Fox v State of Queensland[2016] QDC 146

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   Madelein Fox was working a night shift as an assistant in nursing at the Nambour Hospital (operated by the defendant) on the night of 12 March 2012 when she says she injured her right shoulder as she raised a bed rail on a patient’s bed.She claims damages for the injury, on the basis that it was caused by negligence on the part of the Hospital. Although admitting that, as her employer, it owed Mrs Fox a duty of care, the Hospital denies liability for any injury, on the basis that it did not breach its duty of care. The quantum of the damages claimed by Mrs Fox is also disputed, in particular in relation to economic loss.

Liability

2. [2]
   Mrs Fox started working as an assistant in nursing for Queensland Health in about  2010. She obtained her qualification as an assistant in nursing in 2003, and had worked in that capacity at other places prior to working at the Nambour Hospital, including a nursing home at Kirra on the Gold Coast.
3. [3]
   From about 2010 she was employed on a casual basis by Queensland Health, and worked at either Caloundra Hospital or Nambour Hospital, depending on work availability.
4. [4]
   She described her duties as an assistant in nursing, whether working at Caloundra or Nambour Hospital, as including “watching patients at falls risk”; “making beds, feeding, showers”. Her duties also included assisting other nursing staff with “pressure area care” of patients, which involves turning a patient to check for pressure areas, which may develop when a patient is in bed in one position for a long time.

What happened on the night of 12 March 2012?

Mrs Fox’s evidence

5. [5]
   Mrs Fox started her eight hour night shift at 10.45pm on 12 March 2012.^[1]She was allocated to work in ward 1C, which is a surgical ward.
6. [6]
   Mrs Fox described the care she would provide to patients in a surgical ward as depending on what “they” wanted me to do (which I infer means what the registered nurse(s) or enrolled nurse(s) wanted her to do) – but as including “turning patients over”, assisting patients to go to the toilet, and “a lot of different things”.
7. [7]
   She was told to work with Pam Sweeney, who was an enrolled nurse working that shift. In terms of the hierarchy on a shift, an enrolled nurse would be above an assistant in nursing, but below a registered nurse.
8. [8]
   Mrs Fox said that Pam Sweeney asked her “to do some turns with her” – that is, turning patients for pressure area care.
9. [9]
   They went to a patient in room 2, bed 2.The patient had bed clothes on them, but Mrs Fox did not recall what they were. She said that Pam Sweeney checked the patient’s feet and legs first, and then she and Pam stood on each side of the bed, in order to roll the patient over to check for pressure areas. Mrs Fox was on the right hand side of the bed (being nearest the patient’s left hand side) and Pam was on the other side. The patient was rolled to one side, with Pam or Mrs Fox holding them in that position so that the other person could check their back, and then rolled to the other side, and once again checked.
10. [10]
    Although Mrs Fox had said in an email sent to “nurse allocations” on 14 March 2012^[2]that a slide sheet was being used to perform this task, in her evidence at trial she said quite clearly that no slide sheet was being used (that is, she did not say she could not recall; she said no slide sheet was used). Also, although Mrs Fox had previously given instructions that the mattress on the bed was an air mattress (which formed an important part of her pleaded case), her evidence at trial was that she did not know what mattress was on the bed.
11. [11]
    After they had finished checking the patient, Mrs Fox said “she [Pam] pulled her bed rail up and told me to hurry up, and she took off”.Mrs Fox also said “she took off and said, ‘we’re in a hurry. She’s going to go into’ – I can’t remember what room number – and for me to hurry up and assist her with the next patient.”
12. [12]
    Mrs Fox remained in the patient’s room after Pam left, and said “I had to pull the rail up on my side, and I had to do it really quick, and I had to follow her out”. Although Mrs Fox also acknowledged that, having turned a patient, to check for pressure areas, it is not the case that you simply walk off. You need to make sure the patient is comfortable in bed, that they have water on the bedside table and that kind of thing. She agreed that “you just don’t rush off”.
13. [13]
    As to how she went about lifting the bed rail, Mrs Fox explained that she used her left hand to “pull the little red knob” which releases the bed rail mechanism, having to “slightly bend over” to do this. She had her right hand on the bed rail, to pull it up. But the rail got stuck. She said “it just got stuck on the mattress”, “the mattress was impeding”. She said “I had to push the mattress out to get the rail all the way up”. She said she put her left hand on the mattress, and all the bedding, and just tried to clear the way for the rail to come up. The bedding was on the patient at this stage. After this, she pulled the red knob again, and the rail went up.
14. [14]
    Mrs Fox said the mattress was protruding to the bed rail (on her side), “after Pam pulled her side up”^[3]– suggesting that it was Ms Sweeney’s action of raising the bed rail that caused the mattress to move.
15. [15]
    As she was pulling the rail up with her right hand on the first occasion, when it got stuck, Mrs Fox said she felt a “little pain” up in her right shoulder, but “it wasn’t that bad, and I’ve completed my job and just went after Pam to help her with the other patient”.
16. [16]
    Mrs Fox was not asked what time this incident occurred. It is pleaded that it occurred at about 11.30pm, which is the time referred to in both the email Mrs Fox sent on 14 March 2012, and recorded on the “incident report” form which was completed on 20 March 2012.^[4]
17. [17]
    In cross-examination, when being asked about something she had written in the email she sent on 14 March, Mrs Fox gave evidence that “just after we finished”, Pam Sweeney went up to the registered nurse and said she had finished with the turn, and the registered nurse said to her “you should’ve CARPed a wardy because you’ve got other duties to do”. The reference to CARP is a reference to a communication system then in place in the hospital, used by nurses to contact wardsmen.
18. [18]
    At some stage during the shift, “after we completed all the other patients”, Mrs Fox said she went up to Pam, “was rubbing my shoulder, and I said I’m a little bit sore there” and asked for a couple of Panadols. She said Pam handed her a sheet of Panadol.When asked how many other patients she saw after the one where she says she hurt her shoulder, she initially said one, but later said “I think it was two”.
19. [19]
    She completed her shift, finishing about 7am the next morning. When asked what other duties she performed during that shift, Mrs Fox said “just turning patients mainly. Night shifts are not – you don’t do a lot at night. You just either check on the patient if they need something, maybe go into the pan room and do some cleaning up”.
20. [20]
    When asked if she had ever experienced the bed rail getting stuck before, Mrs Fox said that “sometimes the rail gets stuck, you know, with all the bedding and the mattress, but if you take your time and you’re relaxed, you can fix it up, you know, before you pull the rail up”.

