Davey v TriCare Ltd [2002] QSC 403

SUPREME COURT OF QUEENSLAND CITATION: Davey v TriCare Ltd [2002] QSC 403 PARTIES: JOE EMMA DAVEY (plaintiff) v TRICARE LIMITED ACN 009 657 345 (defendant) FILE NO/S: SC No 3126 of 2001 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court Brisbane DELIVERED ON: 6 December 2002 DELIVERED AT: Brisbane HEARING DATE: 12, 13, 15, 16 August 2002 JUDGE: Ambrose J ORDER: I give judgment for the plaintiff against the defendant in the sum of $23,186.00 CATCHWORDS: NEGLIGENCE – Safe system of work – claim for damages for negligence, breach of contract and breach of statutory duty for injuries suffered while working as a nurses’ assistant at a nursing home – where plaintiff alleges that she injured her back while lifting patients using a ‘cradle lift’ – whether safe system of work – whether defendant should have provided and required use of equipment to avoid risk to plaintiff – whether breach of duty and contract – whether injury alleged to have been suffered aggravated an underlying degenerative condition WorkCover Queensland Act 1996 (Qld), s 318 COUNSEL: J G Crowley QC with P B de Platter for the plaintiff R Myers for the defendant SOLICITORS: Ken Owens Solicitors for the plaintiff McCullough Robertson for the defendant [1] AMBROSE J: On 25 February 1998 the plaintiff commenced work as a carer or nurses’ assistant in a nursing home (“TriCare”) conducted by the defendant at Mermaid Beach. -- 1 of 22 -- 2 [2] At the time of the incident upon which she founds her claim the plaintiff was nearly 37 years of age. She is now nearly 42 years of age. She completed her secondary education in Brisbane in 1978 and then commenced to work as a student nurse in the Princess Alexandra hospital. She worked in that hospital for approximately 18 months and in the course of her training received instructions on the then commonly adopted method of lifting or “transferring” disabled patients. [3] She had three children after she ceased training as a nurse and did not work during the 1980’s. In 1989 she completed a degree in Arts at the New England University as an external student; she also acquired other qualifications including a Diploma of Child Psychology. [4] Early in 1998 she applied to TriCare for the position of carer of patients in its nursing home at Mermaid Beach on the Gold Coast. She had apparently sought employment of this sort through CES and had provided that organisation with a document listing her “nursing experience”. [5] The plaintiff had apparently spent much of the 15 years which preceded her move to the Gold Coast at the end of 1997 living in the Townsville area. [6] On 9 February 1998 Matron Hewson a trained nurse of many years experience who was administrator of the TriCare Nursing Home interviewed the plaintiff and assessed her suitability to act as an “on call” carer when needed. It was then arranged that if and when TriCare needed her services she would be contacted by telephone. Ultimately Matron Hewson did make contact with the plaintiff probably about 18 February 1998 offering her a casual position as carer. The plaintiff accepted the offer and commenced employment on 25 February 1998. [7] In the course of the interview Matron Hewson discussed with the plaintiff her training as a nurse for 18 months and as well the various other health related activities and courses she had pursued. In the course of the personal interview I am satisfied that Matron Hewson did enquire of the plaintiff whether she had any problems with her “transferring and manual handling skills” with respect to patients in care and the plaintiff advised her that she had no problems. According to Matron Hewson she always made this inquiry of an applicant for work as a carer because transferring and handling elderly patients is an important aspect of the services required of a carer. [8] When the plaintiff presented herself at TriCare Nursing Home on the afternoon of 25 February 1998 Matron Hewson showed the plaintiff around the nursing home as she normally did with “new staff” and introduced her to a registered nurse named Ross Burton. [9] The plaintiff commenced her first shift at the TriCare nursing home at 3:30pm on 25 February 1998. She was assigned to assist the male nurse Burton. [10] She said she assisted the male nurse Mr Burton to lift between 15 and 20 residents to get them ready for their evening meal. At the outset she said she told Mr Burton that she had forgotten how to lift patients and asked him to show her how to do the lift and he did show her. She assisted to lift those patients between 3.30pm and about 5.30pm. She and Mr Burton then apparently had a break while the patients were having their dinner. They then went around a second time and prepared the patients for bed. This second round it would seem was made after the evening meal -- 2 of 22 -- 3 and probably commenced about 6:30pm. This second round involved attending upon 20 bed ridden residents and took perhaps a couple of hours. [11] According to the plaintiff Mr Burton did not ever explain to her what she was required to do – in spite of her attempts to obtain this information from him. [12] According to the plaintiff she was directed by Ross Burton to assist in taking a heavy patient named Arnie who was an overweight man from a wheelchair and in manipulating him onto his bed manually. Her recollection is that when he was on the bed she then assisted Mr Burton to shift him up towards the head of the bed manually by effecting what was described as a “cradle lift”. This method of lifting involved the plaintiff and Mr Burton standing on opposite sides of the bed and each grasping one arm of the other under the legs of the patient to be moved and each grasping the other’s arm under the back or upper part of the shoulders. Together they then simply moved the patient up the bed; in the course of her assisting Mr Burton to slide/lift Arnie further up the bed, according to the plaintiff, she suffered pain in her back and told Mr Burton “my back is hurting. Stop. This lift is too heavy for me”. According to her she then stopped assisting in the lift and Mr Burton simply completed it by himself. [13] She said that in spite of soreness to her back she continued to work for the rest of the shift lifting all the other people that needed to be lifted in preparation for them going to sleep. She said that she was conscious that her back was sore. She said that she finished getting the patients ready for bed some time between 9.30pm and 10.00pm. She said that when she finished work she had a very sore lower back and the following day went to see Dr Balin at the Mermaid Beach Medical Centre. She said that he examined her and she bent over for him and he diagnosed that she had ‘muscle spasms’ and prescribed anti-inflammatory drugs. Without any advice to do so she went to a chemist that day and purchased a back support and used it each time she subsequently worked shifts at the TriCare Nursing Home. After an unspecified break she again attended the TriCare Nursing Home with a sore back and did another afternoon shift. She said on this occasion before she commenced her shift she went to see Matron Hewson. She said she saw her in her room and in answer to her question as to how her first nightshift had gone she mentioned to Matron Hewson that she had hurt her back and that she was concerned about her lifting techniques. According to her Matron Hewson said that she could arrange with other nursing staff to help her with her lifting techniques. She said that on the third shift that she worked – without specifying the occasion – she was shown lifting techniques. [14] She said she was not sure how many shifts a week she worked but that after the first occasion on 25 February 1998 she always wore her soft back support and took anti- inflammatory drugs. [15] She said that on a later occasion she spoke to a nurse about the meaning of a sign “H” hanging on Arnie’s bed and on beds occupied by other people. She said that she was informed that that letter indicated that a hoist should be used to lift the patient. [16] The Plaintiff said she ceased work at TriCare on 14 March 1998 – altogether it seems that she worked on a number of shifts at TriCare over a period of about 19 days. Precisely how many shifts she worked did not emerge in the evidence -- 3 of 22 -- 4 however she said that on about the second last of the shifts that she worked she bent over a man named Ken whom she had helped to sit on the toilet and while bent over she got another acute back spasm which paralysed her for about 5 minutes or so. She said that the spasm caused her acute back pain and prevented her from moving for about 5 minutes. She said eventually the pain passed and she was able to stand up. She said the back pain was in the same place as she had previously experienced pain on 25 February 1998 when she was assisting Mr Burton to lift/slide Arnie up towards the head of the bed. [17] The