Anderson v AWWW Pty Ltd [2013] QDC 155

DISTRICT COURT OF QUEENSLAND CITATION: Anderson v AWWW Pty Ltd [2013] QDC 155 PARTIES: SUZANNE MARGARET ANDERSON (Plaintiff) v AWWW PTY LTD AS TRUSTEE FOR THE AWWW UNIT TRUST (Defendant) FILE NO/S: 1863/10 DIVISION: Civil PROCEEDING: Claim ORIGINATING COURT: Brisbane DELIVERED ON: 12 July 2013 DELIVERED AT: Brisbane HEARING DATE: 1, 2, and 3 July 2013 JUDGE: Smith DCJ ORDER: 1. Judgment for the Plaintiff against the Defendant in the sum of $62,681.43. 2. I will hear the parties on the question of costs. CATCHWORDS: TORTS - NEGLIGENCE-LIABILITY- whether injury occurred - whether injury reasonably foreseeable - whether employer took reasonable action TORTS - CONTRIBUTORY NEGLIGENCE - did the employee fail to take care for her own safety DAMAGES – QUANTUM - impact of concomitant condition of assessment of damages Workers Compensation and Rehabilitation Act 2003 (Q) ss 306B-J and N Workplace Health and Safety Act 1995 (Q) ss 23, 27, 27A, 28, 29, 37A. Bankstown Foundry Pty Ltd v Braistina (1986)160 CLR 301 Finn v The Roman Catholic Trust [1997] 1 Qd R 29 Hamilton v Nuroff (WA) Pty Ltd (1956) 96 CLR 18 Hill-Douglas & Anor v Beverley [1998] QCA 435 -- 1 of 34 -- 2 Hosking v Pacific Partner Pty Ltd [1999] QCA 484 McLean v Tedman (1984) 155 CLR 306 Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 O’Connor v Commissioner of Government Transport (1954) 100 CLR 225 Paris v Stepney Borough Council [1951] AC 367 Purkess v Crittenden (1965) 114 CLR 164 Reck v Queensland Rail [2005] QCA 228 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Vairy v Wyong Shire Council (2005) 223 CLR 422 Vozza v Tooth and Co Ltd (1964) 112 CLR 316 Weaver v Endeavour Foundation [2013] QSC 93 Williams v Mount Isa Mines [2001] QCA 101 Wyong Shire Council v Shirt (1980) 146 CLR 40 COUNSEL: Mr P de Plater for the Plaintiff Mr M O‘Sullivan for the Defendant SOLICITORS: Schultz Toomey O‘Brien Solicitors for the Plaintiff Hede Byrne Taylor Solicitors for the Defendant Introduction [1] This is an action brought by the Plaintiff for damages for personal injuries which she alleges were sustained on 8 May 2008 in the course of her employment with the Defendant. [2] She alleges in the Statement of Claim that her injuries were caused by the negligence, breach of duty, breach of statutory duty and/or breach of contract by the Defendant, its servants and/or agents. [3] Liability and quantum are both in dispute. Indeed the Defendant denies that the incident even took place. [4] Accordingly the following issues need to be determined: (a) Did the injury occur? (b) How did the injury occur? -- 2 of 34 -- 3 (c) Was the injury caused by the negligence, breach of duty and/or breach of contract by the Defendant? (d) Is there any contributory negligence? (e) The quantum of the Plaintiff‘s claim. [5] I also note that the onus of proof is on the Plaintiff on the balance of probabilities, except as otherwise mentioned, and I bear this in mind when assessing this case. [6] I also indicate that I have paid regard to all of the evidence, the exhibits and the submissions made by counsel in reaching my decision. Did the injury occur and how did it occur? Submissions [7] Counsel for the Plaintiff submitted the Plaintiff‘s evidence should be accepted for the following reasons: (a) That the Plaintiff had no injuries or limitations before 8 May 2008. (b) That Dr Saxby said the bruising could be seen in 10 hours. (c) That Ms Egan supported the Plaintiff‘s evidence. (d) That Ms Zemek supported the Plaintiff‘s evidence. (e) That Steven Anderson supported the Plaintiff‘s evidence. (f) That Mr Hyslop was told on the day of the accident that it had occurred. (g) That Mr. Hyslop conceded the Plaintiff was wearing an open shoe in Exhibit 29. (h) That Derek‘s Frost‘s recollection was limited. (i) That Ms Cunningham‘s evidence was of limited benefit. [8] Counsel for the Defendant submitted that: (a) The Plaintiff was not honest or reliable. (b) That the Plaintiff was unable to produce any receipt for medication from May to October 2008. (c) That video material (Exhibit 29) showed the Plaintiff without restriction of movement. (d) That it was remarkable the Plaintiff did not seek medical treatment until 22 October 2008. (e) That the Plaintiff and her husband removed personnel files. (f) That the Plaintiff‘s evidence as to whether she received workplace health and safety training should be rejected. (g) The Plaintiff‘s husband was unreliable. (h) That the defence witnesses were reliable. (i) That the Plaintiff‘s evidence should not be accepted. The Plaintiff’s evidence [9] The Plaintiff gave evidence before me. She told the court that she was originally employed at the IGA at Yarraman. Her husband, Steven Anderson, was the manager at that IGA. Mr Hyslop (through the Defendant) owned the Yarraman IGA, the Gatton IGA and a Supa IGA at Kingaroy. [10] Her husband was employed as the manager at the Kingaroy Supa IGA. She commenced employment in about April 2008 at that store. The store was due to -- 3 of 34 -- 4 open on 13 May 2008. On the day of the incident, 8 May 2008, she was helping to set up the grocery department. [11] She gave evidence that everyone was helping stock the shelves and set up the displays. She was physically helping with the loads, pricing and ticketing and generally setting up the supermarket. Stock arrived on the back of the truck and was moved onto the loading area. As the stock was needed it was loaded onto a trolley. Exhibit 1 is a photograph of the trolley. [12] Figures 1, 2 and 3 of Exhibit 5 (the report of Dr Ludke) show how the Plaintiff she was moving the trolley at the relevant time. [13] She gave evidence that she started work at 10 a.m. She went to the stockroom to assist loading cartons of Surf dishwashing powder onto the trolley for a display. Derek Frost assisted in this procedure. At one point he answered the door to take another delivery (T1-18). [14] It was at this stage that the Plaintiff pulled the trolley out from where it was located. There was between about 240 and 260 kilograms of washing powder on the trolley. [15] After she had pulled it back to move it, she then pulled it along with an outstretched right hand and travelled towards the end of the cold rooms to an open area, so that she could go to the shop floor. She intended to take it to the end and then push it in. [16] The reason she pulled it is because it was not clear in the corridor. There was a lot more stock lying around (T1-18.42). [17] She was pulling it to an area which was clear (T1-20.7). [18] She had never previously pushed or used a trolley of this size prior to Kingaroy. She had been given no instruction or training by the employer as to the use of such a trolley (T1-20.27). [19] As she walked past the cold room, Donna Mitchell (who is now deceased) called out for help (1-21.26). [20] The Plaintiff went to stop the trolley but the trolley kept rolling and slammed into her right heel (T1-21.32). [21] The Plaintiff gave evidence that Donna came over and spoke with her. The Plaintiff said she was crying and was embarrassed (T1-22.7). [22] She said she then went to the office, and Donna had some frozen peas to place on the injured heel. The Plaintiff says that she told John Hyslop what happened, but he did not appear to be interested in the situation and did not make any notes (T1- 22.11). [23] She later told her husband what happened and Exhibit 15, an incident report, was completed by him. She took a copy of this and went back to work (T1-24.14). [24] She said that her right foot was very sore and the heel of her shoes was squashed down because of the pain it was causing. She gave evidence that the pain remained ―bad‖ for a few weeks and there was a severe bruise to the heel (T1-24.26). -- 4 of 34 -- 5 [25] She said that she spoke to her mother later that day, and photographs were taken on her mobile and sent by MMS (T1-25.7). These are Exhibits 16A and B, taken at 9.17 p.m. on 8 May 2008. [26] The Plaintiff, according to her evidence, did not see a doctor until 22 October 2008. [27] The Plaintiff explained in her evidence that she did not think the injury was that bad (T1-30.2). [28] Despite this she went to work the next day. It was very sore. She explained that she took Nurofen and got on with the job. She continued to work until the store opening (T1-30.9). [29] After the store opened she continued to work but she found it difficult. She had the young boys help her with the manual work while she continued working at the store (T1-30.27). [30] After a couple of months they left Kingaroy and moved to the Sunshine Coast where she worked at the Noosa IGA. Steven was store manager there as well. She mainly did registration, pricing and catalogue checking at the Noosa store. She explained that it was in Noosa that she sought medical treatment. She was not able to wear shoes with a closed heel because of the pain. She said that when she saw Dr Hone on 22 October 2008, she still had bruising on the heel and was sore and tender (T1-32.24). [31] She gave evidence that she originally had an x-ray and then an ultrasound (T1- 32.39). [32] The Plaintiff gave evidence that she saw Dr Ferriera at the Noosa Hospital and was then sent for physiotherapy and saline injections. She said that the physiotherapy helps with her range of movement. [33] She then returned to the GP and saw another orthopaedic surgeon, Dr Tamba- Lebbie. She was prescribed orthotics, and paid for these (T1-33.31). [34] She then saw Dr Dick at the Caloundra Hospital, another orthopaedic surgeon, who prescribed more physiotherapy and a moon boot, which she continues to wear. She says that she left the Noosa IGA in late 2011 and transferred to the IGA at Caloundra in the same position, mainly involved with administration work (T1-34.10). [35] She alleges, in her evidence, that she still attends physio every two to three weeks, takes Nurofen daily which helps to ease the pain, and there is pain every day. [36] She otherwise described the continuing difficulties that she has had. [37] In cross examination it was put to her that Exhibit 29, a DVD of her at work at Kingaroy, showed her walking and working without restriction (T1-50.35). [38] The Plaintiff disagreed with this. [39] The Plaintiff denied the proposition put by defence counsel that she had used Donna