Deligios v QNH Pty Ltd [1992] QSC 61

TRA.NSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, Tne Law Courts, George SL-eet, BRJSBA.Nt:. 0. 4000 Tel. (Oi) 22i .4360 (Copyright in this transcript is vested in tile Crnvm. Copies thereof must not be made or sold "9.-'ithout the wrinen authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION D11 · · ·t · n , (b · 3 ~ rJ.__/ tJLMLU/ltf_J!. AJ-1~ .t.£ DERRINGTON J No 2932 of 1987 JOYCE WINIFRED DELIGIOS and QNH PTY LTD AS TRUSTEE FOR QUEENSLAND NURSING HOMES TRUST, A COMPANY DULY INCORPORATED ACCORDING TO LAW IN THE STATE OF QUEENSLAND AND TRADING UNDER THE FIRM NAME OR STYLE OF HERSTONVILLE NURSING HOME BRISBANE .. DATE 13/3/92 JUDGMENT .. 1 Plaintiff Defendant -- 1 of 27 -- 10 2.0 I 30 -'10 i I I I I I 50 1 I I I I 130392 JUDGMENT HIS HONOUR: There is judgment for the defendant with costs including reservrocosts, if any, to be taxed. I add a recommendation,for reasons that I explaine~ that the defendant may consider a generous approach in respect of the matter of costs. I publish my reasons. 6o I ---li- .. Govt. Printer. Old. I 2 I 10 20 30 40 50 60 -- 2 of 27 -- IN THE SUPREME COURT OF QUEENSLAND No. 2932 of 1987 Before Mr. Justice Derrington BETWEEN: CATCHWORDS: JOYCE WINIFRED DELIGIOS Q.N.H. PTY. LTD. as Trustee for QUEENSLAND NURSING HOMES TRUST, a company duly incorporated according to law in the State of Queensland and and trading under the firm name or style of HERSTONVILLE NURSING HOME JUDGMENT - DERRINGTON J. Delivered the 13th day of March, 1992. Plaintiff Defendant Negligence master and servant safe system of work supporting patients in a nursing home whilst being moved in course of care- patient's collapse causing back injury to nurse - precautions taken - whether further precautions too expensive or difficult - reasonable care. Damages - quantum - injury to back - whether unemployment benefit supplement in respect of plaintiff received by spouse should be taken into account - workers' compensation lump-sum payment - whether for purpose of interest calculation should be taken into account in respect of past economic loss component or general damages component. Counsel: Solicitors: Mr. P. Munro for Plaintiff. Mr. D. Tait for Defendant. Stephen Jones & Company town agents Clayton Murrell & Woolmer for Plaintiff. Dillons for Defendant. Hearing dates: 24th and 25th February, 1992 -- 3 of 27 -- IN THE SUPREME COURT OF QUEENSLAND No. 2932 of 1987 BETWEEN: JOYCE WINIFRED DELIGIOS Q.N.H. PTY. LTD. as Trustee for QUEENSLAND NURSING HOMES TRUST, a company duly incorporated accordingto law in the State of Queensland and and trading under the firm name or style of HERSTONVILLE NURSING HOME JUDGMENT- DERRINGTON J. Delivered the 13th day of March, 1992. Plaintiff Defendant The plaintiff's back was injured while she was working for the defendant as a nursing assistant in a lower wing of its nursing home at about 4.30 p.m. on the 5th October, 1984. She was then forty-three years of age so that she is now fifty. She suffered a slight bulging of the L4/L5 intervertebral disc which has caused her continuing pain particularly after sustained walking or sitting and after lifting and, according to her claim, it has rendered her virtually incapable of commercial work ever since. There appears to be little doubt but that she did sustain such an injury in the circumstances alleged because at the time, and even before her symptoms appeared, she reported to the Sister-in-Charge that she had heard a noise in her back; and shortly after she took herself, with some difficulty to a hospital for attention. The defendant contests both liability and the quantum of damages. -- 4 of 27 -- 2 The injury occurred as the plaintiff was attending to an Italian lady, Mrs. Tutti, who was suffering from senile dementia and who weighed about eighty kilograms. She was helping her to move from a commode to her bed which was only about thirty centimetres away. The level of the bed was also about thirty centimetres higher than the seat of the commode but this does not seem to be material because on the plaintiff's own account she was not lifting Mrs. Tutti in that part of the movement in which the injury was suffered. It is desirable to describe the whole procedure in detail. Facing Mrs. Tutti as she sat on the commode, the plaintiff put her own arms around that lady under her armpits, clasping her own hands behind the lady's back. Keeping her own knees against those of Mrs. Tutti she then successfully and without injury lifted her to her feet. In a continuous motion she then commenced to pivot her so that her back would be to her bed to which she could then be guided. There was no evidence of any twisting of the plaintiff's back in her description, and her demonstration strongly supports the inference that there was none. On all of the many prior similar occasions, although needing help to rise, Mrs. Tutti had been capable of supporting her own weight in a standing position, but on this occasion for the first time she failed to do so. The reason is not known. She would have fallen if the plaintiff had not held her, but she tightened her grip and continued to support her. However the unexpected continuation