Knott v The Withcott Hotel[2015] QDC 314

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The Withcott Hotel^[1]is a “small country hotel”^[2]in Withcott, near Toowoomba.  The plaintiff worked as a cook at the Withcott Hotel, from January 2010 to April 2011.  She says she suffered an injury to her upper back in the course of her work as a cook, and subsequently developed a psychiatric disorder, and seeks to recover damages for those injuries.  Both the defendant’s liability and, if it is liable, the quantum of any damages recoverable, are in issue. 
2. [2]
   As one of the medical experts, Dr Curtis, said, this is a perplexing case.  It is perplexing because the plaintiff does not point to any particular incident or event occurring at work – she simply says she felt pain, after being at work for a relatively short period of time.   Subsequently, there has been an analysis of the work system at the Withcott Hotel and various aspects of it have been identified which are alleged to have increased the risk of an injury such as the plaintiff complains of, and in respect of which it is said the employer ought to have taken precautions.  
3. [3]
   For the reasons set out below, this court has found that, although there were precautions the defendant could have taken in relation to one of those aspects (the task of putting deliveries away) which might have reduced the risk of injury, the plaintiff has not established that the failure to take such precautions – that is, any breach of duty - caused her pain, in the sense required by s 305D(1)(a) of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA).  Accordingly, the plaintiff’s claim fails, and there will be judgment for the defendant.

The plaintiff’s pleaded case

4. [4]
   It is useful to start with the plaintiff’s pleading as to what it is that the defendant did, or failed to do, that is claimed to have caused her injury and which is said to be in breach of the duty of care owed.^[3] 
5. [5]
   Paragraph 6 of the further amended statement of claim filed on 26 February 2015 (statement of claim) pleads that [with the defendant’s response in italics]

6. [6]
   Some of these activities were not the subject of any evidence from the plaintiff (for example, paragraphs 6(b)(iii) (drums of oil), (iv), (v), 6(e), 6(f), 6(i), 6(j), 6(k)).  In respect of others, there was no apparent link between the activity, and the alleged injury (for example, paragraph 6(a), 6(b)(i), 6(m) and 6(n)).  The focus of the case, at trial, was really upon the matters alleged in paragraphs 6(b)(ii), (iii) (other ingredients), (vi), 6(c), 6(g) (preparation) and 6(l) – in particular, upon the task of putting away food deliveries, which required the plaintiff to lift and carry various things; food preparation; and some aspects of the ergonomics of the kitchen.
7. [7]
   Further, paragraphs 7, 8 and 9 of the statement of claim plead:

8. [8]
   In relation to paragraphs 7, 8 and 9 of the statement of claim, the defendant puts in issue the factual circumstances on 25 March 2011; puts in issue whether the plaintiff experienced pain on 25 March 2011 at all; denies any breach of duty on its part; and, in any event, denies any pain or injury found to have been suffered by the plaintiff was caused or contributed to by her work activities, or any negligence on its part.^[23]
9. [9]
   The plaintiff’s claim is pleaded as one for breach of contract of employment also; but there being no contention of any difference between the tortious duty of care owed, and any co-existing implied contractual term requiring the employer to take reasonable care for the employee’s safety, or submissions otherwise made about the contractual claim, it is unnecessary to say any more about this.

Liability

10. [10]
    The determination of the issue of liability involves the following questions:

    1. (a)
       Did anything happen on 25 March 2011?
    2. (b)
       If so, what happened?
    3. (c)
       What was the relevant work system?
    4. (d)
       Has the plaintiff suffered any injury and, if so, what injury?
    5. (e)
       What was the scope of the duty of care owed by the defendant to the plaintiff?
    6. (f)
       Was there any breach of the defendant’s duty of care?  Which requires consideration of:

       1. whether the risk of injury was foreseeable and was “not insignificant”; and
       2. what a reasonable person in the position of the defendant would have done in response to that risk.
    7. (g)
       If there was a breach, did it cause the injury(ies) to the plaintiff?

Did anything happen on 25 March 2011?

11. [11]
    The defendant’s challenge to aspects of the plaintiff’s case, beginning with whether anything happened on 25 March 2011 at all, is based in part on matters of credit.  I will deal with that briefly, by recording that I did not form the impression that the plaintiff was a dishonest witness.   But that is not to say that all of her evidence has been uncritically accepted.  As is appropriate, her evidence has been objectively assessed, having regard to the whole of the evidence before the Court, and consideration of where the balance of probability lies on the basis of that analysis, rather than on the basis of general conclusions about her credibility.^[24]
12. [12]
    The plaintiff started working as a cook at the Withcott Hotel in January 2010.   She was employed on a part-time, casual basis to work around 25-30 hours a week; although she often worked more like 40 hours.^[25] 
13. [13]
    The plaintiff said she would usually work on a Monday and Tuesday by herself, have Wednesday and Thursday off, and then work Friday and Saturday with “Pete” (Peter Burnett, the chef).^[26]She worked a “split shift”, meaning she worked for a period of about 3-4 hours in the morning and over lunch (say, 10 am until 2pm) and then returned at 5pm for the dinner service, working until about 8.15 or 8.30pm.   On 25 March 2011 her shift commenced at 10.30am and she finished at 1.30pm.^[27]
14. [14]
    In addition to her role as a cook, and the chef (Peter Burnett), there was also an apprentice chef (Catherine Ellis-Marshall), who worked with the plaintiff on some days.^[28]She worked with the plaintiff on 25 March 2011.
15. [15]
    Initially, and indeed up until amendment of the statement of claim on 26 February 2015, the plaintiff had identified the date of the “incident” as 15 March 2011.  However, after receiving a copy of her timesheets in the course of disclosure, at some time after 30 May 2014,^[29]she identified Friday, 25 March 2011 as the correct date.^[30]Her explanation for the earlier date was that when she contacted WorkCover about making a claim, she could not remember exact dates, and “they told me to guess”, which is what she did.^[31]She did not know exactly when she contacted WorkCover, but thought it was around June 2011.^[32]The curiosity of her not remembering the date, relatively soon after the incident is said to have occurred, may be explained by the fact that there was no particular “incident” as such and, as the plaintiff said, she did not think it was very serious at first.^[33]
16. [16]
    The plaintiff said that, after feeling pain, which she said was about 11 o’clock, she continued to work, until about 1pm, and then went to the doctor.   There is support for that, in the records from the Toowoomba Medical Centre, which include a record of an attendance by the plaintiff on a doctor identified as LS (said to be Dr Leslie Smith) on 25 March 2011.  The doctor recorded “pain left neck and upper back due to lifting left arm as a cook”.^[34]She was given an “off work certificate”,^[35]and prescribed Mobic (an anti-inflammatory medication).^[36]
17. [17]
    In addition to the plaintiff’s incorrect attribution of the date as 15 March, there is also a record from a different GP’s practice, the Withcott Medical Centre, made on 29 March 2011, which creates confusion.  A consultation is recorded on this date, with a Dr Nirmala Chand, which reads “upper back pain for 3/52, seen GP 2/52 ago, not getting better”.  This note also says “working as a cook in a pub, lifting weights, not too heavy”.^[37]
18. [18]
    The plaintiff’s evidence was that she had gone to the Withcott Medical Centre, to see her “normal doctor”, after the weekend, on the Tuesday (ie following 25 March 2011),^[38]from which it was suggested Dr Chand had incorrectly written 3/52 (3 weeks) rather than 3 days.
19. [19]
    There were tendered in evidence the records from three GP practices:  Toowoomba Medical Centre; Withcott Medical Centre; and Yeppoon Family Practice (from September 2011 onwards).   It was noted by counsel for the plaintiff that there are no records, in the former two, of any attendances two weeks prior to 29 March 2011.
20. [20]
    The plaintiff’s husband’s evidence was supportive of something happening in “early 2011”, but not otherwise as to the date.^[39]Similarly, the evidence of a co-worker, Denise Marshall, corroborated the plaintiff’s evidence of pain (Ms Marshall saying she noticed the plaintiff had a sore shoulder and aching back), but was vague in terms of timing (although not sure, she thought it was maybe a couple of months before the plaintiff finished up work at the hotel).^[40]
21. [21]
    The plaintiff said that, at the time that she experienced pain, Neil Simpson (her boss, and the manager of the hotel) walked through and “[h]e said something like what’s up.  What happened.  And I said I’ve hurt my back”.  She also said that Peter Burnett was present, on the other side of the bench, but she could not remember if he said anything.^[41]Mr Simpson denied this happened.^[42]Peter Burnett was not called, and the defendant invited me to draw a Jones v Dunkel inference, that his evidence would not have helped the plaintiff’s case.^[43]I accept that it is appropriate to draw such an inference, because Peter Burnett is a witness the plaintiff mightreasonably be expected to have called. In light of both Mr Simpson’s denial, and an inference that Peter Burnett’s evidence would not have helped the plaintiff’s case, I do not accept the plaintiff’s evidence of a complaint being made to Mr Simpson at this time.  
22. [22]
    Nevertheless, on balance, and in particular having regard to exhibit 3 and exhibit 22, I accept that the plaintiff experienced pain on 25 March 2011.   In so far as the notes made by Dr Chand suggest onset of pain some 3 weeks earlier, it seems this may either be explained by a miscommunication, or a typographical error. 

What happened on 25 March 2011?

23. [23]
    As already mentioned, this is not a case where any particular incident is said to have occurred, causing the plaintiff to feel pain.   Rather, what the plaintiff says is that, whilst she was at work, having been there for about half an hour or an hour,^[44]she started to feel pain in her upper back and left shoulder.^[45]
24. [24]
    The way the plaintiff’s case has developed, although she could not identify any particular incident, there seems to have subsequently been an analysis of her work situation, in an attempt to identify a cause, or an explanation for her pain.   That has resulted in the plaintiff’s claim being advanced on the basis that the manual handling she was required to do in the course of her work as a cook, in particular putting away deliveries, caused an injury to her upper back.   As she said, “I’m not sure exactly what it was that – I just know that I was standing against the bench and I was in a lot of pain after doing my normal stuff that morning”.^[46]
25. [25]
    Although the plaintiff was questioned in examination in chief and answered at times in terms of describing what she actually did on 25 March 2011, it was quite clear (and quite understandable) that she could not recollect this.   I proceed on the basis that what the plaintiff was describing was what she generally did.
26. [26]
    The plaintiff said the first task for the day was for her to put away various things that may have been delivered prior to her starting work.   After this she would start doing “prep work” for lunch and dinner.  If the onset of pain was noticed between a half to one hour after commencing work, all that could have been done in this time was putting any deliveries away, and commencing preparation.  It was not part of the plaintiff’s case at trial that she had commenced to do anything else – for example, cooking, plating, serving customers, cleaning up etcetera.
27. [27]
    As to what actually transpired on 25 March 2011, the plaintiff’s evidence was:  “Say about 11 o’clock, I was standing at the bench, and I remember leaning over on – because I was in pain.”^[47]She elaborated that she “just had pain up in here [pointing to her upper back] … and in my shoulder along there [pointing to her left side]”.^[48]She said the pain was “really bad”.^[49]She continued working until 1.30pm.^[50]

What was the (relevant) work system?

28. [28]
    On the basis of the plaintiff’s evidence, and the evidence from other witnesses and the documents tendered, a picture can be formed about the system of work.

