative circumstances, it is appropriate to take a midpoint and award $37,500. [122] Interest should be allowed at 2% for eight years. That is, $6,000. Past economic loss [123] Although the submission for the plaintiff was, in the first instance, for allowance of an intended working life to age 70, the plaintiff’s evidence was not that clear as to that being her intention.149 In any event, it is necessary to appropriately allow for the effect of what has already been noted as the particular susceptibility of the plaintiff to triggering the symptomatic condition which precluded her from continuing to work and therefore effecting the condition which Dr Labrom identified, as at 14 November 2011, as effectively the typical condition of a 66.5 year old lumbar spine. Whilst there was evidence of some nurses working beyond that age, that must necessarily be regarded as an atypical situation. [124] Accordingly and as already noted, there should be no allowance for economic loss beyond that point. On the other hand, it appears more likely than not that the plaintiff, if able to do so, would have continued to work beyond the point of gaining entitlement to an age pension. [125] In the circumstances and in the first instance, it is appropriate to look to the period extending to 14 November 2011. That is, a period approaching four and a-half years or 225 weeks. However, it would then be necessary to reduce the period for which allowance could be made, having regard to the prospect of an earlier onset of the symptomatic condition, due to some other event. Having regard to the competing considerations of the relatively short period in contemplation and the plaintiff’s particular susceptibility to such an outcome, a reduction of one-third is appropriate. Therefore, there will be an allowance for 150 weeks, or to approximately to 9 June 2010. 149 T1-45.30-35 and 1-53.17-37. -- 44 of 47 -- 45 [126] Although and as it was understood, each adopted a similar approach as to determining an average figure from the records as to the plaintiff’s recent past earnings, the parties differed as to the net weekly rate to be applied. For the plaintiff, $730/week was contended, and for the defendant, $689/week. The reason for the difference was not satisfactorily clarified and having regard to the common approach of averaging the source data, the defendant suggested taking an average figure. However, that may not adequately reflect the evidence given as to the wage increases that were applied at the Selangor Private Hospital,150 and in the circumstances, a figure of $725/week will be adopted and allowance will be made for the amount that the plaintiff earned in the period 6 August 2007 to 21 February 2008, at approximately $7,000.151 [127] Adopting such an approach appropriately allows for the loss of the plaintiff’s earning capacity and there is no concern, as was raised for the plaintiff,152 due to any requirement that may arise to repay any entitlement paid to the plaintiff under the Social Security Act 1991 (Cth). The evidence was that she was relevantly paid the following benefits: (a) in the period 1 July 2008 to 12 December 2008, the disability support pension, in the total amount of $6,362; and (b) commencing from 29 November 2008, the age pension, and in the period 29 November 2008 to 26 June 2009, the total amount paid by way of age pension was $7,087. [128] Consistently with the approach taken to the issue as to the statutory refund to WorkCover, at least as far as the payments of amounts in the nature of after-tax income is concerned, any liability to repay any part of those amounts will not amount to any further loss to the plaintiff. Although the records provided as to the Commonwealth benefits paid to the plaintiff153 indicate the payment of taxable entitlements, no attempt was made to discern the taxation liability, if any, that was incurred. Otherwise, the defendant did not seek to raise any other consideration, having regard to any prospect that full repayment may not be sought or may be waived. Neither by adoption of that approach, is there any need to allow for any 150 T4-33.10-40. 151 See plaintiff’s written submissions at 135. 152 Due to the decisions in Dabinett v Whittaker [1989] 2 Qd R 228 or Renehan v Leeuwin Ocean Adventure Foundation Ltd [2006] NTSC 4, or otherwise. 153 See Ex.1/31. -- 45 of 47 -- 46 economic loss due to the plaintiff having previously used and been paid for her annual and long service leave entitlements. [129] Allowing for interest on past economic loss will, however, require reduction to take into account the payment made by WorkCover in the nature of or in lieu of wages (here, the after-tax amount is $16,048.13). Similar application of principle might have required the calculation of an appropriate allowance for the receipt of income payments by way of Commonwealth benefits. However and in the circumstances where the after-tax component has not been identified and where the customary rate to be applied is 5% and having regard to the fact that allowance is only being made for period of loss up to approximately 9 June 2010, it is appropriate to make allowance without any further reduction. [130] Accordingly, the appropriate allowance for loss of earning capacity is $101,750 (150 weeks x $725, less $7,000). [131] There should be a further allowance for loss of employer superannuation contributions in the sum of $9,157.50 (9% x $101,750). [132] The allowance for interest on past economic loss is $38,339.01 ($101,750 + $9,157.50 - $16,048.13 = $94,859.37 x 5% x approximately 8 years 1 month). Other damages [133] As has been explained above, in the circumstance there will be no allowance for any future losses. [134] It was common ground that an allowance for further loss as recognised in Fox v Wood154 and in the sum of $2,915, be allowed. [135] As pointed out by the defendant, there was in a number of respects, an absence of independent evidence in support of the plaintiff’s claims for expenditure due to her condition. In the circumstances, it is appropriate to allow for the expenses identified by the defendant in the amount of $8,678.54.155 [136] Interest should be allowed at $3,507.60 ($8,678.54 x 5% over 8 years and 1 month). 154 (1981) 148 CLR 438 at 441-2. 155 See written submissions at [178]-[183]. -- 46 of 47 -- 47 [137] In summary the assessment of damages if the plaintiff had succeeded on liability is: General damages 37,500.00 Interest on general damages 6,000.00 Past loss of earning capacity 101,750.00 Past loss of superannuation 9,157.50 Interest on past economic loss 38,339.01 Fox v Wood component 2,915.00 Special damages 8,678.54 Interest on special damages 3,507.60 Less refund to Work Cover 24,371.64 $183, 476.01 -- 47 of 47 --