of the burden caused the plaintiff to lean forward, throwing a strain upon her own back which made the noise which she heard. She felt no pain and was able to continue -- 5 of 27 -- 3 to put Mrs. Tutti on the bed. She did not have to lift her in order to do this. She then went off to report the incident, after which she put thirteen other patients to bed before the onset of pain forced her to cease. This general procedure was a part of the regime at the defendant's hospital at that hour of the day, when the patients were prepared for and put to bed after their dinner. The plaintiff was alone in a ward of seventeen such patients, some of whom were competent to care entirely for themselves in such matters, some of whom were quite incompetent, and some of whom were at an intermediate stage of requiring some help. This routine lasted from about 4.30 p.m. when the patients had usually finished their dinner until about 6.00 p.m. when the plaintiff would go to have her own dinner. Before that she might also help in the other lower wing of the hospital, if needed, but there was no suggestion of any such call on this occasion. Mrs. Tutti was the first patient to whom the plaintiff so attended on that afternoon, and as it has been noted despite an onset of pain she managed to have fourteen of her seventeen patients put to bed before she was forced to stop at about 5.30 p.m. She would therefore have had a comfortable margin to carry out her tasks fully within the allotted time if she had not been injured. An attempt was made to argue that by reason of some stress of urgency due to the need to perform these duties within an inadequate time, she was discouraged from seeking assistance which she might have otherwise obtained or she may have been induced to perform this activity with insufficient care. She herself makes no such claim and the objective facts -- 6 of 27 -- 4 discountenance the argument. It is regrettable to hear propositions that are founded on wishes only and contradicted by the evidence. When she commenced her employment with the defendant in the prior February, that is, about eight months before this accident, she had been asked whether in her training she had received full instructions on the correct ways of lifting patients and she replied in the affirmative. In support of this she mentioned her two years training as a psychiatric nurse and her further training as a nursing aide when again she was taught the correct methods. In her evidence she acknowledged that she still had no doubt that she well knew how to lift, including, it would seem, how to handle an upright patient who might collapse while under support. The proper method was to refrain from providing full support but to take some of the patient's weight and immediately lower him or her in a controlled way to the floor, avoiding injury to the patient as far as possible. She also claimed in evidence that the lifting technique which she had used, as distinct from providing support, was the correct one, meaning the one which she had been taught in training. While this concession on her part does not establish the point, it is certainly consistent with other strong evidence to that effect. Indeed, there was no other satisfactory evidence to suggest that her mode of lifting or supporting Mrs. Tutti in an upright state was wrong. However, as it will be seen later in greater detail, when she found herself continuing to support the entire burden of the lady's weight, she failed to follow her -- 7 of 27 -- 5 training and instead took upon herself the effort of supporting it fully. There was some very dubious evidence as to other possible modes of lifting without directly saying that the mode used here was wrong. Rather, said the expert without applying any discrimination between different cases, all such lifts should be made only by two lifters or by use of a mechanical device; but this was all irrelevant because it was directed to protection of the lifter's back in the lifting process, and the plaintiff's injury did not occur then. It occurred only when the two parties were both standing after the lift had been completed and there is no evidence suggesting that the hold which she had was less than the best in that configuration. This is important in a substantive and not merely in a technical way because the plaintiff's case, driven no doubt by necessity was presented so as to confuse the two. The defendant cannot be saddled with liability for alleged negligence in respect of the lifting process when the clear evidence says that the injury did not occur in that way but in the supporting stage of the process where, although it was a continuous process, different dangers, different responses and different considerations apply. An expert, Mrs. Griffin, was particularly pressed with questions which were irrelevant in this way or which depended upon hypothesis which did not match the facts as deposed to. For example she was asked in detail of the mode of lifting and moving patients by means of a belt, which she conceded was not relevant if, as here, the patient were suffering from dementia. It might be added that her recommended methods had, as the plaintiff's -- 8 of 27 -- 6 