Putting away deliveries

29. [29]
    At the relevant time, the task of putting the deliveries away was shared between the plaintiff, Peter Burnett (the chef),^[51]and Catherine Ellis-Marshall (the apprentice chef).   Other staff would sometimes assist, for example Denise Marshall,^[52]but it was mainly the kitchen staff who did this task.
30. [30]
    Ms Ellis-Marshal was working on 25 March 2011, starting at the same time as the plaintiff, 10.30am.^[53]She described herself as being lower, in terms of seniority of staff, than Pete the chef and the plaintiff,^[54]and said that she and the plaintiff “worked as a team, and we shared the workload”.^[55]Ms Ellis-Marshall said that if they were there, “[d]eliveries would be put away straight away” and depending how big the order was, this would take “maybe the maximum would be 20 minutes”.^[56]The plaintiff said the task of putting the deliveries away took her about half an hour.^[57]
31. [31]
    It is reasonable to infer that Ms Ellis-Marshall would have assisted the plaintiff in putting away the deliveries on this occasion.
32. [32]
    The products delivered generally came from three sources:  the local fruit and vegetable supplier (Boko’s Fruit Mart), the meat supplier, and all other grocery items (including frozen foods) from a supplier called Bidvest.
33. [33]
    The plaintiff said deliveries were generally made two or three times a week (for Bidvest); twice a week (Monday and Friday) for the fruit and vegetables; and once a week (Friday) for meat.^[58]
34. [34]
    The plaintiff described the deliveries (other than the meat) being placed on the floor in a room which is entered from the verandah, and through which one has to walk to access the kitchen,^[59]in which there was a chest freezer, shelfing, and fridges^[60](the “delivery room”).  Next to the delivery room is the “storeroom” (called the “dry store” by some witnesses).   From the delivery room, one walks through to the kitchen, and on the other side of the kitchen there are two cold rooms, one for meat and alcohol, and one for fruit and vegetables.
35. [35]
    The plaintiff said that the meat would get delivered directly to the coldroom, but the fruit and vegetables and all the Bidvest items would get put on the floor of the delivery room.^[61]The plaintiff’s evidence that deliveries were placed on the floor in the delivery room was supported by Denise Marshall.^[62]
36. [36]
    It was also supported by Catherine Ellis-Marshall’s evidence, although there were some differences.  Ms Ellis-Marshal said that “Boko”, who delivered the fruit and vegetables, would “put the majority of them in the fridge [which she identified as the cold room shown on exhibit 2^[63]], or the potatoes [and onions] and that he’d put near the storeroom for us to put in the appropriate place”.^[64]She seemed to identify a place just outside the door of the storeroom, in the delivery room, as the place where the potatoes were left.^[65]She described moving them “just around the corner” into the storeroom.^[66]She described the potato sacks as the heaviest item of fruit and vegetables that she would actually have to lift, weighing, she thought, about 20 kg.^[67]But she said she didn’t think she did this many times; she could not remember.^[68]
37. [37]
    Ms Ellis-Marshall seemed to indicate that some of the Bidvest deliveries would also be placed directly into the store-room, on the floor.^[69]She said if the deliveries were made before the kitchen staff had started work, “the delivery man will put the chips either in the cold room and the frozen foods in the chest freezer”.^[70]
38. [38]
    Russell Bachman, who is the proprietor of Boko’s Fruit Mart, the fruit and vegetable supplier to the Withcott Hotel, said that it was his “usual practice” to put the “dry goods” (potatoes, onions, pumpkins) straight into the storeroom (to the left of the delivery room) and place the remaining items, which he said was “not a big order”, on the floor in the delivery room.^[71]He said he personally did “probably 90 percent” of the deliveries to the Withcott Hotel, and that would have been the case in March 2011.  He said “Luke, my main man in my fruit shop” did the balance of the deliveries.  He said he would “guarantee” that Luke was putting things like the potatoes in the dry store room also, because “he’d automatically do the right thing”, and that’s the way he teaches his staff, to give good service and look after our customers, although he had not been out to the Withcott Hotel with him.^[72]
39. [39]
    Although Mr Simpson, in his evidence in chief, seemed to indicate that deliveries from Bidvest would be placed directly into the cold room or freezer or dry store area, as appropriate, by the delivery people; and all the fruit and vegetables would be placed in the dry store,^[73]an earlier statement was put to him, in which he had said “its normal procedure for the chef or cook working on the day to sort through the goods and place them in freezers, cold rooms, or dry stores room etc”, which he did not disagree with, maintaining only that something like ice-cream would not be left on the floor, but put straight into a freezer.  That may be the case, but otherwise, it does not seem to me that Mr Simpson’s evidence is in fact at odds with that of the plaintiff and Ms Ellis-Marshall, regarding the deliveries being placed predominantly on the floor in the delivery room.
40. [40]
    The evidence of another employee from the Withcott Hotel, Ms Beverley Wellington, was curious and quite discordant with all the other evidence.  She said she had not observed any of the kitchen staff putting any deliveries away^[74](but it was apparent that her shift, as a cleaner, finished before the kitchen staff started^[75]).   She described the delivery boys putting everything away,^[76]but in light of the plaintiff’s, Ms Ellis-Marshall’s, and Mr Bachman’s evidence, I do not accept that.  She had some fairly strident, and negative, things to say about the plaintiff (including that she used to smoke marijuana while at work, near Neil Simpson’s office; that she would complain to everybody about not wanting to lift anything; that she had a lot of days off from work,^[77]having more sick days than she had on^[78]), which were not corroborated and, at least in so far as smoking marijuana outside her boss’ office^[79]is concerned, frankly implausible.   Mr Simpson’s evidence about the plaintiff was far more positive, including that she was not known to have a lot of time off.^[80]I disregard Ms Wellington’s evidence as unreliable.
41. [41]
    There were tendered in evidence invoices from each of the suppliers, showing what was delivered on 25 March 2011:^[81]

    1. (a)
       From Bidvest: 5 boxes of frozen chips (each of which contained 6 x 2 kg bags of chips – so each box weighed 12kg); 1 tray of “fillo chicken mango & macadamia” (6 x 200g); 1 x 2 litre tub of icecream; a 2kg bag of shredded cheese; some plastic takeaway containers; a 750 g packet of pepper; a 2.3kg bottle of tartare sauce; and a 15 litre drum of vinegar.^[82]

The plaintiff identified the boxes of chips as probably the heaviest item on this invoice.^[83]

2. (b)
   From Boko’s Fruit Mart:  3kg of salad onions; 3 pumpkins [estimated to weigh roughly 8 or 10kg by Mr Bachman^[84]];  ½ bag of potatoes [estimated to weigh 24 kg by Mr Bachman^[85]]; 3 dozen eggs; 2 bunches of parsley; 4 bunches of shallots; 10 punnets of snow peas; 1 box of mesculin lettuce; 2 red cabbages; ½ box of tomatoes [estimated to weigh 5 kg by Mr Bachman^[86]]; 15 cucumbers; 1 box of broccoli [estimated to weigh 8 kg by Mr Bachman^[87]].^[88]

The plaintiff identified the box of tomatoes as probably the heaviest item on this list.^[89]

3. (c)
   The meat delivery comprised various items, the heaviest single item of which was rump steak weighing 9.69 kg.^[90]

42. [42]
    Having regard to the invoices, and the evidence of other witnesses, I consider that the plaintiff tended to overstate some aspects of this task.  For example, she described the deliveries being “like, all over the floor” and said she “would have to normally climb over them to get to the deep freeze, and then I’d have to turn around and pick up the boxes”;^[91]that “normally the boxes covered that whole space”;^[92]that (on this occasion) there were “probably about 15” containers (or boxes) containing deliveries, and each might weigh about 20-25 kilograms;^[93]and that on this specific occasion she “had to go over boxes to get to the freezer”.^[94]She apparently told Mr McDougall, an engineer who gave evidence, that on a Friday there could be “30 or more cartons of product on the floor”.^[95]
43. [43]
    In contrast, Ms Ellis-Marshall said there may have been 30 “things, maybe, but not boxes”.^[96]Mr Bachman described the Withcott Hotel’s as “not a big order” and, looking at the invoice for 25 March 2011, he said that would probably fit into 3 or 4 boxes.^[97]Mr Simpson’s evidence was that quantities ordered would vary from week to week, depending on how busy they were, but the invoices in evidence seemed “pretty normal”.^[98]There being no evidence before the court of other invoices suggesting deliveries of far greater items on other occasions, but even accepting that the amount of items delivered would no doubt vary, it would seem that the plaintiff’s various descriptions are exaggerated.
44. [44]
    As to how she went about this task, the plaintiff said she would have to take the fruit and vegetables to the cold room, to put them away (other than pumpkin, potatoes and onions, which went into the storeroom adjacent to the delivery room).   In relation to the “fruit and veg”, she said “so you’d have to pick them up from their boxes and carry them into the coldroom”.^[99]She described having to “drag” the potatoes and carrots, because “they were too big to carry”.^[100]The pumpkins she would carry in a box (maybe 3 or 4). 
45. [45]
    In relation to the potatoes, having regard to Ms Ellis-Marshall’s evidence, of having to move the potatoes on some occasions, but also having regard to Mr Bachman’s evidence (which I otherwise found credible and reliable), whilst I accept that Mr Bachman would put the potatoes in the dry storeroom, it seems probable that there were occasions when the potatoes were not put there.  Perhaps this was when Mr Bachman’s employee (Luke) carried out the delivery.  Although Mr Bachman had an expectation of what this person would do, he could not actually say.
46. [46]
    In so far as Mr Simpson suggested that the delivery people would take things to where they had to go, I find that he was describing something that was not done as at March 2011 (having regard to the other evidence).
47. [47]
    Accordingly, it is apparent that, as at March 2011, the task of putting deliveries away did require things to be lifted from the floor, or perhaps dragged (in the case of the potatoes), and that the weight of these things would vary, but could be 5kg (in the case of the ½ box of tomatoes); 8-10kg (in the case of the box of broccoli, or 3 pumpkins); up to 24kg (in the case of the potatoes).
48. [48]
    I do not accept that the plaintiff would be required to lift, and carry, boxes of fruit and vegetables, or other products for that matter, weighing 20-25kg, as this was not established on the evidence.  Her own evidence was somewhat unclear in terms of what she did.  In relation to the “fruit and veg” she said that she would “pick them up from their boxes and carry them into the coldroom”.^[101]On another occasion, when referring I infer to deliveries from Bidvest, she described picking up a box, containing multiple items, to take it where it needed to go.^[102]But either way, that any such box would weigh 20-25kg was not demonstrated.
49. [49]
    In terms of the meat, as noted, this would be delivered directly to the cold room.  The plaintiff described having to put away what was delivered to the cold room, by putting it on the shelves, and rotating the stock to make sure the older meat was on the top.^[103]But I find that this involved taking individual items out of the carton delivered (as opposed to carrying the whole carton^[104]), as a result of which the weights involved would not be excessive (the largest item was just over 9.6kg).
50. [50]
    In terms of the boxes of chips, the plaintiff described pulling them over to the chest freezer, and then lifting each packet (weighing 2kg) out of the box “singularly” to put them into the freezer.   She was not lifting each box of chips (which would weigh 12 kg).^[105]She would first move the existing items in the chest freezer, so that the newest stock was at the bottom (ie rotating the stock).^[106]She said “[t]he chest freezer was really full.  So you had to get things out to be able to put things in”.^[107]She described having to be “up on my tippy toes” to lean right over into the chest freezer.^[108]There is some incongruity to this – if the chest freezer was “really full”, it may be wondered how 30 packets of frozen chips (5 cartons containing 6 packets each) could be put away.  In any event, Ms Ellis-Marshall, who said she was a similar height to the plaintiff, described this task as “easy”.^[109]
51. [51]
    Other items delivered from Bidvest, such as sauces and other “dry goods” were put into the store room.

