Burford v RSL (Queensland) War Veterans' Homes Limited [2014] QDC 203

DISTRICT COURT OF QUEENSLAND CITATION: Burford v RSL (Queensland) War Veterans’ Homes Limited [2014] QDC 203 PARTIES: Diane Louise Burford [Plaintiff] And RSL (Queensland) War Veterans’ Homes Limited [Defendant] FILE NO/S: BD 3503/10 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 17 September 2014 DELIVERED AT: Brisbane HEARING DATE: 12 May 2014 - 14 May 2014 JUDGE: Clare SC DCJ ORDER: The Plaintiff’s claim is dismissed CATCHWORDS: TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - Personal Injury - Claim for damages against employer - CAUSATION - Whether pre-existing injury aggravated by unsafe system of work. COUNSEL: J. Sewell for the Plaintiff M. O’Sullivan for the Defendant SOLICITORS: Hall Payne Lawyers for the Plaintiff Bruce Thomas Lawyers for the Defendant [1] The Plaintiff, Ms Burford, spent 17 years working in the kitchen of the Defendant’s aged care facility. It was heavy work. She was promoted to kitchen supervisor before succumbing to a back condition. Sadly, at the age of 56 her long-term employment was terminated. -- 1 of 9 -- 2 [2] The claim was framed in negligence. Ms Burford contends that in about December 2006, she suffered an injury to her lumbar spine as a consequence of unreasonable duties regarding dispatch trolleys and cambro boxes between 1990 and 2007. The system of work [3] Ms Burford’s work in the kitchen extended to the preparation of meals for residents. She identified four areas in which her work had been physically difficult. They were: 1. Moving food trolleys within the cold room, 2. Moving food trolleys from the cold room to the kitchen, 3. Unpacking meals from the food trolleys and moving them to the stove and oven, 4. Moving cambro trolleys loaded with the cooked meals on to the truck. [4] Prepared food was delivered to the cold room on trolleys. The defendant admitted that the dispatch trolleys were 1.7 metres high and designed to hold 24 meal trays on 12 runners, although at times the trolleys were overloaded with trays “double stacked”. Deliveries of three to five dispatch trolleys were made to the kitchen about three times each week. When double stacked, the trolleys weighed between 150 and 260 kilograms. The dispatch trolleys had to be moved out of the cold room to access the shelves of the cold room. The restricted space of the cold room made it difficult to manoeuvre the trolleys inside it. From time to time, Ms Burford would need to access items or trolleys towards the back of the room. In those instances, she would need to rearrange the trolleys or remove them to get what she needed. She would need to pull trolleys to the side. The narrow door meant that her arms needed to be closer together to push the trolley through. [5] Each meal had a menu. The relevant food for a meal had to be moved on the trolleys from the cold room to the kitchen, unpacked and stacked in an oven for heating. The trays could be stacked from just above the ground, to above the head. The oven was similarly layered. When Ms Burford was the cook, she would have to unload the trays of listed food and transfer them to the oven. She sometimes did this with assistance, sometimes alone. The unloading involving bending down for the bottom rungs and reaching above her head for the higher trays. Similarly, she would bend and reach to load trays in the oven, with shelving above her head down to almost ground level. Sometimes the trays would jam, then requiring significant force to dislodge them. Ms Burford used a hammer for this purpose. Soup was stacked on the bottom rung of the trolleys. A full soup tray weighed 11.35 kilograms. Ms Burford was required to bend down to unload the soup containers from the trolley before pouring the contents into urns on the stove top for reheating. [6] The difficulties of manoeuvrability and weight were supported by three other employees who worked in the kitchen during the same period. None of them claimed to suffer any specific injury, although Ross Harmon testified that manoeuvring the trolleys in the cold room “cracks your back quite a bit…it would put a strain on your back because you couldn’t push forward. You had to pull back”.1 [7] In exhibit 2, “inspection of Cold Room”, the Defendant admitted that : 1 Transcript 2-7 at 18, Ross Harmon. -- 2 of 9 -- 3 1. The weight of double stacked trolleys was “ further complicated by the need to manoeuvre the trolleys in a tight space within the cold room…” 2. Limited work space within the cold room did not allow for correct lifting techniques and a clear work space”; and 3. The system of work demanded “actions such as pushing, pulling, twisting and lifting of weights outside [ the worker’s] balance circle and position of strength. This could result in possible back [ injuries]…” [8] In the attachment to exhibit 2,2 the Defendant identified “potential areas for musculo- skeleto problems”, namely: 1. The weight of the fully loaded dispatch trolleys; and, 2. Frequent lifting of weighted trays from the dispatch trolleys. [9] Exhibit 6 is the Intersafe Report. There was some attack on