Mrs Fox’s reporting of the incident

21. [21]
    Mrs Fox sent an email to “nurse allocations” on 14 March 2012, setting out an “incident report”, as follows:

“At approximately 2330hrs. I was asked by the EN to do a patient turn in Rm.2. The EN was quite busy, and was in a hurry to get this work done. I assisted her to position a patient (2.2), and after moving the patient, the EN said, ‘We have to hurry’, so I quickly tried to tuck in the slide sheet, which is quite difficult with gloves, and to pull up the side rail. When I tried to pull up the rail, it stopped against the oversized mattress. I instantly felt the pain in my shoulder, and used my left hand to finish pulling up the rail. I approached the EN at this time that my shoulder was sore. I was given Panadol (X2) from the EN. The Panadol gave me some relief, and I cautiously finished my shift. The EN informed the Team Leader that we just did some turns, and the RN said, ‘You should have CARP a Wardie.’  I was asked to do other turns later in the shift, but luckily some of the patients have positioned themselves, and others were easily managed by the Wardie who appeared quite skilful, and we took our time.”^[5]

22. [22]
    About a week later, on 20 March 2012, she signed a Workplace Incident Report form, which was completed by her husband (who is a registered nurse), and which recorded:

    1. (a)
       as to “how exactly did/could the illness, injury or damage happen?” – “Moving side-rail of bed in a hurried fashion. Mattress impeded rail movement”; and  
    2. (b)
       as to “what happened unexpectedly?” – “Bed rail difficult to move. Immediate pain felt in right shoulder”.^[6]
23. [23]
    Mrs Fox’s evidence was that her husband is “a registered nurse, so he’s a lot better with forms than me… He helped me”.^[7]She was not asked directly, but it is open to infer from her evidence, that her husband also wrote the email of 14 March for her.
24. [24]
    On 26 March 2012, after receiving the incident report form, the nurse unit manager, Mark Sakrewski, carried out an “incident investigation”, the outcome of which is also recorded on the Workplace Incident Report form, as follows:

“EN on duty 12/3 has no recollection of event.

Patient in 2:2 that night is still in 2:2. Bed checked.

All rails in working order.

I note Madelein states mattress impeded rail movement.”^[8]

Pam Sweeney’s evidence

25. [25]
    The “EN on duty” was, of course, Pam Sweeney. Ms Sweeney has been an enrolled nurse for about 17 years.
26. [26]
    When giving her evidence at trial, she had no recollection of working on 12 March 2012 with Mrs Fox. But it is not controversial that she was working the night shift on that evening.
27. [27]
    Ms Sweeney explained what is involved in the task of turning a patient to check for pressure areas.She also explained what happens once you have finished checking: which might involve repositioning the pillows (if a patient has pillows in place next to them), pulling the blankets up, pulling the side rails up (this would be done first, if there are pillows in place, to keep them there), adjusting the head of the bed if need be, making sure the patient’s table is in place, and that they have their buzzer and a drink handy.^[9]
28. [28]
    Ms Sweeney said that if she had an assistant in nursing helping her with this task, she could leave them to do the follow-up tasks (making the patient comfortable, sorting out their table and buzzer etc), and move on to another patient.^[10]Although, she also said she did this herself.
29. [29]
    As to whether she would have told Mrs Fox she had to do the work quickly, or told her to “hurry up”, Ms Sweeney said she did not remember having that kind of discussion with Mrs Fox. But she also said that “hurry up’s not words I’d use”, “I just don’t say that to anyone, and I – I wouldn’t rush someone to do a job”.^[11]Acknowledging the limitations of a witness’ demeanour in assessing the credibility or reliability of their evidence, I observe that Ms Sweeney’s evidence about this was consistent with the manner in which she spoke whilst giving her evidence, which was slow and measured.^[12]
30. [30]
    Ms Sweeney said she would not, after finishing rolling a patient, simply pull up her side of the bed rail, and leave the room quickly. As to whether there are occasions when this task has to be done in a hurried fashion, she said no, unless “three buzzers went, which would be an emergency”. There was no evidence of any such emergency on the night of the alleged incident.
31. [31]
    She said that the task of lifting the bed rail on the beds is something she would do “probably 20 to 50 times in a shift”, and that on the odd occasion there might be a mechanical problem with raising the rail (which would be repaired). She said she had also experienced the “air mattress tubing on some of the big new air mattresses” impeding the bed rails, but had not experienced other problems with something impeding the bed rail.^[13]
32. [32]
    When asked, in cross-examination, whether she had experienced the mattress on a bed moving on the bed surface, and becoming off-centred, Ms Sweeney said “not with a patient on it”.^[14]

Nursing care plan

33. [33]
    There was in evidence a copy of the “nursing care plan” for the patient who was turned by Mrs Fox on the night in question.^[15]What that document shows is that, as at 12 March 2012, this patient was awaiting orthopaedic review; had a Waterlow score of 17 (which means the patient is at a high risk of a pressure area^[16]); was scheduled for four hourly “pressure area care”; was “able to assist” with her on bed care (meaning that she was able to move herself over by grabbing the bed rail, for example); and was on a “std” mattress (which is a standard foam mattress).^[17]
34. [34]
    There was an issue, at an earlier stage of the proceeding, regarding the type of mattress the patient was on. But on the basis of the nursing care plan, which records “std” mattress type for each day from 11 March to 22 March 2012, and having regard to the explanation of what “std” means given by Mark Sakrewski, and also Rebecca Dahm (who was one of the registered nurses working on the night in question^[18]), I find the patient was on a standard foam mattress. In any event, I note the plaintiff’s pleaded case, relying on the presence of an air mattress, was not pressed.

Mark Sakrewski’s evidence

35. [35]
    Mark Sakrewski is the nurse unit manager for ward 1C at the Nambour Hospital, a role he has held for 14 years (having been a registered nurse for 30 years).
36. [36]
    For Mrs Fox, significant reliance was placed on Mr Sakrewski’s evidence, when asked about his own experience of the task of turning patients, and raising the bed rails after doing this, as follows:

    1. (a)
       In his evidence in chief:

“Now, in your experience have you had instances where anything impedes the raising of the bed rail? – Yes. That can certainly be impeded by anything that comes out in between those rails or is on top of those rails.

And how would you know whether there’s something that’s going to impede the raising of the bed rail? – I would look to make sure that it’s free. If not, if something stops the easy movement of that mechanism, I’d have a look to see if there was anything in the road.”

2. (b)
   In cross-examination, Mr Sakrewski confirmed that he is aware the bedrails can become impeded from time to time. He agreed that it is possible that could be caused by the mattress being off centre on the bed base, or by the bedclothes that are on the bed. He also said he “would expect the bedrails to move freely”, “and if something stops that happening, I would ascertain why that is”. He agreed that when that happens, it’s something that’s unexpected; and he would then investigate to find out what the cause was.^[19]He also said “there’s nothing unusual about bedclothes impeding bedrails”.^[20]

37. [37]
    Mr Sakrewski said that pressure area care is not something that needs to be done with any urgency. He also noted, by reference to a computer generated administrative document called the “ward work allocation report”,^[21]which is a report generated on the basis of staff available hours and “patient required hours” (an average time, taking into account things including pressure area care, medication administration, the patient’s state of mind and the like) per shift, that for the night shift on 12 March 2012, Pam Sweeney had 1 hour and 20 minutes additional to the patient required hours. There is also an overall calculation (taking into account all staff on shift, and all patients on the ward), which showed a total of 53 available staff hours, and 30 patient required hours. Acknowledging that this is an administrative calculation, based on average times, Mr Sakrewski said that “as a manager”, those numbers indicate to him that the “acuity of the evening was quite acceptable”, “there was no problem getting the required work done within the hours allotted”.^[22]But he also acknowledged that the actual workload on any given shift is not consistent, and it is quite possible that a staff member, such as Pam Sweeney, may have been busy at various times during her shift on 12 March 2012.
38. [38]
    As to the frequency of the task of rolling or turning patients, Mr Sakrewski said “that task is completed on the ward 20, 30, 40 times a day”.^[23]
39. [39]
    For completeness, I note that two of the registered nurses on duty that night (Rebecca Dahm and Tracey Reese) were called to give evidence – but neither of them could recall anything about the shift.