Prep work

52. [52]
    After putting away the deliveries, the plaintiff said she would start doing “prep work” for the lunch and dinner service, which she said “was doing potatoes or carrots, or salad was done straight after”.^[110]Once again, parts of this evidence were given in terms of the plaintiff remembering tasks she had actually done on the relevant date.  I do not accept that as reliable, but I do accept her description of what she would usually do. 
53. [53]
    Doing the “salad prep” involved getting the salad ingredients from the cold room, taking them to the bench in the middle of the kitchen and cutting them up.^[111]This would not involve the plaintiff in carrying significant weights.  Her evidence was to the effect that she would take the ingredients she needed from the cold room (eg a couple of capsicums).  Although at one point she said she carried the whole box of tomatoes^[112]that is inconsistent with her otherwise saying she just took what she needed, which is more plausible.
54. [54]
    Doing the potatoes involved getting the already peeled potatoes from a tub in the coldroom, cutting them up, putting them in a pot, filling it with water and carrying it to the stove.  This evidence was the subject of objection at the trial, as it was not a task referred to in paragraph 6 of the statement of claim.  Whilst there is some merit to the objection, given the very specific nature of the pleading, the evidence did not extend to weights etc involved in this task and does not advance the plaintiff’s case in any particular respect.
55. [55]
    The evidence was to the effect that this particular Friday, 25 March 2011, was not a very busy one, with only 13 meals being prepared at lunchtime.^[113]Although the evening was busier, and the evidence was that the preparation work in the morning part of the shift covered both lunch and dinner.^[114]

Training or instruction?

56. [56]
    The plaintiff said that she was not given any induction or training, other than being shown “where everything was, who to order through, and … what meals there was and things like that”.^[115]
57. [57]
    When asked if she had received any training about manual handling in the past, she said she “did a certificate 1 through Grade 11 at school, and after I left school, I did a traineeship in certificate 2”, which was in 1997.^[116]In terms of her understanding as to what was important when doing manual handling, she said “[j]ust to try and keep your back straight and bend your knees”.^[117]She did not have any understanding about lifting away from her body as opposed to close to her body.^[118]She also said she “tried to do it as quick as I could to get onto the next thing”.^[119]
58. [58]
    Ms Ellis-Marshall described being given instructions about how to perform her tasks (which she described as full kitchen duties, cooking, preparing food, plating, serving).  She said Neil (Simpson) “would tell us about lifting things, that there’s always people around that can come and help us pick up heavy stuff”, those people being Neil Simpson, any of the men from the bottle shop floating around, and Peter, the head chef.  She said she sometimes did that (that is, asked the male staff to help), but not very often, because the delivery guys would help us put some of the items away.^[120]She said she could not remember being told anything about a weight limit for lifting, or ways to position your body when lifting.^[121]
59. [59]
    Mr Simpson said that, when the plaintiff first started working at the hotel, “[w]e spoke about lifting and all that sort of thing in detail..”,^[122]and said that he recalled going through a “document … in some detail of what’s required and, you know, the different actions you take where if you lift something and using your knees and that sort of thing”.^[123]He seemed to suggest the document came from the Queensland Hotels Association.   It was apparent his evidence in this regard came as something of a surprise to counsel for the plaintiff, no such document having been disclosed, and no reference having previously been made to it in a statement made by Mr Simpson.^[124]The document was called for, but not produced.   I do not accept Mr Simpson’s evidence in this regard.  I find that what was said by Mr Simpson to the plaintiff, in terms of lifting, was simply that if she had any problems with lifting things, or needed a hand with lifting, there were male staff members available, including the head chef, and she could ask them to help.^[125]
60. [60]
    In her evidence in chief the plaintiff said she was not given any direction about getting someone else to help her.   But in cross-examination, it appeared that she was aware of this as an option, because when it was put to her that people like Peter Burnett and the male staff of the hotel, including the ones from the bottle shop, were there to assist, she answered “[t]hey were not always available”, explaining that they needed to “man their own sections”.^[126]That suggests that it is likely that she was told that she could ask them for assistance with lifting heavy things.^[127]

Other matters

61. [61]
    The plaintiff described the whole kitchen as being “on a lean, so it slopes down”, towards the dishwasher side of the kitchen.^[128]The plaintiff seemed to associate this with the bench in the middle of the kitchen being higher at one end than the other - saying that the height of the bench towards the “fridge” (which is nearest the dishwasher) was too high for her.^[129]This would only make sense if the bench was raised up in some way on one end of it (ie to keep it level), although the plaintiff did not say anything about this.  Neither the presence of any slope in the floor, nor any question of the bench being of unequal heights, was supported by other evidence received by the court.  Duncan Gray, a factual investigator, gave evidence of various measurements he took at the Withcott Hotel.  His evidence was that the bench in the middle of the kitchen was approximately 1020 mm high.^[130]He said he did not observe any slope in the kitchen floor, towards the dishwasher.^[131]Mr Simpson said he was not aware of any slope.^[132]Ms Ellis-Marshall said she observed no slope in the kitchen floor.^[133]In the circumstances, I do not accept the plaintiff’s evidence about this.
62. [62]
    The plaintiff never complained to Mr Simpson about her work duties, or the way the deliveries were placed or had to be put away.^[134]Mr Simpson said that, prior to March 2011 no one else had made any complaints to him about the layout of the kitchen or the process of putting away the deliveries, either.^[135]
63. [63]
    Furthermore, it is reasonable to infer that the plaintiff had not had any difficulties with her work tasks prior to this – she agreed that she told Dr Chand “[w]orking as a cook in a pub, lifting weights, not too heavy”, and said “[b]ecause I didn’t think it was – I was just doing my normal duties, so I didn’t think that it was bad at that stage”.^[136]

Has the plaintiff suffered any injury?

Thoracic spine / upper back pain

64. [64]
    The plaintiff’s case is one where medical professionals are unable to identify a pathological reason why she should be feeling pain, yet she has been largely^[137]considered to be genuine in her complaints of pain, although that seems to be explained on psychological or emotional bases, rather than physical.
65. [65]
    Following her initial consultation with Dr Chand, the plaintiff was referred for and had physiotherapy,^[138]and subsequently had cortisone injections, on the recommendation of another GP, Dr van Heerden.^[139]
66. [66]
    In relation to the cortisone injections, the plaintiff described receiving three of these injections, and said the first one (which she had shortly after 15 April 2011) lasted about a month, the second (which she had a few months later) lasted about two weeks and the third (which she had after moving to Emu Park, which was in about September 2011) did nothing.^[140]
67. [67]
    In July 2011, the plaintiff was referred to Dr Anthony Wilson, orthopaedic surgeon, by Dr Chand.  She saw Dr Wilson in August 2011.  In a report addressed to WorkCover dated 11 November 2011,^[141]Dr Wilson diagnosed the plaintiff as suffering “minor aggravation of thoracic spine degeneration.”^[142]He indicated the condition should be “stable and stationary” “six to twelve weeks from injury”.  In relation to “work”, Dr Wilson said:

“This lady should be performing suitable duties.  The degeneration in her spine would be compatible with her work as a Cook I expect.  I think she could return to full work as a Cook in usual circumstances probably from six weeks after the injury.  I would think that if she is unable to work as a Cook because of the symptomatology than (sic) other factors are relevant and this is non-orthopaedic.”

68. [68]
    I note that, in a letter dated 9 December 2011, Dr Gilbert, referred to Dr Wilson’s report, and said that “his conclusions and recommendations, although worded differently, are in concurrence with my opinion”.^[143]
69. [69]
    In his earlier letter to the referring GP^[144]Dr Wilson had said he thought it prudent for the plaintiff to see a “spine surgeon”.  The plaintiff then saw Dr Leo Zeller, an orthopaedic surgeon, on 26 August 2011.  This is the “spinal surgeon” Dr Wilson referred her to.^[145]In a letter from Dr Zeller to WorkCover dated 23 November 2011, Dr Zeller said:^[146]

“When I initially saw her she reported upper back pain.  She was reporting episodic loss of feeling in her right hand and right foot.  She also reported lower back pain.  MRI Scan was undertaken at my request.  This did not show any evidence of injury and the MRI displayed evidence of age related change.  There was no evidence of any neurological abnormalities.  I referred her to a neurologist for an opinion.  She has subsequently seen Dr John Cameron.  My understanding was that he did not find any neurological abnormalities and was repeating the MRI Scan.  I have not planned to review her.

This lady reports a work related injury.  She did not describe to me any specific event.  My examination and Dr Cameron’s examination^[147]does not show any evidence of impairment in either the muscular skeletal or neurological systems.  This lady has pain around her left shoulder and upper back.  There is no evidence of significant underlying pathologies based on the information that I have to hand.

I believe that this lady should be able to return to some work at this point in time.  I have not seen her since 26/8/2011…”^[148]

70. [70]
    Dr Cameron, the consultant neurologist, provided a report to WorkCover dated 21 November 2011.^[149]In this report, Dr Cameron said the plaintiff “appears to have” non-specific upper thoracic back pain and depression.  He said that “[i]t is possible her working activities may have aggravated or exacerbated at times the symptoms of mild degenerative changes in her upper thoracic spine.  I cannot obtain a history that she suffered any specific discrete injury”.   In Dr Cameron’s letter to Dr Zeller, of the same date, he said:

“[The plaintiff] was reviewed with her partner.  She was depressed and tearful.  She states she has chronic pain in her upper thoracic spine region.

She has had an MRI of her cervical and thoracic spine, a whole body bone scan and an ultrasound of her left upper back region and really little has been demonstrated to account for her chronic pain.

Overall I believe [the plaintiff] is depressed but probably has some underlying mild degenerative problem in her upper thoracic spine.

In the past, she has had two good responses to T1 and T2 nerve root block on the right.  I have suggested she have one final go at this and once it is effective she could undertake a very active rehab programme if possible arranged through WorkCover.”

71. [71]
    The plaintiff saw Dr Gilbert, a public health physician (occupational health), on 23 November 2011.  Dr Gilbert provided a report to WorkCover dated 23 November 2011.^[150]In that report, he expressed the opinion that:

“Her condition is consistent with a soft tissue injury related to the left shoulder girdle and cervical spine, which is most likely to be a mild aggravation of pre-existing underlying mild degenerative changes within the cervical and thoracic spine.

