Baker v Prescare (Corinda) [2014] QDC 159

DISTRICT COURT OF QUEENSLAND CITATION: Baker v Prescare (Corinda) [2014] QDC 159 PARTIES: JULIET BAKER (plaintiff) v PRESBYTERIAN CHURCH OF QLD, TRADING AS PRESCARE (CORINDA) (ABN 85 338 603 114) (defendant) FILE NO/S: 1159/11 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court of Queensland DELIVERED ON: 31 July 2014 DELIVERED AT: Brisbane HEARING DATES: 21 and 22 July 2014 JUDGE: Dorney QC DCJ JUDGMENT & ORDER: 1. The judgment of the Court is that there be judgment for the defendant against the plaintiff. 2. It is ordered that both parties file, and serve, written submissions, if any, on costs by 4pm on 8 August 2014. CATCHWORDS: Employment - negligence or breach of contract - whether unsafe system of work or inadequate training, instruction or warnings - pre-existing constitutional defects in plaintiff’s shoulders - whether any knowledge possessed by defendant of defects - quantum (in absence of much substantive evidence) LEGISLATION CITED: Evidence Act 1977, s 92 Workplace Health and Safety Act 1995, s 37A, s 197, s 197(b)(ii) (Reprint 9E) Workers’ Compensation and Rehabilitation Act 2003, s 237, s 237(1), s 237(1)(a)(i), s 237(5), s 245(3) (Reprint 5D) CASES CITED: Batista v Citra Constructions P/L (1986) 5 NSWLR 351 Eichsteadt v Lahrs [1960] Qd R 487 -- 1 of 18 -- 2 Hamilton v Nuroof (WA) P/L (1956) 96 CLR 18 Heywood v Commercial Electrical P/L [2013] QCA 270 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Stitz v Manpower Services & Anor [2011] QSC 268 Test v Forgacs Engineering P/L [2012] QDC 318 Vairy v Wyong Shire Council (2005) 223 CLR 422 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Waugh v Kippen (1986) 160 CLR 156 COUNSEL: Self-representation by the plaintiff Mr A Mellick for the defendant SOLICITORS: Kaden Boriss Brisbane for the defendant -- 2 of 18 -- 3 Introduction [1] By an amended claim filed 12 May 2011 the female plaintiff, born on 3 October 1959, has claimed damages for personal injuries and consequential loss, alleged to have been caused by the negligence of and/or breach of contract by and/or breach of statutory duty by the defendant, its servants or agents. Incorporation of the defendant is admitted and contributory negligence is not an issue. [2] The original claim was filed on 11 April 2011. The alleged injuries were stated, in the amended statement of claim, to be causatively related to work performed in a period of time from 4 April 2008 up to and including 8 August 2008. The time of actual employment was not in dispute. [3] The plaintiff was self-represented. I permitted her to seek assistance, from time to time, from her partner (who was seated beside her at the bar table) because of the plaintiff’s difficulties in formulating responses to questions asked or propositions put to her (that needed a response). [4] The trial had been listed for hearing for four days commencing on 16 December 2013. Just prior to that, on 3 December 2013, the plaintiff filed a Notice that she was a party acting in person. The December 2013 date was vacated and the trial was relisted for four days commencing Monday 21 July 2014. On that day, the trial began, first, before McGill SC DCJ who was requested to, and did, disqualify himself during that day for reasons that are unimportant for the present determination. I commenced the trial again on the afternoon of 21 July 2014. [5] At the beginning of the trial before me leave was given to read and file an affidavit of Jamie Angus John McPherson, sworn 21 July 2014. The plaintiff did not object. In that affidavit, the deponent, who was a member of the firm of solicitors for the defendant who had been retained by WorkCover Queensland to act for the defendant stated that:  the plaintiff, on 31 January 2014, spoke to a then member of the defendant’s solicitors firm advising that she had obtained “some help from Legal Aid regarding the Trial sat down for 21 July 2014 though they had advised that they cannot act on her behalf”;  the plaintiff, in the same conversation, advised that “she would turn up to the meeting on 21 July 2014” (emphasis added);  during the same conversation, it was explained to the plaintiff that it was “not a meeting but a four day Trial and there was a lot that needed to be done to prepare for that Trial both for her and for (the defendant)”;  on 20 February 2014 the plaintiff telephoned the defendant’s solicitors and advised that she “hadn’t been able to engage new Solicitors”;  during this next telephone call, it was explained to the plaintiff that “going to Trial did not mean she simply arrived at Court on Monday, 21 July 2014 but there were quite a number of things that needed to be done beforehand” and it was “recommended that (she) speak to someone at the Court or Legal Aid with respect to assistance in the things she (was) required to do before Trial”; -- 3 of 18 -- 4  on 23 April 2014 the defendant’s solicitors caused a letter to be written, via registered post, to the plaintiff advising the names of witnesses that the defence intended to call and the documents that it intended to tender, with that letter (Exhibit “JAM-02”) stating that whilst the solicitors “cannot give you any legal advice whatsoever please be aware that you will need to call the authors of any medical reports or records you wish to have admitted into evidence… (and) … you will also need to call any lay witnesses with respect to any of the facts you wish to prove”; and  that same letter stated that the “Court may permit medical witnesses to give evidence by telephone”. At the beginning of the trial I referred to that particular affidavit and the plaintiff’s acknowledgement that she had been made aware a number of times that the trial was to proceed on 21 July 2014 and I stated - without receiving any denial - that I understood she was “quite happy for the matter to proceed today and the following days of this week”. I further informed the plaintiff that if she wished to call evidence from, in particular, the doctor