Mitchell in her case because Donna was dead and could not be called (T1-72.41). -- 5 of 34 -- 6 [40] The Plaintiff denied the proposition that the trolley was easy to move. The Plaintiff explained as to why she pulled the trolley before she was going to push it. The Plaintiff explained as to what exactly happened which caused the trolley to roll into her heel. [41] It was put to her Mr Hyslop was not there. The Plaintiff persisted with her account that John Hyslop was there (T1-78.1). [42] The Plaintiff gave evidence that she and Steven, her husband lived with Mr Hyslop at Curtis Street, Kingaroy for a time and there was discussion about the injury. [43] The Plaintiff persisted in her version that Steven was there on the day of the accident and she reported it to Steven. She explained that she did not go to the Doctor before October 2008 because the wanted to continue working and thought it would improve. She was sick of the pain by October 2008. [44] She denied having done any induction at the Kingaroy store concerning Workplace Health and Safety (T1-83.37; T1-84.16). [45] It was put to her that she and her husband had taken the personnel files from the store. [46] She denied this (T1-84.35). [47] It was put to her that the incident report was not completed on 8 May 2008. The Plaintiff denied this (T1-86.25). [48] It was put to her that she carried on her normal duties after the incident which was denied. [49] The Plaintiff gave evidence that the weekly staff rosters (Exhibit 31) were the rostered hours not necessarily hours she worked on (T1-93-94). [50] I accept the Plaintiff‘s evidence in this regard. Indeed Ms Hyslop supported her evidence in this regard. Steven Anderson [51] Mr Anderson said that on 8 May 2008 he arrived back at the Kingaroy store at about 1030am after a council meeting. He was met by Mr Hyslop who informed him that the Plaintiff had had an accident. He met ―Suzie‖ and she told him what happened. At this stage Exhibit 15A, the incident report was filled out by him (T2-19). [52] He sent the incident report to the head office in Gatton. [53] Mr Anderson described how in the days and weeks following the incident the Plaintiff struggled with tasks at work. She complained of pain and difficulty performing manual labour. As the day progressed the pain would become worse. As more staff were employed she would do more administrative tasks (T2-20-21). [54] At home she stopped mowing the lawn and washing the dog. They stopped frequenting the beach and walking long distances. She started wearing open shoes. [55] After a couple of months they had a disagreement with Mr Hyslop. The partnership with him was not working. It was decided matters would come to an end. -- 6 of 34 -- 7 [56] Three months later both he and his wife started at the Noosa IGA. His wife struggled with manual work at that store. She started working in an admin role 30 hours per week. A full time role would be 38-45 hours per week (T2-23). [57] She performed a limited amount of manual work there. [58] Later they both transferred to the Caloundra IGA. [59] In cross-examination, Mr Anderson explained that they did not attend a doctor at Kingaroy as the services there were poor. He said that the CCTV footage was not working at the time of the incident. It was working on the day the shop opened. [60] He denied that he took his and his wife‘s personnel files. He understood his file was kept at the Gatton office. [61] He persisted in his evidence that Mr Hyslop was in the office on the day of the accident. [62] He candidly admitted that during a phone conversation with Mr Hyslop he said that the incident was minor and she would not miss work. This was certainly his belief at one point. [63] He persisted in his evidence that his wife struggled in the shop after the incident. He said his wife was in significant pain after May 2008 and was restricted in carrying out her normal duties. [64] He considered she was tough and they thought she would recover quickly. This is why they did not see a Doctor immediately. They thought she would get better. Cynthia Egan [65] Ms Egan is a workplace health and safety consultant. She gave evidence that she worked with the Plaintiff at Woolworths before 2004. She was fit and uninjured at that time (T2-27.16). [66] She met her again at the Yarraman IGA. There were no problems with her physical fitness at that stage. [67] She next saw her at Noosa in about 2008/2009. At this stage the Plaintiff was working in an admin role. She noticed the Plaintiff wore open shoes. This was unusual as closed in shoes were compulsory. She laid down working conditions for the Plaintiff - she could not carry stock, there was to be no climbing of steps or ladders (T2-29). [68] She observed the Plaintiff to be in pain if she stood for too long. [69] In cross examination she said that the Plaintiff was restricted in her duties and could only do 30 hours per week and sometimes less (T2-34.5). Lynelle Zemek [70] Ms Zemek, the Plaintiff‘s mother, gave evidence that she received the photographs- Exhibit 16 on 8 May 2008 (T2-61). -- 7 of 34 -- 8 [71] In cross examination she agreed her memory was recently refreshed by her daughter as to the date. But in re-examination she agreed that her daughter was working at Kingaroy when she received the photos. John Hyslop [72] Mr Hyslop owned the Kingaroy store. He alleged in his evidence that they could not find the personnel files of the Plaintiff and her husband, although it became clear that he had not carried out the search (T2-66.3). [73] He alleged he did not see the Plaintiff with any disability after the incident but said in an unconvincing manner ―Yes I did. I – you know it‘s a long time ago now but yes I would have‖ when he was asked whether he saw her performing her general duties (T2-69.25). [74] One would bear in mind there were many employees at Gatton (130-140), Yarraman (40) and Kingaroy (100-120). [75] He said he was not present when the incident occurred, but he alleged that day he received a phone call from the Plaintiff‘s husband advising him of the incident (T2- 70.5). [76] This was inconsistent with the propositions put by defence counsel in cross-examination that the Plaintiff and her husband had dreamed up a scheme deliberately involving Donna Mitchell who they knew could not be called as she was dead. Donna was alive as at 8 May 2008. [77] In any event in cross examination the witness agreed that bearing in mind the fact that five years had passed it made it difficult to recall whether any discussion was in person or on the phone (T2-78.2). [78] Mr Hyslop said he told Mr Anderson to fill out an incident report (T2-69.37). I find that it is improbable Mr. Anderson would not have filled one out immediately. I find he did fill Exhibit 15 out immediately and not later as suggested by the defence in cross examination. [79] On the issue of security cameras he said they ―would‖ have been on line just before the opening. This does not definitely put the cameras as operational on 8 May 2008 (T2-72.7). [80] When first asked in cross-examination Mr Hyslop was definitive that the Plaintiff has closed in shoes on in the surveillance video Exhibit 29. When shown to him he conceded that was not the case (T2-81.35 and 2-82.11). [81] In cross examination the witness denied that he considered pulling the trolley to be dangerous. However this is what he alleged in the statement he provided in 2010 (see [39] of Exhibit 36). I find this to be a material inconsistency (T2-84-86). Mr Frost [82] Mr Frost gave evidence that he did not observe the Plaintiff being injured. He gave evidence he had used the trolleys and they were of good quality. He did not see the Plaintiff limping. She carried out her normal duties (T3-20-21). -- 8 of 34 -- 9 [83] He said though he was normally in the stock room at the back (T3-21.45). [84] In cross-examination he said he did not recall an occasion of loading Surf washing powder onto a trolley with Ms Anderson. He conceded Donna Mitchell had an office near the cold room (T3-24-25). [85] He conceded that his duties were mainly in the stock room. He conceded Ms Anderson‘s duties were mainly in the office. He alleged that after the store was opened he saw her fairly often. He said that everyone including Ms Anderson had to wear closed-in shoes (T3-27.27). Mr O’Neill [86] Mr O‘Neill was called to give evidence. He said he was in Exhibit 30 which involved a trolley loaded with 255kg (T3-28). [87] Dr Ludke had given evidence that he was told that he could not load a trolley with more than 94kg. [88] Mr O‘Neill alleged in evidence that he could not recall telling Dr Ludke this but in effect denied Dr Ludke‘s evidence (T3-29.32). [89] I might say Dr Ludke is an independent expert and I accept his evidence. [90] I find that Mr O‘Neill did tell Dr Ludke this. Ms Cunningham [91] As a late addition to the defence case Mr Hyslop‘s partner gave evidence. She gave evidence that there was an induction of managers from Kingaroy at Gatton and this included Ms Anderson. She alleged that she had occasion to look for the Andersons‘ personnel files but they were missing (T3-32-33). [92] I might say I found Ms Cunningham‘s evidence at times to be non-responsive and self serving. It seemed to me she came to give evidence to prove her point (e.g. T3-35.45-3-36.7). I suspect this has something to do with whatever dispute occurred between the Andersons and Mr Hyslop. [93] I did not find her evidence convincing. [94] I also note that Ms Cunningham alleges that the files were searched for at the time the Plaintiff and her husband left the store (T3-34.7). On the other hand Mr Hyslop suggested they did not search for the files until after the claim was made (this would have been in October or November 2008 (see T2-66). [95] The Plaintiff was called by leave to answer these allegations as the matters were not put to her in cross-examination. [96] Again I find it curious that workplace assessments were not produced when Mr Hyslop and Ms Cunningham must have realised these would be important for this trial. [97] There also seems to have been some movement of the files by at least one other person (Ms Doak - who was not called). -- 9 of 34 -- 10 Workplace health and safety training [98] As noted earlier the defendant submits that the Plaintiff‘s evidence as to not having