plaintiff said that after her second last shift she was tested on her lifting abilities. It seems on the evidence that other nurses with whom she had worked had complained about her ability to lift/slide patients adequately. She was tested on ‘a two man lift and a one man lift’. She said she was tested working with another nurse and there was a tutor there. She said she passed the two man lifting test but failed in the one man lifting test. It is interesting to note that according to Nurse Barrett who attended on this test or tuition which seems to have occurred just before the last shift that she worked before she resigned on 14 March 1998 she had problems involving her inability to maintain her balance when performing a one man lifting operation which she attributed to a condition of scoliosis from which she then suffered and had indeed suffered since childhood. [18] The plaintiff said that because of her back pain after employment by TriCare she was very careful doing housework. She said that she also developed pain in the back when she attempted to weed the garden. [19] She said that she did a ten week course in Information Technology and then got a job for a week before she moved to her next employment at the Gold Coast Hospital where she worked as a casual receptionist in the Maternity Ward. While working there one day in June 1998 she got a bad back spasm when she reached for the telephone. She said it was an acute paralysing back pain which was agonising. She said the pain was in the same position as that in which she suffered pain on the occasion of her involvement with Arnie and Ken at the TriCare Nursing Home. She said on this occasion the pain lasted for only a couple of minutes. She said it was after this pain that she first consulted Dr Ashwood after which she had X-rays and a CAT scan taken. Apparently Dr Ashwood recommended acupuncture which she had on four occasions but it did not make her back any better. [20] This evidence is contrary to the records kept at the Mermaid Medical Centre to the effect that she said that the acupuncture had greatly improved and/or lessened her back pain. [21] She said that she then got another position with the Gold Coast Hospital in a Pathology Laboratory. She said that she worked at the hospital for 40 hours per week for a few weeks before she obtained full time employment with Sullivan and Nicolaides in November 1998. She said that she earned $760 per fortnight at this occupation. She worked with those pathologists between November 1998 and 22 January 1999. She said that her employment required her to stand at a bench sorting out specimens and that her legs commenced to ache and she got a sore back and felt tired. [22] Eventually in January 1999 she resigned from Sullivan and Nicolaides and went to Centrelink presumably for some form of assistance or perhaps to enrol for some -- 4 of 22 -- 5 other employment. She said that while standing in a queue she developed acute leg pain which she described as a ‘sciatic pain’ in her right leg. She said that she has had it ever since. She said the pain starts in the small of her back, travels to her buttocks into her hip and then down the back of her right leg finishing at her ankle. She said that there was also pain behind her right knee. She said sometimes she has also suffered from pain in her left leg travelling down the back of her leg to her knee. She said she gets this pain in both legs even while in bed. She said she gets relief from heat and medication but it does not take away the pain completely. [23] She said eventually she had an operation at Royal Brisbane Hospital on 22 February 2001. She had to wait because there was a waiting list for operative treatment [24] It is the plaintiff’s case that she suffered back injury in the course of assisting Mr Burton to lift/slide or move Arnie further up the bed. [25] Mr Burton has no recollection of the plaintiff ever saying any such thing to him and no recollection of observing that she ever had any apparent problem lifting/sliding Arnie. Indeed he has no real recollection of anything to do with moving Arnie up the bed with the assistance of the plaintiff. He did give evidence however that had he observed any such event or had she said anything to him about the lift being too heavy or about her back hurting as a consequence of her lifting he would certainly have required her to fill out an injury report. Indeed it seems to have been the required procedure in the nursing home should any person in the course of performing his/her duties suffer any injury or strain that he/she immediately report it. [26] For the plaintiff it is contended that her evidence on this critical aspect of her case was “uncontradicted by Mr Burton”. It was the plaintiff’s case that within a day or two she had in fact informed Matron Hewson of this very strain/injury. Matron Hewson denies that the plaintiff ever informed her of any injury to her back observing that had she been so informed it was the invariable practice in the nursing home to record such information. [27] According to the plaintiff she also informed nurse Barrett a health and safety officer in the nursing home to the same effect. Nurse Barrett denies that she was ever informed by the plaintiff of any back injury. [28] The whole matter is complicated by the fact that when the plaintiff resigned from the TriCare Nursing Home on 14 March 1998 she made no mention of any problem she was having with her back or of any difficulty she had encountered in transferring patients but advised that she was resigning for “family reasons”. She thanked TriCare and its staff for the “new skills” she had acquired. [29] On 24 October 1998 she applied for a position as laboratory assistant with Sullivan and Nicolaides pathology (vide Ex 8). She was then casually employed at the Gold Coast hospital in such a position and also as ward clerk in the maternity section of that hospital. In her curriculum vitae which accompanied her application she stated that she had worked in various occupations including part time work in 1998 as an assistant in aged care nursing. [30] She obtained this laboratory position from which she resigned on 5 January 1999. She advanced as the reason for her resignation “lots of personal and family reasons” -- 5 of 22 -- 6 which she said, contrary to her hopes, had worsened. She explained that she planned to “rest” in 1999 during which she would do some external study and return in the year 2000 to do full time studies. There is no indication in this letter that the plaintiff had any back problems that had led to her decision to take a year off “for a rest”. [31] The first information from the plaintiff that she had allegedly suffered serious back injury on the first day of her employment with TriCare on 25 February 1998 was when she made a claim to WorkCover in respect of it about 18 months later. [32] Naturally enough enquiries were made of persons who might be aware of any such injury and statements were apparently taken from Matron Hewson and nurses Burton and Barrett. According to them none of them was aware of any such injury because the plaintiff had never informed them of it. [33] I prefer the evidence of Matron Hewson and nurses Burton and Barrett with respect to the plaintiff not informing them of her injury on or subsequent to 25 February 1998 to the evidence given by the plaintiff in this respect which I found quite unpersuasive. To my mind none of those three witnesses had any personal reason to mislead the court as contended on behalf of the plaintiff. [34] The failure of the plaintiff to make any timely notification to TriCare of her alleged back injury or strain on 25 February 1998 without more casts serious doubt upon her version of the event which it was contended on her behalf is critical to her success in this action. [35] However it emerged in the evidence that the plaintiff had consulted Doctors at the Mermaid Central Medical Clinic for a number of years prior to August 1999. Her medical records held by that clinic show that it was on 26 February 1998 that she first consulted Dr Balin “regarding her back condition”. She apparently advised Dr Balin that “she was involved in lifting patients at TriCare and had developed a sore lower back the night before”. Dr Balin examined her and noted that her straight leg raising test was normal and that she had “some tenderness over the lumbar region”. She was prescribed anti-inflammatory medication and advised to return if her symptoms continued. [36] According to contemporaneous medical notes taken the plaintiff had informed one of the doctors at the clinic on 5 March 1998 that she had commenced to wear a soft back brace on 26 February 1998. It is also recorded that she then told Dr Balin that she was “now using correct lifting techniques”. On 28 March 1998 Dr Balin noted that she had given up work because she was having ongoing back pain and recorded that her back “was almost