whom she first consulted, she would “have to call the doctor” – to which she answered affirmatively. [6] As the trial progressed, a statement of the plaintiff’s daughter, with deletions, was admitted as an exhibit under s 92 of the Evidence Act 1977. As well, the plaintiff herself gave evidence and, for the defendant, a Ms Kay Druery gave oral evidence and the report of Dr Simon Journeaux, dated 14 December 2010, was tendered as an exhibit without him being called as a witness (after the plaintiff had indicated that she had no questions she wished to put to him, in circumstances where arrangements had been made for him to give evidence from overseas by telephone at 2:30pm on 22 July 2014). Relevant causes of action [7] Since the plaintiff’s amended claim and statement of claim were settled by counsel, although no reply was filed subsequent to the amended defence of the defendant filed 20 December 2013 (after the plaintiff became self-represented), there is a cogent pleading detailing the claimed causes of action. [8] With respect to the alleged breach of statutory duty as pleaded in paragraph 11 of the amended statement of claim, the amended defence alleged that any breach of the provisions identified in the Workplace Health and Safety Act 1995 did not give rise to a “civil cause of action”, citing s 37A and s 197 of that Act. [9] Reprint 9E of that Act contains those two provisions which both commenced on 1 July 2010. Section 37A states that no provision of that Act creates “a civil cause of action based on a contravention of the provision”. Section 197, headed “Retrospective extinguishing of statutory cause of action”, took effect in this case. Pursuant to s 197(b)(ii), it is stated that s 37A has effect to extinguish without compensation any right to take action based on a civil cause of action arising from a contravention of a provision of the Act, whether as originally enacted or as amended since its original enactment, that happened before the commencement of s 37A, if proceedings for the action started after 8 August 2008 “but the trial in the proceedings has not started before the commencement of s 37A”. -- 4 of 18 -- 5 [10] The alleged contravention in paragraph 11 of the amended statement of claim is stated to have happened before the commencement of s 37A on 1 July 2011, the claim here was “started” after 8 August 2008 and the trial had “not started” before 1 July 2011. [11] Consequently, there has, for this case at least, been a retrospective extinguishment of the alleged statutory cause of action. [12] As to the remaining causes of action, being based on negligence and, or alternatively, breach of contract, the amended defence admits that the defendant “owed all duties as required by law” and that it was a term of the contract of employment that it was the duty of the defendant to provide the plaintiff with a proper and safe workplace. [13] Given that the defendant’s written Submissions acknowledged the relationship of employee and employer, that that employment commenced on 4 April 2008, and that the plaintiff ceased that work when her right shoulder became symptomatic on 8 August 2008 after attending, during the course of her employment, homes of the defendant’s clients (whereat she provided a range of services), there can be no doubt that the usual duties of care relevant to that relationship that arose both under contract and in the general law are applicable here. Claim for psychological injury [14] In the plaintiff’s amended statement of claim, by paragraph 7(e), the plaintiff alleged that, as a consequence of the performance of her duties, the plaintiff suffered among other injuries, a “(p)sychological injury”. [15] The defendant’s response, contained in paragraph 7(c)(ii) of the amended defence, alleged that the plaintiff had not been assessed for permanent impairment relating to any psychological injury as was required under the Workers’ Compensation and Rehabilitation Act 2003. [16] The relevant legislation, contained in Reprint 5D states, by s 237, the general limitations on persons entitled to seek damages. The only possible applicable provision is s 237(1)(a)(i). On that approach, the provision states that the following person is the only person entitled to seek damages for an injury sustained by a worker: namely, the worker, if the worker has received a notice of assessment from the insurer for the injury. Clearly, there is no evidence that this plaintiff has received a notice of assessment from the relevant insurer for any psychological injury. It should also be noted that s 237(5) states that, to remove any doubt, it is declared that s 237(1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for injuries sustained by a worker. Since it is not in contest that the plaintiff did receive a notice of assessment for injuries concerning her shoulders, it needs to be noted that s 245(3) provides, where there is a claimant with more than one injury from an event, that a claimant (such as the plaintiff here) may seek damages for the additional injury “only if the insurer decides that the claimant” was both a worker when the injury was sustained and has sustained an injury. Since the claimant did not pursue this claim for psychological injury at any -- 5 of 18 -- 6 time – except by way of the claim and statement of claim – she may not seek damages for that alleged psychological “injury” here. Maintainable causes of action [17] Since there is no relevant difference here between the duties owed under a contract of employment and under the general law arising from the relationship of employee and employer, it is sufficient, simply, to canvas the applicable principles (which are concurrent). [18] As long ago as 1956 the High Court held, in Hamilton v Nuroof (WA) P/L,1 that the duty of an employer is to take reasonable care to avoid exposing its employees to unnecessary risks of injury: at 25. In particular, for a plaintiff to succeed “it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to (the employer) in