received workplace health and safety training should be rejected. [99] The Plaintiff in her evidence said that she commenced employment at Kingaroy in April 2008. This is consistent with Exhibit 37 which has her first pay period ending as at 6 April 2008. [100] She gave evidence that she had never previously used a trolley of this size before Kingaroy (T1-20.15). She had been given no training or instructions as to the use of the trolley and made the decision to pull it as she thought it was the right thing to do (T1-20.31). [101] In cross examination she said that she did not use trolleys at Woolworths. This sort of trolley was not used at the Mooloolaba IGA where she used to work. She also said the trolleys used at Yarraman were smaller (T1-69). [102] She agreed there was some workplace health and safety training at Yarraman but she did not attend any instruction regarding manual handling at Yarraman or Kingaroy (T1-70.15). [103] The Plaintiff denied undergoing any workplace health and safety course with Emma Goos and denied that a workplace health and safety audit was done by Goos at the Kingaroy store. She denied she underwent any induction at the Kingaroy store (T1- 84). [104] She denied seeing MFI 3 (Exhibit 32) and MFI 4 (Exhibit 33) previously (T1-85). [105] When the Plaintiff was recalled she denied Ms Cunningham‘s evidence of training at Gatton (T3-41.40). [106] Mr Hyslop in his evidence said that there was induction training at Yarraman in 2006 (T2-65.32). He also refers to this in Exhibit 36. [107] He said Exhibit 32 and Exhibit 33 were given to the Kingaroy employees (T2-66- 67). [108] However there is no evidence that Exhibit 32 was given to the Plaintiff. Exhibit 33 would not have been because it notes Mr Collins as manager which is after the Andersons left. [109] In answer to this he said that Mr O‘Neil had signed an induction form which he had left with Ms Goos. This was tendered as Exhibit 35. This shows that Mr O‘Neil signed this in February 2008. [110] Ms Goos in her evidence said that she went to Kingaroy over two to three days to conduct the training. She had no recollection of the Plaintiff (T2-90). [111] She alleged she carried out an audit (T2-89.40). But no paperwork has been produced concerning such an audit. Mr Hyslop said in his evidence he did not think these documents were required (T2-82.35). I find this unlikely. He knew of the issues in dispute in this trial. -- 10 of 34 -- 11 [112] If Ms Goos carried out an audit it was probably very perfunctory. It is also very possible that since Ms Anderson started in April 2008 the training was not carried out with her as it had been carried out in February. [113] Cynthia Egan gave evidence that she trained the Plaintiff for her Certificate III qualification. This included some basic workplace health and safety training (T2-32.37). [114] She did not carry out any safety audit. She said that any training concerning the use of trolleys should be left to the employer (T2-32.25). [115] Steven Anderson gave evidence that his wife undertook the Certificate III training at the Yarraman Store. This included some workplace health and safety training. My impression is this was very basic (T2-46). [116] He also denied that Ms Goos conducted any safety audit when he was there (T2-47.25). [117] I have previously referred to Ms Cunningham‘s evidence. I do not accept it. [118] Mr Frost said he could not say if Ms Anderson was at his induction training (T3-19.20). [119] In any event there was no training according to any witness as to the use of the trolleys. The safety audit by Ms Goos mainly related to lifting and box cutting (T2-90.5). [120] I have considered Exhibits 32, 33 and 35. [121] Exhibit 32 is called a Code of Conduct. It relates to Kingaroy. It is noted at p 1.9 that ―we will take necessary steps to safeguard our customers and fellow employees.‖ [122] There is a section of one paragraph headed ―Your safety.‖ There is certainly no detailed policy of workplace health and safety. [123] As I have said Exhibit 33 is not relevant as it relates to the time Mr Collins was the manager. [124] Exhibit 35- the one signed by Mr. O‘Neill, only has a brief workplace health and safety section at page 11 and 12. Findings [125] I have been greatly assisted in reaching my conclusions in this matter from observing the way in which the witnesses gave their evidence and listening to the way in which they gave their evidence. [126] After having heard all of the evidence I prefer the evidence given by the Plaintiff. [127] I found that the Plaintiff was convincing in her denials during cross-examination by defence counsel. [128] I carefully observed Exhibit 29. -- 11 of 34 -- 12 [129] It is rather jerky and is not an entirely clear image. I do not see that the DVD impacts on the Plaintiff‘s credibility. [130] The Plaintiff denied the proposition that the trolley was easy to move. The Plaintiff to me gave a convincing explanation as to why she pulled the trolley before she was going to push it. The Plaintiff gave a convincing explanation as to what exactly happened which caused the trolley to roll into her heel. [131] I also found the Plaintiff‘s husband to be a convincing witness. [132] The Plaintiff‘s husband‘s evidence supported in large part the Plaintiff‘s evidence. [133] I find that Ms Egan‘s evidence supported the evidence given as to the effect of the injury upon her. [134] I find that Exhibit 16 were photographs taken of the injury to the heel the evening after the injury occurred. They corroborate the fact that a significant injury to the heel did occur not explained other than by the Plaintiff‘s evidence. [135] I accept the plaintiff‘s evidence that the photographs Exhibit 16 were sent the evening the injury occurred. This was supported by Ms. Zemek‘s evidence who said that the photographs were sent when the Plaintiff was at Kingaroy. [136] It was suggested by the defence that the SD card‘s date could have been altered. There is no evidence to support this proposition. [137] I accept the Plaintiff has taken medication and has sought medical treatment because of an injury. The only injury which has occurred on the evidence is the one which occurred on 8 May 2008. [138] I accept the Plaintiff‘s explanation she did not seek treatment earlier than 22 October 2008 as she thought the injury may get better and she in effect put up with it. She struck me as a stoic individual. It is understandable she would not keep receipts for nurofen until after the workcover claim. [139] Mr Hyslop was a witness whom I found to be vague and inconsistent. I have referred to these matters in my summary of his evidence above. [140] Ms Goos really did not take matters too far on this point. [141] Mr Frost in my view would not be likely to recall the accident or would not have taken particular notice of the Plaintiff‘s working ability in a store of 140 workers over an approximate two month period. In addition his evidence that she wore closed in shoes is inconsistent with Exhibit 29. In my view in light of Ms Anderson‘s stoicism it is unlikely Mr Frost would have noticed anything different about her. [142] I accept the evidence of the Plaintiff over Ms. Cunningham. [143] Further when the Plaintiff was recalled it was put to her that she was not frank with the court about training at Yarraman. I disagree with this. The questions asked by defence counsel were specific and did not specifically relate to Certificate III training. -- 12 of 34 -- 13 [144] I accept the Plaintiff‘s evidence as to the level of training provided to her. [145] I find that there was no detailed workplace health and safety training given to her at either Yarraman (aside from some basic training in certificate III) or Kingaroy. [146] I consider there was no instruction or training given as to the use of this trolley. Medical evidence [147] Aside from the Plaintiff‘s evidence, to my mind, there is some support as to her claims of injury in the medical evidence. [148] The x-ray report (Exhibit 24) did not disclose any fracture or dislocation when it was conducted on 22 October 2008. [149] The ultrasound (Exhibit 25) noted: ―There is some thickening of the distal portion of the Achilles tendon as compared to the left. There is no actual tear present. There is a tiny fluid collection overlying the Achilles at its insertion. This may indicate mild bursitis. No fluid deep to the Achilles tendon. In addition, at the insertion of the Achilles into the os calcis there appears to be [a] break in the cortex possibly indicating a small incomplete flake fracture. The appearance on the left side at that point is completely smooth. No other lesion seen.‖ [150] An MRI was conducted on 16 February 2010 (Exhibit 26). The findings noted: ―Vascular phase imaging of the ankles and feet shows a mild diffuse reduction in vascularity in the right ankle and foot. Delayed images show a mild diffuse reduction in bony uptake in the right ankle and right mid-foot. There is mild degenerative change in the left mid-foot and the left tibial tuberosity. Uptake in the calcaneus is normal. Comment: no focal pathology demonstrated in the ankle, calcaneus or talus. The mild reduction in vascularity and bony uptake in the right angle and foot may be due to altered weight bearing or a mild form of complex regional pain syndrome Type 2 (reflex sympathetic dystrophy.)‖ [151] In a final MRI report dated 7 July 2010 (Exhibit 27) it was noted: ―Minor tenosynovitis tibialis posterior. Oedema sinus tarsi probably representing minor sinus tarsi syndrome. This may relate to tibialis posterior tendon or be post-traumatic. Subtle bone oedema lateral malleolus, presumably post-traumatic.‖ [152] In a final MRI dated 18 April 2013 (Exhibit 28) a comparison was made with the MRI of July 2010. It was noted: ―Focus of increased signal in the deep fibres of the Achilles tendon immediately above the insertion, in keeping with the tear. This tear involves approximately 50% thickness of the deep fibres and measures 4 x 2 mm in the axial plane and up to 23mm in the sagittal plane. … -- 13 of 34 -- 14 Conclusion: 23 mm long tear of the deep insertional fibres of the Achilles tendon involving up to 50% of the tendon thickness, which is worse than seen on the previous MRI. Small amount of fluid in the retrocalcaneal bursa in keeping with a very mild retrocalcaneal bursitis.