back to normal”. On her next visit on 1 April 1998 she made no mention of back trouble. [37] There seems to have been no complaint made by the plaintiff of lower back pain on various visits that she paid to the medical clinic from June 1998 until 16 January 1999 where the medical records note “continuing problems with low back pain and spasm of the spinal muscles particularly during sex”. [38] The next time she complained of back trouble was on 17 June 1998. She then complained about having suffered a lower back spasm. -- 6 of 22 -- 7 [39] The medical records indicated that on 19 June 1998 a CT scan of her back showed an “L4-5 nerve root compression on the right side”. She was referred for acupuncture and physiotherapy. [40] On 20, 22, 25 and 29 June and 2 July 1998 she received acupuncture which improved her back pain. [41] On 22 June 1998 when she received acupuncture treatment for pain in her back, Dr Balin recorded that she had received good relief from the acupuncture. On 29 June the plaintiff advised the doctor that her ‘back feels good for the day as a result of acupuncture’. On 2 July 1998 she told Dr Balin that her back condition was ‘very good’. [42] Over the following months she continued to complain of lower back pain with spasming of the paravertebral spinal muscles, she was prescribed anti-inflammatory medication. [43] On 29 January 1999 the plaintiff had advised one of the doctors that she had to give up her job because she could not stand – I infer that this was the job she had with Sullivan and Nicolaides in respect of which she wrote her letter of resignation on 5 January 1999 without making any mention of any inability to perform her work and attributing her resignation only to a deterioration with respect to family related matters. [44] On 18 July 1998 she injured her right wrist and forearm as a consequence of a bookcase falling on it as she was shifting furniture. She again attended at that clinic on 9 August, 21, 22 and 23 October 1998 without mentioning any problems with her back. [45] The first mention of back related sciatica was made on 16 January 1999. [46] On 17 March 1999 Dr Cuffe a member of the Mermaid Central Medical Clinic examined the plaintiff who then complained of persistent chronic pain radiating down her right leg and of family problems she was having due to pain and her inability to lift objects. She had previously complained of pain in her buttock area but it appears that she had made no complaint prior to January 1999 about radiation of pain down her legs. [47] With respect to the plaintiff’s medical history cavassed in paragraphs 35 to 49, I refer to Ex 16. [48] A complaint of “back spasm” was made by the plaintiff on 17 June 1999. There was a CT scan ordered. Subsequently she received treatment by way of acupuncture for her back [49] The plaintiff consulted Dr Ashman, an Orthopaedic Specialist practising in Canberra early in 2000. He arranged for a CAT scan. After inspecting that he suggested that she have an operation. She did not have one in Canberra however and came back to Brisbane where she again consulted Dr McCombe and had her operation. She was in hospital for 3 or 4 days and recuperated thereafter for between 3 months and 6 months. -- 7 of 22 -- 8 [50] The operation was not successful; she was still left with sciatic pain and back pain. She said this pain comes on for 2 or 3 days each week. She said that although she had worked prior to that operation she has not worked since. [51] Dr Ashman gave a report for the purpose of litigation on 24 February 2000. It was his opinion that the pain the plaintiff was then experiencing in her right leg was due to pressure on a nerve root caused by disc protrusion which was demonstrated by an MRI scan taken in January 2000. [52] Dr Ashman attributed her back problems to the injuries she said she suffered attempting to lift Arnie in February 1998 which in his view, accepting her account, had probably damaged the intervertebral disc which caused back symptoms from time to time over a 12 month period before ultimately leading to radiation of pain down her leg. It was his view that her condition was consistent with a splitting of the disc on 25 February 1998 which progressed over a period of 12 months to produce sciatic pain. Dr Ashman said that he relied entirely or almost entirely on the history of back pain she gave. Apparently he did not treat the plaintiff. He simply examined her for the purposes of litigation. Under cross examination he agreed that reference to the patient records of the Mermaid Medical Clinic did not disclose a history of constant on-going pain from the date of her alleged injury on 25 February 1998 until 16 January 1999 when she first complained of radiation of pain which was consistent with sciatica. He agreed that having regard to that history he would have grave doubts as to whether the incident to which the plaintiff referred on 25 February 1998 concerning lifting Arnie could be responsible for the sciatica of which she complained when he examined her. Dr Ashman said that he was unaware essentially of evidence of disc degeneration to which Dr Anderson referred in his report of 29 June 2000 (Ex 15). He agreed that a person with degeneration of the kind described by Dr Anderson and consistent with the x-ray CT and MRI scan to which he referred could without any trauma develop sciatic symptoms associated with such degeneration. [53] Dr Ashman agreed that if one accepted that the plaintiff had suffered a spasm of pain in her back on 25 February 1998, then the second back spasm she said she suffered attending Ken in a toilet shortly before 14 March 1998 could represent either an aggravation of any injury to the spinal process suffered on 25 February 1998 or a separate injury altogether. If that were the situation then it is possible that neither stress played any part in the symptoms of which she complained when he examined her early in the year 2000. Eventually, Dr Ashman said that the second stress although possibly amounting to a separate injury altogether would more likely have aggravated any injury caused by the first stress resulting from attempting to lift Arnie on 25 February 1998. [54] I observe merely that less than three weeks elapsed between the occasion of the two alleged pain spasms involving Arnie and Ken and it seems on the evidence that over those three weeks the plaintiff worked on a number of shifts and not continuously. Dr Ashman agreed that an MRI taken on 17 January 2000 confirmed disc degeneration and the findings of a radiologist to that effect were characteristic of that degenerative condition. Having regard to the history of the onset of back pain given by the plaintiff with respect to assisting to lift Arnie on 25 February 1998 and bending over Ken within a week or so of that event, Dr Ashman said that logically both events may have contributed to her injury. He observed that bending over puts a lot of pressure on a degenerative spine. He agreed ultimately that each of those -- 8 of 22 -- 9 events – assuming they did occur – may have contributed to her ultimate sciatic condition. [55] In September 1999, Dr Livingstone, an orthopaedic specialist who was retained on behalf of the defendant to consider the plaintiff’s condition obtained x-rays of the plaintiff’s lumbar sacral area. The report upon those x-rays was to the effect that there was a narrowing of the L5-S1 and to a lesser extent of the L4-5 disc spaces. This was consistent with degenerative change present in the vertebral margins and within the lower apophyseal joints. Minor degenerative changes were also noted in the sacro iliac joints. Dr Livingstone said that the plaintiff’s sciatic pain in her right leg was consistent with pressure on the nerve root of the L4-5 or L5-S1 levels. He expressed the view that the incident involving Arnie which the plaintiff related to him would be “a major contributing factor”. There was evidence of a disc bulge annulation. However he expressed the view that for the plaintiff to sustain this injury as a consequence of the event involving Arnie on 25 February 1998 which she described, she would need to have some form of pre-existing degenerative changes in her spinal processes. In the circumstances, whatever caused her disc lesion was/were superimposed on some form of pre-existing weakness in her disc as a consequence of degenerative change. [56] Dr Livingstone agreed that any one or more of a number of factors may have been a precipitating cause or causes of the sciatic condition of which the plaintiff then complained. It was the plaintiff’s explanation of the incident involving Arnie that she gave to Dr Livingstone that caused him to identify that incident as the (or a) precipitating cause for her sciatic condition. He said that the plaintiff obviously had an already degenerate disc at the time of any stresses applied to her spine in February/March 1998 and it was possible that she could