all the circumstances, which would have protected the (employee) from the dangers of (the employee’s) task without unduly impeding its accomplishment”: per Windeyer J in Vozza v Tooth & Co Ltd.2 [19] Of particular concern here is what more extensive liability might arise if knowledge, express or imputed, of the defendant, as the employer, were proved about the (admitted) pre-existing medical condition in the plaintiff’s shoulders. This is dealt with by a denial allegation in paragraph 7A(c) of the amended defence. Although in a consideration of duties owed under statute, Waugh v Kippen3 addressed the common issue in the following way: “In the case of an employee who by reason of physical incapacity is more than ordinarily susceptible to the risk of injury, liability is to be adjudged in the light of what the employer knew or ought to have known of that employee’s incapacity”: at 165, per Gibbs CJ, Mason, Wilson and Dawson JJ. [20] The basic principles that I have just canvassed were dealt with, helpfully, by McMeekin J in Stitz v Manpower Services & Anor.4 As will be discussed later, that case also contains a useful analysis concerning the absence of any evidence that the forces involved in any aspect of the work performed by the plaintiff, particularly on 8 August 2008, had the capacity to adversely affect a person of normal fortitude. Identification of relevant liability facts asserted by plaintiff [21] Unsurprisingly, due to her self-representation, despite the mentioned assistance, the plaintiff gave relatively brief evidence concerning liability. [22] It was not in contest that the relevant employment period was from 4 April 2008 to 8 August 2008, that the employment was part-time and that the rage of services as 1 (1956) 96 CLR 18. 2 (1964) 112 CLR 316 at 319. 3 (1986) 160 CLR 156. 4 [2011] QSC 268. -- 6 of 18 -- 7 set out in paragraph 5 of the amened statement of claim – subject to some denial concerning a requirement to move furniture or undertake heavy gardening or heavy lifting – were of the relevant kind expected of the plaintiff as a carer in attending at the homes of clients of the defendant. Moreover, it was not in dispute that on 8 August 2008, the plaintiff attended the homes of Mr and Mrs Kirk, Mrs Congram and Mr and Mrs Johnston. In general terms, as explained by the defendant’s then Case Manager, Ms Kay Drury, it was not disputed that the duties of a community care worker such as the plaintiff were to attend to a list of duties which were, essentially, contained in what was called a “Tick Sheet”, an example of which became Exhibit 4. In very general terms it required some house work, assistance (if requested) for shopping, personal care and, sometimes, gardening. [23] The plaintiff’s evidence at trial, although necessarily restricted, was primarily directed towards the “accident” which she described as occurring on 8 August 2008 - though there were several incidents eventually identified by her as causing pain. Certainly, there was nothing in her evidence, or in any other evidence led at this trial, which showed that anybody concerned with the defendant was aware of any complaint by the plaintiff about pain in her shoulders, or even her back, relative to the duties that she was required to carry out, at any time prior to her completion of work on 8 August 2008. The plaintiff’s daughter’s statement (Exhibit 2) did, nevertheless, refer to her mother stating that she had soreness in both of her shoulders after finishing her work shifts “during the weeks prior to” 8 August 2008. As expressed by Hope JA in Batista v Citra Constructions P/L,5 evidence of a statement as to a present state of affairs (for example, that the person making the statement had a headache) is “undoubtedly admissible”: at 355. That does not gainsay the conclusion which I have expressed that any such indication of pain or discomfort was not communicated to any of the defendant’s representatives. [24] The plaintiff’s evidence about that relevant date began with reference to suffering pain with her “first clients in ... Springwood”. That appears to be a reference to Mr and Mrs Kirk’s residence at Underwood. The plaintiff stated that she had to move the furniture (when cleaning). In cross-examination, the plaintiff elaborated by stating that her right shoulder became sore “because” of vacuuming and picking up a heavy bucket to mop the floor. When pressed, although initially asserting that the vacuum cleaner was “very heavy”, she could not say how heavy it, in fact, was. And, even though, unclearly, the plaintiff did say that she had complained about using it, the explanation proffered for the last matter was that Ms Drury knew and did “not say anything”. Besides asserting that she shifted furniture, there was no further assertion made that it too was too heavy. The second person who was provided with care on that day was Mrs Congram. She resided at Middle Park. With respect to that residence, the plaintiff stated that she went to the shop and got some groceries which she handled in both arms and when she shut the “door” – it being unidentified – she stated that her pain was “getting worse”. With respect to the third residence (being that of Mr and Mrs Johnston at Sinnamon Park), the plaintiff stated that she told “her” (presumably Mrs Johnston) that she had “a shoulder problem” and, after it was stated to her that “you will be alright”, that the plaintiff replied “Yeah. Ok. What do you want me to do?” And she continued that she was then asked to carry “all” the fertiliser and move pots because the client 5 (1986) 5 NSWLR 351. -- 7 of 18 -- 8 “like(d) gardening”. She also stated that this person was moving house and asked her to carry boxes into the lounge room. [25] Her further evidence was that, at the end of the day when she brought back the company car that she had been given to use, her “boss” was there and the plaintiff stated that she said that her shoulder was “very bad”. [26] With respect to those matters as are relevant to the alleged