… the soft tissue injury is more related to static loading of the levator scapulae and rhomboid muscles of the left shoulder girdle and associated obesity.”^[151]

72. [72]
    The plaintiff relies on evidence from Dr Frank Thomas, a “pain specialist”.  Dr Thomas has performed procedures on the plaintiff, described as “radiofrequency neurotomy”.  Although this aspect of his evidence was somewhat unclear, it appears this procedure was conducted on 3 occasions, on 14 March 2013, 5 June and 20 November 2014.^[152]
73. [73]
    In relation to these procedures (which the plaintiff called “nerve ablation”) the plaintiff’s evidence was that after the first one, she got about a month’s relief; after the second one, she “only got a little bit” and she “got nothing out of the third one”.^[153]
74. [74]
    That pattern is, in part, reflected in Dr Thomas’ records:

    1. (a)
       On 10 May 2013 (first procedure), he reported back to the plaintiff’s GP that he had reviewed her that day, and:

“She reports complete relief of her neck pain following the radiofrequency neurotomy of C5/6 and C6/7.  She has been able to discontinue all analgesics, has returned to work^[154]and is enjoying leisure activities again such as kayaking”.^[155]

2. (b)
   On 1 August 2014 (second procedure), he reported back to the plaintiff’s GP that she “did not respond as well to the most recent radiofrequency neurotomy”, and referred to a proposal to use “the new Nimbus needles to increase the size of the lesion to try and recapture control of the facet joint pain”.^[156]

75. [75]
    There does not appear to be a report following the third procedure.  In fact, Dr Thomas’ evidence was that he had not seen the plaintiff since that last procedure in December 2014.^[157]
76. [76]
    Dr Thomas said he believes the source of the plaintiff’s pain is an injury to the facet joints at the C5/6 and C5/7 vertebrae, which cannot be detected on any x-rays or scans.  He said the cause of the pain is that the injury has affected the nerve connections to the brain which result in chronic pain.  He said that diagnosis is supported by the fact that after a radio frequency neurotomy at the C5/6 and C6/7 vertebrae, there was some relief from pain for a period.^[158]
77. [77]
    However, in his oral evidence, he acknowledged that with this methodology there is always a degree of uncertainty, with the reduction in effectiveness of the procedure increasing the doubt that her ongoing problem is due to facet joint pain.  In relation to the plaintiff’s evidence that she received no relief at all from the third procedure, he said that suggests either that the pain was not coming from the facet joint, or that the needle used “missed the target”.^[159]He described being “well short of significant evidence”^[160]for the source of the pain being the facet joint. In that context, he said that he had planned to do another procedure using “some new needles”.^[161]Although this seemed to be indicated as a proposal following the third procedure, the written records tendered would indicate this was proposed following the second procedure^[162](although this was not investigated in cross-examination, in terms of whether the new “Nimbus” needles, referred to in Dr Thomas’ letter of 1 August 2014, were used on the third occasion).
78. [78]
    On balance, I do not consider that this significantly qualified view of Dr Thomas supports a finding, on the balance of probabilities, that the source of the plaintiff’s pain is an injury to the facet joints.
79. [79]
    A medico legal report was obtained, at the request of the plaintiff’s solicitor, from Dr Gale Curtis, orthopaedic surgeon.  It was tendered by the defendant.^[163]Dr Curtis examined the plaintiff on 19 September 2013.  In his report, under the heading “diagnosis”, Dr Curtis said:

“I find it exceedingly difficult to make a diagnosis here, some two and a half years after what appears to have been a minor issue at the time.  There is no history of injury.  There is simply a slow onset of pain in the cervico-thoracic region. 

It is noted that she has a mild thoracic scoliosis.

It is also noted that she has a BMI in excess of 35.

Chronic regional pain syndrome without any obvious orthopaedic pathology.”

80. [80]
    In “summary”, Dr Curtis said:

“This 31 year old lady’s presentation is very confusing to me and it seems totally unrelated to the work situation of 25 March 2011.

At the most, she may have had a minor soft tissue injury and, if so, one could have expected this to have resolved within three months at the most, but to have pain persisting for some two and a half years post event is perplexing.

It is known also that she is majorly depressed, and according to the psychiatric evaluations she does have a depressive illness.

In terms of causation analysis, it is very uncertain as to what the nature of her problem is.  There is certainly no treatable orthopaedic problem that I can determine and, so far as I can determine, she has only modest pre-existing degenerative changes at C6/7 and also in her upper mid thoracic spine.

For reporting purposes, her condition has to be stable and stationary.  Her prognosis short term and long term is for matters to remain as they are, so long as she has significant depression.

It would appear that this lady has somatised her situation, based on her depressive illness.”^[164]

81. [81]
    Later in the report, he reiterated that “[t]here would appear to be no history here of injury other than a repetitive type injury involving her upper limb girdle, yet no obvious physical injury has been documented.  There is certainly a significant emotional response to injury”.^[165]
82. [82]
    In his oral evidence, he confirmed that he thought it was psychological factors which were primarily, if not totally responsible for the plaintiff’s pain experience, a conclusion he said he came to having interviewed her, examined her, and looked at the radiological reports.^[166]
83. [83]
    Dr Curtis said that, in the presence of inconsistencies on examination, a permanent impairment cannot be established orthopaedically with any degree of reliability.^[167]He later said “[s]he does have a permanent disability here, though it is not orthopaedic in nature and is best rated by her psychiatric advisers”.^[168]
84. [84]
    He noted in his report that the plaintiff did not satisfy any of Waddell’s criteria for inconsistency (that is, the plaintiff did not trigger any concerns for him in terms of her genuineness).^[169]
85. [85]
    Having regard to the evidence of Dr Wilson (with whom Dr Gilbert expressed agreement), Dr Zeller, Dr Cameron and, in particular, Dr Curtis, as the only orthopaedic surgeon to give expert evidence at trial, I find that what the plaintiff experienced in March 2011 was minor aggravation of mild pre-existing upper-thoracic spine degeneration.  It does not seem to me that the medical evidence supports any actual injury per se having been suffered.  Having regard to Dr Curtis’ opinion, which I accept, the strength of the conclusion that aggravation occurred is low; but on the basis of the GP’s record of 25 March 2011, which supports the plaintiff’s evidence of pain being experienced on that day, I accept that it is more probable than not that there was some aggravation around this time.

Psychiatric condition

86. [86]
    The plaintiff also claims to have developed a psychiatric disorder as a consequence, which, as can be seen from some of the extracts above, would appear to be the predominant cause of the plaintiff’s difficulties.   In my view, the evidence supports a finding that the plaintiff suffers from “Somatic Symptom Disorder, persistent, with predominant pain and depressed mood, as well as Therapeutic opiate dependency”, as diagnosed by Dr Flanagan in his most recent report 25 March 2015.^[170]
87. [87]
    Although Professor Whiteford, who was called by the defendant, was of the view that the appropriate diagnosis is adjustment disorder with depressed mood,^[171]as well as opioid dependency, it was apparent that his disagreement with Dr Flanagan on the former was, in large part, on the basis that he did not consider he had enough information to be confident in a diagnosis of somatic symptom disorder, because he could not be certain as to how much of the physical symptoms were being unconsciously generated, versus a conscious exaggeration of symptoms.^[172]But he agreed that, Dr Flanagan having seen the plaintiff on more occasions (3) than him (1) would get a better sense of the genuineness of the person.^[173]In those circumstances, I prefer the opinion of Dr Flanagan on diagnosis.
88. [88]
    I will return to the evidence of the psychiatrists later in these reasons.

What was the scope of the duty of care owed by the defendant?

89. [89]
    At common law, an employer owes a duty to take reasonable care for the safety of its employees.  The duty does not oblige the employer to safeguard employees completely from all perils.^[174]As explained by Windeyer J in Vozza v Tooth & Co Ltd (at 319):

“For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.”

90. [90]
    As the employer of the plaintiff, the defendant owed her a non-delegable duty to take reasonable care to avoid exposing her to unnecessary risks of injury.^[175]Among other things, the duty obliges an employer to take reasonable steps to provide a safe place of work and a safe system of work.^[176]
91. [91]
    In Turner v South Australia (1982) 42 ALR 669 at 670 Gibbs CJ, after referring to the passage above from Vozza, said:

“When the employer does unreasonably fail to take a precaution against danger, the plaintiff cannot succeed unless he satisfies the court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available: Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 416-417, 419.”^[177]

92. [92]
    So, in order to establish the necessary causal link between any arguable negligence on the part of the employer and the injury suffered by the employee, it is necessary to show that the measures that it is said the employer failed to adopt would protect the employee from injury, not “could” or “might”:  Queensland Corrective Services Commission v Gallagher [1998] QCA 426 at [26]-[27] per de Jersey CJ; Woolworths Ltd v Perrins [2015] QCA 207 at [173].^[178]

Was there any breach of the defendant’s duty of care?

93. [93]
    Under the common law principles, in considering whether there has been a breach of the duty of care owed, it is first necessary to consider whether a reasonable person in the defendant’s position would have foreseen the risk of injury and, if so, to determine what a reasonable person would do by way of response to the risk.^[179]
94. [94]
    The determination of whether there has been a breach of duty in this case must be considered by reference to ss 305B and 305C of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) which operate against the background of the common law principles,^[180]but modify them to an extent. 
95. [95]
    Those sections provide as follows:

96. [96]
    It is in respect of the second element in s 305(1)(b) that the authorities suggest the statute has modified the common law, the provision being “designed the increase the degree of probability of harm which is required for a finding that a risk was foreseeable”, and as such being a more demanding test for a plaintiff than the common law test, although “not by very much”.^[181]
97. [97]
    Each of the elements of s 305B(1)(a) to (c) are to be judged from the viewpoint of the defendant, in the circumstances that were known, or ought to have been known, to the defendant at the time of the alleged injury.  The analysis must be undertaken prospectively; not retrospectively with the wisdom of hindsight.^[182]
98. [98]
    The risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred.  However, it is not confined to the precise set of circumstances in which the plaintiff was injured.  Rather, what must be reasonably foreseeable is “the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred”.^[183]
99. [99]
    As s 305B(1)(a) makes clear, under the legislation a foreseeable risk is a risk of which the defendant knew, or ought reasonably to have known.  Of an identically worded requirement in s 5B(1)(a) of the Civil Liability Act 2002 (NSW) in Benic v New South Wales [2010] NSWSC 1039 at [92] Garling J said:

“… the plaintiff must satisfy the Court that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it.  Those other matters will vary from case to case but may include such things as the common knowledge and experience of others in the similar position of the defendant, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant's position and the obviousness or the likelihood of the event happening when using common sense.”

100. [100]
     In Erickson v Bagley [2015] VSCA 220, Kyrou and Kaye JJA said, at [46], the question whether the relevant risk was a risk of which the defendant ought to have known “is to be determined objectively, taking into account the particular facts and circumstances subjective to the [defendant]”.
101. [101]
     Having regard to the principle referred to in paragraph [98] above, the risk in this case is appropriately defined as a risk that an employee might sustain an injury to their upper back by the manner in which they were required to put away the deliveries, which might include lifting items, or boxes of items, from the floor, exceeding recommended weights.^[184]
102. [102]
     I am deliberately excluding the “prep work”, and general “ergonomics” (such as the bench height, or general layout of the kitchen) from the definition of the risk, as I do not consider that, in this case, those things have been shown to pose a risk.^[185]
103. [103]
     The fact that there had been no previous incidents in the defendant’s establishment arising from this task, and that no one had complained of any difficulties associated with the task, is not determinative, but it is relevant.^[186]
104. [104]
     Various data referred to in a report from Mr McDougall, an engineering consultant, relied upon by the plaintiff,^[187]supports the proposition that it ought to have been reasonably foreseeable to an employer such as the defendant that manual handling tasks, including lifting tasks, may result in musculoskeletal injury.^[188]The material referred to by Mr McDougall seems to refer primarily to low back disorders, and Mr McDougall confirmed that “the low back is the most frequent source of lifting-related back damage by - by far”, with cervical spine being second in terms of frequency, and the thoracic spine being “not overly frequently injured during manual handling tasks”.^[189]
105. [105]
     Dr Gilbert also said “anyone could develop what really is mechanical musculoskeletal pain with … soft tissue pain in the context of manual handling”.^[190]He said low back pain would be the “classic manual handling injury that most people have tried to reduce in manual handling.  But issues to do with the shoulder and shoulder girdle are the same somewhat”.^[191]
106. [106]
     Dr McCartney, the occupational physician relied upon by the defendant, also said “[c]ertainly anytime people do manual work there is a risk of developing back strain”.   I also understood him to agree that people who work in the hospitality industry, in a manual role (including a kitchen hand) would have a higher prevalence of experiencing spinal pain, than some other industries, such as an office worker; although he was careful to distinguish spinal injury of which he said the research does not show increased incidents in such workers.^[192]
107. [107]
     Mr McDougall also reproduces, in his report, research in relation to the identification of reasonable lifting weights in various circumstances.  For example, reference is made to table 8 from 1962 publication of the International Labour Organisation, which identifies that for a woman aged 20 to 35, 15kg is a reasonable weight limit for occasional lifting by any method.^[193]
108. [108]
     Reference is also made to a more recent guideline from the UK, published in 2004, of which Mr McDougall records that “in general, weights in the vicinity of 16kg to 20kg or more can be lifted infrequently by female workers with minimum risk under optimum conditions”.  According to this guideline (figure 16)^[194]the recommended weight changes depending on the circumstances (being lower for objects lifted at close to foot level (7kg), above shoulder height (7kg), and lower again if lifting more than half an arm’s distance from the body).  Mr McDougall explains that “infrequent lifting operations” means “up to about 30 lifts per hour and where the loads are not supported for any length of time”.^[195]Plainly, what the plaintiff was required to do, in terms of putting away groceries, was well within the parameter of “infrequent lifting operations”.
109. [109]
     He also refers to two USA publications, recommending maximum weights of lift for female workers under optimum conditions of 23kg and 20kg, respectively (but of which Mr McDougall said, when risk factors are taken into account, the maximum weights recommended are consistent with figure 16).^[196]
110. [110]
     An unsatisfactory aspect of this evidence is that it posits these various guidelines for weights of lifting in various situations, but lacks analysis by reference to what the plaintiff was actually required to do.^[197]As Mr McDougall noted, he did not have details of the products delivered on 25 March 2011, and did not inspect the defendant’s premises.  He relied on what the plaintiff told him in a telephone interview, which as I have found has two short-comings:  one, unreliability on the basis that she does not have an actual recollection; and two, overstatement.^[198]In addition, he considered tasks that, as noted, were simply not the subject of any evidence from the plaintiff (eg lifting of drums of oil).  The best that this court can do, in the circumstances, is consider the work system, by reference to these recommendations in a general sense. 
111. [111]
     Dr McCartney did not consider any of the plaintiff’s reported work tasks (by reference to Mr McDougall’s report) posed a “significant risk” of causing back injury.^[199]But of course that is not the test for the purposes of s 305B(1)(b); rather the question is whether the risk was “not insignificant”.  
112. [112]
     In my view, on the basis of the material before the court, it can be said that the relevant risk was one of which the defendant ought reasonably to have known, and it cannot be said that the risk was insignificant.  Accordingly, I turn to consider whether, in the circumstances, a reasonable person in the position of the defendant would have taken precautions against the risk.