the methodology employed, but it was misdirected. I accept the weights assumed for fully loaded trolleys were approximate, but fair. The use and application of the 3 DSSPP software was not challenged. I accept the applied force figures and potential lifting movements fall outside of the UK Lifting Guidelines relating to occasional lifting in ideal conditions. The Defendant’s counsel properly conceded aspects of the work were “onerous” and difficult and heavy”, and that certain aspects were “probably unreasonable”. [10] Ms Burford was never given any training on safe lifting or manoeuvring techniques. The conclusions of the Intersafe Report on the need for training were not challenged. They were that: 1. “Operators who have not been trained in correct trolley handling techniques are at significantly elevated risk of experiencing damages as a result of this task” 2. Staff should be trained “to sensitive them to the risks associated with manual handling and musculoskeletal disorders” which, with a culture change, “could have significantly reduced the risk of injury”.3 Breach of duty [11] It was the duty of the defendant as the employer, to take reasonable care to avoid foreseeable risk of injury to Ms Burford. Clearly there were problems with the system of work. In the years preceding Ms Burford’s incapacity, employees, including Ms Burford had reported to management on difficulties. Although the Defendant disputes the extent of complaint, relevant issues had been raised. Nothing was done about those matters apart from a written direction in 1997 for the double stacking to stop. The direction appears to have been ignored.4 The defendant did not improve the safety of the work system until after Ms Burford became unfit to resume her duties. After Ms Burford’s reported incapacity, the Defendant added a second cold room to reduce the congestion and installed new ovens that did not require bending, thereby reducing the risk of future injury for other employees. 2 Report of Patricia McMullan dated 23 May 2007. 3 Exhibit 6, pp24, 33. 4 Double stacking was still in use when Ms McMullen, occupational therapist investigated in May 2007. -- 3 of 9 -- 4 [12] As Ms Burford’s employer, the Defendant had a duty to provide adequate means of carrying out the work activity without “unnecessary risk”.5 Unnecessary risk is one that could have been removed or minimised by some reasonable form of proportional safeguard.6 On the evidence the work required training, less congestion and lighter loads. The RSL breached its duty to Ms Burford by failing to provide those things. [13] Despite obvious failings in the system of work, the Defence contended that the plaintiff’s case was too vague, and the link between the unreasonable system of work and the injury was too weak, to establish causation. The Injury [14] In December 2006, Ms Burford suffered severe pain down her lower back and leg to the extent that she could not walk. She was at work and seen by the Director of Nursing. She never returned to the Defendant’s kitchen. She attended a general practitioner and physiotherapy. The Defendant placed her on light duties. Her condition did not resolve. She was referred, by the Defendant’s own doctor, to Dr McPhee an orthopaedic surgeon. From January to June 2007 the Defendant limited her work to office administration. Her hours were reduced from 5 days to 4 days per week, with a rest day midweek. Around June, sometime after receiving the report of Dr McPhee, the Defendant advised Ms Burford that she could not retain her job unless she was able to return to full duties. Ms Burford deferred that obligation by using her accrued leave. In December 2007, 12 months after she had last worked in the kitchen, she was still unable to return and therefore forced to resign. [15] The three medical witnesses were orthopaedic surgeons. Dr Pentis last performed surgery around 20 years ago. Since then he has specialised in medico legal work. Dr Williams qualified as a specialist in 1998 and is the head of spinal trauma services within the Orthopaedics Unit of the Princess Alexandra Hospital. Dr McPhee first conducted spinal surgery in 1974, maintained a general orthopaedic practice until 1990, and thereafter practiced exclusively in spinal surgery until retiring from surgery in 2013. For the past 14 years, he has been head of the Department of Orthopaedics, at the University of Queensland Medical School. [16] The experts agreed that Ms Burford suffered a pre-existing degenerative condition in her back, probably spinal canal stenosis. The relevant injury was framed in the Amended Statement of Claim as pain in the left thigh and stiffness in the lumbar spine suffered in December 2006. The evidence indicated the leg pain was probably the result of the spinal canal stenosis.7 The pleading went further to allege that as a result of the injury, Ms Burford suffered, inter alia, permanent aggravation of degenerative pathology in the lumbar spine, a psychiatric injury, ongoing pain and suffering, lost income and permanent vocational incapacity.8 5 O’Connor v Commissioner of Government Transport (1954) 100 CLR 225 at 229. 