counsel conceded, serious dangers for the patient, and one of the tests of a protective measure said to be available when that factor is considered in deciding whether there has been a breach of duty, is utility. Moreover she was commendably dedicated to the absolute prevention of injury to nurses' backs and she viewed that objective as singular and worthy only of counsels of perfection, so that she really insisted upon two persons or machinery to be used in all cases of lifting or moving. Her evidence made it clear that for the movement of Mrs. Tutti in an upright position, as she was, the method adopted by the plaintiff was as good as any, where only one person was moving her. The problems that would arise if the patient failed to contribute to the support of her own weight and the proper nursing technique in response to it were common ground. The question of machinery apart, the effect of the expert evidence of Mr. McDonald, an engineer, would seem to justify that used by the plaintiff as the one most suited to the safety of both the supporter and the patient. In that position the centre of gravity of the pair could be easily controlled so as to be in the best position and with the best balance, and the security of the hold was well suited to control the load if the need arose. That need would arise in those circumstances only if the patient were to fail to provide self-support or cease providing such self-support as had been assumed. This is what happened. It will be discussed more fully below, but in view of the arguments advanced it would be better first to continue to trace the plaintiff's general relevant circumstances. -- 9 of 27 -- 7 When at the commencement of her employment she affirmed that she had been properly trained, she was told that if she could handle a patient on her own she could proceed to do it, but if she could not handle a patient easily she should obtain assistance. She obviously accepted this as a genuine safety instruction. That assistance was available in the other lower wing of the hospital which was about twelve metres removed from her wing. A sister and a nurse were always in attendance there. The plaintiff says that on about half of the occasions when she went there seeking help she was met with the response that they were too busy to provide immediate assistance, but she was not put off by this and she apparently continued to seek help whenever she judged that she needed it. More particularly, in respect of this occasion she does not suggest that she believed that she needed it nor that she refrained from obtaining it because of any prior disappointment. On her evidence it is clear that she did not seek help because she believed that she did not need it with Mrs. Tutti. It was argued that the defendant should have had a system whereby a nurse from the other ward and the plaintiff should have been kept together in this ward for a period and then in the other ward for a further period so that the pair of them could together attend to those cases where assistance was needed. This assumes that assistance was needed in this case and, more importantly, that the plaintiff would have used that assistance to help her with Mrs. Tutti if it had been so immediately available. She has never claimed this and indeed the strong inference from her failure to seek the assistance which was -- 10 of 27 -- 8 available for that purpose is that she would not have done so. The proposition holds good only if it were necessary to have two persons in every case. That is a different point which will be considered separately. The plaintiff said that when she commenced her work in that ward in the February of that year, Mrs. Tutti was already a patient there and that the matron at that time said that Mrs. Tutti's condition was such that she, the plaintiff, would not normally need assistance in handling her. That observation appears to have been correct at the time and remained so for the next eight months for there was no episode prior to the relevant incident when that lady did not at least help to support herself, once elevated to a standing position. The plaintiff evidently agreed with that assessment and the relevant incident took her by surprise notwithstanding the length of time for which she had been caring for that lady. It is impossible to determine the reason for her failure to support her weight and although senile dementia was present, that state did not cause any such behaviour in the past and there is no evidence to suggest that it might be operative in her case in producing a result such as this. Whatever the reason it was as a general contingency a reasonably foreseeable possibility to be guarded against by both the plaintiff and the defendant. Manifestly the plaintiff had no difficulty in helping her to her feet in the lifting part of the procedure when she could provide no assistance for herself so it follows that the plaintiff would normally have no difficulty in moving her in a standing position when she was at least partly able to bear her weight. The only real question is -- 11 of 27 -- 9 whether the defendant should have warned the plaintiff of the danger that the patient might fail to take any of