Would a reasonable person in the position of the defendant have taken precautions?

113. [113]
     The precautions the plaintiff contends ought to have been taken are based on recommendations in the report of Mr McDougall, which are reflected in paragraphs 9(d) and, more specifically, 9(k) of the statement of claim.
114. [114]
     In his report, Mr McDougall identifies measures which “could have been implemented”, to reduce the risk of workers at that workplace sustaining musculoskeletal injury,^[200]which are relevantly as follows:

“1. Ensuring benches for food preparation are provided at optimum heights and providing anti-fatigue matting where prolonged standing may be required.

2. Ensuring sufficient storage space is provided and designed [so] that heavier product and equipment is stored between mid-thigh and shoulder height.  Requirements to lift from floor level or above head height (preferable above shoulder height) should be eliminated.

3. Limiting the size and weight of individual items purchased to less than 15kg maximum, but preferably less than 10kg…

4. Providing a range of trolleys (preferably height adjustable) to minimise carry distances, but also avoiding the need to bend to floor level to lift products.

Preferably delivery drivers would temporarily store deliveries onto trolleys to minimise double handling.

5. Developing and implementing housekeeping standards.  Such standards would include maintaining clear accessways, specifying areas for storage of product and equipment such that reach distances during manual handling are maintained.

6. Replacing chest type freezers with upright freezers where reach distances and bending during manual handling of product could be better controlled.

…

8. A key element of any generic manual handling control involves providing workers doing manual tasks and their supervisors with the information, training and skills to recognise high risk manual tasks.”^[201]

115. [115]
     Dr McCartney, the occupational physician called by the defendant expressed the view that the range of measures in Mr McDougall’s report were not reasonable “as they would be of little benefit in the prevention of” the plaintiff’s current problem.  This seemed to be on the basis that her “problem” was caused by a complex relationship between individual factors and workplace risk factors, as a result of which interventions such as those proposed by Mr McDougall would not reduce the incidence of such pain.^[202]Although Dr McCartney, in cross-examination, seemed to agree that Mr McDougall’s recommendations might reduce the incidents of spinal pain, he reiterated that his opinion was that they are not reasonable because in the case of this plaintiff, it is unlikely the changes would have reasonably been able to prevent chronic spinal pain.^[203]
116. [116]
     Whilst Dr McCartney agreed that it is wise to train people in relation to safe handling and safe lifting, he also said there is very little evidence that such training has any benefit.^[204]Although this aspect of his evidence was described as “controversial” by the plaintiff’s counsel, it was a view in fact shared by Dr Gilbert, who also said, “[a] lot of manual handling training, unfortunately, doesn’t seem to be all that effective in reducing the number of injuries”.^[205]
117. [117]
     Dr Gilbert’s evidence in relation to these matters was fairly generalised.^[206]In a memorandum of his discussion with the plaintiff’s legal representatives, in relation to the measures referred to in paragraph 9(k) of the amended statement of claim, Dr Gilbert is recorded as having:

     1. (a)
        agreed that the ergonomics of a kitchen is an important risk factor which employers in hospitality face;
     2. (b)
        commented that bench heights cannot always be ideal given that many workers of different heights need to be able to use one kitchen bench;
     3. (c)
        [said that] anti-fatigue mats are standard in the hospitality industry.  The only reason that one would not be used is if there were particular hygiene reasons;
     4. (d)
        [said that] storage heights (ie being too low or too high) can certainly be a factor in workplace injuries; and
     5. (e)
        [said that] forward lifting and bending is a factor also.^[207]
118. [118]
     In his oral evidence, he confirmed that ergonomics – being the physical layout of work, and the process of work and how that relates to the human form^[208]- “may well have been very important”, but without descending into detail about particular changes in this case (acknowledging of course that he did not do a worksite assessment with the plaintiff, and was basing his opinions on experience of commercial kitchens and what people do within them).^[209]He did say, however, that interventions are more appropriate than relying on a change in worker behaviour, and how the worker performs their job.^[210]But it was clear that Dr Gilbert also firmly considered there were issues with the plaintiff’s subsequent treatment that should have been done differently.^[211]
119. [119]
     In so far as recommendation 1 is concerned (bench height and anti-fatigue matting), in his report Mr McDougall relied upon the earlier measurement of the bench height by Mr Gray, which Mr Gray said in his evidence in court was incorrect.  With that correction, based on Mr Gray’s evidence, Mr McDougall described the bench in the middle of the kitchen as slightly exceeding recommended working height for a person of the plaintiff’s stature; and suggested that for people working at that bench for prolonged periods, it would be fatiguing to the neck/shoulder muscles.^[212]
120. [120]
     Mr McDougall also identified prolonged standing on hard floors as an issue, recommending the use of anti-fatigue matting.^[213]The plaintiff did not give any evidence about this.
121. [121]
     In both respects, it is not apparent from the evidence that either a change in the bench height, or the presence of anti-fatigue matting would have made any difference in terms of the risk of harm in this case.  In so far as this particular day is concerned, the plaintiff was not working for a “prolonged period” – at the most, she had been at work for an hour, and on her evidence, half of that was spent putting the deliveries away.
122. [122]
     Similarly, in terms of recommendation 2, the plaintiff has not established that there was any need to store heavy product or equipment above shoulder or head height.  Although the pleading refers to plates being stored on a shelf above the kitchen bench, and Mr McDougall referred to the need to carry 6 or more plates, a stack of 6 weighing about 5kg,^[214]the plaintiff gave no evidence about this.   In the circumstances, apart from generic statements about storage heights, it cannot be found that this is a precaution that a reasonable person in the defendant’s position would have taken to avoid the relevant risk.
123. [123]
     In terms of recommendation 5, again, although it was said by the plaintiff that the delivery room was “cramped”, and she described boxes covering the whole floor etc,^[215]her evidence as to the latter has not been accepted, and the other witnesses did not support her description of the kitchen and surrounding areas as cramped.^[216]
124. [124]
     In terms of recommendation 6, in his report Mr McDougall comments on the “restricted postures” involved in bending over the chest freezer to place items into it, and repeatedly bending to pick up the packets of chips.^[217]He says in those circumstances the appropriate weight would be below the 7kg / 3kg weight at foot level.^[218]I note that each bag of chips weighs 2kg.  In his oral evidence, in cross-examination, Mr McDougall said he recalled the plaintiff describing lifting the whole carton of chips (which would be 12kg) onto the open lid of the freezer before unpacking it.^[219]But that was not the plaintiff’s evidence – she referred to taking the 2kg bags out of the carton on the floor.  In that regard, Mr McDougall said the weight would not be a risk, but the remaining risk would be reaching into the freezer.^[220]The evidence otherwise relied upon by the plaintiff, however, did not establish any necessary link between this action of reaching into the freezer, and the upper back pain reported by the plaintiff.  Accordingly, it cannot be concluded in this case that a reasonable employer would have adopted this as a precaution against the identified risk.
125. [125]
     So that leaves consideration of recommendations 3 and 4 (in relation to the task of putting away deliveries) and recommendation 8 (in relation to training and instruction).
126. [126]
     Having regard to the evidence before the court, the issue with the task of putting away deliveries is the lifting of weights exceeding recommended amounts, from the floor.
127. [127]
     I refer again to paragraphs [45]-[51] above, where findings have been made about what was involved in this task.
128. [128]
     In so far as weights slightly in excess of the recommended maximum of 7kg from floor level are concerned (such as, for example, putting away the meat might involve; or a box of broccoli), without any specific analysis demonstrating a specific risk of lifting something of this kind of weight as infrequently as it seems to have occurred (once per week) I cannot conclude that it was reasonable for any precaution to be taken.
129. [129]
     But in so far as the evidence is to the effect that there was a need to lift items weighing considerably more than the recommended maximums, from the floor, in particular (but not necessarily limited to) the bag of potatoes, I am satisfied that there were measures available to the employer which could have reduced the risk of injury, for example:

     1. (a)
        Putting in place a system (involving both directing that this occur, and enforcing it) which required the delivery people to place heavy items where they need to go (whether that is the delivery room, dry store room, or the cold room).   In so far as this was the system Mr Simpson described, I have found it was not in place in March 2011.  In so far as this was what Mr Bachman described, regarding the potatoes, I have found that it was not always adhered to.   But if it had been implemented, and enforced, it would have alleviated the need for staff such as Ms Ellis-Marshall or the plaintiff to lift and carry heavy items.
     2. (b)
        Alternatively (or additionally) putting in place a system which ensured that  deliveries were not placed on the floor, but rather placed on an existing bench within the premises, so that employees are not required to lift things from the floor.  Utilising an existing bench would mean there was no additional cost involved for the employer (as opposed to introduction of a trolley, which would, and may have its own limitations and difficulties).
     3. (c)
        Acknowledging the shortcomings, identified by Dr McCartney and Dr Gibson, of training in safe lifting techniques / safe weight ranges – nonetheless, it would seem reasonable also to clearly direct employees as to what they should not lift, that they should unpack items from boxes (rather than carrying boxes), that they should seek assistance with heavier items, and to make it clear from whom they can seek that assistance.
130. [130]
     In relation to the latter, there is authority for the proposition that just telling an employee that if they have a problem they can ask someone else to help them (which is what I have found the defendant did here) is not sufficient.  If that was to be effective, it ought to include a direction not to lift heavy items; together with a direction to ask for assistance; and a clear direction to the other staff that they are to assist when asked.^[221]
131. [131]
     In any event, just warning an employee not to lift heavy items would not be sufficient; the duty of an employer extends to taking reasonable care to avoid exposing an employee to unnecessary risk of injury, including the risk that injury may occur because of some inattention or misjudgement by the employee in performing their allotted tasks.^[222]
132. [132]
     In summary, then, it is open to find that the defendant has breached its duty to take precautions against the relevant risk of injury.  The risk of injury from lifting and carrying heavy products in the process of putting away deliveries was foreseeable, and not insignificant, and there were precautions that a reasonable person in the position of the defendant could have taken, to reduce the risk of injury, which would not be burdensome and would not impede the accomplishment of the work.
133. [133]
     But it remains to consider whether the adoption of any of those measures would probably have averted the injury (or pain) suffered by the plaintiff (Vozza v Tooth & Co Ltdat 319).