6 Neil v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 at 370; O’Connor v Commissioner of Government Transport (1954)100 CLR 225 at 229. 7 Eg, Central spinal canal stenosis at L4/5 is the cause of lower limb neuropathic pain (Transcript 3-26). 8 Amended Statement of Claim, par [12], [20A]. -- 4 of 9 -- 5 Vocational incapacity [17] In addition to the pre-existing back condition, Ms Burford suffered a non- compensable degenerative shoulder condition. The experts agreed that the pre- existing back condition and the shoulder condition left Ms Burford unsuited for heavy or repetitive work, at least from 2007 onwards. In other words, the medical evidence was that Ms Burford was unfit to return to full duties for causes unrelated to her prior work activities. Even if the Defendant’s system of work had been reasonably safe, she would be unfit for the repetitive activity necessarily involved in kitchen work “from 2007”. The meaning of “from 2007” was not expressly defined in the evidence of Doctors McPhee and Williams, but in the context of Ms Burford’s physical break down in December 2006, it would seem to refer to the beginning of 2007. Dr Pentis spoke in terms of Christmas 2007, however this was tied to his misunderstanding of the date the symptoms first emerged. For example he wrote in his report: “ She noticed…initially around Christmas 2007 that she was experiencing pain…” 9 Relevantly, Dr Pentis appeared to accept that from the point of that pain Ms Burford was not suited for “heavy manual or repetitive manual activities” because of the pre-existing conditions of shoulder and spine. 10 [18] It was common ground at trial that Ms Burford’s debilitation actually dated back to December 2006, the period pleaded. She had been employed by the Defendant to perform tasks that included repetitive manual work in the kitchen, but her pre- existing conditions made her unfit to continue that work after the emergence of symptoms in December 2006. Thereafter, Ms Burford was suited only for sedentary or semi sedentary work. For six months the defendant accommodated her incapacity with light duties before enforcing the contract of employment. It follows that the Defendant’s unreasonable system of work was not a significant cause of Ms Burford’s inability to retain her position with the Defendant or to maintain similar employment elsewhere. Ms Burford failed to prove economic loss. [19] As for the other matters listed in paragraph 20A of the Amended Statement of Claim, the evidence establishes that they were consequences of Ms Burford’s problems with her spine or spine and shoulder, or, in the case of the mental health issues, the consequences of those problems together with other stressful events. The Defendant could not be responsible for either the shoulder condition or the distressing personal losses Ms Burford had suffered. The only injury for determination concerned the lumbar spine. The condition in the lumbar spine (and related left thigh) was the injury pleaded.11 To what extent, if any, did the unreasonable work activity contribute to her lumbar spine condition? Causation [20] Given the claim is based upon an aggravation of a pre-existing condition, the threshold question must be whether the condition of the spine was adversely affected to any discernable level by the unsafe system of work. The claim must fail unless Ms Burford’s lumbar condition was accelerated, worsened or aggravated by the unsafe work activity. 9 Exhibit 4: Report of Dr Pentis p27; see also Transcript, 3 – 7, 9, Dr Pentis. 10 Eg Transcript 3-9, Dr Pentis. 11 Amended Statement of Claim at [12]. -- 5 of 9 -- 6 [21] Ms Burford’s case was that after 17 years of performing heavy repetitive tasks that had the potential to cause back injury, it is probable that such work aggravated the pre-existing condition. This was the opinion of Dr Pentis. His reasoning was that heavy activity would inflict more wear and tear on the spine and worsen the degeneration. While there was no science to distinguish between the level of impairment due to work activity as opposed to the pre-existing condition, he offered a whole of person impairment as a “guessestimate” drawn from his experience.12 [22] On the other hand, Drs Williams and McPhee considered that the symptoms of the back and leg in 2007 were solely attributable to the pre-existing degenerative condition and not related to work practices. They agreed that stenosis is a disc degeneration due to ageing, independent of physical activity. Certain activities may cause a temporary flare up of symptoms but do not affect the underlying condition. [23] There was no reported experience of symptoms while Ms Burford was performing any of the impugned work functions. Further, although details of the earlier history were scant, it seems that the onset of symptoms was gradual before the debilitating episode in December 2006. Ms Burford’s evidence was that, while she had never sought treatment, she had previously had pain in her back and leg, on and off, but never as severe as that occasion at work in December 2006. 