her own weight and whether it should have required her to have assistance or provide a mechanical aid against that contingency. Some reference has been made of Mrs. Tutti's weight, with the suggestion that the plaintiff should not have been allowed to handle her alone. However it is probably of little consequence because it is not shown to have caused the plaintiff any difficulty, or to have had any other causal effect. Had she followed the procedure, in which she had been trained, of lowering the patient to the floor in a controlled way instead of taking all her weight, her injury would probably never have occurred, which is the purpose of that technique. The plaintiff is of a robust physique and although she has put on weight in recent times there is nothing to suggest that she was other than robust at the relevant time. As for the need to give a warning of the danger of such an event, the plaintiff well knew of it and had been trained to anticipate its possibility. Although Mrs. Tutti had not behaved in this way before, and to that extent it was unexpected, nevertheless her age and condition were such that the plaintiff has not suggested that as a general contingency it was unexpected. It is, no doubt, from time to time the experience of those dealing with senile and elderly people, and even the first such occasion with any person of that description would hardly seem surprising or unexpected in that sense. Indeed in her evidence the plaintiff said nothing which suggested that she -- 12 of 27 -- 10 was not aware that this could happen at any time; and this silence is quite consistent with her honesty throughout. Associated with this point is the argument advanced at a later stage by her learned counsel that even if she had had full training as she says which would have provided her with knowledge of and caution against such a possibility and with the technique of coping with it, at the commencement of her employment the defendant should have given her a refresher training course so that an immediate and correct response would have been her automatic and reflex answer to this minor emergency. He was prompted to this argument because she said that when Mrs. Tutti failed to support herself, instead of lowering her to the ground as she knew to be the correct technique, she continued to support her for fear that the patient may have suffered some injury by striking her back against the commode. She spoke of the small space available between it and the bed. This is not a satisfactory explanation because she was in the course of pivoting the patient away from the commode, and could easily have continued the pivot to lay her down on the floor beside the bed away from the commode. Alternatively she could have stepped back and/or squatted, thereby enabling the patient to slide down in front of her. The plaintiff's explanation could be simply rationalisation but if it were true it meant that by an ill-advised choice she failed to carry out what her training had taught her. The argument advanced for he~ suggests that such a refresher course at the commencement of her employment would have rendered her more skilled to respond appropriately to this sudden problem -- 13 of 27 -- 1 1 eight months later. The plaintiff herself did not say that her response was erroneous through lack of training or practice and there is no evidence whatever that in the preceding eight months of this employment she was without any practice in this technique. This would be unlikely in a hospital for the aged. And even such refresher training would surely have lost its effect in the eight month's interval if she had not had any such occasions to use it in the meantime. Moreover it had been only a few years since she had worked at another hospital for the aged and it is difficult to believe that any such instruction as suggested in the argument would have made any difference. This argument has no substance. Next was the major argument, that the defendant should have directed the plaintiff to have had assistance for her handling of Mrs. Tutti or that it should have provided some mechanical lifting device to move her from the commode to the bed and should have required the plaintiff to use it. The first supporting proposition was that there was evidence that Mrs. Tutti was tempestuous with other members of the nursing staff and sometimes difficult to handle because she would wave her arms at them. This argument is advanced despite the plaintiff's own clear evidence that she had always had a good relationship with that lady who did not misbehave with her; nor was it suggested that there was any such behaviour on the relevant occasion which could have contributed to the incident. Despite the lack of merit of this argument, it is still necessary to consider the further general proposition advanced that because there was always some danger that a patient in Mrs. Tutti's situation may withdraw her -- 14 of 27 -- 12 self-support in this way, whether deliberately or otherwise, the defendant should have required the plaintiff to have assistance or to use a mechanical device when moving her, even for such a short distance. As it has been observed, it was generally foreseeable