Findings as to what occurred on the evening of 12 March 2012

40. [40]
    Mrs Fox (or perhaps her husband on her behalf) made a contemporaneous note about the incident, in her email of 14 March 2012. It could be said, in some cases, that such a note ought to be a reliable one, of what occurred, given its contemporaneity.
41. [41]
    But there are a number of aspects of the evidence given at trial (including by Mrs Fox herself), that call that into question. For example:

    1. (a)
       as to Mrs Fox “quickly [trying] to tuck in the slide sheet” – at trial, Mrs Fox clearly denied that a slide sheet was being used;
    2. (b)
       as to the mattress being “oversized” – Mrs Fox had no recollection of what the mattress was (and in fact, on earlier occasions, had instructed that it was an air mattress, but did not persist with that, it seems, in the face of the nursing care plan showing the mattress was a standard one);
    3. (c)
       as to Mrs Fox using her left hand to finish pulling up the rail – that is contrary to her evidence at trial, which was that she used her left hand (which is the hand she had used to pull the red knob to release the bed rail mechanism) to push the mattress out of the way; it being her right hand that she had been using, and continued to use, to lift the bed rail;
    4. (d)
       that she approached the EN “at this time”, saying that her shoulder was sore – Mrs Fox’s evidence at trial was that she complained of this later on; and
    5. (e)
       as to being asked to do other turns later in the shift, but it being lucky that some of the patients could position themselves, and others being easily managed by the “quite skilful” wardie – Mrs Fox’s evidence at trial was that after the patient in bed 2, she assisted Pam Sweeney with one, maybe two other patient turns, with no reference to any assistance from a wardie.
42. [42]
    There was no suggestion by or on behalf of Mrs Fox, in giving her evidence at trial, that she did not recall the incident, but considered the description in the email of 14 March 2012 to be an accurate reflection of what occurred. Mrs Fox simply gave the evidence that she could (acknowledging there were some details she did not know or could not recall). In light of Mrs Fox’s evidence at trial, the description of the incident in this email seems contrived.
43. [43]
    That gives me pause for thought about accepting other aspects of what Mrs Fox said at or close to the time of the incident – most relevantly, about being told by Pam Sweeney to hurry up.
44. [44]
    On the basis of an objective analysis of the evidence at the trial, I am not persuaded, on the balance of probabilities, of the truth of Mrs Fox’s evidence that she was told to hurry up. In this regard, I note in particular:

    1. (a)
       Mrs Fox’s evidence that the night shifts are not particularly busy – “you don’t do a lot at night”;
    2. (b)
       Mrs Fox’s evidence that on this particular night, she might have helped to turn one or maybe two other patients. Given that her shift commenced at 10.45pm, the incident is said to have occurred at 11.30pm, and she finished about 7am the next morning, that leaves another 7 hours (at least), during which she helped to turn maybe two other patients, and otherwise checked on patients to see if they needed something, and perhaps went into the pan room to do some cleaning up – that is not consistent with there being any hurry to do the task;
    3. (c)
       there was no other evidence from which I could infer that this particular evening (or this particular part of the shift on this eventing) was busy, or that there was any kind of emergency, which would have required Pam Sweeney to rush off immediately after turning the patient, or to require both Pam Sweeney and Mrs Fox to do so;
    4. (d)
       the evidence of both Mrs Fox and Pam Sweeney, as to the things that are done after checking the patient for pressure areas, in order to make them comfortable again.Mrs Fox acknowledged the need to ensure the patient’s comfort, and that you do not just rush off after turning a patient. But she did not make any reference to when this had been done, in the context of her lifting up the bed rail. The evidence supports a finding that either Pam Sweeney remained in the room to do this; or she left Mrs Fox there to do that – but does not support a finding that there was any need for them to both raise the bed rails in a hurried fashion;
    5. (e)
       Pam Sweeney’s evidence that she would not rush someone to do a job. In this regard, I accept that in some circumstances people may well say things that they otherwise would not say. However, when considered with the fact that there was no evidence of any rush, busy workload, or emergency, Pam Sweeney’s evidence of what she would (or would not) usually do, was persuasive; and
    6. (f)
       Mark Sakrewski’s evidence that pressure area care is not something that needs to be done with any urgency, and of the patient to staff time ratios on the evening in question.
45. [45]
    In terms of Mrs Fox’s evidence that she told Ms Sweeney, on the night, that she had a sore shoulder, and was given a sheet of Panadol, as already noted, Ms Sweeney had no recollection of the event when asked on 26 March 2012 (so just 2 weeks after the incident). Although it is reasonable to think that a person would remember the event, so soon after it occurred, it is not known what Ms Sweeney was asked. Mr Sakrewski has no independent recollection of his conversation with Ms Sweeney – only that he recorded, at the time, that she had no recollection of the event.It was not the plaintiff’s case that Pam Sweeney actually witnessed the incident. It may be that she was only asked if she was aware of an incident involving Mrs Fox and the bed rail. She may not have been asked about Mrs Fox requesting Panadol. In the circumstances, I do not draw any inference adverse to the plaintiff, from the fact that Ms Sweeney is recorded to have had no recollection of the event, on 26 March 2012.
46. [46]
    As to the evidence of Mrs Fox, that she overheard the registered nurse say to Ms Sweeney, that she should have “CARPed a wardie”, the only relevance of this is that, if accepted, the evidence might have supported a finding that Pam Sweeney was busy. It was not the plaintiff’s case at trial that a wardsman should have been called to carry out the task of turning the patient.^[24]In this regard, I note that:

    1. (a)
       Pam Sweeney’s evidence was that she would call for a wardsman if they had a large patient, or a patient that was very confused, or with dementia; and she later added that she might also call a wardsman “if we had a lot of work on”;^[25]and
    2. (b)
       turning a patient was not an unusual task for an assistant in nursing, such as Mrs Fox, to be required to do. Even if Pam Sweeney had called for a wardsman to assist – that would still have meant Mrs Fox was doing the task with them.
47. [47]
    Overall, having regard to the matters addressed in paragraph [44] above, I am not persuaded by this aspect of Mrs Fox’s evidence to any different conclusion on the issue of whether Mrs Fox was required to carry out the task of raising the bed rails, after turning the patient, in a hurried fashion. On the balance of probability, I find that Mrs Fox was not required to carry out this task in a hurried fashion; that she was not told by Ms Sweeney to hurry up.
48. [48]
    It is appropriate to briefly mention the evidence of Mr O'Sullivan, an ergonomist whose opinion was relied upon by Mrs Fox, and Dr Grigg, a consulting engineer, whose opinion was relied upon by the Hospital – each of whom were essentially asked to analyse the task carried out by Mrs Fox, the ability of a mattress to impede the bed-rail, and the impact of that on the task. Some points arising from the evidence of Mr O'Sullivan and Dr Grigg are:

    1. (a)
       the bed rails have three height settings:  lowest; middle; and highest (ie fully raised);
    2. (b)
       in order to raise the bed rail from the lowest setting, to the middle setting, it is not necessary to pull the red knob – the rail will move to that position simply by being lifted (this was the evidence of Dr Grigg,^[26]not challenged in cross-examination);
    3. (c)
       in terms of obstruction by a mattress:

       1. Mr O'Sullivan’s opinion is that it is possible for the mattress to be moved off-centre during patient handling;
       2. Dr Grigg considers this very unlikely:^[27]

       1. as to the prospect of a mattress moving during a patient turn, because the weight of the patient lying on the bed would control the force required to move the mattress laterally (with there being a higher resistance to movement with a standard foam mattress, compared with an air mattress).^[28]In this regard, I note that Ms Sweeney’s evidence was also that the mattress would not move with a patient on it;
       2. as to the prospect of a mattress moving as a result of the bed rail on the other side being raised, because for this to occur, the mattress would need to be bearing on the rail on that side, and as soon as the rail was raised, there would be no further force to push the mattress across towards the opposite rail.^[29]In this regard, I note that this is the scenario seemingly put forward by Mrs Fox to explain how the mattress had moved;

       (iii)but in any event, according to Mr O'Sullivan, the “top” rail of the bed rail is the most vulnerable to being resisted by the mattress and bedclothes;^[30]which would seem to suggest that any impediment to raising of the bedrail, from the lowest height setting, would be felt immediately (that is, it would not be possible to lift the bed rail part-way, before noticing the impediment).

49. [49]
    Thus there are a number of respects in which Mrs Fox’s evidence is somewhat at odds with these experts’ analyses of the mechanics involved in the task she was undertaking, because:

    1. (a)
       of the unlikelihood, on Dr Grigg’s analysis (consistent with Ms Sweeney, a person who regularly carries out the actual task), of the mattress moving during the process of turning a patient;
    2. (b)
       of the unlikelihood, if the mattress was moved as a result of Pam Sweeney raising the bed rail on her side, of that causing the mattress to move far enough over to impede the bed rail on the other side;
    3. (c)
       even if the mattress had moved across as a result of turning the patient, the movement of the bed rail would most likely have been immediately prevented (as opposed to being able to move part of the way, before stopping), because the mattress would be impeding the top rail – whereas Mrs Fox’s evidence seems to indicate being able to raise the bed rail part of the way before it stopped; and
    4. (d)
       there was no need to pull the red knob for the first part of the lift in any event.
50. [50]
    There is a certain artificiality to experts such as Mr O'Sullivan and Dr Grigg conducting the analysis that they each have in relation to the task described, and there were a number of aspects of their respective analysis that became irrelevant as the case evolved, in particular because of the significance originally attributed to the use of an air mattress (which was not persisted with). I do not regard it as necessary, to determine the issues in the case, to make specific findings about what Mrs Fox described, as compared with what these experts’ analyses revealed.
51. [51]
    Ultimately, I find that on the evening of 12 March 2012 Mrs Fox was lifting the bed rail on the patient’s bed, after having assisted Pam Sweeney to turn that patient; that this was a task carried out frequently; that she was not required to do it in a hurried fashion; and that she was aware, from previous experience, that the bed rails could sometimes become impeded in some way, and how to deal with that if it occurred. I accept her evidence that the raising of the bed rail was impeded in some fashion (whether that was by the mattress, or bed clothes, or a combination of both).

Did Mrs Fox suffer an injury?

52. [52]
    Mrs Fox describes experiencing pain following the incident, for which she went to see her GP the following day.Her GP recommended that she have an x-ray and ultrasound. That scan was reported to show extensive supraspinatus calcification and acute calcific tendonitis.Mrs Fox was treated with medication, as well as cortisone injections, which provided some relief.^[31]
53. [53]
    As her pain was persisting, she was referred for an MRI scan. The MRI, performed on 10 August 2012, revealed a full thickness tear of the supraspinatus tendon in Mrs Fox’s right shoulder, which had not shown up on the ultrasound scan.^[32]
54. [54]
    That tear was surgically repaired by Dr Marchant on 31 August 2012.^[33]
55. [55]
    For the Hospital, various matters were suggested to Dr Marchant and Dr Lawrie (who provided a medico-legal report for the plaintiff) as indicating the tear must have been more recent (including that it was not shown on the ultrasound scan, the degree of retraction of the tendon, and the amount of muscle wasting). However, neither of those doctors agreed with those suggestions.
56. [56]
    Dr Marchant said more relevant than the degree of retraction, was its ability to be reduced. He explained that in Mrs Fox’s case, the tear in the tendon was able to be easily reduced and repaired, in the sense of being brought back to its insertion point in the bone. He said that “means more likely than not that it’s more of an acute type injury”, rather than a chronic result. He was also of the opinion that the history given by Mrs Fox, his examination of her and the imaging (the MRI) was all consistent, on the basis of which he considers it likely that “the initial incident has had a significant causal role in the pathology that” he found. Although he considers there probably was some wear and tear in the tendon as a result of general activities of life, Dr Marchant said he did not consider that the nature of the full thickness tear that he observed clinically and at the time of surgery would be more likely to have been simply a constitutional or degenerative process.
57. [57]
    As to the ultrasound, which did not show the tear, Dr Marchant said that an ultrasound will show up a tear “most of the time”, but said it is not as accurate as an MRI, and said it is not unusual in his practice for an ultrasound not to indicate the findings shown in an MRI.
58. [58]
    Dr Lawrie also said that commonly you would expect an ultrasound to pick up a tear, but said “there’s a significant error rate with ultrasound”.^[34]
59. [59]
    Dr Lawrie expressed the opinion that the incident on 12 March 2012 did result in the tear of the supraspinatus tendon in her right shoulder.^[35]Among other things, Dr Lawrie considers that the mechanism of injury described by Mrs Fox is consistent with this injury.
60. [60]
    As to the effect of the degeneration accepted to be present in Mrs Fox’s shoulder prior to the incident, both Drs Marchant and Lawrie expressed the view that although you do not have to have degeneration to have a tear, and not all degenerative tendons do tear, a degenerative tendon “as an attritional process” is likely to tear at some point (Dr Marchant) and would be more likely to tear (Dr Lawrie).^[36]
61. [61]
    The Hospital relied upon the opinion of another orthopaedic surgeon, Dr Journeaux,^[37]who considers the majority of Mrs Fox’s symptoms are related to the “natural history of the constitutional condition with a very small aggravating component related to the incident at work”.^[38]In his written report, he described the injury at work as “relatively innocuous”, an opinion he said was based on (his then understanding that) Mrs Fox had not reported the incident for some months. In his oral evidence, he corrected this, acknowledging that he was mistaken, because Mrs Fox had seen her GP the day after the incident. He said this did not cause him to alter his opinion, however, because he did not believe that the action (described by Mrs Fox, of lifting the bed rail) would have caused that injury. He said “it just doesn’t fit in my view”.^[39]He further explained that, if any injury was caused by that action, “then the shoulder must have been problematic prior”, “the shoulder must have been degenerate in some way”.^[40]
62. [62]
    Dr Journeaux did not seem to take issue with the injury suffered by Mrs Fox being a rotator cuff tear. But his opinion differed from that of Drs Marchant and Lawrie, in so far as they considered the tear was caused by the workplace incident; whereas Dr Journeaux doubted that, and considered it more likely that Mrs Fox’s degenerative condition in her shoulder was the primary contributing cause.
63. [63]
    There was also tendered in evidence, by agreement, a report from a Dr Ho, also an orthopaedic surgeon, dated 15 August 2012 (so before the surgery was performed by Dr Marchant).^[41]Dr Ho refers to the presence of calcific tendonitis in Mrs Fox’s right shoulder, which he says is a pre-existing condition. He refers to some uncertainty about a rotator cuff tear, due to the poor quality of the MRI scan. But he also said, if she did have a genuine rotator cuff tear “it is highly likely it is related to her work injury described”.
64. [64]
    It is clear from Dr Marchant’s evidence that Mrs Fox did have a genuine rotator cuff tear. Dr Ho’s evidence is relevant in that context, in terms of the link between the work incident, and that tear.
65. [65]
    On balance, the evidence supports a finding that Mrs Fox did sustain an injury, in the form of a rotator cuff tear, as a result of the incident on 12 March 2012. It is reasonable to infer that, to some extent, constitutional factors, including pre-existing degeneration in her shoulder, contributed to the injury occurring. But there was nothing to suggest those factors rendered Mrs Fox anything other than an “ordinary worker”.^[42]
66. [66]
    In reaching this view, I have preferred the evidence of Drs Marchant and Lawrie, taken with the evidence of Dr Ho, to that of Dr Journeaux, to the extent that there was a difference of opinion between them, as to the cause of the tear being related to the incident on 12 March 2012.