13 This was understood by Drs McPhee and Williams.14 Dr Pentis however proceeded on an erroneous belief that the December incident was the first experience of pain.15 [24] On the CT scans Dr McPhee observed degeneration in the lumbosacral disc with gas in the nucleus, which indicated the degeneration was “advanced”.16 He concluded that Ms Burford had a condition which was the result of degeneration of the L4/5 disc with canal stenosis. He explained it in this way: “as the disc gets older…it melts away. ..the inside of the disc…holds the two bones apart. So if you loose the central support, then the two bones come together. .. the disc gets narrowed…As the disc collapses, it must bulge.”17 “Degeneration means a downgrading and aging process.” Dr McPhee said degeneration in the lumbar spine is not caused by the stress of activities over time. Rather, it is “related to biochemical changes within the disc which are induced by aging”. “Everything depends on the flow of fluid in and out of the disc.”18 [25] Similarly, Dr Williams testified that degeneration of the spine is “probably related to some mechanical influences. It seems to have a pre-programmed nature to it. It seems to be related to age. It seems to occur independently of activity levels throughout life…”19 “Spinal stenossis is a progressive degenerative narrowing of the spinal canal leading to the pain of neural compression in the legs. It develops over a period of years and is secondary to discal and supporting facet joint wear 12 Transcript, 3 - 9, Dr Pentis. 13 Transcript, 1 – 34,35, Ms Burford. 14 Exhibit 4H, Report of Dr McPhee, 26 March 2007 noted from the interview with Ms Burford, that “her symptoms came on over a period of time without specific injury”. Dr Williams saw Ms Burford in 2009. His notes from the examination recorded shoulder pain, as well as back pain, over the preceding 8 years. 15 Exhibit 4, Report of Dr Pentis, p27; see also Transcript 3 – 7, 8, 9, Dr Pentis. 16 Transcript, 2 - 54, Dr McPhee . 17 Transcript, 2 – 54, 55, Dr McPhee. 18 Transcript, 2 - 59, Dr McPhee. 19 Transcript, 3 – 26, Dr Williams. -- 6 of 9 -- 7 and enlargement. Ms Burford’s work practices have had no impact on the development of this condition.”20 [26] Mr Sewell for the Plaintiff, submitted that Dr William’s opinion ought to be discounted because he proceeded on a patently wrong premise that an injury cannot be sustained over time. The doctor however was not discussing the cause of injuries at large. His evidence was directed at spinal stenosis. He said: “This is a pre- programmed result of degeneration which is largely resultant of aging, and various other factors which are poorly understood, and there’s no specific relationship between the causation or progression of this condition and any specific activity…”21 [27] Dr Pentis described the causes of degeneration as multifactorial: “its wear and tear of life. The insults. Any accidents. Any fractures. Any soft tissue injuries.”22 He considered that certain activities, such as heavy lifting and repetitive bending, could aggravate the condition because they are “activities that tend to make worse the condition and may cause …disc protusions or further wear and …pain.”23 [28] Doctors McPhee and Williams accepted that vertebral canal stenosis may be assymptomatic. Pain can be quantified in relation to how much narrowing of the canal has occurred. It is not experienced until the condition has reached the point where nerves are choked, which interferes with the electrical function of the nerve.24 When the condition has progressed to that point, the patient may suffer pain with certain activities. [29] In his report of March 2007, Dr McPhee wrote: “on the basis of the history provided there is no evidence to conclude that work was a significant contributing factor to the onset of Ms Burford’s symptomatic spinal stenosis.”25 He testified that “the back has reached a stage; it can no longer tolerate the stresses that are put on it. Therefore, you’ve got to reduce those stresses. A reduction in the physical activities will not affect the degeneration, but it will minimise the exposure to flare up.”26 Dr McPhee’s reference to “the history” was without knowledge of the specific details of the heavy or repetitive aspects of the work. He understood Ms Burford did moderately physical work, engaged in active cleaning, kitchen and laundry work in a nursing home. He was not aware of the unreasonable aspects. What was significant for him was the absence of an injury in the sense of a frank traumatic event, one that caused pain. The pain had come on over a period of time. [30] Dr Williams explained that pain symptoms for stenosis tended to “wax and wane with time, for no particular identifiable reason”.27 It was his firm opinion that heavy lifting or twisting would not affect the condition: “the patient may experience symptoms of their underlying condition during various activities…[A]ctivities…however have no influence on the existence or the 20 Exhibit 4H, Report of Dr McPhee, 26 March 2007, at [6]. 21 Transcript, 3 – 28, Dr Williams. 22 Transcript, 3-4, Dr Pentis. 23 Transcript, 3-4, Dr Pentis. 