that such an event may happen with a patient of Mrs. Tutti's disabilities. It was also reasonably foreseeable that although the danger had been minimised by training, if the plaintiff failed to use properly the techniques in which she had been trained, she may suffer some injury to her back. There was certainly available the means to alleviate the risk further by the simple, if expensive, procedure of providing a second employee to assist in the movement on every occasion upon which every patient who was in any reasonably foreseeable danger of a similar response was being moved. Alternatively suitable lifting equipment was available at that time. The defendant theoretically could have purchased such an instrument for each of its wards and could have required its employees to use it on every occasion when every patient with a similar potential was required to be moved. This would have involved considerable expense, not only in the cost of the machinery but also by reason of the extension of the time taken to handle so many patients because relatively it was a much slower process. In the application of these alternative safeguards it might seem to be excessive to require them in every case where it ~s reasonably foreseeable that the patient who is being moved might behave in this way, even though seemingly capable. Yet that is -- 15 of 27 -- 13 standard which learned counsel for the plaintiff demanded. Of course the court is not bound by that and could still find that the standard not to be so stringent, yet demanding enough to have required some better precaution than was taken in the case of Mrs. Tutti. But counsel was thrust into the need to make such a submission by the position in which the circumstances placed him. There was nothing about Mrs. Tutti to suggest that such a result might have been imminent. While she had senile dementia, this had caused no such result in all the period that she was under the plaintiff's care, so far as the evidence goes, and her particular state of dementia was not shown to have included a tendency to any relevant conduct while in the care of the plaintiff with whom she co-operated. If he were to limit the proposed rule to those cases where there was some factor manifesting the risk with some greater clarity, it would not apply to Mrs. Tutti. She was not unduly enfeebled and had always supported herself adequately with help. Of course if the standard which learned counsel demanded, or even one reasonably approaching it were adopted, then the class of patients to whom it would apply must include many people who would prove to be quite safe and so it would be wasted on them. The plaintiff's case would not disagree with this but would say that it is the price to be paid to avoid the risk of injury to the nursing staff. Equally and for the same reasons the precaution proposed would need to extend to every occasion on which such people are assisted with their movement at all while they are in an upright position. It must say this because the service provided to -- 16 of 27 -- 14 Mrs. Tutti on the relevant occasion was very brief and simple and any measure short of total application would hardly encompass it. Accordingly, in order to cover reasonably foreseeable, even if remote, dangers, in order to encompass the present circumstances and the precautions promoted as necessary to counter the risk would certainly need to have a wide application, both as to the patients in respect of whom it was to be applied and the type of service which would require it. The element of reasonableness in the discussion thus far goes only to the question of foreseeability of an event which might cause harm, but on the issue of tortious liability there is a second question of reasonableness, that is, in the degree of care required in the face of that danger, and that should now be considered. The evidence of Mrs. Griffin on the topic of supporting patients is subject to the same comment as that made hitherto, namely that it concerned itself with the total protection of nurses and did not need to consider the reasonableness of requiring the precautions which she promoted. But her evidence was useful in defining those precautions which were open and available, and in discussing the extent to which they would slow the defendant's business. This was also indirectly covered to some extent in the plaintiff's own evidence but the evidentiary point is not a large one because her case has not shrunk from accepting that the proposed precautions would produce serious expense, as an ordinary understanding of them would show. Whilst then there is no doubt that these protective measures were open to the defendant, the question is whether they were -- 17 of 27 -- 15 reasonably open because the factor of reasonableness includes consideration of the extent to which they would have unduly impeded the accomplishment of its tasks: Bankstown Foundry Pty. Ltd. v. Braistina (1986) 160 C.L.R. 301. Because the absence of such active measures might be said to have caused the plaintiff's injury, the only relevant issue is what a reasonable man's response to the risk would have been so that the defendant's conduct may be measured against it. The