‖ Dr Saxby [153] Dr Terrence Saxby, an orthopaedic surgeon, has provided a number of reports concerning this matter. [154] In his first report dated 27 April 2010 (Exhibit 2), he noted (with respect to an examination on 21 April 2010) that the Plaintiff still had pain in her right heel, and had difficulty wearing shoes especially with a heel, and had difficulty running and playing with her child. Dr Saxby noted that the Plaintiff walked with a slight limp. There was no obvious deformity or swelling. On examination there was tenderness around the right Achilles at the insertion of the calcaneus. Dr Saxby said: ―I believe that the diagnosis here is a crush injury to the right heel (Achilles). This is consistent with this history of injury given. This lady has made a reasonable recovery from this but does describe ongoing pain in the region. The lady‘s injury would have taken approximately 6 months to be reasonably recovered, but she does still have ongoing problems.‖ [155] Dr Saxby assessed a 2% whole person impairment related to the ongoing pain in relation to her crush injury. There was no evidence of any pre-existing condition. [156] In a second report dated 31 January 2012 (Exhibit 3) Dr Saxby saw the Plaintiff on 27 January 2012. He noted that her situation had not changed much since she was last examined in April 2010. The Plaintiff at that stage still complained of pain in the posterior aspect of her heel, and had difficulty wearing closed in shoes and standing for prolonged periods. She was requiring anti-inflammatory medication on average three times per week. [157] She walked without a limp and was not able to walk on tiptoes. On specific examination she appeared to have full range of motion of her ankle, mid-foot and forefoot, but tenderness at the posterior aspect of her calcaneus. Dr Saxby noted: ―I believe the diagnosis here is unchanged. This lady suffered a crush injury to her right heel with a fracture of her calcaneus and this is consistent with the history given. At this stage this lady has shown no improvement since her last review.‖ [158] He noted: ―Crush injuries to the foot are notorious for slow and incomplete recovery. I therefore believe that her history is consistent with some ongoing discomfort.‖ [159] There was no change to the permanent impairment assessment. [160] Exhibit 8 is a file note of a conversation between the Defendant‘s lawyers and Dr Saxby. This was conducted on 30 November 2011. Dr Saxby told the lawyers that he had acted on the information provided by the Plaintiff. There was not much -- 14 of 34 -- 15 to find on examination. There were ―soft signs‖ and she had a ―slight limping‖ with a bit of tenderness. [161] He said that if the Plaintiff did not have immediate pain after the accident or swelling and she continued working as shown in the DVD material until December 2008, any connection between the accident and her condition is not ―clear cut‖. If there was no pain or swelling as a consequence of the incident with the trolley, one could not say with any certainty there was a connection. The Plaintiff seems to have a problem now but it is not much of a problem; it could be due to an injury or she could have just developed Achilles tendon problems regardless of the injury. One can get Achilles tendinopathy or tendon pain with degeneration. Some five per cent of the population might be affected in that way. The Plaintiff would be on the young side for this. But it is possible she could have developed this. [162] There was no reflex sympathetic dystrophy. [163] IIn a final report dated 16 May 2013 (Exhibit 4) Dr Saxby said that the MRI scan results did not alter his opinion. He believes the Plaintiff suffered a crush injury to her Achilles tendon originally in May 2008. He noted the recent MRI scan was worse than that seen in July2010. His interpretation is the Plaintiff is suffering form a degenerate condition of her Achilles tendon, namely, Achilles tendinopathy. He believes this is a separate issue from her work related injury. Achilles tendinopathy is quite a common condition and is associated with degeneration of the Achilles tendon. He thought it most unlikely that the progression shown on the Achilles tendon is related to her 2008 injury. She did require treatment for the progression of her degenerate condition. [164] Dr Saxby, in his evidence-in-chief, said that his first report (Exhibit 2) referred to a ―crush injury‖ to the right heel which involves a direct blow to the heel. He thought there was a bruise at the Achilles tendon and possible an injured bone. He said that x-rays might not necessarily pick up a small undisplaced fracture. X-rays are not very good to show soft tissue injuries. He explains how the ultrasound found a ―flake fracture‖. He said that with respect to his conclusion that crush injuries are notoriously slow and have an incomplete recovery. He would give 12 to 18 months as a recovery time but often times, symptoms are ongoing after 18 months and they can be variable discomfort after that point in time (T1-57). [165] He thought by reference to the MRIs, in particular the second one, that the injury had not fully recovered and now the Plaintiff had a condition of tendinopathy. The change did not reflect the original injury. She had recovered quite ―as best she could‖ and her present condition was a contribution from the original injuries and the tendinopathy (T1-58). [166] In cross-examination, Dr Saxby said that the underlying condition presently is Achilles tendinopathy. He said that this started after the original injury. He said that both played a part in her present condition. He said with respect to the original injury that she was still able to work after this but she would have had some discomfort. She may have been able to perform manual and admin work for 30 hours per week (T1-60.25). [167] He agreed the Plaintiff did not seek medical treatment concerning this injury until October 2008, which was late, but some people expect to recover. -- 15 of 34 -- 16 [168] He accepted one must rely on the history given by the Plaintiff. He accepted the crush injury could predispose tendinopathy. [169] With respect to the video evidence, he said that there did not appear to be a limp in that evidence, but, he accepted that the video was not necessarily clear (T1-65.5). With respect to the causes of pain, he said it could relate to the degenerative process. He thought that bruising like that present in the photos could have come out about 10 hours later and was not inconsistent with her account. [170] He said one would normally expect resolution of the crush injury after 12 to 18 months. [171] He thought the bruising/discolouration was objective evidence supporting the Plaintiff‘s account and if bruising or discolouration remained, as at October 2008, that would support her account (T1-67). [172] After having considered Dr Saxby‘s evidence, I am of the view that generally it supports the Plaintiff‘s account that she suffered a crush injury as described by her . Dr Winstanley [173] Dr Winstanley, an orthopaedic surgeon, has also provided some reports concerning this matter. In his first report dated 21 April 2009 (Exhibit 9), he noted that she had some restriction associated with the use and activity within the left heel. She was unable to wear closed in shoes and had difficulty with standing and walking for long periods. He confirmed that an ultrasound was performed which confirmed the presence of swelling of the retrocalcaneal bursa and thickening of the tendo Achilles. Dr Winstanley was of the opinion ―Mrs Anderson has sustained a crush injury to her right heel in a work related event on 8 May 2008.‖ He noted there was no evidence of pre-existing pathology present within her right heel. ―She has had a crush injury to her heel which has caused chronic tendinitis within her tendo Achilles. There is a direct cause in relationship between her present symptomatology and state of mechanism of injury.‖ Dr Winstanley was of the opinion her work related injury had ceased and she had a zero percent impairment of her lower limb. [174] Exhibit 10 is a file note of a conversation between Dr Winstanley and the Defendant‘s lawyers. In that, Dr Winstanley said that the DVD in his view showed the Plaintiff moving in an unencumbered way. He said he had no way of knowing whether she suffered a crush injury. He said it was possible she had tendonitis after the injury on 8 May 2008. [175] In a second report date 12 December 2011 (Exhibit 11), Dr Winstanley indicated he had viewed the DVD, he thought the Plaintiff did not appear to have any restriction associated with her walking capacity and would have expected if the incident had occurred she would have had a limp or restriction in her functional capacity. [176] Her presentation in the DVD was not consistent with the crush injury she described. He said her delayed presentation is such that she may have developed symptomatology within her ankle tendo Achilles after the DVD was taken. [177] As I have said I have not found this DVD overly useful in light of the quality of the recording. -- 16 of 34 -- 17 [178] In a further report dated 12 January 2012 (Exhibit 12), Dr Winstanley did not wish to add anything of relevance. [179] A file note of a conversation on 24 June 2013 (Exhibit 13), Dr Winstanley was shown the photographs and said that he thought that it looked more than 24 hours old. He thought the MRI scan of 18 April 2013 was consistent with the Plaintiff‘s suffering underlying degenerative condition, which was unlikely to be a progression of any original injury. [180] Dr Winstanley gave oral evidence before me. [181] In evidence in chief he said by reference to Exhibit 9 that only objective evidence was tenderness. He confirmed [11] stating that the work related injury had ceased (T3-3). [182] He confirmed he did not believe the gait of the Plaintiff was affected in Exhibit 29 (T3-4). [183] He confirmed that he had seen Exhibit 16 and that bruising like this usually takes 24 hours. He did concede the bruising was not impossible. It would last for 7-10 days. [184] In cross examination he conceded there were other objective signs of injury namely: (a) swelling and bruising (b) dorsi flexion difference between left and right (c) smaller right calf size (T3-8-9) [185] The