breaches of duty, the plaintiff’s evidence was to the effect that:  when the plaintiff began to work for the defendant in early April 2008 she did not have any relevant experience and that this deficiency was not properly acknowledged by the defendant in terms of training and instruction;  in particular, she denied that on the day that she started work for the defendant she was given “an extensive orientation for about half a day”, stating, instead, that it was only demonstrated to her how elderly people “put their nappy” on – but that that was not a requirement because she did not do that for any of her clients;  with respect to the defendant’s “buddy system”, she admitted that before she was allowed to go out in the company car on her own she was taken by Ms Kay Druery - though “only one time” - to a client’s home, specifically denying the suggestion in cross-examination that it was some five or six times;  she was never told not to do a particular job (even if asked to);  she was not told that what she was doing was “bad”;  she was never told “not (to) do it like that” or “don’t do this one”;  she stated that she was simply told, “just go over”; and  with respect to moving furniture and lifting, she stated that Ms Druery did “not say anything”, although she knew “what I’m doing”. Analysis of plaintiff’s evidence on liability [27] First, there is no doubt that the expert medical evidence led at trial does establish that the plaintiff did suffer an “injury” on 8 August 2008. In the report of Dr Simon Journeaux of 14 December 2010 (Exhibit 7) that trauma and orthopaedic surgeon noted, without adverse comment, a statement from Dr Michael Treffene (the orthopaedic surgeon who operated on the plaintiff’s right shoulder on 28 October 2008) that the pre-existing condition of calcific tendinitis had been exacerbated at work by “one of the calcific deposits (which) has actually ruptured while she was lifting something in the course of her employment”. That was, of course, concerning the plaintiff’s right shoulder. When in the witness box describing the pain on 8 August 2008 the plaintiff often gestured explicitly to her right shoulder. Additionally, Dr Journeaux’s own diagnosis was consistent with pain developing in that right shoulder. Importantly, the plaintiff’s complaints of pain to Dr Treffene were with respect to that right shoulder only, although he also concluded, consistently with Dr Journeaux’s diagnosis, that the left shoulder subsequently became painful “when (the plaintiff) was away from work”. Dr Journeaux’s unchallenged opinion was that: -- 8 of 18 -- 9  the plaintiff has a pathological diagnosis in respect of her right shoulder of right rotator cuff disease, specifically presenting with bursitis and associated impingement and, in addition, calcific tendinitis;  subsequent to the initial onset of symptoms in the right shoulder on 8 August 2008, the plaintiff, several weeks later, developed left shoulder symptoms in circumstances where there was evidence of rotator cuff impingement with associated sub-acromial bursitis;  both the right shoulder and left shoulder conditions are constitutional and have not been caused by the plaintiff’s work as a carer and, in particular, the symptoms in respect of the right shoulder arose in the course of her employment where there was no specifically identified incident or injury;  the plaintiff’s employment can only be considered “a relatively minor aggravating factor” in the course of that actual history of the constitutional condition in the right shoulder; and  it is reasonable to allocate a three to four month exacerbation of constitutional symptomatology in respect of the right shoulder and that all symptoms thereafter are to be considered constitutional only (i.e. in respect of, particularly, the left shoulder, there is no relationship to the plaintiff’s work that she was doing for the defendant). Accordingly, it is not surprising that the plaintiff, completely uneducated in things of a medical nature, would attribute the cause of all of her upper body pain and all its consequences to the work she was doing on that day. [28] Secondly, in determining what kind of work she was doing on 8 August 2008, the many documentary records (either made contemporaneously or contained in descriptions of work done that day or in notes of the plaintiff’s medical history made by medical practitioners) show that there was nothing that she reported that she was doing which was out of the normal range of work expected from a normal person (i.e. a person such as her without any pre-existing injury) doing the tasks assigned to her. [29] With respect to this aspect, the Incident Report of the defendant, acknowledged by the plaintiff to have been completed, at the latest, on 9 August 2008 and to be a “true account of what it was that happened”, stated, adjacent to her signature, that she was “vacuuming” a client’s home earlier in the day and her “arm/shoulder was starting to get sore” and that she then went to another client’s house at Middle Park and was carrying bags of groceries on her right arm when, upon closing the boot of the car with her left arm, she “felt a pain in her right shoulder, which I later found out was muscle tearing in my shoulder”. In that Incident Report, the part of the body injured was identified as the right shoulder and the cause of the injury sustained was said to be “carrying”. In cross-examination, the plaintiff acknowledged that when completing the document everything was “fresh” in her mind and, importantly for this case, that there was no reporting of shifting furniture or gardening. [30] In the records of the general practitioner, Dr Ratnam (whom the plaintiff said she consulted – according to her daughter Mrs McDonald (Exhibit 2) - on Saturday 9 August 2008 “the day after her injury occurred”), the only shoulder for which an x- ray and an ultrasound were ordered was the right shoulder. -- 9 of 18 -- 10 [31] From the history of the injury that she gave to Dr Journeaux