have developed the symptoms of which she complained when he examined her “without any intervening trauma whatsoever”. [57] I find this evidence of limited assistance. Its weight depends upon what Dr Livingstone means by the term “trauma”. If that term is meant to refer merely to a stress applied to the spine during any one of 20 lifting/sliding operations on 25 February 1998 or in the bending she said occurred in connection with Ken a week or so after that date, or involved in her simply bending over and making beds or lifting objects around the wards, then upon the evidence generally any of those things may have provided a sufficient stress to a sufficiently degenerative spine to lead to the annular protrusion ultimately resulting 12 months or so later which applied pressure on the nerve which produced sciatica. [58] Ultimately Dr Livingstone said that he could not say whether the incident of 25 February 1998 involving Arnie related by the plaintiff was of any more or less significance in the plaintiff’s ultimate development of sciatica than was the second incident a couple of weeks later involving Ken which she related. He said that he felt that one or both of the incidents simply caused an aggravation of her underlining degenerative spinal condition. He expressed the view that her current symptomology of sciatica could not be said to have resulted from one stress to the exclusion of the other. He agreed that a “minor trauma” would be sufficient to produce sciatic symptoms in a person with a spine as degenerative as that from which the plaintiff suffered at material times. He said that just bending over to lift up something from the floor or shifting furniture could produce the symptoms in respect of which the plaintiff seeks damages and that people with a degenerative -- 9 of 22 -- 10 condition of the spine of the sort from which the plaintiff suffered were generally at risk of developing a sciatic condition as a consequence of following their ordinary day to day activities. [59] Dr Livingstone said that in his view the degenerative condition demonstrated in the x-ray taken on 15 September 1999 would have pre-existed the alleged date of her first onset of back pain on 25 February 1998. He expressed the view that had she not suffered any back pain prior to that occasion, it would simply lead him to conclude that her degenerative spinal condition was simply asymptomatic prior to that event. He said that she did have degenerative changes which, accepting her evidence, were asymptomatic and that a quite minor incident involving her spinal processes could make that condition symptomatic. [60] In October 1999 the plaintiff’s solicitors retained Dr Pentis, an Orthopaedic Surgeon to examine the plaintiff and give a report for the purposes of litigation. He gave reports in October 1999, March 2000, December 2000 and September 2001. He referred to the operation which she had in February 2001 when part of the disc between the L5-S1 vertebrae was removed. He was aware that the plaintiff was to undergo an operation by Dr Cooke in September 2002 to fuse the L4-5 and S1 vertebrae. He said that the plaintiff’s sciatic problems involved an impingement of some sort upon her sciatic nerve root at the L5-S1 level. [61] Accepting that the plaintiff did in fact lift a heavy patient – as distinct from just lifting up to perhaps 20 patients (some perhaps on more than one occasion) on the afternoon and evening of her first shift on 25 February 1998, Dr Pentis expressed the view that the back pain from which she said she then suffered resulted from a partial tear of the disc which might then continually deteriorate over a period of between a couple of weeks and five years. [62] He expressed the view that her incapacity resulting from her spinal problems in the lumbar region at time of trial amounted to 30% loss of the efficient use of her spine as a whole. [63] His agreement with plaintiff’s counsel that this disability was “due to the effects of the stated accident” (ie. that alleged to have occurred when she assisted to lift Arnie on 25 February 1998) was in answer to a very leading question. In my view it is clear that whatever may be the extent of the plaintiff’s disability in Dr Pentis’ view, that is a matter quite distinct from its cause. One of the critical issues in this case as I have indicated is whether in fact the plaintiff probably did suffer back pain solely as a consequence of attempting to lift Arnie on the evening of 25 February 1998 as she later asserted, even though she made no complaint of this to any person at the hospital at any material time, and even though the history she gave to Dr Balin was not of lifting a very heavy patient but of “lifting patients” generally on the evening shift before she consulted him. [64] Dr Pentis said he was unaware that prior to her resigning from TriCare the plaintiff had been tested because she overbalanced when attempting to lift by herself a patient and that she had then explained that that was probably attributable to scoliosis. [65] Dr Pentis when informed of the history of back problems of which the plaintiff complained said that “most of the problems are due to a reasonable insult” and that in his view a reasonable insult was the first incident she related more so than any of -- 10 of 22 -- 11 the others propounded. I assume that the ‘first two incidents’ to which he referred related to the pain that she said resulted from her activities involving both Arnie and Ken. Dr Pentis agreed that people who had not lifted patients for a long period of time would have backaches subsequent to doing so again. He said that they might suffer from muscular aches and pains for a couple of days. He said eventually that he thought that the first incident she related with respect to Arnie would have injured her disc to a degree although he could not say by how much and that the second incident she related with respect to Ken had injured it further causing further problems. He said she eventually ended up with a ruptured disc causing sciatica. He said that the plaintiff may have felt pain in her back when lifting for the first time after many years and that would not necessarily indicate damage had been done to the spinal processes although if there were no incidences of “major trauma” one would assume that that would be the cause of disc injury which was later diagnosed. He agreed that a person with a degenerative spinal condition is more at risk of deterioration of the sort observed in the plaintiff than would otherwise be the case. [66] Contrary to the views expressed by Dr Anderson, Dr Pentis took the view that as a consequence of her long-standing condition of scoliosis and kyphosis there would be “abnormal mechanics” in the use of her back and that these would render the plaintiff more at risk to develop symptoms of pain in the back when she lifted Arnie and also to develop symptoms of sciatica as a consequence. He said that somebody with conditions of scoliosis and kyphosis of the back would be “somewhat more prone” to develop the spinal condition ultimately diagnosed in the plaintiff. He said that any person who was doing a heavy job was more prone to injuring his or her back than others not doing such work. [67] He expressed the view that her then current incapacity resulting from her spinal problems in the lumbar region amounted to 30% loss of the efficient use of her spine as a whole. [68] Dr Graham Anderson an orthopaedic specialist examined the plaintiff on 29 June 2000 – a little over two years and four months after her alleged injury on 25 February 1998. [69] He said that x-rays and a CT scan performed on 28 May 1999 – 15 months after her alleged injury demonstrated a narrowing of the L5-S1 disc and the L4-5 disc and a partial lumbarization of the first sacral vertebrae. He said there was also a bulging disc at L4-5 with a similar change at L5-S1. He deduced from this that there was disc degeneration present. He considered further radiological evidence obtained in September 1999, 4 months after the previous radiological examination, which showed that degeneration was still evident at the L4-5 and L5-S1 discs. He observed a minor scoliosis. He said that an MRI taken on 17 January 2000 confirmed degeneration in the lower two lumbar discs. Again it demonstrated L4-5 and L5-S1 had a lesser bulge. [70] Dr Anderson having regard to what the plaintiff told him and considering the radiological evidence, expressed the view that on 25 February 1998 she had suffered a “lower back strain while lifting at work”. He expressed the view that this back strain occurred at a time when her lower back was subject to degeneration. He said that she did not complain to him of pain that was other than “momentary” pain “under certain circumstances”. He observed that she did not on the material -- 11 of 22 -- 12 develop sciatica as such “until January 1999 when she was standing a lot working in the laboratory