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

67. [67]
    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.^[43]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.”

68. [68]
    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.^[44]
69. [69]
    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, which operate against the background of the common law principles,^[45]but modify them to an extent.

Application of s 305B

70. [70]
    Under s 305B(1), a person does not breach a duty to take precautions against a risk of injury to a worker unless:

    1. (a)
       the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
    2. (b)
       the risk was not insignificant; and
    3. (c)
       in the circumstances, a reasonable person in the position of the person would have taken the precautions (as to which, s 305B(2) is relevant).
71. [71]
    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.^[46]

Foreseeability?

72. [72]
    The identification of the risk of injury is central to the assessment of liability, because that informs what a reasonable response to the risk would be.^[47]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”.^[48]
73. [73]
    The relevant risk of harm in the present case is appropriately described as the risk that an employee such as Mrs Fox might sustain an injury in the course of raising the bed rails on a patient’s bed, by reason of an impediment preventing the bed rails from being raised.
74. [74]
    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.”^[49]

75. [75]
    Counsel for Mrs Fox emphasised the evidence of Mr Sakrewski, referred to at paragraph [36]above, and on that basis submitted that “the risk was not only foreseeable but was in fact foreseen”.
76. [76]
    But that evidence does not establish that the Hospital had actual knowledge of the risk of harm, as it has been identified – merely that it had knowledge that bed rails can sometimes become impeded by things like the mattress, or the bedclothes.
77. [77]
    There was no other evidence at trial of other facts, matters and circumstances, by reference to which it could be said the Hospital ought to have known of the risk of harm.There was no evidence of any previous incident arising from this task; no evidence of other staff members having an issue or concern with the task of raising the bedrails; no evidence of any complaints about difficulties with the task; no evidence of impediments to bed rails causing difficulties or injuries; and no evidence of publications or academic knowledge which ought to have been within the Hospital’s knowledge.
78. [78]
    Counsel for Mrs Fox submitted that knowledge of the fact that bed rails could become impeded made it incumbent on the Hospital to undertake reasonable inquiries to identify what risk of injury that might pose to its workers, and that if such an inquiry had been conducted – in the form of a risk assessment – that “would have identified the risk of injury” discussed by Mr O'Sullivan (a risk said to be posed to a female nurse being required to exert force exceeding recognised female shoulder elevation strength limits, when attempting to raise an impeded bed rail).^[50]However, counsel acknowledged that any such risk assessment could also simply have identified that there was no particular issue with the task and the way to deal with an impediment, or potential impediment, is precisely what was described by Mr Sakrewski and, for that matter, Mrs Fox.^[51]
79. [79]
    I am not satisfied that Mr O'Sullivan’s analysis provides a basis for concluding that, as at March 2012, the Hospital ought to have known of the risk of injury from the task Mrs Fox was engaged in.
80. [80]
    The raising of bed rails (whether in the context of turning patients for pressure area care or otherwise) is something that is done many multiples of times a day in the Hospital.This is a relevant factor, together with the absence of evidence described in the paragraph [77], to considering whether the Hospital ought to have known of the risk of harm.
81. [81]
    Although the presence of an impediment from time to time was foreseeable, there was a common sense means of addressing that – described by Mr Sakrewski, and also by Mrs Fox – take your time, if the free movement of the bed rail is impeded, look to see what the impediment is, and fix it up, before continuing to pull the bed rail up.
82. [82]
    On the evidence before the Court, the plaintiff has not persuaded me, on the balance of probabilities, that the Hospital knew, or ought to have known, of the risk of harm in this case.

Not insignificant?

83. [83]
    The risk of harm must also be “not insignificant” (s 305B(1)(b)), which refers to the probability of the occurrence of the risk. It is in respect of this second element, in s 305B(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”.^[52]
84. [84]
    For the purposes of s 305B(1)(b), the court does not reason retrospectively from the nature of the harm sustained by the person.^[53]To say the risk of harm is insignificant, is not to comment on the nature of the harm actually sustained; but rather on the probability of the risk of that harm eventuating.
85. [85]
    Although the fact that there was no evidence of previous complaints, or injury sustained as a result of raising the bed rails does not necessitate a conclusion that the risk of injury is slight, when that is considered with the fact that the raising of bed rails on patient’s beds is something that happens many times, in the course of each shift; and that turning patients is also a routine, regular task,^[54]it is reasonable to conclude that the degree of probability of the risk of harm eventuating was very low, such as to be “insignificant” within the meaning of s 305B(1)(b).

Would a reasonable person, in the circumstances, have taken the precautions?