classical position according to modern thinking was stated by Mason J. (as he then was) in Wyong Shire Council v. Shirt (1979) 146 C.L.R. 40 at p. 47 where he said: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved the risk of injury to the plaintiff or to a class of persons including the plaintiff. If he answered 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 man's 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 a 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." At p. 48 he pointed out that "the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." These are the essential issues in this case. In balancing the countervailing factors, it should be noted that what is a reasonable standard of care for an employee's -- 18 of 27 -- 16 safety is "not a low one": 0' Connor v. Commissioner for Government Transport (1954) 100 C.L.R. 225 at p. 230. In Bankstown Foundry Pty. Ltd. v. Braistina (supra) the following appears in the joint judgment of Mason, Wilson and Dawson JJ. at pp. 308-309: "On the other hand, being a question of fact, it is undoubtedly true, as McHugh J.A. said, at what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a Judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances ofthe case must be influenced by current community standards. Insofar as legislative requirementstouching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer. As Mason, Wilson, Brennan and Dawson JJ. said in McLean v. Tedman (1985) 155 C.L.R. at p. 313: 'Accidentprevent is unquestionably one of the modern responsibilities of an employer. ' However it would be wrong to exaggerate the recency of the trend in this regard. It has long been required of an employer that in the case of repetitive work under strain he take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of anemployee: see Smith v. Broken Hill Pty. Co. Ltd. (1957) 97 C.L.r. 337 at p. 342-343; Da Costa v. Cockburn Salvage & Trading Pty. Ltd. (1970) 124 C.L.R. 192 at 218. It must also be understood 'that in discharging his duty to take reasonable care to avoid injury to his employee an employer is bound to have regard to any risk of injury that may occur by reason of an employee's inadvertence, in attention or misjudgment in performing his allotted task': McLean v. Tedman (supra) at p. 312. Further, 'a safe system of work is one that is safe for an average workman taking reasonable care for his own safety. It is not a system which is safe only for persons of superior skill whose attention never wanders': Sungravure Pty. Ltd. v. Meani (1964) 110 C.L.R. 24 at p. 36; Ferriloro v. Preston Timber Pty. Ltd. (1982) 56 A.L.J.R. 872 at p. 73; Da Costa v. Cockburn Salvage & Trading Pty. -- 19 of 27 -- 17 Ltd. (supra) at p. 218; Turner v. South Australia (1982) 56 A.L.J.R. 839 at p. 842."' What has been said above as to the increasing obligation of an employer to protect an employee from harm does not go to the extent of imposing strict liability nor have the factors of cost of or difficulty in the implementation of alleviating measures become redundant. It is only that in the balancing process the emphasis laid upon the protection of the employee from injury has taken on greater weight with the changing view of society upon the point and consequently the policy of the law in response to it has changed . But it is still a matter of weighing the competing factors in each particular case. Although it had already taken substantial precautions in assuring itself of the adequacy of the plaintiff's training to handle such a contingency and in directing her to obtain help in any doubtful cases, the defendant was still required to assess what further protective measures it should take for the remaining risk of inadvertence or temporary lack of skill to which a plaintiff may have been reasonably subject. This is mitigated to some extent by the nature of the circumstances in which the plaintiff was handling a person who was obviously incompetent in some respects and with whom some care would be expected to be shown; but this is off-set to some degree by the plaintiff's having performed the task on a number of previous occasions without difficulty, which would tend to produce the lulling charms of habit. Another relevant factor was the extent of the harm which might accrue from a failure to take such further precautions. This is not easy to assess in this case. Although she is visited -- 20 of 27 -- 18 by continuing pain, the injury to the plaintiff's spine was not particularly serious, and the duration of its consequences is somewhat surprising. However, it is necessary to assume that a serious injury to a spinal disc causing chronic symptoms was a real prospect and it should be so viewed in this case. Between them, the extent of the possible harm and the availability of alternative protective procedures are factors of some significant weight. On the other side of the balance is the combination of factors consisting of the cost involved by the introduction of such elaborate additional precautions, associated with the small magnitude of the risk remaining after the precautions which had already been taken. Quite clearly the application of such further measures could not