of Sullivan Nicolaides”. He said that since that time according to her history she had continued to get back pain of a more constant kind with sciatica like pain of an intermittent nature. He said the x-rays showed that at the time of her alleged injury on 25 February 1998 she had clear cut degeneration of the L4-5 and L5-S1 vertebral discs. Dr Anderson said that it would be reasonable to say that the plaintiff did strain her back in the presence of underlying degeneration. He said that she had recovered to a great extent from back strain suffered on 25 February 1998 until sciatica developed about 10 months or so after that strain. His opinion was that there may have been some progression of her degeneration which had produced the sciatica. He said that between February 1998 and January 1999 he would have expected a gradual deterioration in her degenerative spine in any event. He said that the part played by any lifting stress on 25 February 1998 was uncertain but that if at all it had only contributed in a partial sense, as it was just as likely that the progression of her back condition producing sciatica was in any event a consequence of the natural progression of her underlying constitutional state. He said that deterioration of the kind that had occurred in the plaintiff’s spinal processes between 25 February 1998 and the date of his examination on 29 June 2000 occurs at an unknown rate without the necessity for any injury to take place. [71] Dr Anderson said that in his view at the time of his examination the plaintiff had an impairment of back function resulting from her spinal condition amounting to 20% loss of her total bodily function. He said that (accepting her version of events on 28 February 1998) he would attribute only 10% of this loss to the effect of “the February 1998 incident”. He said the fact that her sciatic pain had not come on “for the best part of a year after the initial injury makes it highly unlikely that any residuum from the injury provoked the sciatica”. He said ultimately that it was much more likely that her sciatica developed from the natural progression of her degeneration and the stresses of her job at the time she developed this condition in January 1999 which involved a great deal of standing and photocopying. He said that it was unlikely that any of the incapacity of which she complained when he examined her was attributable to “the injury of February 1998”. [72] I would read that observation as indicating that the injury to which Dr Anderson referred was the one in respect of which she sought medical attention from Dr Balin on 26 February 1998 to whatever event or events her back pain which developed after her first shift of work at TriCare may have been attributable. [73] Dr Anderson considered the problems the plaintiff had with “one man lift procedures” and the fact that she suffered from scoliosis as a child. [74] He considered the history that she gave concerning the back spasm which she said she suffered shortly before she resigned from TriCare involving bending over Ken in the toilet and the history of her activities between the time she resigned from the TriCare Hospital on 14 March 1998 and the time she suffered from her first symptoms of sciatica in January 1999 and expressed the view that the incident of 25 February 1998 “probably had no significance in the development of her sciatica in January 1999”. [75] Dr Anderson said that the plaintiff had clear evidence of degeneration in her lower back spinal processes which was long-standing and that there was some evidence of -- 12 of 22 -- 13 scoliosis but not much. He said that the main problem with her back was attributable to her disc degeneration and it was unlikely that any pain to her spine on 25 February 1998 was due to a stress likely to have contributed to the development of sciatica although he conceded that it might have made a “minor contribution” only. [76] Dr Anderson said that in his opinion it was not correct to associate the development of sciatic pain in January 1999 with any stress to the plaintiff’s back on 25 February 1998 and that the intermittent pain from which she suffered in the back from time to time after 25 February 1998 was of no significance in the eventual development of sciatica in January 1999. [77] Dr Anderson said that on 29 June 2000 his clinical examination of the plaintiff did not demonstrate any nerve root compression at L4-5. He said that it was impossible to diagnose compression merely from x-rays and other radiological examinations. He said that people with sciatic pain do not necessarily demonstrate nerve root compression. [78] He said that when he examined her the plaintiff had some pain in her back when her leg was lifted 40 degrees but that was not much proof of a “nerve root compression”. In fact he said there were no other signs in her legs indicative of nerve compression such as wasting or sensory damage. He said a diagnosis of nerve root compression on the clinical signs he detected would be “very doubtful”. [79] Dr Anderson said that although sciatica could result spontaneously from damage done to the spine following many lifts, such lifts may be effected without sciatica resulting. He said that that the development of sciatica was only a possible consequence of lifting for a person with a degenerative spinal condition and not a probable one. [80] Dr Anderson expressed the view that the degeneration in the plaintiff’s spinal processes shown in x-rays taken on 28 May 1999 were sufficient to be the basis of the symptoms of which she complained. [81] Dr Anderson said that no matter what x-rays of the patient’s lumbar processes disclosed they did not “tell you what symptoms are going to be associated with them”. He said that x-rays are simply additional “bits of information” of the pathology that is present in the patient’s back. He said that some people with very little deterioration demonstrated by x-rays complain a lot about the symptoms while others with significant degeneration disclosed make no complaint of symptoms. [82] Dr Anderson expressed the view that having regard to all the radiological evidence as to deterioration et cetera in the plaintiff’s spinal processes it was not possible to say that the sciatica from which she has suffered since January 1999 was more likely than otherwise to have occurred through stresses applied to her spine on 25 February 1998. [83] Dr Anderson said that for sciatica to result from damage to the vertebrae it would have to be either L4/L5 or S1 vertebral damage that applied pressure to the L5-S1 nerve roots adjacent to those discs. He said that anything that narrowed the foramen could irritate the nerve and produce sciatic pain. He said pressure on the nerve could result from a protruding disc or the disc becoming thicker and bulging because of narrowing; it could be from the swelling of the inter-vertebral joint, but -- 13 of 22 -- 14 the common cause was degeneration of the disc and/or of the inter-vertebral joint. Ultimately Dr Anderson said that the plaintiff may in any event have developed sciatica at some stage because of the degeneration of her spinal processes and that the onset of sciatica may have been accelerated by stresses placed on the spine on 25 February 1998 ultimately resulting in an impingement of some sort upon her sciatic nerve root at the L5-S1 level. [84] The plaintiff explains her failure to make any claim for compensation against TriCare for nearly 18 months after her resignation on the basis that she believed that she could not make such a claim if she was no longer employed by TriCare. [85] For the reasons I have already expressed were it not for the timely treatment the plaintiff sought and obtained from Doctors at the Mermaid Central Medical Clinic from the day after her alleged injury until June 1998 I would have significant reservations as to the reliability of her evidence concerning her suffering any pain in the back on the evening of 25 February 1998. However in light of the almost contemporaneous complaint of pain she made at that clinic and the treatment she received for it over a period of some months I am persuaded on the balance of probabilities that she did suffer back pain as a consequence of “lifting patients at TriCare during her first shift” on the evening of 25 February 1998 although I am quite unpersuaded that she made any complaint of suffering this pain either to Mr Burton or to anybody else in the hospital much less a complaint of any specified event to which she attributed its onset prior to her resigning from TriCare a couple of weeks later. [86] It does not follow of course that pain she suffered on the evening of 25 February 1998 in respect of which she sought medical treatment the next day was a cause of the later diagnosed medical condition of her spinal processes in the lumbar sacral area. It may well be that the event upon which the plaintiff relies to recover damages