ultrasound also showed swelling and thickening (T3-9.25). [186] In his report of April 2009 he accepted there had been a crush injury and there was chronic tendonitis. [187] He expected no improvement or deterioration. [188] When he said the work related injury had ceased he meant not that the injury had gone but the statutory claim was brought to an end. [189] As to the DVD, Exhibit 29, he conceded it was not necessarily high quality footage but did not accept it was jerky. He accepted that signs of discomfort can be variable depending on medication and tasks undertaken (T3-11.15). [190] He accepted that by reference to the MRI, Exhibit 27, that oedema can occur by trauma or abnormal weight distribution. [191] As to tendonitis he said this could be due to abnormal walking patterns. [192] As to Exhibit 16 he did not necessarily reject Dr Saxby‘s views on bruising and added that if there was catastrophic injury bruising could come out after two to three hours. [193] He had never seen a bruise last for 7-8 months although discolouration could. [194] He said that if one accepted the credit of the Plaintiff his views in Exhibit 9 were correct. [195] In re-examination he said that 15% of the population had a variation in calf size. -- 17 of 34 -- 18 [196] Having heard the evidence of both doctors, I prefer the evidence of Dr Saxby where it conflicts with the evidence of Dr Winstanley. [197] I find Dr Saxby‘s assessment of impairment more consistent with the symptoms described by the Plaintiff. [198] I also find Dr Saxby‘s assessment of Exhibit 29 more in keeping with my opinion of the quality of the video evidence. [199] I consider as a matter of common sense Dr Saxby‘s evidence as to the bruising to be more acceptable. [200] Dr Hone‘s notes (Exhibit 7) are relevant as well. These notes are consistent with the Plaintiff‘s account of the accident and injury. Conclusion on whether the accident occurred [201] In conclusion, having observed the Plaintiff give evidence, I prefer her evidence to the witnesses where it conflicts with that given by the other witnesses. [202] I accept that the injury occurred in the circumstances as the Plaintiff has described. [203] I now turn to whether any of the causes of action have been established in this case based on the findings I have made. Negligence, breach of statutory duty and/or breach of contract [204] In an action for negligence the Plaintiff must establish that a duty of care is owed, that there has been a breach of the duty of care and that damage has been caused. [205] In an action for breach of contract the plaintiff must establish the existence of a contract (there is no dispute of this here), the implied terms pleaded, a breach of such terms and that damage resulted. [206] It is common ground between the parties that in this case the provisions of s 305B-J of the Workers Compensation and Rehabilitation Act 2003 (Q) do not apply. [207] The following are the principles to be applied in a case such as this. I take into account these principles in reaching my decision. [208] As to whether a duty is owed in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48.2 Mason J noted: ―… a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable.‖ [209] In respect of an employer‘s duty towards his employees the following is to be noted: (a) In Hamilton v Nuroff (WA) Pty Ltd (1956) 96 CLR 18 at 25, it was held that the duty of an employer is ―… to take reasonable care to avoid exposing its employees to unnecessary risks of injury.‖ -- 18 of 34 -- 19 (b) An employer is not required to guard against all risks of injury (Finn v The Roman Catholic Trust Corporation or the Diocese of Townsville [1997] 1 Qd R 29) (c) It has been recognised that what is as reasonable standard of care for an employee‘s safety is ―not a low one‖ (see O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 230). (d) An employer is not to disregard the possibility of inadvertence or even carelessness in the part of an employee (Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309). (e) The employer must take into account the shortcomings and idiosyncrasies of the employee in question (Paris v Stepney Borough Council [1951] AC 367). (f) In McLean v Tedman (1984) 155 CLR 306 at 311.8, it was said it was no answer to assert that an employer has no control over an employee‘s negligence or inadvertence. Further at 313.3: ―The employer‘s obligation is not merely to provide a safe system of work it has an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer… and in deciding whether and employer has discharged his common law obligation to his employees the court must take into account the power of the employer to prescribe, warn, command and enforce obedience to his commands.‖ (g) The employer does not avoid liability by delegating the task to its employees. The employer is under a higher duty of care to ensure that reasonable care is taken. It is a non-delegable duty (Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 32). (h) Reasonable care requirements ―vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community… [i]nsofar as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer.‖ (Bankstown Foundry Pty. Ltd v Braistina (1986) 160 CLR 301 at 309.3. [210] Insofar as breach of the duty of care is concerned: (a) In Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319, it was held ―for a Plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the Defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.‖ (b) In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, Mason J held: ―In deciding whether there has been a breach of the duty of care, the tribunal of fact must -- 19 of 34 -- 20 ask itself whether a reasonable man in the Defendant‘s position would have foreseen that his conduct involved risk of injury to the Plaintiff or to a class of persons including the Plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable mans response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the Defendant may have. It is only when these matters are balanced out, that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the Defendant‘s position.‖ [211] Usually for an employee to succeed in a cause of action against the employer on negligence, the employee must establish: (a) That the task involved a foreseeable risk of injury; (b) That there were reasonably practical means of obviating that risk; (c) That her injury belonged to the class of injuries to which the risk exposed her; and (d) That the employer‘s failure to eliminate the risk showed a want of reasonable care for her safety (see Weaver v Endeavour Foundation [2013] QSC 93.). [212] I note in Hayne J‘s comments in Vairy v Wyong Shire Council (2005) 223 CLR 422 at [126]: ―When a Plaintiff sues for damages alleging personal injury has been caused by the Defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the Plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.‖ [213] I now turn to consider the expert evidence called. Dr Ludke’s evidence [214] Dr Justin Ludke has provided two reports, the first dated 1 June 2011 (Exhibit 5), and the second dated 25 June 2013 (Exhibit 6). -- 20 of 34 -- 21 [215] In his first report (Exhibit 5), Dr Ludke estimates that the total weight of the washing powder on the trolley was between 240 to 264 kilograms (pp 2.15). [216] He found that the trolley was a six wheeled trolley (four casters and two fixed wheels) without brakes, which had a weight of 37.5 kilograms (pp 6.2). [217] He noted that, ―when assessing tasks and risks within an industry, the management of musculoskeletal sprains and strains of people would form a high priority‖ (pp 7.2). [218] A number of injuries are caused by being hit by moving objects (7.7%). [219] He noted at p 8.10: ―Manual handling activities remain one of the major sources of work-related injury.‖ [220] He noted at pp 9.3: ―The incident described by Ms Anderson was an injury associated with a heavy manual handling task of moving large amounts of stock and which fits the pattern of numerous similar musculoskeletal injuries previous analysed by Intersafe. Push/pull incidents are well-recognised as a cause of musculoskeletal injuries. Manual handling tasks associated with trolley movements have received considerable attention and a number of guidance documents have been published. … Research by Lawson and Potiki entitled ‗Development of Ergonomic Guidelines for Manually Handled Trolleys in the Health Industry’ showed that the non-patient care area of the health industry typically makes up 25-30% of hospital staff but generates 50-60% of compensation claims. A large majority of the claims are a result of using poorly designed trolleys and trays. In relation to the trolley incidents, 15% were reported as being a result of body stressing due to pushing/pulling/lifting the trolleys. The specific injury sustained by Ms Anderson was not necessarily a common injury for the work being conducted. However, it is highly predictable that people will sustain musculoskeletal injuries as a result of manually handling large amounts of stock by hand and with the aid of trolleys.‖ [221] Page 10 et seq of his report deals with the mechanism of the impact. [222] He found: (a) that if the force applied by Ms Anderson was greater than 8.3-13.9kg the trolley would increase in velocity (b) If the force was equal to 8.3-13.9kg the trolley would remain at constant velocity (c) If the pull forces were less than 8.3-13.9kg the trolley would decrease velocity. [223] In this case the Plaintiff applied a pull force which was greater than 8.3-13.9kg (pp 10.32.). -- 21 of 34 -- 22 [224] It is estimated she had applied a pull force for 2m prior to attempting to stop it (pp 11.1). The Plaintiff then commenced to apply a push force to stop it when it was .45m from her right heel thinking she could stop it (pp 11.13). [225] To try and stop it after a velocity of 1.3m/s would require 39-45kg of push force (pp 11.18). If it was in .35m 54-60kg of force would be required (pp 11.21). [226] Table 3 shows that a maximum push force of 22kg should be applied by females to minimise the risk of musculoskeletal damage (pp 12.5). [227] ―Therefore based on these calculations once the velocity of the trolley reached or exceeded 1.2m/s, the ability of Ms Anderson to safely stop the trolley in the desired distance (.45m) without sustaining musculoskeletal injury was quite low. In addition with the twisted posture of Ms Anderson …would also limit her ability to apply significant force to stop the trolley.