24 Transcript, 2 - 60. 25 Exhibit 4A, Report of Dr McPhee, 26 March 2007. 26 Transcript 2 - 65. 27 Transcript, 3 – 26 Dr Williams. -- 7 of 9 -- 8 progression of the underlying condition which is producing the symptoms.”28 Ms Burford’s “ lower back and leg pain represent the natural history of evolving degenerative spinal stenosis. There is no relationship between the work based activities between 1990 and 2007 and the progression of her lumbar or leg symptoms.”29 In Ms Burford’s case, “the symptoms appeared to be fairly long standing and gradually deterioting”. He said even where patients believed the onset was related to a particular event, it was more likely to be the natural progression of the condition. “It’s most probable at some point along the natural history of a degenerative condition such as spinal stenosis, that the symptoms just simply begin because of the progressive nature of the slowly evolving narrowing of the spinal canal.”30 [31] Dr Pentis reported that the work activities had aggravated both the back and shoulder conditions. His report referred to the work as kitchen hand, doing heavy lifting and trolley work: “[T]his caused problems with her shoulder and her back” There was no explanation for that statement. There is no evidence that Ms Burford ever complained of pain during those activities. It seems the attribution of problems caused by the work derived from the nature of the work and Dr Pentis’s underlying opinion that activity may aggravate the stenosis. The reasoning was briefly put: “I’d assume that the activities she was carrying out [at work] would have, to some extent, aggravated what problems she was going to have in any case.”31 Dr Pentis’s report had stated that the degenerative problems of spinal stenosis were “aggravated in the accident”.32 The evidence does not disclose any “accident”. The reference to “accident” was repeated in the conclusion of the report. Although in court Dr Pentis corrected the last reference to “activities,” the lapses of language in his report may suggest some awkwardness in attributing cause to otherwise non-eventful activity. [32] A difficulty was that Ms Burford could not point to any particular traumatic “accident” or incident at work. She had experienced pain over time. She did not correlate the experience of pain with the undertaking of any work activity. This was so even of the crippling pain in December 2006. She did not connect it to any particular activity. She did not identify what work, if any, she was doing at the time. At that stage of her employment, she had administrative responsibilities and spent part of the week in the office, out of the kitchen. [33] Dr Pentis’s opinion suffers from factual errors as to the first emergence of pain symptoms and the reference to an “accident”. They are matters that may have infected his opinion and therefore diminish the weight of it. Those very issues and the actual facts were material to the opinion of the other doctors, particularly Dr McPhee. Conclusion [34] The underlying dispute goes to the nature of spinal stenosis and the relevance of activities undertaken. The proposition that repeated activities that put stress on the spine would not affect the course of pre-existing degeneration was initially 28 Transcript, 3 – 29, Dr Williams. 29 Exhibit 4H, report of Dr McPhee, 26 March 2007 at p5. 30 Transcript, 3 – 27, Dr Williams. 31 Transcript 3-4, Dr Pentis. 32 Exhibit 4 report of Dr Pentis at p4. -- 8 of 9 -- 9 unattractive. It seemed counterintuitive. Ultimately, however, I was persuaded by the experience and knowledge of Doctors Williams and McPhee who have the benefit of current, or recent surgical practices and who by virtue of their respective leadership positions could reasonably be expected to be abreast of current medical knowledge. Their reasoning was expressed in terms of the nature of degeneration and the absence of discrete injury, rather than bald assertion without scientific reference. Dr Williams’ evidence, in particular, was marked by careful attention to detail. On that evidence, I am satisfied on balance of probabilities that Ms Burford’s spinal condition was independent of the unreasonable stresses of the work activities. I am satisfied that the Defendant’s breach of duty did not affect the development of the condition, its progress or its severity to any appreciable extent. The claim must fail. [35] The parties disagreed about the onus of proof. Mr Sewell submitted there was a prima facie case of incapacity resulting from the Defendant's negligence and that applying Watts v Rake, it was for the Defendant to prove that the spinal condition was wholly attributable to the pre-existing condition. I question whether the evidence was sufficient to displace the Plaintiff's onus. While the Defendant's breach of duty and the potential for injury was proved, there was an absence of any allegation of a traumatic work accident and the pre-existing condition was conceded. In any event, I am satisfied that the absence of injury was proved. [36] The Plaintiff’s claim is dismissed. [37] I shall hear submissions as to costs. -- 9 of 9 --