against TriCare if it did occur, while causing some pain did not itself result in the condition in respect of which she seeks to recover damages. It may be that any pain or soreness that she did experience which motivated her to attend the medical clinic the following morning simply resulted from stress to her musculature caused by her lifting a number of patients in a way in which she had not been engaged since she ceased to be a trainee nurse many years before. [87] The medical evidence makes it clear that within 18 months or so of her commencing to work for TriCare the plaintiff was suffering from symptoms attributable to a serious and significant degeneration of her spinal processes in the lumbar sacral region. It seems that although on the day following her alleged injury the plaintiff was able to return to work and perform the services required of her on that day and over the next couple of weeks, without the advice of any medical practitioner she purchased a soft back brace which apparently she wore for several weeks before she resigned while continuing to work without apparently any significant impairment of her ability to do so by reason of any back injury. Ostensibly she resigned for reasons not in any way connected with any back injury. [88] It is the plaintiff’s case that within approximately two weeks or so of her commencing duties with TriCare she was standing in a toilet to assist an elderly resident named Ken; she bent over in the course of rendering assistance and suffered very significant pain in the region of her lumbar spine. The pain was so bad she was unable to straighten up for 5 minutes. It is no part of the plaintiff’s -- 14 of 22 -- 15 case that TriCare was in any way legally responsible for any injury she may have suffered on this occasion. [89] In my view the probability is that the plaintiff’s degenerative spinal condition had advanced to such a stage by the time she commenced employment with TriCare that even relatively insignificant stresses to her lumbar sacral region would contribute to some extent to the eventual development of the disabling symptomology of which she complained 18 months after she had ceased to work for TriCare intermittently for less than three weeks. [90] I am unpersuaded that had it not been for any stress to her spine on 25 February 1998 attributable to “lifting patients”, she would not have suffered the symptomology which she did when she bent over in the toilet to assist a patient a week or so later. [91] On the plaintiff’s case, I think on the probabilities, either or both stresses either independently or in combination with each other or with other stresses suffered by the plaintiff while employed at TriCare, contributed to the onset of symptomology in her lumbar sacral spinal area about which she complained in about 2000 when she took steps necessary to institute these proceedings. [92] As a consequence of my conclusions in this respect it becomes necessary to assess the plaintiff’s damages on the basis that events which occurred on 25 February 1998 probably contributed to some uncertain degree, to the onset of symptomology which was canvassed at some length by all medical experts in this case. I have given consideration to the interesting views of Dr Ashman that had it not been for the first stress to the plaintiff’s spine on 25 February 1998 she may not have suffered the symptomology resulting from stress to her spinal processes which she related occurred when she bent over to assist somebody in the toilet a week or so later. [93] In my judgment the plaintiff’s spinal processes were in such a degenerative state that a relatively minor stress or series of stresses could have led to the symptomology in respect of which she brings this action. For the purpose of assessing damages I therefore proceed on the basis that if the event involving lifting Arnie of which she complains on 25 February 1998, did cause pain in her back as distinct from a soreness in her back resulting from “lifting patients” generally as she related to Dr Bladen, it contributed to the onset of her ultimate symptomology to some extent although there were almost certainly other stresses as well which contributed including stresses to her spine occasioned in “transferring” other patients at TriCare before and after the incident involving Arnie as well as when she bent over in the toilet a week or so later to assist Ken – and perhaps also on the occasion of stress in the course of domestic activities in which she was engaged such as moving furniture on 18 July 1998 when a book case fell on her. [94] On my appreciation of the evidence even accepting that the plaintiff suffered no back pain prior to February 1998 it is clear that she bases her action upon the event involving Arnie on 25 February 1998 to which she attributes the commencement of pain radiating down her leg in January 1999; she had worked at a number of different jobs, subsequent to 25 February 1998 she had regularly attended her medical clinic with complaints of back pain from time to time although sometimes months passed without any complaint of such pain being made. To my mind this history is consistent with the gradual deterioration of her spinal processes by reason -- 15 of 22 -- 16 of degeneration and the likelihood is that any stress or stresses applied to those processes during her first shift on 25 February 1998 either involving lifting Arnie or lifting patients generally or bending over for other purposes were stresses which both anticipated and ultimately contributed to the onset of symptomology in respect of which she seeks damages. [95] Considering the medical records of the Mermaid Medical Clinic I am persuaded that the probability is that the event of 25 February 1998 involving Arnie upon which the plaintiff relies, assuming it did occur although she made no mention of it to nursing staff while employed at TriCare, was only one of the precipitants of the onset of symptomology in respect of which she claims damages against TriCare. To my mind accepting the evidence of Mr O’Sullivan the transferring of patients without a slide sheet on shifts worked over the period of 19 days during which she worked as carer at TriCare probably did put stresses on her degenerative lumbar spinal processes which contributed to and/or accelerated the development of her sciatica 11 months later. I am unpersuaded however that any pain or stress in the back she may have experienced lifting Arnie was sufficient at that time to cause her to relate it to any nursing staff at TriCare – even Mr Burton whom she was assisting at the time – and only became the focus of her attention as she contemplated litigation against TriCare when her solicitor in this regard took instructions from her 18 months later. [96] In this case the plaintiff brings her action in negligence, contract, and for breach of statutory obligations under the WorkCover Queensland Act 1996. [97] I have regard to the expert evidence of Mr O’Sullivan as to stresses placed on the lumbar sacral spinal processes of nurses transferring patients by “cradle lifting” technique and the ability to avoid or at least minimise such stresses by use of a slide sheet. This evidence was uncontradicted. [98] The plaintiff on 27 June 2001 (about two months after institution of these proceedings) informed Mr O’Sullivan retained by her solicitors to prepare a legal report, that while assisting a male nurse to lift “a large male” she had experienced “a spasm in her low back which was not sharp but a mild pain”. She “did not feel the pain was sufficient for her to cease working”. She informed Mr O’Sullivan that on the next day she had received medical advice “that she had suffered a muscle spasm”. [99] In the course of her evidence the plaintiff said that “half way through the lift I got an acute spasm in the lower back”. She said as a consequence she had a “very sore lower back”. She said her shift was about 6½ hours. She said that a doctor had examined her the next day and diagnosed “that I had muscle spasms”. [100] Interestingly the plaintiff gave evidence that she did not think that she “had a case” against TriCare until she had seen a television advertisement by the solicitors she consulted and had advised them of the circumstances of her injury. It was then upon their advice that she made an application for workers’ compensation. [101] The only evidence relating to the weight of Arnie was given by Mr O’Sullivan who said that he “understood” that the plaintiff had given him an estimate that Arnie weighed approximately 80 kilograms. -- 16 of 22 -- 17 [102] He volunteered this information when giving evidence that the weight of “an average Australian male patient” would be “around 70-75kgs”. [103] There was no evidence adduced from hospital records as to what the weight of Arnie was at any material time. The plaintiff did not herself give evidence of what she “estimated” Arnie’s weight to be. I find this