86. [86]
    Finally, even if a different view be taken about whether the Hospital knew, or ought to have known, of the risk of harm; and whether the risk of harm was “not insignificant”, in my view the plaintiff has not established that a reasonable person in the position of the Hospital would have taken any particular precautions in relation to the risk of harm.
87. [87]
    This question requires focus on the allegations of negligence pleaded by the plaintiff.^[55]
88. [88]
    Many of the pleaded allegations of negligence fell away, but what remained were allegations that the Hospital:

    1. (a)
       failed to undertake a risk assessment of the task;
    2. (b)
       failed to provide any, or an adequate or sufficient training and instructions with respect to the task;
    3. (c)
       failed to warn of the risk of mattresses on the bed rail; and
    4. (d)
       required Mrs Fox to perform the task at speed.^[56]
89. [89]
    Before addressing these matters further, it is appropriate to address the evidence of Mr O'Sullivan.
90. [90]
    In simple terms, the focus of Mr O'Sullivan’s analysis of the task undertaken by Mrs Fox, as described by Mrs Fox^[57](which in some respects differed from her evidence at trial), was on the possibility of a mattress on the bed impeding the path of the bed rail (which might be obscured to some extent by the bedclothes on the bed), and the impact that might have on the person raising the bed rail, in terms of the level of force involved, particularly where the person is in a hurry, and not aware of the impediment. Mr O'Sullivan recognised the need for the mattress (of whatever type) to be reasonably well-fitting, because of the risk of patients becoming trapped, if there is too much of a gap between the mattress and the rail.^[58]That being the case, the possible counter-measures suggested by Mr O'Sullivan were:

    1. (a)
       to emphasise the overriding principle of avoiding rushingwhen performing any people handling tasks and any tasks involving physical effort;
    2. (b)
       to instruct staff to check the position of the mattress on a bedafter any manoeuvre to ensure that the mattress is centred on the bed frame and between the bedrails, and that the bedclothes are tucked in, both for the safety of the patient and to ensure unhindered movement of bedrails;
    3. (c)
       to instruct staff to raise the bedrail by way of a smooth effortand avoidance of rapid movement; and
    4. (d)
       to instruct staff to report any stiffening of the bedrails which is not due to an obvious obstruction, so that maintenance staff can deal with it.^[59]
91. [91]
    As to the last point, there was no suggestion in this case that there was anything stiff, or otherwise faulty, with the mechanism of the bedrail.The only evidence in that regard was the evidence of Mr Sakrewski, the nurse unit manager, that he checked the bed rail mechanism on the bed in question (the patient who was in that bed on 12 March 2012 was still there when Mr Sakrewski looked into the matter on 26 March), and found it was working as it should, there was no problem moving it.^[60]
92. [92]
    In his oral evidence, Mr O'Sullivan agreed that the significant aspect of the risk in the circumstances described by Mrs Fox is having to do the work in a hurried fashion – because if you are having to do the task in a hurried fashion, you may not appreciate the fact that there is an obstruction (from the mattress, possibly obscured by the bedclothes).^[61]
93. [93]
    As was submitted on behalf of the Hospital, “the thrust of the opinion of Mr O'Sullivan is that if Mrs Fox was not required to perform her task in a hurried fashion, then the risk of injury would have been minimised or avoided. Mrs Fox herself acknowledged that performing the work in an unhurried fashion would have enabled her to check her surroundings”.^[62]
94. [94]
    As to this matter, and the fourth of the allegations of negligence set out above, it follows from my finding at paragraph [44]above that I am not satisfied Mrs Fox was required to perform the task at speed.
95. [95]
    As to the first of the allegations of negligence referred to above, it was not disputed by the Hospital that no risk assessment of the task of raising bed rails on patient’s beds had been undertaken. In this case, the absence of a risk assessment in itself cannot be said to be causative of injury; it would need to be established that if such an assessment had been made, it would have concluded that there was a risk, and that there were steps to take in relation to that risk (and what those steps were) and that taking these would have made a difference to the plaintiff’s condition.^[63]The appropriate focus is therefore on the second and third allegations of negligence – whether it was reasonable to have provided specific training and warning – reflecting the counter-measures suggested by Mr O'Sullivan.
96. [96]
    On the matter of training, Mrs Fox said she received manual handling training when she first started working for Queensland Health in about 2010. She said this training was given at Caloundra Hospital.
97. [97]
    However, she said she had received no training regarding the use of bed rails on hospital beds.
98. [98]
    As part of the materials tendered by the plaintiff, there are academic transcripts, and course materials relating to the bachelor of health science degree Mrs Fox completed in 2009. It is apparent from that, that one of the subjects Mrs Fox completed was Clinical Nursing Studies II.^[64]The course materials for that subject, included within exhibit 16, indicates that it included, among many other things, bed making, manual handling techniques, and assisting with positioning of a dependent patient.^[65]
99. [99]
    Counsel for the plaintiff accepted that there is no question Mrs Fox knew how to use the bed mechanism, so she must have been shown how to do that. But he submitted that she had not received “specific training about safety issues relating to that activity, not so much the mechanics of it but in terms of taking your time, making an observation of the position of the mattress and blankets, carefully raising the bedrail, making sure that the mattress and blankets [were out of the way]”.^[66]
100. [100]
     But as counsel for the Hospital submitted, she did know what to do – because she said herself “sometimes the rail gets stuck, you know, with all the bedding and the mattress, but if you take your time and you’re relaxed, you can fix it up, you know, before you pull the rail up”.^[67]
101. [101]
     The difficulty with the plaintiff’s argument on both the remaining allegations of negligence – failure to train and failure to warn – is that, on the evidence, Mrs Fox was aware of what to do if there was something impeding the bed rails. It is difficult to see what more could be done, in terms of training or warning. For the plaintiff, nothing further was identified. The plaintiff’s case, in the end, depended on the contention that Mrs Fox was required to carry out the task in a hurried fashion. When that falls away, as I find on the evidence it must, there is no remaining basis on which to conclude that the Hospital has failed to do something which a reasonable employer, in its situation, would have done, even if I had found the risk of harm was foreseeable and not insignificant.
102. [102]
     In all the circumstances, I am not satisfied that the Hospital breached its duty of care to Mrs Fox. Her claim for damages for negligence must, therefore, be dismissed.
103. [103]
     Nevertheless, as is customary, I will proceed to address the quantum of damages that may have been recoverable, had a different view been formed about liability.

Quantum

General damages

104. [104]
     I have accepted that Mrs Fox suffered a rotator cuff tear, as a result of the incident on 12 March 2012, for which she required surgery performed by Dr Marchant in August 2012.
105. [105]
     After seeing her 3 months after the surgery, Dr Marchant reported to her GP that:

“… She is doing very well. She has no pain. Her range of movement is improving steadily and she is continuing to work hard with her physiotherapy.

I have advised her at this stage that I think she is doing well and I am happy for her to perform any activity that she feels comfortable doing…”^[68]