it is noted that she indicated that she “first noticed symptoms” on 8 August 2008 when she was performing “her normal carer duties”. He also noted that she “continued working” and was “even able to go to another client and finish those jobs”, reporting the onset of her symptoms “to her supervisor”. In particular, he noted that the history that he took in respect of the plaintiff’s left shoulder was a description of the onset of symptoms “approximately two weeks after the operation in November 2008”. [32] Thirdly, with respect to the plaintiff’s training and instruction by the defendant, the plaintiff signed a document titled “Orientation Program” on 4 April 2008 in which she acknowledged that a copy of the Staff Induction Manual has been provided to her for reading and understanding and that she had worked through the Orientation Program. In particular, with respect to all applicable aspects of that, she initialled each relevant section, inserting that date of 4 April 2008 as well. In particular, concerning the “Workplace Health & Safety Program” – which was highlighted as a section that “(m)ust” be completed before commencing any duties - her initials appeared against a reference to “Safe Manual Handling Policy & Procedures” and a “Demonstration of Lifts, Transfers, and Grasps used”. She also initialled a section dealing with the employee being shown, by location and content, both a “Safe Manual Handling Manual” and a “Workplace H & S Manual”. Yet again her initials appeared against an entry with respect to resident care documentation - as referenced by handwriting - to a “Client” File. With respect to the last mentioned matter, there were two Home Risk Assessment documents concerning Mrs Congram and Mr Kirk, respectively, which became exhibits. Both documents were completed well prior to 8 August 2008. Those documents, according to Ms Druery, were placed on the client file and were available to carers such as the plaintiff. With respect to Mr Kirk, there was a hand written entry under a column dealing with control and measures, which gave an answer to a question whether “other loads be moved or carried”, that there were to be “no full buckets (sic!) loads”. This was in a section dealing with manual handling. With respect to the Home Risk Assessment for Mrs Congram, the entry there read, “no full bucket and heavy loads”. Mrs Druery’s own evidence about the orientation insofar as it involved lifting or moving heavy loads was not only that she did get the plaintiff to watch a video on manual handling (followed up by the “buddy shifts”) but also that she did give instructions to the plaintiff:  that if the carer “couldn’t do it or it was too heavy” the carer should “refuse to do it and report back to me”;  that the carer was to “only half-fill the bucket or less” or “leave the bucket where it is and carry the mops”; and  that the carer was “not supposed to carry any more than two bags, depending on the weight of the bag and how (the carer) feel(s) at the time”. Even though an abbreviated version of those matters only was put to the plaintiff in cross-examination, given the details in Exhibit 10 and the consistency between the documentary and oral evidence (where each of the documents was canvassed with the plaintiff), I accept that the plaintiff was trained, instructed and warned, and had the system explained to her, as Ms Druery has stated (for reasons later canvassed). Finally, dealing with the issue of the knowledge that the defendant had of the plaintiff’s “inexperience” and how it was addressed, Ms Druery stated that the plaintiff demonstrated confidence in doing the work and, regarding the need for qualifications, stated that there were eight other employees at that time who, also, did not have a “certificate III” obtained through TAFE - but that the defendant did -- 10 of 18 -- 11 pay for such courses for carers, which was done “gradually” and after some three months’ experience of such work. [33] It can, thus, be seen, particularly by reference to relevant documentary evidence, that the plaintiff’s recollection of what occurred does differ from what those records objectively reveal. Accordingly, when I come to consider the issue of what specific on-the-job training was received by the plaintiff I do have some scepticism about her confining of the demonstration of what was to be done (through the implementation of the “buddy” system) to one occasion only. While it must be conceded that in cross-examination it was put to the plaintiff that she went to the homes of clients on about five or six days before she worked on her own, and that that was “mostly” with Ms Drury, in circumstances where Ms Drury’s evidence was more limited (merely stating that she attended homes with the plaintiff using the buddy system on her recollection “a minimum of three times” during which she assessed the plaintiff’s work), I do not accept that the demonstration was as limited as the plaintiff has suggested. Furthermore, in cross-examination the plaintiff admitted that she had been trained “only to handle a couple of bags at a time” and that, “with things like buckets of water”, she was told “only fill them half full”, though she added that she just followed what her clients wanted. [34] I might interpolate at this point that I found that Ms Druery, to the extent that her recollection allowed her after some six years to be relatively accurate, impressed me as being honest and straightforward in the evidence that she gave. Further, I find that there was no conscious exaggeration of anything that she gave evidence about concerning her interaction with the plaintiff. Although the defendant submitted that Ms Druery had no interest in the outcome since she had “moved on” to other employment, her own reputation (much less her pride in her work) would still have been at stake. But, even so, I accept that she showed no bias in her accounting of what occurred. That conclusion, taken together with the scepticism that I have formed by reason of the