Causation

134. [134]
     Once again, it is necessary to have regard to the relevant statutory provision which applies.  Section 305D of the WCRA provides:

135. [135]
     Section 305E expressly provides that, “[i]n deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation”.
136. [136]
     Unlike duty and breach, the inquiry as to causation is “wholly retrospective… [and] seeks to identify what happened and why”.^[223]Factual causation is, as the phrase suggests, wholly factual and turns on the plaintiff’s proof on the balance of probabilities that the failure to take the precaution was a necessary condition of the occurrence of harm.^[224]
137. [137]
     The determination of factual causation under s 305D(1)(a) is a statutory statement of the “but for” test for causation:  the plaintiff would not have suffered the particular harm but for the defendant’s negligence.^[225]The plaintiff needs to prove, on the balance of probabilities, that the defendant’s negligence was a necessary condition of her harm.  Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred.”^[226]Pointing to things that might have made a difference does not prove factual causation;^[227]nor is factual causation established simply because the injury sustained by the plaintiff is “the very kind of thing” which was the subject of the duty.^[228]
138. [138]
     For her case on causation, the plaintiff relied upon evidence from Dr Gilbert, who initially saw the plaintiff in November 2011, and provided a report to WorkCover.^[229]In that report, at p 5, Dr Gilbert expressed the view that the soft tissue injury diagnosed by him (at p 4) “is related to static loading and forceful, repetitive movements of the left arm as is required in the normal duties as cook at Withcott Hotel”.  He also expressed the opinion that the ongoing symptoms (pain) “can be attributed to the work injury, which in turn is also an aggravation of underlying mild degenerative change within the cervical and thoracic spine”.   His identification of “static loading and forceful, repetitive movements of the left arm” was on the basis of the plaintiff’s description symptoms, as opposed to particular tasks or activities in the course of her work.^[230]
139. [139]
     In a subsequent memorandum (recording a discussion with the plaintiff’s legal representatives), it is said of Dr Gilbert [after referring to him being advised of the allegations in paragraphs 6 and 7 of the statement of claim, regarding the work that the plaintiff was doing at the time her pain came on, including putting away deliveries which involved inter alia lifting 12kg boxes of frozen food into freezers,^[231]and then working at a kitchen bench doing kitchen hand duties]:^[232]

“He confirmed that was the sort of work he had in mind at the time that he expressed the opinions in his report.

The doctor believes that that sort of manual handling (particularly the forward moving and lifting) is consistent with the injuries suffered by [the plaintiff] and, in the absence of any other cause, the onset of her condition was very much from manual handling and is therefore a work-related injury.

The onset of symptoms is very occupational specific.  [The plaintiff’s] obesity was one of the risk factors for an injury, but was not the cause of the injury.”^[233]

140. [140]
     When giving his oral evidence, it appeared Dr Gilbert was not given a copy of the statement of claim, although paragraphs of it may have been read out to him.^[234]His only recollection of what he was advised “was a statement that there was manual handling involved in terms of work in the – in the kitchen”.^[235]
141. [141]
     I formed the impression from Dr Gilbert’s oral evidence that in expressing his opinions he did not have in mind a particular activity of manual handling performed by the plaintiff (for example, putting away deliveries of a particular weight(s)); but rather proceeded on a fairly generalised impression of the manual handling involved in her job.^[236]When he was asked about that, he said “weight is one factor in manual handling but there are many other factors.  So it’s a factor but it’s a fairly subjective factor”.^[237]His reference, in his report, to “static loading and forceful, repetitive movements”, he explained, was referring to “pushing and pulling, which are really the actions that occur when you’re using the arms to shift and move and do things within any manual handling situation”;^[238]and later to the plaintiff having musculoskeletal pain “in the context of manual handling and lifting, pushing, pulling”.^[239]
142. [142]
     Dr Gilbert also said, however, that the pain described by the plaintiff (slow onset, with no obvious cause) can occur in many different settings.^[240]
143. [143]
     I note also that Dr Gilbert’s evidence regarding the measures that could have been taken^[241]was very general, and does not support a finding, on the balance of probabilities, that any of the measures referred to would have averted the risk of harm to the plaintiff.
144. [144]
     Although the plaintiff, in submissions on her behalf, also contended that “every treating doctor” has linked the plaintiff’s injury to work,^[242]that is only in terms of recording what the plaintiff has told them, as opposed to expressing an independent view about the cause of her pain.
145. [145]
     The defendant relied upon evidence from Dr McCartney, an occupational physician.^[243]Dr McCartney did not at any stage see the plaintiff, but considered various medical reports, and Mr McDougall’s reports, and answered particular questions put to him.^[244]He noted that the plaintiff “presents with chronic thoracic back pain”.  He described this as very common in the population and expressed the view that, there is no causative relationship to the plaintiff’s work, but said “there is a complex relationship between the individual and workplace risk factors”.^[245]He described the plaintiff as having significant risk factors for chronicity of pain and disability, being both constitutional (degenerative spondylosis and obesity) and psychological (depression, life stressors).^[246]
146. [146]
     Dr Curtis, the orthopaedic surgeon who gave expert evidence, was asked whether the condition he diagnosed the plaintiff as suffering (chronic regional pain syndrome) can be brought on by events such as manual handling in the workplace, to which he answered:

“I’m not sure about that.  I think it can follow various injuries which don’t normally get better in a timespan that one would normally expect.  And I give you a good example of soft tissue injury.  The expectation is that without an associated fracture a low velocity injury undertaking a normal bodily movement, or activity of daily living one would not expect to find evidence of a severe injury.  Now, this is what this lady typifies.  Low impact; came on slowly in the course of her work; no actual history of any violent robust injury.  It simply came on during and in the course of – hard to define – hard to define.  And in her particular case one could reasonably anticipate the pain would disappear, like most soft tissue injuries, after two or three months, or even less.  When things go on two – two and a half – three – four years we have a different set of circumstances.  And when we talk about a chronic regional pain syndrome it’s a – an expression coined for people such as myself who don’t know any better.”^[247]

147. [147]
     Dr Curtis was, I consider, being fairly modest and self-deprecating in those last comments, going on to describe the expression (chronic regional pain syndrome) as a convenient one for physicians to use because they don’t know any other expression that fits any better, describing it as to some extent a “cop out” – by which I simply took him to mean that, where there is no other explanation that can be found for someone who complains of pain, this is a convenient description for their condition.  He said he would defer to the opinion of a pain specialist about the cause of pain.^[248]But for the reasons already dealt with, I do not find that Dr Thomas was in fact expressing a clear and unqualified opinion about the source of the plaintiff’s pain; certainly not to the point where I consider it could be found on the balance of probabilities.
148. [148]
     In so far as the initial pain is concerned, I note the following evidence of Dr Curtis, in response to questions from the bench:

“And going back to an earlier answer, when it was suggested to you that as a general proposition manual handling can result in spinal pain or – I think, I might be mis-phrasing Mr Nielsen’s question – but you said in general if there’s an identifiable injury there would be obviously causation? ‑‑‑Yes

So can I ask you what if there isn’t an identifiable injury.  So that’s what I understand to be the case here.  There’s pain, but there isn’t an identifiable injury.  What’s your answer to the proposition regarding the link between manual handling in the workplace and ‑ ‑ ‑? ‑‑‑Simply this:  that she’d done it many, many times before as a daily event as part of her work.  It came on during and in the course of her normal work doing normal things.  Why should all of a sudden it produce a chronic regional pain syndrome, as you’ve put it.

But what about just the pain?  Before the point is reached that to describe it as chronic regional pain syndrome what about just the experience of pain?  Do you regard it from an orthopaedic perspective as something that can be caused just by doing your normal work activities without there being any particular incident that occurs?‑‑‑I suspect that if they were – they had been doing an activity repetitively under load and doing more than they would normally do perhaps one could accept that.  But this was – this was during her normal work.  It came on slowly.  It didn’t happen rapidly.  And it came on in her left shoulder region unspecified.  It was more to the back over the shoulder blade area.  It’s – it was very slow in onset.  It wasn’t one isolated event or incident.  And this is why I have difficulty here putting together a – a – a story that can relate to injury.  I think this is – this is the – this is the area where most people have difficulties just there was nothing identifiable.

Thank you? ‑‑‑And the fact that it has not really resolved, this is very perplexing.”^[249]

149. [149]
     Dr Curtis was then asked some questions, in re-examination, relating to the recommended lifting weights for women (based on Mr McDougall’s report), and he agreed that 16kg should be the maximum, reducing that to 7kg when lifting from the floor, and even lower to 3kg if the load is away from the body.  Dr Curtis then also agreed with the proposition that, in the plaintiff’s case, the fact that she was performing certain tasks over a period of time, if the Court was to find those tasks might have been in excess of recognised guidelines, then the fact that she has been able to perform those without sustaining an injury in the past does not prevent those lifting events from causing an injury on a particular day.^[250]
150. [150]
     I do not regard that evidence as inconsistent with the clear opinion expressed by Dr Curtis in the passage cited in paragraph [148] above.   What I understand Dr Curtis to have said, in re-examination, is that the fact a person has been able to do something on other occasions without injury, does not mean it will not cause injury on another occasion.  But that presupposes there is evidence of an injury having been so caused.
151. [151]
     In my view, that is lacking in this case.    The court can only speculate as to whether, on 25 March 2011, the plaintiff lifted something heavy; for example, the potatoes.  She can only speak in generalities, about what she may have done on this particular day.  The court can see, from the invoices, what was delivered:  it is inferred that Ms Ellis-Marshall would have assisted the plaintiff to put those deliveries away; they were not significant in terms of number of items, or weights of individual items (save for the half a bag of potatoes).  On Mr Bachman’s evidence, the potatoes may well have been put in the storeroom.  But even if it is assumed, favourably to the plaintiff, that on 25 March 2011 the potatoes were not put in the storeroom, but left in the delivery room; and further that it was the plaintiff that moved that bag into the storeroom; the evidence does not establish, on the balance of probabilities, that that activity (or indeed any other lifting activity) was a necessary condition of her experiencing pain, as required by s 305D(1)(a).  The most contemporaneous record, being the GP’s note of 25 March 2011, recorded that the pain was “due to lifting left arm as a cook”.  There was no evidence about what particular aspect of the plaintiff’s work involved her lifting her left arm specifically, but I do not infer from that note that it was referring to lifting heavy items.  The next note, on 29 March 2011, did not attribute any cause for the pain, although recorded that the plaintiff was “working as a cook in a pub, lifting weights, not too heavy”, which likewise does not support the inference.^[251]
152. [152]
     More specifically, in terms of the language used in s 305D(1)(a), the evidence does not establish, on the balance of probabilities, that the breach of duty I have found (failing to take precautions to avoid the need for employees to lift heavy items, and failing to give clear instructions to employees about that) was a necessary condition of her experiencing pain.  Put the other way around, I am not satisfied that if any of those precautions had been taken, the plaintiff would not have suffered the particular harm – because it has not been established that any aspect of the task of putting away deliveries caused the particular harm.
153. [153]
     The fact that she was at work when she noticed the onset of pain is not sufficient – because a temporal connection between the workplace, and the onset of symptoms, is not enough to establish the necessary causal connection. 
154. [154]
     Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268 is a case, like this one, where the plaintiff was unable to point to any particular aspect of the work that he undertook, on the day that he became aware of symptoms of discomfort in his back, which caused him injury.^[252]
155. [155]
     In Stitz, as here, the plaintiff was asking the Court to draw an inference that the injury was caused by the act or omission of the defendant amounting to breach of duty.  As McMeekin J observed in that case:

156. [156]
     I am not satisfied that the facts as proved are sufficiently compelling to warrant an inference of causation being drawn.   In so far as I have concluded there were “defects” in the system of work involved in putting deliveries away, it is not clear that the injury arose out of the defective system of work, in the sense of being caused by it.  It cannot be said in this case that the facts warrant no other inference inconsistent with liability on the part of the defendant (see Stitz at [109]).  In circumstances where the plaintiff was simply carrying out her usual duties; which she had not had any difficulty with before; and which neither she nor anyone else had complained of before; and where there was no particular incident that occurred on this day, there is a clear inference available that the plaintiff’s pain, which became noticeable to her after being at work for a short time, was caused by some other means, either unrelated to her work, or related to some aspect of her work in respect of which no negligence has been established. 
157. [157]
     By way of example, there were in evidence records of the plaintiff having suffered back pain:

     1. (a)
        In May 2008, in respect of which the records the Toowoomba Medical Centre  record an attendance by the plaintiff complaining of “acute lower back pain when changing baby’s nappy”; and a further attendance, on 9 July 2008, recording “backpain – no specific injury – low lumbar and into R buttock; and
     2. (b)
        In June 2010, in respect of which there is contradictory evidence, from the medical records and from the plaintiff.  The records of the Withcott Medical Centre record the plaintiff seeing a GP on 23 June 2010 (her first visit to that practice), saying she had hurt her back several days ago; querying injury; describing constant pain, which was aggravated by bending and lifting, for which she was prescribed panadeine forte.^[256]Two days later, on 25 June 2010, the Toowoomba Medical Centre records an attendance by the plaintiff “co back pain at work (Cook) tender L/S no radiation”, for which she was prescribed feldene and later Panadol osteo, and underwent x-rays.^[257]In contrast, the plaintiff gave evidence that “about a year before this” (ie before March 2011) (which I infer is a reference to the June 2010 event) she hurt her lower back as she went to pull her son out of the car.^[258]She also agreed she may have told a co-worker she had difficulties picking up her son.^[259]The plaintiff’s son is currently 8,^[260]making him between 3 and 4 years of age as at 2010-2011. 
158. [158]
     In support of her case, the plaintiff relied upon the Court of Appeal’s decision in Tabcorp Holdings Limited v Dank [2011] QCA 253.  That case involved a plaintiff who sustained a back injury at work when she lifted a box of photocopy paper from the floor to the desk in her office (being a box weighing 12.7kg, containing 5 reams of paper).   The trial judge’s decision in favour of the plaintiff was upheld on appeal.   Relevantly, I note the following:

     1. (a)
        There was no challenge to the trial judge’s findings of fact about the accident – which included a clear finding that the plaintiff was injured when she lifted the box from the floor of her office (involving further findings about how she had to lift the box).^[261]
     2. (b)
        The issue on the appeal in that case concerned whether it was reasonably foreseeable that the plaintiff would sustain injury in conducting the lift in accordance with her usual method (a method the defendant was said to have known the plaintiff used).^[262]
     3. (c)
        The case is not one, like the present, or like Stitz, where no particular incident, or task, or action, could be identified as the cause of the onset of pain – leading to causation, either in terms of the common law (as in Stitz) or s 305D (as here) being a central issue.
     4. (d)
        Accordingly, the outcome in this case does not assist the plaintiff.
159. [159]
     Although s 305D(2) makes provision for “an exceptional case”, there was no pleading, nor argument, that this was to be applied in this case.  That would seem, with respect, appropriate, in circumstances where it would be contrary to established principles to hold the defendant responsible in negligence, if, as I have found, its breach of duty was not a necessary condition of the occurrence of the harm.^[263]It is not necessary to say any more about this.
160. [160]
     Accordingly, in circumstances where the plaintiff has not established, on the balance of probabilities, that any breach of duty on the part of the defendant caused the pain she experienced in her upper back, her claim must be dismissed.

Quantum

161. [161]
     Notwithstanding my conclusion reached on liability, it is appropriate that I address the issue of quantum in any event.
162. [162]
     The plaintiff was born in April 1982, making her currently 33 years of age, and almost 29 at the time she says she was injured.  She is married, and has two children, currently aged 13 and 8.^[264]

General damages

163. [163]
     I proceed on the basis that in so far as the plaintiff’s upper back pain is concerned, what she experienced on 25 March 2011 was a minor aggravation of pre-existing mild upper thoracic spine degeneration.  The evidence is to the effect that this ought to have resolved within no more than 12 weeks.
164. [164]
     On the plaintiff’s evidence, however, she continues to experience pain.  Asked about her symptoms “today” (that is, at the time of the trial), she said “I have lots of pain across there.  All my shoulders and my neck get all tense and tight all the time because it’s so sore, and there’s like a lump on my back where all the pain is”.  She said she would rate her pain as “[a]bout a 6 or a 7” out of 10.  She said the pain is “a lot worse now”.^[265]When asked if there are any particular bodily movements or tasks that create issues for her, the plaintiff said:  “Everything.  Walking does.  I can only walk for about 10 minutes before it starts hurting.  Bending over is really bad.  Just even sitting on the wrong chair hurts”.^[266]
165. [165]
     The evidence supports a finding that this is not explained on any pathological or physical basis, but rather on the basis of a psychiatric condition that the plaintiff suffers from, as diagnosed by Dr Flanagan (referred to above).
166. [166]
     One of the issues at trial was the extent to which this psychiatric condition could be said to be causally related to any physical injury sustained at work.
167. [167]
     Had I reached a different view about causation of the physical symptoms – finding instead that the physical symptoms experienced by the plaintiff were caused by the defendant’s breach of duty - I would have found that her physical symptoms were, at least, a cause of her psychiatric condition.  The fact that the psychiatric condition from which the plaintiff now suffers was significantly contributed to by other factors, does not alter the fact that the physical symptoms were a cause of it.^[267]
168. [168]
     This is the effect of Dr Flanagan’s evidence, which I accept (and which, in this respect, I did not find Professor Whiteford to substantially disagree with).
169. [169]
     Dr Flanagan, in his oral evidence, elaborated upon his written opinion in this regard, saying:

“… the injury – the physical injury was a major significant contributing factor to her depression, but not just the injury as such but the very consequences of the injury which were, you know, the financial exigency, doubts about her occupational future, loss of her job, that they were major maintaining factors and I would have said that it was likely that there was significant vulnerability arising from severe childhood adversity.  So I would have – I would have stressed that there was a multifactorial nexus in play.”^[268]

170. [170]
     Dr Flanagan described the various contributing factors as “multiple and complex”.^[269]In addition to severe childhood adversity, Dr Flanagan also identified previous problems with depression, an issue also highlighted by Professor Whiteford.^[270]
171. [171]
     In his most recent report, dated 25 March 2015, Dr Flanagan diagnosed Somatic “Symptom Disorder, persistent, with predominant pain and depressed mood,” as well as therapeutic opiate dependency.  He explained in his oral evidence that he considered this was a “more accurate understanding of her condition” than his previous diagnosis.  He said he was heavily influenced by Dr Curtis’ report, which had brought to his attention the fact that the plaintiff’s original injury was very minor and there were absolutely no anatomical or physiological reasons for her to have a chronic pain and disability syndrome.^[271]He later further explained that Dr Curtis’ report:

“…brought home the duration of this severe disabling somatic condition”

“And … the minimum physical explanation that – was there had been no particular injury in terms of doing something and there was absolutely no explanation and the whole thing had been going on over the course of some years and it just brought it home to me that somatisation rather than – rather than depression as such was the best explanation…”^[272]

172. [172]
     Other contributing factors identified by Dr Flanagan included financial stress and this litigation.^[273]
173. [173]
     Dr Flanagan also recorded in this report that the opiate dependency had worsened.^[274]He agreed that opiate dependency would impact upon depression, memory function, pain tolerance, and psychological adaptability generally.
174. [174]
     He described the plaintiff’s prognosis as poor, and said the “only measures that are likely to help” are weight loss and improved fitness; withdrawal from opiates; and conclusion of this litigation.  He agreed (with the view also expressed by Professor Whiteford) that the latter two are the most important, agreeing also with the proposition put to him that this is because “litigation can involve both conscious and unconscious motivation to maintain symptoms, while opiates cause the central nervous system effects which can make clinical depression worse”.^[275]
175. [175]
     In the section of this report headed “causation”, and reflecting his earlier comments about the complex and multi-factorial nexus in play, Dr Flanagan identified the following:  the original injuries (referring to Dr Curtis’ opinion) – which he said “certainly were the original cause of symptoms that have continued long beyond their natural history”; “inheritance (both parents were alcoholics), temperament and quite severe childhood adversity, imparted vulnerability”; “at the time of the injury she was working away from home in a physically hard job and under financial stress”; the “development of physical symptoms” – which he explained as meaning pain and disability, that is, not being able to do certain things both in her daily life and not being able to work”;^[276]“invalidism, deconditioning, weight gain and impoverishment of life proceeded to take their toll”; and somatisation.^[277]
176. [176]
     He further explained, in his oral evidence:

“… my way of putting it would be that the somatic symptom disorder was precipitated or initiated by whatever minor soft tissue injuries occurred at the time, if that was what sparked it off.  But in terms of causation, obviously, the causation of it in regard to the ongoing condition, it’s highly complex and multifactorial and the original injury is lost.  In the mists of time, as it were, it’s become very minor.”^[278]

177. [177]
     As previously noted, Professor Whiteford reached a different view about the appropriate diagnosis.   I note the following comment by Professor Whiteford, in his second report:^[279]

“As noted in my report and also in Dr Flanagan’s report of 25 March 2014 [the plaintiff] has been exposed to multiple life stressors and is a woman with pre-existing psychological vulnerability.  Dr Flanagan has identified the stressors – unemployment, financial stressors, opioid dependency and litigation (page 10).  Other stressors include her struggle with obesity and having to be responsible for the welfare of the family whilst her husband is working away at the mines.

A component of somatisation in injury is common (depression making the experience of pain worse) and this is likely to be part of Ms Knott’s presentation.   However I do not believe that she has a somatic symptom disorder which has been caused by a minor musculoligamentous injury in March 2011, especially given all the stressors which have occurred in her life since that time.”