106. [106]
     Although his letter says “no pain”, in his oral evidence, Dr Marchant said, referring to his handwritten notes from the consultation, that he had recorded “minimal occasional pain only”.^[69]Although he had proposed seeing Mrs Fox again in another 3 months’ time, that did not occur, as Mrs Fox missed a number of appointments, and then treatment was discontinued by Dr Marchant.
107. [107]
     There is a record of Mrs Fox seeing her GP on 21 December 2012, when her doctor recorded “some pain right shoulder with doing too much at work... ROM [range of movement] quite good with near pain free abduction to 130 deg. Able to reach low of back. No pain with ext rotation. Suggest Supraspinatus repair progressing well…”^[70]
108. [108]
     The last time she saw any doctor about her shoulder was on 28 April 2014.^[71]
109. [109]
     She had some scarring on her shoulder from the surgery, which is addressed by Dr McGovern, a plastic surgeon, in his report dated 13 May 2014.^[72]There was no evidence about whether the treatment recommended by Dr McGovern had improved things for Mrs Fox in this regard, but nevertheless it is appropriate that this be factored into account.
110. [110]
     Mrs Fox said she does not suffer any symptoms in her shoulder “right now”, but sometimes gets pain in her shoulder, for example, “if I do repetitive tasks, if I do any – like if I wash my car or pick up heavy objects”. She described having difficulty with some household tasks such as mopping the floor; and gardening. She had previously described difficulty with a broader range of daily activities, as a result of a previous back injury, when seen by Dr Campbell in August 2008.^[73]
111. [111]
     Mrs Fox is no longer receiving any treatment for her shoulder, but said she takes Mobic (an anti-inflammatory). However, she also takes that medication for a neck problem (pain in her neck) she has been experiencing more recently. Mrs Fox sees her GP, a Dr Greef, about once a month for the neck problem. She could not recall how long this has been for. She also sees Dr Greef for “other things”, but she does not see her because of her shoulder.
112. [112]
     In terms of general damages, there was not a substantial difference of position as between Mrs Fox and the Hospital. For the Hospital, it was submitted Mrs Fox should be assessed as being within item 97 in schedule 9 to the Workers Compensation and Rehabilitation Regulation 2003(minor shoulder injury), but having an ISV of 5, which is the top of the range for that item, taking into account the scarring from her surgery. For Mrs Fox it was submitted she should be assessed as being within item 96 (moderate shoulder injury), because of the specific reference at item 96 to tendon tears as an example, and having an ISV of 6 (which is the bottom of the range for that item).
113. [113]
     Taking into account the nature of the injury, as well as the evidence regarding the surgical scar, I accept as appropriate Mrs Fox’s submission and assess general damages on the basis of an ISV of 6, therefore an amount of $7,500.^[74]

Economic loss

114. [114]
     Mrs Fox bears the onus of proving she has suffered, and will suffer, loss of income as a result of the injury sustained in the incident on 12 March 2012.
115. [115]
     Both parties accepted that any loss of earnings, whether in the past or into the future, is not capable of precise calculation. Accordingly, s 306J applies. The court may only award damages for loss of earnings if it is satisfied 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 other relevant matters (s 306J(2)).

The evidence

116. [116]
     Mrs Fox is a 62 year old woman (she was 58 at the time of the incident); recently separated; and with four adult children.One of her children suffers from a medical condition, and Mrs Fox has been her carer since about August 2015. She receives a full time carers’ pension from Centrelink for that role.She expressed some uncertainty about the continuation of that role, but I proceed on the basis that there is some likelihood it will continue.
117. [117]
     Mrs Fox attained her qualification as an assistant in nursing in December 2003.^[75]Prior to this she had been a full time “home wife”, raising her four children.
118. [118]
     Mrs Fox suffered an injury to her back in about 2007. That occurred when she was working in the nursing home at Kirra. She was assisting a patient in a wheelchair to go to the toilet, when the patient fell, putting all her weight on Mrs Fox, as a result of which her back was injured. Mrs Fox said that her back does still sometimes give her trouble, she gets pain, and takes Panadol for it. She said that she doesn’t lift really heavy boxes as “I wouldn’t want to reinjure my back again”. She acknowledged that in terms of any physical work, she would want to avoid anything that might aggravate her back injury as well.
119. [119]
     Medical reports relating to Mrs Fox’s 2007 back injury were tendered in evidence. One of those reports, from Dr Campbell, dated 16 August 2008, described her “prognosis with regard to return to work as an assistant nurse” as “poor”, saying that “any return to duties involving patient manual handling is likely to cause aggravation and deterioration of her condition”.^[76]He assessed Mrs Fox as having an 8% whole person impairment (due to the severity of her pain and the impact of her pain on the activities of daily living). In the context of this proceeding, concerning her right shoulder, Dr Campbell was spoken to by Mrs Fox’s legal representatives. When advised that in fact Mrs Fox had returned to work, in about mid-2010, and continued working as an assistant in nursing until she injured her right shoulder, Dr Campbell indicated he would have to revise his opinion. As recorded in the file note of this discussion, Dr Campbell said he believed the lower back injury, in the face of it being tested over a period of over 2 years, likely would not preclude her from working as a nurse or an assistant in nursing until normal retirement age. However, she remains at risk of re-injury to her lumbar spine if she continues in nursing type work which may require her to have a day off work here or there but should not threaten her ability to maintain employment.^[77]
120. [120]
     Mrs Fox obtained a bachelor of health science degree from Southern Cross University in September 2009.^[78]Following that, in 2011, she enrolled in a bachelor of nursing science course at the University of the Sunshine Coast. She received credit from her bachelor of health science degree towards this course, successfully completed two subjects in the first semester of 2011,^[79]but has not otherwise progressed with it. Mrs Fox explained that the reason she did not complete her degree was that her husband had an injury and was “out for three months”, and as a result she had to work, and it was very stressful for her, trying to study and work.Although she says she tried to resume her studies in 2013, she was told she had to go through QTAC again, and did not have the money to do the application form.
121. [121]
     Later in 2011 Mrs Fox enrolled in a diploma of nursing at the Sunshine Coast TAFE (to become an enrolled nurse).^[80]She did not complete this course. Her evidence as to why was that “when I told them I had the injury, they told me I couldn’t do the practical part of the course … [a]nd they told me to go home”.In Dr Campbell’s 2008 report, in relation to the effects of the 2007 back injury on Mrs Fox, he noted that Mrs Fox had not then been able to complete the practical sessions of her nursing course.^[81]
122. [122]
     Following the incident on 12 March 2012, Mrs Fox had some time off work (she was not sure of the time periods) but after seeing a Dr Hope she returned to work “with restrictions”. She was not doing any nursing duties, but was doing computer data entry work.
123. [123]
     Although in her evidence in chief Mrs Fox said she did not go back to work at the hospital at all, after the surgery performed by Dr Marchant,^[82]in cross-examination she said that she did go back to work, doing light duties (such as helping out in the equipment room, running around and getting things for people).^[83]
124. [124]
     However, she says she has not worked as an assistant in nursing, doing normal duties, since 12 March 2012.
125. [125]
     Mrs Fox gave evidence of attempts she has made to re-join the workforce. She was assisted by Red Cross Employment Services, a disability employment services provider, for a period of time. That organisation assisted her to prepare resumes, search for jobs, submit job applications, attend interviews and consider options for increasing skills/retraining.^[84]
126. [126]
     She has applied for jobs such as medical receptionist and sales work in pharmacies, as well as other retail sales work (including a candy shop and Bunnings). Although she did begin an online course in pharmacy sales assistance, which was paid for by WorkCover, she has done no training for other sales work generally, or medical receptionist work. She expressed an interest in doing a phlebotomy course (in order to work in pathology, drawing blood), but has not been able to afford the course.
127. [127]
     Mr Johanson, who manages a company called Job Placement Services Pty Ltd, gave evidence about the availability of employment for nurses. He described the employment opportunities for nursing staff on the Sunshine Coast as excellent, including assistants in nursing, enrolled nurses and registered nurses. In his written report, he said that “had the injury not occurred Ms Fox could have had a very secure and lucrative employment future”.^[85]In cross-examination, when he was told about Mrs Fox’s previous back injury, and her neck concerns that she sees her GP about once a month, he acknowledged that, apart from her shoulder injury, Mrs Fox’s back injury, and neck pain would also make it difficult for her to obtain employment. However, I note that Mr Johanson also drew a distinction between the physical duties and tasks required of an assistant in nursing, compared with an enrolled nurse or registered nurse, saying that someone with a back injury may be able to undertake a job as a registered nurse, but in the early days of lifting, carrying and supporting patients that would be and could be a problem.
128. [128]
     When asked how her shoulder interferes with her ability to do the work of an assistant in nursing, Mrs Fox’s evidence was “well, I haven’t done the work, so – but I was told by the doctor that it’s not a good idea for me to return to normal nursing work”.
129. [129]
     As to the medical opinions regarding Mrs Fox returning to work, Dr Lawrie considered that “Mrs Fox’s future earning prospects have been narrowed considerably” and that “she is unable to return to work in her chosen profession as an assistant nurse… [or] pursue her ongoing studies, … because of her inability to lift and perform strenuous manual tasks.”^[86] He noted Mrs Fox had been unable to work since her injury and that “she will require significant re-skilling to enter the workforce”.^[87] Dr Lawrie noted that Mrs Fox was undergoing retraining as a pharmacy assistant and stated that “she will be able to work as a pharmacy assistant and do light retail type work.”^[88]
130. [130]
     Dr Journeaux said that Mrs Fox’s “ability to work depends on her pain tolerance and motivation to work. She will have permanent restrictions as a result of her shoulder condition but note the majority of the restrictions relate to non-work related factors. She in my view is only suitable for sedentary or light manual work most likely on a part time basis.”^[89]
131. [131]
     For the purposes of this analysis, I proceed on the basis that the evidence establishes that at least to some extent, for the purposes of s 306J(2), Mrs Fox has suffered and will suffer loss of earnings as a result of her shoulder injury.