‖ (pp 12.6) [228] Dr. Ludke found that a required push force of 40-60kg to stop the trolley would not be considered unreasonable (pp 13.9). [229] After an examination of rates of perceived exertion and push forces required it was noted (pp 14.17): ―In summary, this assessment has shown that it is predictable that musculoskeletal damage could occur for someone attempting to suddenly stop a loaded trolley of the size handled by Ms Anderson at the time of the incident. Impact injuries and muscles strains and sprains are the most likely injuries from this type of incident.‖ [230] At p 15.6 Dr Ludke noted that the pushing of trolleys is preferred to pulling including the fact that the operator is more likely to be seriously injured if their feet slip. He opines that is she had been appropriately instructed or trained to push the trolley then the injury she sustained would not have occurred. [231] At pp 15.30 it was noted: ―If an assessment of this system of work was conducted against the manual handling guidelines previously mentioned in s 4.2, the assessment would show that the people conducting these tasks would be at high risk of musculoskeletal damage and that exposure to such demands would be likely to result in a variety of musculoskeletal injuries to any bodily structure in the manual handling force transfer path. Hence, had the system of work been assessed and subsequently changed, the risk of the incident involving Ms Anderson could have been minimised or eliminated.‖ [232] Part 6 of the report deals with available countermeasures. Dr Ludke notes that the auditing of work activities enables one to identify potential hazards and is a basic element of an appropriate occupational health and safety management system. He further refers to AS 1470 and AS 4804. He notes at p 16.21: ―Management should have systems in place to ensure health and safety of employees, noting that in particular manual handling risks are identified (as previously stated), assessed and controlled for all tasks.‖ -- 22 of 34 -- 23 [233] He notes that the risk of injury could have been minimised or eliminated from Ms Anderson by: (a) redesigning the system of work by using, for example, a powered pallet jack, a walkie stacker or a small electric forklift; (b) alternate powered trolleys; (c) manual handling training. [234] In his second report dated 25 June 2013 (Exhibit 6) Dr Ludke commented on Dr Grigg‘s report. [235] Dr Ludke conceded that his earlier acceleration calculations were out by a factor of 2 but the effect of this decreased the velocity achieved for the same push force. Table 1 shows that a pull force of 15-30kg could provide a velocity of .4-1.8m/s. This demonstrates that the forces to required conduct the task were slightly more arduous increasing likelihood of injury and the need to provide an alternate system of work. (p 1). [236] With respect to Exhibit 30 Dr Ludke noted that the man‘s foot was 1m away from the trolley unlike Ms Anderson‘s. (pp 2.3). [237] Dr Ludke thought there were differences in the design of an airport trolley and the trolley in question (pp 3.10) not the least of which is that airport trolleys have brakes (pp 3.14). [238] Dr Ludke believed the trolley was travelling at a greater speed than that shown in Exhibit 30 (pp 4.21). [239] He stated that Dr Grigg provided no justification as to why someone would be walking at half normal walking pace when using a trolley (pp 4.25). [240] In conclusion it was noted (p 6): ―The calculations provided in the author‘s original report, upon which Dr Grigg has questioned some assumptions but not others, were provided to give a guide to the court of the possible motion of the trolley. Based on the variable range of the parameters involved in the calculations, the intent of the author was to demonstrate that the description of the incident by Ms Anderson was entirely feasible, not to state that this was exactly the movement of the trolley at the time of the incident. Dr Grigg has questioned the parameters, but the author does not believe that Dr Grigg has said or proven that the incident could not have occurred in the manner described by Ms Anderson. Subsequently, the author described that it was predictable that the system of work adopted (i.e. manually loaded and moving trolleys with up to 250kg of stock) would result in musculoskeletal damage to people. Had the system of work been modified to reduce or eliminate this risk, the incident involving Ms Anderson, as well as many other conceivable incidents relating to overexertion, could have been prevented. In summary, the author agrees with Dr Grigg‘s assessment that the author‘s original acceleration calculations were out by a factor of 2. -- 23 of 34 -- 24 This increases the forces required to pull the trolley by 5kg as stated by Dr Grigg but remains a predictable risk.‖ Dr Grigg’s evidence [241] Dr Grigg has provided a report dated 17 January 2012 (Exhibit 14). [242] He noted that the total weight of the trolley and load was 277.5kg (p 2). [243] At pp 2.6 Dr Grigg observed that the calculations of the accelerations in Dr Ludke‘s report are in error by a factor of 2. Dr Grigg opines that pull forces are in the range of 20- 26kg to reach a velocity of 1.3m/s in 2m. [244] Dr Grigg criticises Dr Ludke‘s choice of .45m (pp 3.2). He says there was no reason provided for urgency in stopping the trolley. But this fails to adequately take into account the request for help from Donna Mitchell. [245] He also agreed that a force of 39 to 45kg would be needed to stop the trolley in a distance of .45m but he stated there was no need to for such a short stopping distance (pp 3.3). If it was 1m the stopping force would be in the range of 10-15kg (pp 3.3). [246] He noted at p 3.5: ―It is noted that the tables are generally applied to repetitive tasks rather than to single events of the type of concern in this matter. It is to be noted that the incident of concern involved injury arising from physical impact rather than from musculoskeletal stressing. I am in general agreement with Dr Ludke that for several reasons it is better to push trolleys rather than to pull them. However, I believe that a very high percentage of the population would have familiarity with the operation of trolleys since most supermarkets and the like provide trolleys for their customers to gather the goods that they wish to purchase. Although the designs of the trolleys are somewhat different I believe that the wheel arrangement on the trolley that the Plaintiff was using facilitates easier control over the direction and movement of the trolley than the four cast wheels found on most shopping trolleys.‖ [247] Dr Grigg relied on Exhibit 30 (pp 4.6). [248] He concluded at p 5.2 that the trolley stopped in this demonstration in about .5m almost the same as .45m. [249] In conclusion Dr Grigg was of the opinion at p 5.5: ―1. The loaded trolley could have accelerated to a speed of approximately half normal walking pace by the application of around 15 kg. This is within the range of pushing and pulling forces recommended by Mital et al. for at least 75% of the female industrial worker population at a frequency of once every five minutes. 2. When moving at about half normal walking pace, the loaded trolley would stop in about .5 metres without any retarding force being applied by its operator. -- 24 of 34 -- 25 3. Although the Plaintiff has expressed the intention of pushing the trolley to its destination … she proceeded to pull it from where it was loaded, thereby placing herself in the path of travel of the trolley if she stopped walking. 4. When pulling the trolley would be difficult to apply a significant retarding force if the need arose since it would involve pushing backwards. 5. Operation of the trolley at speeds higher than about half normal walking pace would give rise to the need to apply potentially significant retarding forces in the event of a need to stop in a short distance … 7. Although the fitting of a brake would be feasible, it would only reduce the stopping distance and not result in an instant stop.‖ Conclusions on expert evidence [250] I also listened to the oral evidence of both witnesses. [251] Having considered the evidence of both experts I prefer the evidence of Dr Ludke over that of Dr Grigg where they are in conflict. [252] To my mind on the evidence I consider it to have been dangerous for a female worker to have been pulling a trolley with in excess of 240kg of stock on it. [253] I also find that at the least John Hyslop considered that pulling the trolley would be dangerous (Exhibit 36 at [39]). [254] I conclude one of the reasons for this is the risk that the trolley could strike an individual if the individual stopped moving. [255] The use of the trolley seems to have been very common in some of the IGA stores according to the evidence. [256] With an item of equipment so commonly used, close attention should have been given to the way in which employees used the equipment. [257] I also consider that it was more likely that the Plaintiff in light of the urgency of tasks was walking at a pace greater than half walking pace. This was something significantly relied on by Dr Grigg in reaching his opinion. [258] I consider that it would be wrong to rely on Exhibit 30 as the Plaintiff was far shorter than the man in the video and the Plaintiff I find was walking at a faster pace and stopped when she heard the call for help. [259] I also consider the use of the .45m stopping distance to be more likely. I saw the Plaintiff. She was a short person (165cm) with not long arms. -- 25 of 34 -- 26 [260] Contrary to Dr Grigg‘s evidence I consider there are significant differences between the use of a normal shopping trolley and the one in question carrying this amount of stock. [261] On Dr Ludke‘s evidence there were clearly risks associated with the use of the trolley which risks could easily have been obviated by this employer. [262] Clearly significant force would have been required to stop the trolley. Submissions by counsel [263] Counsel for the Plaintiff submitted the Plaintiff had made out all the allegations of negligence as pleaded