178. [178]
     He said he agreed with the diagnosis of therapeutic opioid dependency (at p 3).
179. [179]
     Professor Whiteford further said that he did not believe the plaintiff would have ongoing mental health problems had there only been the musculoligamentous injury in March 2011.  He said the other stressors identified in his report were necessary for the onset and continuation of her mental health problems.  He said it was not possible to accurately apportion a percentage contribution to the pre-existing psychological vulnerability and each of the multiple stressors to which the plaintiff has been exposed in his life (p 4).
180. [180]
     Professor Whiteford said that he believes the musculoskeletal pain in March and April 2011 were contributing stressors but the depression would not have arisen (in June 2011) had it not been for the loss of her employment, ongoing unemployment, resultant financial difficulties, husband moving away and the subsequent stressors of having to relocate (in October 2011) to Emu Park (p 5).
181. [181]
     But as I have already noted, accepting the complex and multi-factorial nature of the various contributors, the evidence, of both Dr Flanagan and Professor Whiteford supports a finding that the upper back pain was a cause of her now psychiatric condition.
182. [182]
     Dr Flanagan assesses a whole person impairment of 7%.^[280]
183. [183]
     In assessing general damages, it is necessary to have regard to schedule 9 of the Workers’ Compensation and Rehabilitation Regulation 2003 (Regulation).^[281]
184. [184]
     In so far as the aggravation of degeneration of the thoracic spine is concerned, the appropriate item, having regard to the evidence, is item 93 (minor thoracic spine injury).  The ISV range for item 93 is 0 to 4.  As the comments state, an ISV at or near the bottom of the range will be appropriate if the injury will resolve without any ongoing symptoms within months after the injury is caused.  On the evidence of Dr Curtis, which I accept, coupled with the evidence of Dr Flanagan, it seems to me an appropriate ISV for this injury can be no more than 1.
185. [185]
     In so far as the psychiatric condition is concerned, item 12 (moderate mental disorder) is appropriate, having regard to Dr Flanagan’s PIRS rating of 7%.  The ISV range for item 12 is 2 to 10.
186. [186]
     Although the plaintiff contends for an uplift above the maximum of 10, on the basis of the presence of multiple injuries,^[282]having regard to the evidence concerning the physical “injury”, I am not satisfied that is appropriate.   Proceeding under s 3(2) of schedule 8, I would assess the appropriate ISV as 10. 
187. [187]
     Therefore, the award for general damages would be $12,950.^[283]

Past economic loss

188. [188]
     The plaintiff’s evidence was that, for the next couple of weeks after 25 March 2011, she kept trying to go to work, but “it was really sore” so she would go back to the doctor, who would give her a certificate for another few days off work. 
189. [189]
     She referred to getting a letter from her GP, after having some x-rays done, which she took to her employer, following which she said “they fired me”, saying it was Pete Burnett who did this.^[284]The letter is dated 15 April 2011 and is from Dr van Heerden.  The letter is addressed “to whom it may concern” and reads:

“Thank you for your help with Natalie.  She is currently under our care for a pinched nerve in her neck.  We changed her treatment and the neckpain should improve in the near future.  The nerve pain would have made a big influence in her ability to work in the last 6 weeks but should improve for future employment.”^[285]

190. [190]
     Mr Simpson explained that he and his wife were away for a week at this time.  Peter, the head chef had needed assistance, because at that stage the plaintiff was having quite a bit of time off work, and so he employed another chef on a full time basis.  This meant there weren’t hours available for the plaintiff.^[286]
191. [191]
     The plaintiff said she tried to go back to work, but just couldn’t do it.  She said “my husband earned next to nothing, and we just couldn’t afford to live in Toowoomba”, so they moved up to Emu Park (near Rockhampton) to try to get some extra money.^[287]Her husband initially got a job at Emerald with his brother; his brother had been there for a long time, and got him that job.  She said that they settled in Emu Park because the rent was too much in Emerald.^[288]Her husband confirmed that, when the plaintiff’s work at the Withcott Hotel came to an end, it was financially very hard, because they needed two wages to get by, so they decided to look for work somewhere else and he ended up finding a job in Emerald “that paid a lot more than what I was on”.^[289]
192. [192]
     He started that job in about June 2011.^[290]He now has a different job,^[291]working as a blast hole driller at Foxleigh mine at Middlemount, which he said is about 250km west of Rockhampton.^[292]He had previously worked as a vinyl welder in Toowoomba, earning “minimum wage”.^[293]He works seven days on, seven days off in his current job.^[294]
193. [193]
     The plaintiff undertook minimal work in the period before moving up to Emu Park:   as a cook at the “Fiveways” (for about four weekends); and back at the Withcott Hotel (for a couple of weeks).  She said this hurt her back and she could not continue.  She also worked for a few weeks at a Caltex up at Emu Park, but stopped because her “back just got aggravated again”.  Apart from “a couple of hours” in a “reiki position”, she has not otherwise worked.^[295]
194. [194]
     She said that she has not looked for work,^[296]but said she would love to go back to work (referring in this context to waiting to see Dr Thomas again).^[297]However, I note from her GP records from the Yeppoon Family Practice that there are notes of attendances commencing from 23 June 2014^[298], in which the doctor has recorded “been applying for office work job”; “started applying for office work – not done much”;^[299]“continue to apply for jobs – start part time”;^[300]“still looking for jobs”;^[301]“not heard from job applications”^[302]; “still looking for job”;^[303]but then “not looking for job now – due to awaiting ablation (neurofrequency)”^[304]
195. [195]
     Whilst the evidence strongly suggests that, at most, the physical symptoms suffered by the plaintiff ought not have kept her from working for any more than 12 weeks, the evidence from Dr Flanagan is that she is, at present, incapable of any form of work.^[305]
196. [196]
     Counsel for the plaintiff submitted that the plaintiff’s average net earnings per week, as at March 2011, were about $700 per week.^[306]The plaintiff calculates that it has been 241 weeks since the incident.  It is said that, since 15 April 2011 (when her employment was terminated), she has only earned about $9,500; leaving a loss of some $159,000.
197. [197]
     In light of the evidence of both Dr Flanagan and Professor Whiteford, regarding the multiple factors which have contributed to the onset, and maintenance, of the plaintiff’s psychiatric condition, it does not seem to me that this is a case in which it can readily be concluded that the whole of the lost income, to date, would be recoverable by such a precise calculation.
198. [198]
     Section 306J of the WCRA is relevant in this case.  Relevantly, s 306J(2) provides:

“The court may only award damages if it is satisfied that the worker has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.”

199. [199]
     In State of New South Wales v Abed [2014] NSWCA 419 it was observed (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing) at [265] that “[a]ny assessment of a past hypothetical proposition must be speculative to a degree”, referring to Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639-640.  To similar effect, is the statement by McMeekin J in Brooks v Zammit [2011] QSC 181^[307]at [35] that “[i]n assessing damages in respect of a past hypothetical event I am required to ‘make an estimate as to what are the chances that a particular thing … would have happened and reflect those chances, whether they are more or less than even, in the amount which [I] award’”.^[308]
200. [200]
     The relevant passage from Malec, leading up to the reference to Mallett v McMonagle referred to by McMeekin J, is as follows (at 639-640):

“The judgment of the majority in the Full Court seems to us to overlook the difference between the fact that the plaintiff had not been working for some time before the trial and an evaluation of the plaintiff’s earning capacity which was destroyed as a consequence of the defendant’s negligence.  The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities:  if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred.  By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured:  what would he have been able to earn if he had not been tortiously injured?  To answer that question, the court must speculate to some extent.  As the hypothesis is false – for the plaintiff has been injured – the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history.  Hypothetical situations of the past are analogous to future possibilities:  in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur.  Both are to be distinguished from events which are alleged to have actually occurred in the past.”

201. [201]
     So the hypothetical question in this case is, what would the plaintiff have been able to earn to date, if she had not injured her back on 25 March 2011?   In my view, the following are relevant factors:

     1. (a)
        The plaintiff’s husband obtained far better paid work, when he moved to Emerald and subsequently to Middlemount.  Although for the plaintiff it was submitted that this move was solely the result of the plaintiff being unable to work, it seems (at the least) possible that the plaintiff’s husband would have, in any event, taken up an opportunity for a job that “paid a lot more” than he was previously earning (the initial opportunity coming from his brother).  Although there was evidence that they liked living in Toowoomba, there was also evidence that they “had always loved” the coast, where they settled (in Emu Park).  The change in her husband’s earning ability may well have impacted on the amount of work the plaintiff subsequently did.
     2. (b)
        The “highly complex and multifactorial” contributing factors (including the plaintiff’s pre-existing psychological vulnerability, coupled with the other stressors identified by Dr Flanagan and Professor Whiteford) must also be taken into account in this hypothetical scenario, given that, on the evidence, it seems probable, to some degree, that even without this physical injury, the plaintiff may have developed psychological difficulties, including as a consequence of the occurrence of some other event, whether at work or elsewhere. 
     3. (c)
        More generally, it is not to be assumed that the plaintiff would have been able to find, or wanted to undertake, 40 hours of work per week as a cook, in Emu Park, which is the basis on which the $700 per week is calculated, as I understand the submission.  The likelihood of underemployment, or unemployment for some periods of time has to be factored in.
202. [202]
     Acknowledging the speculation involved in this exercise, I would have assessed the plaintiff’s past economic loss as 50% of that claimed, the reduction being to allow for the possibility that other factors may well have resulted in her not working, or not working as much as it is claimed she would have.  The amount assessed would therefore be $79,500.
203. [203]
     To this appropriate amounts for interest, and superannuation would need to be added.

Future economic loss

204. [204]
     In so far as future economic loss is concerned, similar considerations are involved, having regard to s 306J, and the authorities just referred to, save that in my view the hypothetical exercise looking to the future requires greater discounting.
205. [205]
     The evidence is of a present inability to work due to the plaintiff’s psychiatric condition; but the most significant factors identified by Dr Flanagan (and Professor Whiteford) are the need to lose weight, to address the opioid dependency, and this litigation. 
206. [206]
     Relevant factors to have regard to include the multiple and complex factors said to have contributed to the plaintiff’s current psychiatric condition, only a minor part of which can be said to involve the physical “injury” incurred at work (had that been found); that, as a result of the combination of those factors, the plaintiff was vulnerable to developing a psychiatric condition as a result of some other occurrence (including, as here, as a result of a minor occurrence); as well as the likelihood that circumstances will improve, at the least, with the conclusion of this litigation; and, hopefully, the withdrawal by the plaintiff from the use of opioids.  Although there is no scientific certainty or accuracy to this calculation, it seems to me a significant reduction is warranted in any award of future economic loss.^[309]
207. [207]
     What the plaintiff’s submissions contemplate is recovery of $350 per week (half the plaintiff’s previous weekly earning) over her remaining 34 years working life, with only a reduction of 15% for contingencies.
208. [208]
     In my view, an appropriate award would reflect a loss of no more than 15% of what she was earning at the time (say $105 per week), which adopting the 5% multiplier identified by the plaintiff (865.9) amounts to $90,919.50.   I am including “normal contingencies” in that calculation, and therefore would not propose any further discount.  To this would need to be added loss of superannuation.

Past and future expenses

209. [209]
     In terms of past expenses, the award ought to include the WorkCover refunds ($17,316) and the Medicare refund ($6,649.35), which amounts were agreed.  Beyond this, having regard to the medical evidence concerning the physical aspect of the plaintiff’s difficulties, I would accept the defendant’s submissions that only a global additional amount ought to be permitted.   This may be more than the $500 submitted by the defendant, but in circumstances where no attempt was made, on behalf of the plaintiff, to demonstrate what the medications referred to in exhibit 48 were for, I would not propose to award more than $2,000.
210. [210]
     In terms of the future, having regard again to the evidence as to the absence of a physical explanation for any ongoing pain experience, and the very strong views expressed by a number of doctors about the debilitating effects of the opioid dependency developed by the plaintiff, it would be inappropriate in my view for any award for expenses for pain medication to be made.  It is noted that both Dr Flanagan^[310]and Professor Whiteford^[311]have suggested that referral to a multi-disciplinary pain and rehabilitation clinic may be of benefit, the cost of which is estimated at $6,000.  Dr Curtis may be said to support this view also.^[312]In addition, all of those doctors recommend losing weight, and improving fitness, with Dr Flanagan adding a suggestion that a personal trainer or life coach would be helpful, “as would involvement in a group activity with shared goals and mutual support”.  It may be reasonable to include an amount for this.  Otherwise, future counselling is not suggested by Dr Flanagan or Professor Whiteford.  There is no other orthopaedic treatment recommended by Dr Curtis.  Having regard to the evidence, but again factoring in some discount having regard to the multiple contributing factors, I would have considered it appropriate to award a global figure of $10,000 for future expenses. 

Orders

211. [211]
     There will be judgment for the defendant.
212. [212]
     I will hear the parties as to costs.