inconsistency that the relevant documentary evidence demonstrates concerning the plaintiff’s recollection, lead me to be relevantly satisfied that where there is a conflict between these two witnesses about such matters, explanations, information, training and instruction, I do prefer the evidence given by Ms Druery. Where there is no conflict but a contradiction with the documentary medical or contemporaneous “background”, I decline to accept the plaintiff’s version. Where there is no conflict, particularly where it concerns what the plaintiff was actually doing on 8 August 2008, I have difficulties with accepting her account as part of a coherent whole when I have rejected those parts which are conflicting in the ways which I have canvassed. [35] It must be remarked that some of Ms Druery’s evidence relied upon “usual practice”. As to that, on the authority of those cases discussed in Haydon’s text, Cross on Evidence (Australian Edition) (looseleaf), including Eichsteadt v Lahrs,6 I conclude that, particularly where the reference was to such things as the admonition against using full buckets and heavy loads, it was of such a habit as to distinguish it from an isolated act: at [1135]. 6 [1960] Qd R 487. -- 11 of 18 -- 12 [36] The conclusions on credibility that I just reached mean that, taking all the factors that I have canvassed in some detail here into account, I specifically find that:  there was no complaint of pain in either arm – though particularly with respect to the right shoulder – by the plaintiff to any representative of the defendant (and, in particular, Ms Druery) prior to the after-work report by the plaintiff to the defendant on 8 August 2008;  the vacuuming done for Mr and Mrs Kirk at Eight Mile Plains was of no different kind and not heavier than that undertaken in ordinary domestic vacuuming;  if, which I doubt, the plaintiff did carry full, or very heavy, buckets of water for mopping, she was acting contrary to the training and instructions that she had been given;  if, which I doubt, the plaintiff was dealing with shopping bags which were heavier than normal loads, she was acting contrary to her training and instructions;  the plaintiff otherwise was not doing other than the usual and ordinary work, including gardening tasks, required of a carer for elderly people in any of the places that she did work for the defendant on 8 August 2008; and  the only “injury” that she suffered on 8 August 2008 was that referable to increased pain, probably resulting from the pre-existing calcific deposits being ruptured during the course of ordinary lifting. Breach and causal relationship? [37] The next analysis that needs to be undertaken is whether the aggravation of the pre- existing right shoulder condition on 8 August 2008 was caused by any breach of the duties owed. As just canvassed, the only relevant ones which can be extracted from the evidence led at trial are those concerning: a safe system of work; proper training; proper instruction; and proper warnings. It is not a case where the nature and complexity of the work would have reasonably required continuing supervision after the initial on-the-job training; and there was no need for permanent manual assistance given the domestic ambit of the approved tasks. [38] One of the significant problems that faces the plaintiff’s case is proof that the work required of the plaintiff by the defendant, in contrast to the work requested by any particular client, up to and particularly on 8 August 2008 was such as to expose the plaintiff at that time to forces that were at a level likely to injure a person of the plaintiff’s size and stature in the normal course of her allocated work, even though manual lifting, as observed by McMeekin J in Stitz, means that it was work that has an inherent capacity to injure; and particularly so if there were to be some degenerative condition that an employee had while undertaking that work: at [110]. [39] Since the determination of causation is not, in this case at least, affected by statutory dictation, it is to the general law that recourse must be had to determine the correct approach to causation. As observed by McMeekin J in Stitz, an approach to causation in negligence suits was discussed in Kuhl v Zurich Financial Services Australia Ltd,7 in terms referable to the duty of an employer to adopt a safe system of work: namely, that it may be unnecessary for a plaintiff to show exactly how the 7 (2011) 243 CLR 361. -- 12 of 18 -- 13 injury occurred if there be a defect in the system of work and it is clear that the injury arose out of the defective system: at [111]. After all, the foreseeability is not of the injury which occurred but of the range of activities which might place an employee potentially at risk of injury: see Vairy v Wyong Shire Council (2005) 223 CLR 422 as applied in Heywood v Commercial Electrical P/L [2013] QCA 270 at [25]. [40] But, in this case, there has not been, in any way, a demonstration of a defective system, much less of lack of proper training, instruction and warnings. Any lifting, carrying or moving heavy loads was outside the work restrictions imposed; and the “injury” that did arise was not the cause of either of the constitutional conditions that the plaintiff then had. Dr Journeaux’s opinion relates the temporary exacerbation to the right shoulder condition as arising upon performing “normal carer duties”. Accordingly, it is difficult to see that any relevant causation could arise. No evidence was led that there was any defect in a system which limited tasks to such normal duties, in circumstances when “normal” meant that there were prohibitions on that type of unsupervised work which took the activity into an area of potential risk. And there was no system of requiring carers to enter the property of elderly clients and obliging them to do whatever was asked of them. In particular, I find that the nature of the work actually required to be carried out for the “clients” while in all three residences