in paras 13, 14 and 15(a) of the Statement of Claim with the exception of para 13 (b) which relates to the provision of a trolley with a handbrake. [264] The Plaintiff relied on Reck v Queensland Rail [2005] QCA 228. [265] Counsel for the Defendant relied on the following cases: (a) Neill v NSW Fresh Food and Ice Pty Ltd [1963] HCA 4 cited in Hosking v Pacific Partner Pty Ltd [1999] QCA 484 (b) Hill-Douglas and Anor v Beverley [1998] QCA 435 (c) Williams v MIM [2001] QCA 101 [266] It was submitted by the defence: (a) There must be evidential material to enable the jury to find the system unreasonably exposed the workman to the risk of injury. (b) There was none in this case. (c) The risk involved in pulling the trailer was obvious enough here. It is ridiculous to suggest the employer should have told her to be more careful. (d) There was no evidence of any other injury being sustained in similar circumstances. Analysis of the cases referred to by counsel [267] Of course each case depends on its own facts. [268] In Reck v Queensland Rail (supra) Dutney J had assessed the employer as 75% responsible and the employee 25%. [269] In that case the majority dismissed the cross appeal concerning the assessment of contribution by the employee. [270] In that case the evidence revealed that the Respondent who was an engine driver was in a stationary locomotive. He was on the way to the toilet and tripped over a raised lip and fell out of the door. [271] It was found that the Defendant was negligent in failing to provide a safe system of work. He held that the Defendant was negligent in not warning the respondent of the risks involved with using the access system. [272] Importantly this was the only incident of a driver falling forward after tripping on a door sill despite some 700 use years for this class of locomotive (see [16]). -- 26 of 34 -- 27 [273] I also note [15] where Fryberg J noted: ―An employer is not relieved of a duty to provide training in methods of avoiding risks in its system of work simply because the risks are obvious and are known to its employees.‖ [274] This case has been of great assistance to me in reaching my determination in this case. [275] In Williams v Mt Isa Mines [2001] QCA 101 the Appellant/Plaintiff was not successful where he was not instructed as to the safest method of alighting from a truck. That is not surprising. Alighting from a truck is an every day event (see [16]). There were no circumstances there which required a specific warning or special training necessary. I consider the present case which involves a trolley with ¼ of a tonne of washing powder to be different. [276] In Hill-Douglas v Beverley [1998] QCA 435 the Defendants were successful in their appeal. In that case the Appellants had been found liable to pay a Jackaroo who was injured riding his motorbike into barbed wire. The court referred to two cases where it had been held that the risk was so obvious not to require any warning. In O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 the experienced plumber elected to work on the awning itself rather than on scaffolding and in Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 the Plaintiff, a caretaker of a construction camp whose duties included cutting up timber for fuel, injured his eye when a piece of wood flew into it when he used a tomahawk rather than an axe. The court held that the risk was obvious and known to the respondent. Crucially in that case there was no evidence lead as to how the risk could have been avoided or reduced (see [22]). The Plaintiff in that case was experienced and competent. [277] In the present case the Plaintiff had not much experience at all with these trolleys; she was pulling ¼ of a tonne of washing powder in a manoeuvre which was considered dangerous by Mr Hyslop. The system should have been set up so she could push the trolley (without clutter) and so that she was instructed to do so. Further there is evidence in this case from Dr Ludke as to what could be done to avoid the risk of injury. I consider Hill-Douglas and the cases referred to above may be distinguished. [278] Neill v NSW Fresh Food and Ice (1963) 108 CLR 362 involved a man who slipped hitting his head. He worked at a slippery place. There was no evidence of any appropriate alternative means of achieving the task. That is not the case here. [279] Hosking v Pacific Partner [1999] QCA 484 involved a case where the employer and the worker were not previously aware of the employee‘s congenital predisposition to spontaneous idiopathic pneumonthorax. That case may be distinguished because if the employer, its servants and/or agents had ensured a safe system of work here they would have ensured the store was not cluttered so that the trolley did not have to be pulled for a distance. Conclusions on the evidence [280] Having considered all of the evidence in this case, the fact remains that the Plaintiff in this case was pulling on a trolley with a load of between 240 to 260 kg of washing powder. -- 27 of 34 -- 28 [281] It was a dangerous manoeuvre to pull a trolley with this kind of weight. [282] The Plaintiff was forced into pulling it because of the clutter in the storeroom. [283] No doubt and I infer there would have been some time pressure on workers to get the store ready for the opening. I find the Plaintiff would have been travelling at least at a walking pace. [284] It seems to me not unreasonable to expect that there may be instances where other co-workers call out to workers for assistance particularly during preparations for a store opening. [285] In those circumstances it seems to me that the risk of injury was a foreseeable one even if it was only remote (Wyong Shire Council v Shirt). [286] To my mind it was more than a remote risk it would have been a clear risk that a worker in a confined space would have commenced to manoeuvre the trolley by pulling it. In such a circumstance there was a clear risk it might run into the person if the person stopped moving. [287] It further seems to me that there were reasonably practical means of obviating this risk of injury, namely by assessment of the workplace and by providing training and instruction and direction to the Plaintiff as to the correct use of the trolley. [288] Contrary to the Defendant‘s submissions Dr Ludke provides evidential material on this matter. [289] The Plaintiff struck me as a hard worker. She would have been the kind of worker to follow such instructions and directions if they had been given. [290] I find that the injury belonged to the class of injury to which the risk exposed her and the employer‘s failure to eliminate the risk showed a want of reasonable care for her safety. [291] In the circumstances on the factual findings I have made, I find that the Defendant was negligent towards the Plaintiff in this case, and this negligence caused the injury sustained by the Plaintiff. [292] I find the Plaintiff has established paragraphs 13a, c, d, e, f, g and/or h of the Statement of Claim. Breach of contract [293] Alternatively, I find that the Defendant breached the implied term of the contract of employment (which I find existed) to take reasonable care for the Plaintiff‘s safety and damage has resulted as a consequence of this breach. [294] As agreed by the parties the assessed contributory negligence applies to the action for breach of contract. Breach of statutory duty [295] The Plaintiff originally pleaded that under s 28(1) of the Workplace Health and Safety Act 1995 (Q), the Defendant had an obligation to ensure the workplace health -- 28 of 34 -- 29 and safety of the Plaintiff was not affected by the conduct of the Defendant‘s business or undertaking. [296] It was alleged that the failure to take reasonable care in this case constituted a breach of statutory duty. [297] The Defendant alleged that this cause of action is extinguished by section 37A of the Act. [298] This action was correctly abandoned. [299] Section 37A was introduced by Act No 24 of 2010. [300] When the provision was introduced s 197 was also introduced which rendered the provision retrospective in certain circumstances. [301] In this case the trial did not commence before the commencement of the section. [302] Section 28(1) was still relied on as a particular of negligence. [303] Reprint No 8 applied at the relevant time. [304] Section 28 of the Act provided: ―Obligations of persons conducting business or undertaking (1) A person (the relevant person) who conducts a business or undertaking has an obligation to ensure the workplace health and safety of the person, each of the person‘s workers and any other persons is not affected by the conduct of the relevant person‘s business or undertaking. (2) The obligation is discharged if the person, each of the person‘s workers and any other persons are not exposed to risks to their health and safety arising out of the conduct of the relevant person‘s business or undertaking. (3) The obligation applies— (a) whether or not the relevant person conducts the business or undertaking as an employer, self- employed person or otherwise; and (b) whether or not the business or undertaking is conducted for gain or reward; and (c) whether or not a person works on a voluntary basis.‖ [305] Section 29 provided ―What obligations under s 28 include Without limiting section 28, discharging an obligation under the section includes, having regard to the circumstances of any particular case, doing all of the following— -- 29 of 34 -- 30 (a) providing and maintaining a safe and healthy work environment; (b) providing and maintaining safe plant; (c) ensuring the safe use, handling, storage and transport of substances; (d) ensuring safe systems of work; (e) providing information, instruction, training and supervision to ensure health and safety.‖ [306] Section 23 provided: ―Obligations for workplace health and safety (1) The following persons have obligations under division 2 to ensure workplace health and safety— • persons who conduct a business or undertaking, whether as employers, self-employed persons or otherwise • persons in control of workplaces • designers, manufacturers and suppliers of plant • erectors and installers of plant • owners of plant • manufacturers and suppliers of substances • persons in control of relevant workplace areas • persons in control of fixtures, fittings or plant included in relevant workplace areas.