be selective and, even if their range could be defined in a more limited way than that discussed above, they would need to apply to a very extensive range of patient care in order to comprehend circumstances such as those in this case. This would lead to such a disproportionate cost of and interference with the performance of these important tasks that it would be unreasonable to require it, given the rarity of expected consequences due to the precautions which were taken. Practicability is still a relevant factor and this is particularly so if the measure is to apply even to such relatively simple and brief tasks as where the patient is to be moved a short distance in an upright position. It would in justice place too heavy a burden upon an employer compared with the size of the risk as reduced by the measures actually employed to require the introduction of a -- 21 of 27 -- 19 system that would provide virtually a total safeguard in all circumstances. The standard of duty just does not go so high. The employer had correctly enquired as to the plaintiff's training in the relevant respects and was satisfied that she had received proper training. She was an intelligent, experienced and mature person and the relevant task was a simple one in which she was well versed and practised. Her training included knowledge of and practice in a simple technique which would have avoided harm, and she was well aware of its importance. The risk here lay, not in the possibility of Mrs. Tutti's collapse, but in the possibility that in this simple and short task the plaintiff may have failed to perform the simple protective response according to her training because of inadvertence or misjudgment. Of course, not every such concatenation of circumstances would have necessarily resulted in injury, or an injury of any serious magnitude, though that was possible. This remoteness of this risk must be compared with the extent of the cost of and difficulty in applying further protective measures of such scope as completely to avoid such a risk. In the present circumstances the remoteness of the risk left open by the precautions which were in fact taken, together with the cost and difficulty in providing precautions that would have been effective to avoid the danger in this case have a marked preponderance, so that the defendant's duty of care was appropriately attenuated by the element of reasonableness. The defendant's adoption of a cautious, flexible approach, leaving it in the discretion of a trained mature worker to assess the risk but with a very cautious direction to obtain help in any -- 22 of 27 -- 20 case which could not be easily handled was a solution that was both practical and sufficient. In the result its failure to take a higher degree of precaution than it already did was not unreasonable nor a dereliction of its duty towards the plaintiff and the action must be dismissed. It is still necessary to assess damages in case the above conclusion is wrong. The plaintiff was not obliged to have any operative procedures. Her treatment has been limited to physiotherapy, exercises and medication. Her symptoms referrable to this injury consist of low back pain and some pain and numbness in her left leg and foot. It is aggravated by excess activity, including lifting, though she is able to mow her lawn with a motor mower for about twenty-five minutes and she can bend relatively freely. She suffers from some mild depression but this could in part be attributable to other causes. She has a painful right knee unconnected with this injury but it is of little consequence. As the result of her injury she has been disabled from returning to her employment with the defendant. She did not take up an offer of rehabilitation, which was partly due to her leaving Brisbane to live on a farm between Gympie and Maryborough and about fifty kilometres from each. In this she was influenced by her husband's loss of his job through redundancy. They had bought a farm with a shed upon it and in the circumstances in which they found themselves they decided to live in the shed while they built a house there rather than continue to live in Brisbane where they would pay rent upon a house as well as the -- 23 of 27 -- 21 mortgage payments upon the farm. As it turns out her husband did little work on the farm and had only occasional employment in the district as a labourer. Mostly he received unemployment benefits which were enlarged because the plaintiff was dependent upon him. That supplement would not have been granted had she continued to work. While unemployment benefit is to be taken into account in respect of loss of earning capacity of the recipient, there is serious difficulty in extending this principle to the case where the unemployment benefit is received by another, even if the benefit carries a supplement in respect of the injured party because the injured party is not working and even though the injured party indirectly shares in the benefits. Consequently it will not be taken into account. The plaintiff assisted her husband in building their house but her ability to work was limited to relatively short periods and the progress on the building was very slow, so