unsurprising in the absence of evidence that she had ever tested his weight other than by assisting another nurse to lift or transfer him. What experience she had in estimating the weight of persons or things which she lifted with the assistance of another person was not investigated upon trial. In the course of her evidence she described Arnie as “a large heavy man” without descending to give any estimate of what his weight was. Perhaps in the circumstances it is understandable that such evidence was not led from her. [104] Interestingly on page 11 of his report provided to the legal representatives of the plaintiff on 9 August 2001 (about 6 weeks after his first interview) Mr O’Sullivan underneath a diagram indicating that a cradle lift technique was prohibited for lifting (without reference to the weight of the patient) observed “The problem with the cradle lift is illustrated by a basic assessment of the method using the NIOSH Guide to manual lifting. The graph taken from the Guide (Figure 2) helps estimate spinal stress based on a combination of the weight lifted and distance of the weight forwards of the lifter’s ankles. For example, for an 80kg male who can assist with one arm but without any use of his legs the lifting effort is likely to be in the order of 30-35kg per lifter with greater weight being on the arms lifting beneath the thighs and at a nominal distance of 500mm from the lifter’s ankles. Using the graph depicted in Figure 2, 35kg at a distance of 50cm takes the co-ordinate above the Maximum Permissible Limit at which point nearly all females will be at risk of injury”. [105] At what time the plaintiff first attempted to estimate the weight of Arnie did not appear in her evidence. [106] I can find no record in the history of the plaintiff’s account of her injury apparently given to Mr O’Sullivan of any reference to an estimate that Arnie weighed about 80kg. The only reference to an 80kg male that I can discover is contained in the excerpt from Mr O’Sullivan’s report on page 11 to which I have referred. Mr O’Sullivan was not asked the basis of his “understanding” that she gave him an estimate that Arnie had a weight of 80kg. [107] I am unpersuaded as to the approximate weight of Arnie on 25 February 1998. There is simply no admissible evidence on this issue. In any event as I understand the evidence of Mr O’Sullivan in the light of the excerpt from page 11 of his report, under the diagram figure 1, the plaintiff would have been at risk of injury cradle lifting or transferring any patient with a weight “in the order of” 60-70kg. Presumably it is for this very reason that current expert opinion (as well as expert opinion in February 1998) is that the risks inherent in using a cradle lifting technique should be avoided by the use of a slide sheet. [108] I am satisfied that in failing to provide and require the use of a slide sheet to facilitate the movement of patients while in bed, TriCare failed to take reasonable steps to ensure that the plaintiff worked within a reasonably safe system of work. Such sheets had been recommended and used for shifting patients in nursing establishments for years prior to the events occurring at TriCare between -- 17 of 22 -- 18 25 February and 14 March 1998. Indeed such sheets were then kept in the TriCare Nursing Home. There appears to have been no system in place requiring the use of those sheets to avoid unnecessary risk of back strain which had been common in nurses performing this sort of work over the years. [109] I find the defendant liable in negligence and for breach of contract in failing to see that the plaintiff in assisting Mr Burton and perhaps other nurses to lift/slide patients in bed was not provided with and required to use with him or them such a slide sheet. [110] I infer that had a slide sheet been used on 25 February 1998 and subsequently the plaintiff would probably not have suffered back pain of the sort or to the extent about which she complained to Dr Balin at the medical centre the following day. I find that that mild back pain or muscular strain could probably have been avoided by use of a slide sheet – whether that pain or strain was attributable to lifting only Arnie or attributable to “lifting patients” generally as she recounted to Dr Balin the next day. I find it probable that it was attributable to lifting patients generally (approximately 20), including Arnie and to lifting, bending and doing other things in the course of her first shift of continuous nursing for more than 20 years. It is interesting to note however that subsequent to that visit she did inform Dr Balin apparently that she had improved her lifting technique and was able to shift patients around in bed (apparently without the use of a slide sheet) without suffering disabling back pain. [111] The plaintiff said that earlier this year – presumably in the first half of 2002 – she had consulted Dr Crammond with respect to her back pain. She spent about 2 weeks in the pain clinic at the Royal Brisbane Hospital where she was put on a medication called Neurontin which she was still taking at time of trial. She was also given medication to help her sleep at night. [112] She said that the Neurontin did not take the back pain away but merely ‘took the edge off’ the pain in her legs. [113] At time of trial she said that she had constant back pain with sciatica in her right leg. As a consequence she could stand for a period of only about 20 or 30 minutes without pain becoming more intense. She said that her sexual activities had been impaired because of the intense back pain she suffers in the course of engaging of those activities. [114] The plaintiff said she recently consulted Dr Cooke an orthopaedic surgeon. She had seen him on two previous occasions. As a result of the advice she received from Dr Cooke she proposed to have another operation to her back on 15 September 2002. [115] The plaintiff called Dr Cooke who gave evidence that he examined her on 19 and 22 July 2002 and on 9 August 2002. He said that he proposed to operate on her and remove scar tissue, correct a prolapsed disc and stabilise her back by effecting a de- compressive laminectomy and fusion of the lower two segments of her lumbar spine – the L4-5 and L5-S1 segments. The defendant objected to this evidence; in the circumstances I have exercised my discretion in favour of admitting it in the special circumstances of the case – particularly having regard to the relatively recent examinations of the plaintiff by Dr Cooke and his assessment of the likelihood of success of the operative treatment he proposes. -- 18 of 22 -- 19 [116] He said that the total cost of the operative treatment would be about $13,200.00; in addition there would be the cost of supervised physiotherapy exercises. He said that there was a better than 90% prospect of a successful outcome of the operation. A successful operation he said should restore her back to good function and permit her to get on with her life. He said that after such an operation she could “do whatever she wants”. She would be required to exercise regularly and to take care to use her spine correctly. He said that she should not go back to work in a convalescent home “immediately”. If she wanted to go back to do that sort of work she would have to do so under constraints designed to allow her back condition to cope with it. He said that provided however the plaintiff progressively built up her fitness she would be able to do what she had done effectively before she developed her disabling back condition. He said that the operative treatment he proposed and which he was confident would be successful was based on the necessity to relieve pressure on the nerve root which was causing her sciatica. [117] In assessing the plaintiff’s damages I proceed on the basis that quite apart from any stress to the spine suffered by the plaintiff on her first shift as a carer at TriCare during the evening of 25 February 1998 the condition of her back would in any event have deteriorated to that existing long before date of trial. I find on the medical evidence that indeed it probably would have deteriorated to its condition before she had her first operative treatment to overcome pain and disability resulting from her degenerative spinal processes in February 2001 when part of the disc between the L5-S1 vertebrae was removed. [118] I propose to assess damages on the basis then that any stress suffered by the plaintiff to her spinal processes on 25 February 1998 which did contribute to the onset of symptoms she suffered which led her to have the operation in February 2001 did no more than contribute to some indefinable extent to that onset for which she had an operation 3 years later. [119] The extent to which various stresses imposed on her spine on that day produced soreness that night I find difficult to evaluate. Dr Anderson who, on the assumption that a stress which did not cause