on 8 August 2008 was of a type that might be characterised as “normal” for a person such as the plaintiff in doing domestic chores where the context was that there was not a system implemented, or tolerated, which required, or meant, that everything requested of the carer was to be done regardless of the risk of injury occurring. Also, it has not been demonstrated in this case, to the requisite standard, that the repetitive nature of the work had a causal relationship with the injury suffered; and it has not been demonstrated that the defendant was aware, or ought to have been aware, of the pre-existing shoulder condition that the plaintiff has now been diagnosed as having at that time. Because of my earlier conclusions, no causal connection exists, as well, between any injury and the training, instruction and warnings, since all were proper and adequate for the work to be performed. Determination on liability [41] While it is understandable that the plaintiff, who has undoubtedly suffered some increase in her symptoms on 8 August 2008 and later, has continued to have the belief that such symptoms were caused by the nature of the work that she was required to do in circumstances where she had been the subject of a system of work which she said - and I find incorrectly - did not enable her to avoid such work as was heavier than normal for such a carer, the reality was that she was, on and before 8 August 2008, doing the work that would be normally asked to be done by a carer of elderly people in her particular circumstances where her training, instruction and warnings were to the effect that the work that she did expressly allowed her to do her assigned work without subjecting herself to carrying or otherwise manoeuvring heavier than normal domestic loads. [42] On the evidence led at trial I am not satisfied on the balance of probabilities that the defendant unreasonably failed to take measures or means that were reasonably open to the defendant in the circumstances of this case which would have protected this -- 13 of 18 -- 14 plaintiff from the dangers of undertaking the tasks assigned to her without unduly impeding the accomplishment of such tasks. There were, in effect, no unnecessary risks of injury to which she was exposed by the defendant, particularly given the absence of knowledge on the part of the defendant of those constitutional conditions and their manifestations. [43] Hence, the plaintiff has not established either negligence or a breach of the contract of employment, as against the defendant in this case. Quantum [44] Although I have determined that the plaintiff cannot succeed on liability, it is necessary still to concern myself with the particular issue of the quantum of damages. [45] I will deal with each separate head of damage in turn. Necessarily, little assistance has been able to be provided by the plaintiff. And very little more has been forthcoming from the defendant. Pain, suffering and loss of amenities of life [46] Since this head is not dependant upon statutory schedules in this case, it is necessary to make a general assessment on the principles applicable before such statutory modifications occurred. The plaintiff is aged rising 55; and she was aged rising 49 in August 2008. [47] The conclusions reached by Dr Journeaux were set out previously: at [27]. In addition, the diagnosis of the constitutional condition was that the plaintiff has a 2% whole person impairment. [48] The diagnosis of the medical causal relationship, limited though it is, does not deny that, such issues apart:  the plaintiff has a poor prognosis in terms of full recovery (though this is stated to be most likely as a result of the presence of psycho-social factors);  the plaintiff will have permanent incapacity/disability in her ability to work, in her activities of daily living and also in her social and recreational interests; and  the exacerbation in respect of the right shoulder condition has ceased in terms of any work-related effects and, therefore, no further treatment is required for any work-related injury. [49] Because of the diagnosis of a three to four month exacerbation of the constitutional symptomatology in respect of the right shoulder, it necessary to examine what occurred in that period. [50] First, in terms of treatment Dr Ratnam, the plaintiff’s general practitioner, certified the plaintiff as unfit to work, on 9 August 2008. She was thereby certified to be -- 14 of 18 -- 15 totally incapacitated until 24 August 2008. Secondly, further certificates were issued and the right shoulder operation was conducted by Dr Treffene on 28 October 2008. [51] According to the report of Dr Journeaux, when seen on 9 August 2008 by Dr Ratnam, the GP prescribed analgesics and “Voltaren”, it being noted that the plaintiff had no physiotherapy or injections during this time for the right shoulder condition, although it does appear that she had a hydro-cortisone local anaesthetic injection to the left shoulder. [52] According to the report of Dr Journeaux, when examined before 30 January 2009 by Dr Jhamb, an orthopaedic surgeon, the plaintiff had symptoms and signs consistent with impingement and calcific tendinitis and that her examination was “a little bit difficult”. [53] The observations of Dr Harding of 17 February 2009 (also contained in Dr Journeaux’s report) show that planned post-operative physiotherapy after Dr Treffene’s operation was “interrupted after three sessions to accommodate an overseas holiday”. [54] The detailed GP records (also contained in Dr Journeaux’s report) show, subsequent to 8 August 2008, that:  as at 7 September 2008, the plaintiff was very upset since the left shoulder had by then been playing up and she had been “lifting, vacuuming, carrying groceries, pushing trolleys, making beds etc”;  on 4 October 2008, both for the right and left shoulders there was, clinically, “no change”;  on 11 November 2008, for the right shoulder, the range of movement was limited and painful;  in November 2008, the