Past loss?

132. [132]
     In assessing the past economic loss suffered by Mrs Fox, the court is required to make an estimate as to what the chances are that a particular thing would have happened, and reflect those chances, in the amount awarded. The (hypothetical) question is, what would Mrs Fox have been able to earn, if she had not injured her shoulder on 12 March 2012?^[90]
133. [133]
     On behalf of Mrs Fox, it was submitted that the appropriate award is just under $170,000. This figure is calculated on the basis of:^[91]

     1. (a)
        earnings of $537 net per week (based on Mrs Fox’s net weekly earnings in the 2011 financial year, as an assistant in nursing), for 40 weeks to 31 December 2012, being an amount of $21,480;
     2. (b)
        plus earnings of $600 net per week for the year to 31 December 2013 (based on an estimated net weekly amount of $887 for an enrolled nurse, reduced to $600 to take into account that Mrs Fox may have been studying), being an amount of $31,200;
     3. (c)
        plus earnings of $995 net per week, for the 125 weeks from 1 January 2014 to 1 June 2016 (calculated on an estimated net weekly amount for a registered nurse), being an amount of $124,375;
     4. (d)
        less actual earnings since 12 March 2012, of $7,450.
134. [134]
     For the Hospital, it was submitted a global award of $40,000 is appropriate.
135. [135]
     There are a number of factors which ought to be considered in answering the hypothetical question above:

     1. (a)
        whether Mrs Fox would, or would not, have completed her further tertiary studies in nursing, and therefore whether she would have achieved a higher qualification than she currently has;
     2. (b)
        if she had, whether she would have worked full time, or part time while she did that (the calculations for Mrs Fox being based on full time work for the whole of each year, in contrast to the extent of her employment when previously studying);
     3. (c)
        the impact of her 2007 back injury, on her ability to work as an assistant in nursing, enrolled nurse or registered nurse, had she completed her studies;
     4. (d)
        the impact of her current neck pain condition, on her ability to work as an assistant in nursing, enrolled nurse or registered nurse, had she completed her studies; and
     5. (e)
        more recently, since August 2015, the fact that she has been a carer for her daughter, for which she receives a full time carer’s pension (the amount Mrs Fox receives as a carer is not taken into account by way of a deduction from any possible past, or future, earnings, but is taken into account as part of the hypothetical exercise).
136. [136]
     On balance, and acknowledging the imprecision in this exercise, in my view an appropriate award for past economic loss would have been $70,000, assessed globally, on the following basis:

     1. (a)
        assuming a total number of 217 weeks since the incident;
     2. (b)
        using the net weekly earnings of $537 as an assistant in nursing (taken from the 2011 financial year) – the speculation about whether Mrs Fox would have completed her studies, and therefore whether she would have worked as either an enrolled nurse or registered nurse being factored against her, but balanced by the sum being calculated on the basis of full time work for the whole period, factored favourably to her;
     3. (c)
        but then reducing the total amount by 40%, to allow for the possibility that the other factors may well have resulted in Mrs Fox not working, or not being able to work as much.
137. [137]
     To this figure, appropriate amounts for superannuation and interest would need to be added.

Future loss?

138. [138]
     As to the future, similar considerations are involved. However, the hypothetical question of how much Mrs Fox would have earned in the future had she not injured her shoulder on 12 March 2012 needs to take into account the factors identified at paragraph [135]above, and also whether she may have obtained other types of employment (for example, if she completed the pharmacy sales assistant’s course, or the phlebotomist’s course); the possibility of some other injury, to which she may be vulnerable as a result of constitutional factors identified in the medical evidence, affecting her ability to work; as well as her advancing age.
139. [139]
     Her claim for future loss of earnings was based on an estimated retirement age of 67 (a period of 4 years, 5 months from trial). Counsel for Mrs Fox calculated her future loss on the basis of an average of the rate of pay for a registered nurse (of $1,100 net per week^[92]), with a 5% multiplier of 211,^[93]reduced by 15% “for the usual vicissitudes”, giving a figure of $197,285.^[94].  In making that submission, counsel for Mrs Fox submitted that she is “realistically unemployable and will be for the next five years”, having regard to the fact her skills and experience are only in the nursing field, and her unsuccessful attempts to find work in other fields.
140. [140]
     In contrast, the Hospital submits that an appropriate award is $20,000.
141. [141]
     In my view, an appropriate assessment, consistent with the approach taken to the claim for past loss of earnings, but with a greater level of reduction, is $40,000, calculated on the basis of the earnings as an assistant in nursing, but proceeding on the basis of full time work for the 4 years, 5 months (resulting in an amount of $113,307, using the multiplier of 211), reduced by 65%, having regard to the number of other factors impacting on Mrs Fox’s ability to undertake employment to age 67.
142. [142]
     It is appropriate for an amount for superannuation to be added to this.

Other components of the award of damages

143. [143]
     The amount for past special damages was agreed at $24,110.55,^[95]as was the Fox v Wood component of $520.00.
144. [144]
     Although for Mrs Fox an amount of $5,000 for future special damages was submitted (said to be for occasional GP visits and pain medication), in my view that amount is not supported by the evidence (that Mrs Fox does not see a doctor about her shoulder any more, having not done so since April 2014, and although she takes Mobic, that is also for her neck pain).It would be appropriate to allow $1,000 for possible future medication.
145. [145]
     An amount of $34,665.40 would be refundable to WorkCover.

Orders

146. [146]
     There will be judgment for the defendant.
147. [147]
     I will hear the parties as to costs.