sufficient pain to lead her to report it to the hospital or to mention it to the nurse Mr Burton at the time, may have contributed to the extent of 10% of the 20% loss of function of the spine in June 2000 was based upon the stress involved in lifting Arnie being sufficient of itself in fact to trigger the exacerbation or acceleration of her degenerative condition. As I have indicated I am unpersuaded that any stress she did suffer lifting Arnie – assuming that she did experience some mild pain or twinge in the lumbar area of her spine on that occasion – was sufficient to bring it to the notice of any of the persons to whom she should and would in the ordinary course of events have reported or mentioned it prior to ceasing employment at that hospital. However as already indicated I am satisfied that the probability is that stresses were applied to the lumbar sacral area of her spine on many occasions during the period of 19 days when she worked a number of shifts during which she probably shifted many patients without the use of a slide sheet. [120] In assessing damages suffered by the plaintiff as a consequence of working at TriCare without the provision of slide sheets I propose to disregard any loss of amenity or income she may suffer subsequent to trial as a consequence of her back condition. -- 19 of 22 -- 20 [121] Between 25 February 1998 and date of judgment (6 December 2002) – a period of nearly 5 years – I will assume that the symptomology of which she complained may have been marginally accelerated by the stresses to her spine that resulted from her working a number of shifts transferring patients without provision of a slide sleet on 25 February 1998 and generally over the following period of 19 days in February/March 1998. I proceed however on the basis that subsequent to February 2001 and long before the date of judgment any such stresses made no contribution whatever to symptomology from which she has since suffered or which she may suffer in the future. [122] I find it difficult on my evaluation of the evidence to assess damages for only one of many breaches of a duty of care to which the plaintiff seeks to attribute her disability. It is unclear on the evidence on just how many shifts she did work while employed over a period of 19 days by TriCare. If she worked 3 casual shifts per week in the 19 day period during which she did work for TriCare she would have worked perhaps 6 or 7 shifts. If on each of those shifts she probably bent over or shifted and lifted up to 20 patients without the use of a slide sheet; she may have imposed more than necessary stress on her back on more than 100 occasions. Perhaps she stressed her back each time she assisted to lift or shift a patient – however many times that may have been. There may have been other persons who were just as heavy or just as difficult to move as Arnie. [123] These were matters not investigated or canvassed upon trial because the plaintiff based her case on only one incident of stress being applied to her spine – that is in assisting to lift Arnie on the evening of her first shift on 25 February 1998. No evidence whatever was lead as to whether on any of her subsequent shifts before her resignation she assisted to lift or slide anybody else of whatever size. I infer however that she probably did. [124] I am satisfied that it was lifting and “transferring” patients (Arnie included) without the provision of a slide sheet which contributed to the onset of her symptomology from her degenerative lumbar sacral spine. At the end of the day I am unpersuaded as to the extent to which lifting Arnie on 25 February 1998 of itself contributed to the onset of that symptomology. [125] The plaintiff’s case was not conducted on the basis that injury to her back resulted from a failure of TriCare to provide her with a slide sheet when she was lifting and moving up to 20 patients per shift as she worked as a carer/nurses’ aide over a period of 19 days. For reasons which were never made clear to me in the course of addresses the plaintiff seems to have limited her case to TriCare’s failure to provide a slide sheet to lift only Arnie on only one occasion. I can only infer that it was perceived that the plaintiff’s case might be thought stronger if she could attribute her spinal injury to a single lifting or transferring of a very heavy patient (with a sign on his bed indicating that he should be lifted only by hoist) rather than to lifting and transferring patients of different sizes and weights generally over a 19 day period. [126] Whatever acceleration of symptomology occurred between 25 February 1998 and the date of her first operation in February 2001 – a period of about 3 years – I find that any stress applied to her spine while she was employed at TriCare in February and March 1998 had ceased to be operative by the time of that operation. I prefer the evidence of Dr Anderson to medical opinion to the contrary that by the time she -- 20 of 22 -- 21 had her first operation in February 2001 whatever effect those stresses may have had on the exacerbation or acceleration of symptomology arising from her degenerative spine had ceased. I proceed therefore on the basis that some of her symptomology to an indefinable extent over that period of 3 years had been accelerated or exacerbated by her assisting to transfer patients on 25 February 1998 without the use of a slide sheet. Over this period, some loss of income was probably attributable to that acceleration or exacerbation of symptomology. Such loss in my view is not capable of calculation with any precision because upon my evaluation of the whole of the medical evidence it is not possible to define the extent to which that exacerbation and acceleration was attributable to stresses placed on the plaintiff’s spine during the period of 19 days that she worked a number of shifts at TriCare much less to the stress placed on it on 25 February 1998 about which she consulted Dr Balin the following day. The difficulty is exacerbated by the plaintiff’s predisposition to develop spinal symptomology by slight to moderate stress applied to her severely degenerate spine in the course of undertaking ordinary daily activity. [127] Doing the best I can I assess general damages in the sum of $15,000. I make no apportionment of damages for pain, suffering and loss of the amenities of life. Under s 318 WorkCover Queensland Act 1996 (in force in February 1998) interest may not be awarded on these damages. [128] The plaintiff’s tax returns (Ex 6) show a net income for the year ended 30 June 1995 of about $1,205. For the year ended 30 June 1996 her net income was about $8,313. For the year ended 30 June 1997 her net income was about $1,000. For the year ended 30 June 1998, the taxable income declared from TriCare was about $944. Tax deducted from this was $122.20. The bigger part of her income that year which amounted to $4,779 seems to have been a parenting allowance received from Centrelink. [129] For the year ended 30 June 1999 her gross income seems to have been $13,030 in respect of which tax of $1,715.60 was paid. Of the sum of $13,030, $2,275 appears to have been received by way of Social Security payments. It seems, therefore, that she earned a net income of something in the vicinity of $9,000 to $10,000 – significantly higher than the amounts earned in the previous 4 years. [130] For the year ended 30 June 2000 she received a net income after tax from TAFE in the sum of $650. [131] For the year ended 30 June 2001 she worked as a casual tutor and seems to have received a net income of $2,881. Her major source of income in this period was by way of disability support pension of about $6,900. [132] I assess the plaintiff’s loss of income over this period resulting from the exacerbation/acceleration of her spinal condition by stress applied to her spine on 25 February 1998 globally in the sum of $6,000. [133] Loss of superannuation on this sum at 7% p.a. for 3 years I assess at $1,260. [134] I am unpersuaded that any part of the cost of the operative treatment the plaintiff was to have in September of 2002 is recoverable as damages flowing from the exacerbation or acceleration of symptomology resulting from her degenerative spinal condition from which she suffered in February 1998. -- 21 of 22 -- 22 [135] I allow $200 for the cost of pain relieving drugs incurred a little earlier as a consequence of the exacerbation or acceleration of the onset of symptomology. [136] In conclusion therefore I assess damages as follows – Damages Interest [137] Pain, suffering and loss of amenities of life $ 15,000.00 Loss of earnings $ 6,000.00 Superannuation 7% for 3 years $ 1,260.00 Interest on lost earnings and superannuation for 2 years $726.00 Acceleration of cost of medication incurred etc $ 200.00 Sub Total $ 22,460.00 $726.00 Total $23,186.00 [138] I give judgment for the plaintiff against the defendant in the sum of $23,186.00. -- 22 of 22 --