plaintiff was not sleeping well and in pain in her right shoulder; and  in January 2009 the plaintiff had “a lot of pain” in her right shoulder and on examination it was diagnosed to be tender, it was noted that the range of movement was restricted, and it was stated to be painful. [55] In her evidence at trial, the plaintiff described her post-work symptoms as including:  that she could not move her arms;  that she had tenderness;  that she was sent for an ultrasound and x-ray;  that she did not have physiotherapy;  shat she could not go back to work because she was not ready to work since it still hurt even when she had the operation; and  that both shoulders hurt such that she “can’t tie her hair or do her buckle up”. [56] Given the diagnosis of Dr Journeaux concerning the three to four month exacerbation of that underlying constitutional condition, even though it appears to have been inevitable that an operation would have been performed eventually given -- 15 of 18 -- 16 the normality of the events that caused the exacerbation, some allowance can be made for the distress, pain and discomfort from undergoing the operative procedures, including their aftermath. [57] The only slight assistance that I have been able to find for this head of damage is from Test v Forgacs Engineering P/L.8 There, Robin QC DCJ, in somewhat different circumstances, awarded $7,500.00 for pain, suffering, and loss of amenities of life on the premise that the plaintiff had a “back problem for a few months”: at [42]. [58] Given the circumstances of this case and the matters that I have canvassed immediately above, I would have awarded $8,000.00 for pain, suffering and loss of amenities of life covering this short term exacerbation of an underlying constitutional condition. Interest on past pain, suffering and loss of amenities of life [59] Although interest is generally awarded at the rate of 2% per annum - that rate reflecting a disability evenly spread over the whole period from the date of the relevant incident to the date of trial - here, the award crystallised after some four months (i.e. at the end of 2008). [60] Since the amended statement of claim claims interest on such damages at 2% - but since that is based upon a continuing loss over the time from 8 August 2008 until trial - I intend to award interest at the rate of 4% per annum from the beginning of 2009 until the present time. On the base sum of $8,000.00, the yield would have been $1,786.67. Past economic loss [61] Although the amended statement of claim claims past economic loss at $400.00 net per week, there was no basis led in the trial evidence - not even a pay slip - which would justify that particular figure. [62] But it is clear from Exhibit 5 (which contains the compensation paid to the plaintiff) that she received compensation, on a net basis, from 9 August 2008 to 14 December 2008, in the sum of $6,413.86 less amounts paid to the ATO. Subtracting those amounts, the compensation so paid was $5,892.86. [63] Because I have nothing else to work on, and since the period from 9 August 2008 until 14 December 2008 accords, roughly, with a four month period that I have already mentioned, I would have allowed that sum for past economic loss. [64] Naturally enough, since the plaintiff has not been kept out of that money, there would be no interest payable on it. 8 [2012] QDC 318. -- 16 of 18 -- 17 Further (including future) economic loss [65] Since there has been a limited economic loss, there can be no allowance in the circumstances for future economic loss. Loss of past superannuation benefits [66] No evidence has been led before me that the plaintiff’s weekly wage for the part- time work she was doing generated a statutory liability for the defendant to pay superannuation benefits. For instance, I did not have, as I earlier noted, the advantage of any pay slip or any documentation of any kind which detailed the way in which her remuneration was calculated. [67] But, nevertheless, since there is a statutory obligation and since, in particular, paragraph 11(d) of the amended defence admits that the plaintiff has suffered a loss of superannuation benefits, I would have calculated that loss at the rate of 9% on the past economic loss amount of $5,892.86. Such a calculation would have generated the figure of $530.36. No amount is sought for interest on that past loss. Past special damages [68] Although the amended statement of claim contains many claims and an overall estimate in the amount of $15,000.00 for travel, pharmaceuticals and medical expenses, the only evidence before me is for certain Medicare expenses and WorkCover special damages. [69] The former amounts to $668.25. The latter amounts to a sum which is agreed by the defendant [see paragraph 12(a)(i) of the amended defence] to be $9,386.11. That accords with my calculations from Exhibit 5. Thus, the total sum which would have been established in evidence here is $10,054.36. [70] Quite obviously, no interest is payable on these particular special damages. Fox v Wood damages [71] It is stated that the plaintiff’s claim in the amended statement of claim of $521.00 for this head of damage is accepted: see paragraph 12(c)(i) of the amended defence. Total damages [72] Although it is unnecessary to calculate the total of these different heads of damage, should the need arise, the total so calculated would have been $26,785.25. [73] Necessarily, there would have been a statutory refund payable of $15,799.97, giving final damages of $10,985.28. Given the conclusions that I have reached it is unnecessary for me to enter into that realm. -- 17 of 18 -- 18 Judgment and other orders [74] Because of the conclusions that I have reached:  I will give judgment for the defendant against the plaintiff on the claim; and  I will give leave to both parties to file, and serve, written submissions on costs, if any, by 4:00pm on 8 August 2014, noting that there are statutory consequences for offers made in a proceeding such as this. -- 18 of 18 --