‖ [307] Section 27 provided: ―How obligations can be discharged if no regulation etc. made (1) This section applies if there is not a regulation or ministerial notice prescribing a way to prevent or minimise exposure to a risk, or a code of practice stating a way to manage the risk. (2) A person discharges the person‘s workplace health and safety obligation for exposure to the risk by doing both of the following— (a) adopting and following any way to discharge the person‘s workplace health and safety obligation for exposure to the risk; (b) taking reasonable precautions, and exercising properdiligence, to ensure the obligation is discharged. 27A Managing exposure to risks (1) To properly manage exposure to risks, a person must— (a) identify hazards; and (b) assess risks that may result because of the hazards; and (c) decide on appropriate control measures to prevent, or minimise the level of, the risks; and -- 30 of 34 -- 31 (d) implement control measures; and (e) monitor and review the effectiveness of the measures. (2) To properly manage exposure to risks, a person should consider the appropriateness of control measures in the following order— (a) eliminating the hazard or preventing the risk; (b) if eliminating the hazard or preventing the risk is not possible, minimising the risk by measures that must be considered in the following order— (i) substituting the hazard giving rise to the risk with a hazard giving rise to a lesser risk; (ii) isolating the hazard giving rise to the risk from anyone who may be at risk; (iii) minimising the risk by engineering means; (iv) applying administrative measures; (v) using personal protective equipment. Examples of subparagraph (iii)— redesigning work, plant, equipment, components or premises Examples of subparagraph (iv)— training, reasonable hours of work (3) However, this Act also specifies particular ways in which workplace health and safety must be ensured in particular circumstances. (4) Compliance with subsection (1) does not excuse a person from an obligation to ensure workplace health and safety or a particular obligation imposed on the person under this Act.‖ [308] I find that s 28(1) did apply to the Defendant as it was within s 23 of the Act. [309] I find that s28(1) was breached in that the Defendant failed to ensure the workplace health and safety of the Plaintiff. [310] I rely on the reasons I have expressed concerning negligence for this finding. [311] I find this to be a particular of the negligence alleged. Contributory negligence [312] In this case the Defendant has pleaded contributory negligence. [313] The onus is on the Defendant to prove contributory negligence. [314] In Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 it was said: ―A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer -- 31 of 34 -- 32 had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage.‖ [315] In cross-examination the Plaintiff conceded that she knew that, if she did not pay attention to the trolley, it could hit her. She conceded that she was distracted. But, of course, the distraction here was because Donna had called out to her (T1-76.25). [316] As noted earlier, an employer is not entitled to disregard the possibility of inadvertence or carelessness on the part of an employee. [317] I have already found there was a degree of urgency in getting ready for the opening of the shop. As a result the ―lion‘s share‖ of liability should be attributed to the Defendant. One must also bear in mind the requirement of an employer to maintain a safe system of work. [318] Having said this I consider, like in the case of Reck, the Plaintiff did contribute to her own injury here. I find that in light of her concession referred to above the sudden stop amounted to a failure on her part to take reasonable care. [319] I assess contributory negligence at 25%. [320] As Fryberg J noted in Reck at [18] there may at first blush be thought to be an inconsistency between the finding of negligence and the finding of contributory negligence. However when one analyses the majority decision a finding of contributory negligence can sit conformably with a finding of negligence on the part of the employer. It obviously enough depends on the circumstances. Quantum Pain, suffering and loss of amenities [321] I have set out the relevant evidence of the Plaintiff as to the effect of the injuries upon her. On the evidence it seems clear that the Plaintiff has developed Achilles tendinopathy which has not been proved by the Plaintiff to be related to the accident. [322] I bear in mind that it is for the Defendant to disentangle such conditions (see Purkess v Crittenden (1965) 114 CLR 164). [323] On my findings, I accept Dr Saxby‘s evidence that there is contribution to the Plaintiff‘s present condition from the effects of the accident but also from the tendinopathy. [324] Bearing in mind the fact that there has been symptomology from this incident for over five years now and on the Plaintiff‘s evidence it is clear that the injury has had a significant effect on her and her family life and bearing in mind the assessment of whole person impairment by Dr Saxby (which I accept), I assess general damages in a sum of $20,000. -- 32 of 34 -- 33 [325] Interest will be allowed on the pretrial component of such damages ($10,000) at the rate of 2% per annum for five years, namely a sum of $1,000. [326] Such interest may be awarded as section 306N of the Workers Compensation and Rehabilitation Act 2003 (Q) did not commence until 1 July 2010. Out-of-pocket expenses [327] Exhibit 19 is a list out-of-pocket expenses claimed. These total $2,992.25. Bearing in mind the contribution from the Achilles tendinopathy, I will discount this sum by 50%. I allow special damages, then, in the sum of $1,496.12. Interest will be allowed on that sum at the rate of 5% per annum for five years, which equals $374.03. [328] Exhibit 23 shows that the WorkCover refund is $3,481.63 and Exhibit 22 shows that the Medicare refund is $1680.50. The total is $5,162.13. I allow 50% of this in light of the tendinopathy contribution. Past economic loss [329] The Plaintiff has given evidence as to the effect of this injury upon her working ability. I accept this evidence. Turning to the Plaintiff‘s work history, she left school in year 10. She was born of 5 November 1980 and presently is 32 years of age. After leaving school she worked in hospitality, family day care, in Woolworths and then went to IGA. She presently has two children aged 14 and 10, and may have children in the future. Having children did not keep her away from work for long. For example, she took 10 weeks off when the second child was born. [330] She gives evidence that, as a consequence of the injury, her work decreased from about 37 hours per week to about 30 hours per week. Presently she earns about $20.43 per hour. The gross difference then between working 37 hours per week and 30 hours per week is about $163.44. [331] The Plaintiff gives evidence that she mostly does computer based work in her present employment. This is what she did at Noosa as well. She does some work on her feet. She believes, but for the accident, she would have been able to continue to work 38 hours per week but cannot work for any more than 30 hours per week in admin. She would like to work more but cannot because of the pain level. [332] She received a Certificate III in Retail Operations in 2007, and her aim was to further her career to become a grocery manager, but this has not been possible because it is a very physical job. She needed to maintain more hours on her feet to achieve this but cannot continue to do so. She has also completed a Diploma of Management through the Coca-Cola Institute, which was completed in March 2013, but there were no further admin opportunities available. She gave evidence that a manager can earn up to $75,000 per year, and she earns $32,000 per year. [333] I take into account Exhibit 37. This shows a significant reduction of hours after July 2008. This is consistent with the condition becoming worse over time. [334] I also take into account Exhibit 40, although the document does not inform me what the Plaintiff would have earned if she had continued working 37-45 hours per week. -- 33 of 34 -- 34 [335] In all of the circumstances, bearing in mind appropriate taxation rates, discounting for contingencies and the effect of the Achilles tendinopathy, I assess past economic loss at $50 per week. For five years, this amounts to $13,000. Interest will be allowed on this sum at the rate of 5% per annum for the period of five years. This amounts to $3,250. [336] In addition I assess the loss of past superannuation, at the rate of 9%, at $1,170. Future economic loss [337] Bearing in mind that the further impact of the tendinopathy, I assess future economic loss at the rate of $50 per week. The Plaintiff‘s working life would be until 58 years of age. This is a period of some 26 years. Discounting this amount on the 5% tables (multiplier is 753.6), I assess future economic loss at $37,680. I might say this is consistent with an award I would have made for loss of job opportunity and/or vulnerability on the open labour market. [338] Loss of future superannuation at the rate of 9% per annum will be $3,391.20. Future medication etc [339] I assess future out-of-pocket expenses at $5 a week factoring the contribution from the tendinopathy. [340] Discounted on the 5% tables (to 65) this amounts to $4,275. [341] In conclusion, I assess damages as follows: (a) Damages for pain, suffering and loss of amenities $20,000 (b) Interest on past pain, suffering and loss of amenities $1,000 (c) Out-of-pocket expenses $1,496.12 (d) Medicare and WorkCover payments $2,581.06 (e) Interest on out-of-pocket expenses $374.03 (f) Past economic loss $13,000 (g) Interest on past economic loss $3,250 (h) Loss of past superannuation $1,170 (i) Future economic loss $37,680 (j) Loss of future superannuation $3,391.20 (k) Future out-of-pocket expenses $4,275 TOTAL $88, 217.41 Less contributory negligence at 25% $22,054.35 Subtotal $66,163.06 Less refund to WorkCover $3,481.63 Net amount $62,681.43 [342] I give judgment for the Plaintiff in the sum of $62,681.43. [343] I will hear the parties on the question of costs. -- 34 of 34 --