that it is still incomplete. Her work included shovelling sand and cement into a cement mixer and mixing the cement. However, this is still consistent with her complaints that still permit of some activity. She would not be able to engage in any employment which would require lengthy continuity of heavy physical effort. She is capable of managing and running a convenience shop provided she is not required to do any heavy lifting, and it would seem that this could well be avoided by the employment of schoolboys on a part-time or casual basis. This is not uncommonly done. For about nine months in 1986 the plaintiff performed a substantial part of these duties by way of assisting -- 24 of 27 -- 22 her son when he purchased such a business without any knowledge, experience or skill in that field. Her help ceased after nine months but not by reason of any relevant incapacity of the plaintiff. She is also competent to teach music and has recently taken three pupils for one half hour per week each at $7.00 per lesson. She intends to move to Maryborough where her clientele will be larger and she might reasonably expect to make about $170.00 net per week on average over the whole year. Her having moved to her present habitation on a farm has produced some difficulties in the assessment of past economic loss. She has been able to earn a little from vegetable picking and music, but the small amount is due to her isolation, and her chance of earning more would have been better if she had lived in a more populous area. In short her relative isolation has diminished her opportunity of exercising her residual earning capacity. Conversely it is difficult to know whether, had she not been injured, she would have continued to work for the defendant because it was in December of the same year that her husband lost his job and moved to the farm. First there is the question of whether he would have done that if she had not been injured and continued to work, for she says that whatever he did she would have kept her job. rationalisation about it. This however has some The assessment of past economic loss must be made in a global way taking all of these factors into account. It might be assumed that she would have continued in her employment with the defendant for at least a substantial part of the relevant -- 25 of 27 -- 23 period though subject to the serious contingency that she may have left it to go to live with her husband on the farm or for other reasons. Her working history shows some lack of continuity. Then there is to be further diminution for the value of her residual earning capacity even if she did not use it. There are several influences, operating in different ways, tending towards a very moderate result. For this component the sum of $60,000.00 should be allowed together with interest in the sum of $10,000.00. The interest has been calculated upon the figure mentioned less the amount received by the appellant by way of weekly compensation and lump sum settlement. The whole amount of that compensation should be deducted for this exercise. Learned counsel for the plaintiff suggested that in Haines v. Bendall (1991) 65 A.L.J.R. 349 the High Court said that a lump sum payment should be deducted from the figure awarded by way of general damages where a lower rate of interest applies. However, that is not quite accurate because the court there said that it should be taken into account in respect of that component where it cannot be fully applied to past economic loss. Further the interest should run on the balance only from the date when the loss began, that is, 25th September, 1986. For future economic loss, a figure of $40,000.00 is reasonable. Special damages according to ex. 19, as amended, have been made out to the extent of $3,000.00, and the amount necessary to meet the Fox v. Wood principle is $3,655.24. Future recurrent expenses for medication attract the sum of $3,500.00. Taking into account the absence of serous operations and the -- 26 of 27 -- 24 relative attenuation of pain and discomfort by the lifestyle which the plaintiff has lived and will putatively live as a music teacher, a figure of $40, 000. 00 for general damages is not ungenerous. Of this $15,000.00 may be attributed to the past producing interest of $2,250.00. In summary then the assessment of damages is as follows: Special damages $ 3,000.00 Interest Fox v. Wood component Past economic loss Interest thereon Future economic loss Future recurrent expenses General damages Interest Interest (on special damages) $ 1,150.00 $ 3,655.24 $ 60,000.00 $ 10,000.00 $ 40,000.00 $ 3,500.00 $ 40,000.00 $ 2,250.00 $ 1,150.00 $154,705.24 From this it would be necessary to deduct workers' compensation payments of $31,418.50, leaving a balance of $123,286.74. There is judgment for the defendant with costs, including reserved costs (if any), to be taxed. Because it was not an easy case and because her complete honesty (subject only to some small rationalisation) was the cause of the plaintiff's loss where she could easily have succeeded by some small deviations in her evidence, the defendant could well find a reason in principle to be generous on the subject of costs. -- 27 of 27 --