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McCormack v Ethnic Community Care Links Inc QDC 102
DISTRICT COURT OF QUEENSLAND
McCormack v Ethnic Community Care Links Inc  QDC 102
THERESE GAI McCORMACK
ETHNIC COMMUNITY CARE LINKS INC (ABN 62 585 723 613)
STATE OF QUEENSLAND
D392 of 2013
District Court at Townsville
19 April 2017 (and as corrected on 28 April 2017)
22 August 2016
Durward SC DCJ
TORTS – PERSONAL INJURIES – WORKER’S COMPENSATION – INJURY IN THE COURSE OF EMPLOYMENT – Workers Compensation and Rehabilitation Act 2003 – injury to employee – liability of employer – where the plaintiff is a client support worker – whether an overweight client of the defendant fell on the plaintiff whilst she was on duty – where facts in dispute – where defendant employer not present at the time of the incident and does not have direct knowledge as to what occurred
PRACTICE AND PROCEDURE – UNIFORM CIVIL PROCEDURE RULES – THIRD PARTY – DEFENDANT CLAIM AGAINST THIRD PARTY – THIRD PARTY DEFENCE OF PLAINTIFF’S CLAIM – where third party seeks to defend plaintiff’s claim – where third party seek to cross-examine plaintiff – where third party granted leave to act as a defendant – whether third party can cross-examine at large - extent to which third party bound by judgment between plaintiff and defendant.
TORTS – PERSONAL INJURIES – DEFENDANT CLAIM AGAINST THIRD PARTY – where the third party is the State of Queensland – where incident occurred in vicinity of a hospital –where third party’s employees assisting the plaintiff at the time of the incident – where defendant brings proceedings against third party pursuant to Crown Proceedings Act 1980 – where defendant claims third party liable to indemnity if damages awarded against defendant – where third party disputes plaintiff’s version of events – where third party denies negligence of its employees.
TORTS – PERSONAL INJURIES – WORKER’S COMPENSATION – DAMAGES – QUANTUM OF LOSS & DAMAGE – where plaintiff suffered injuries caused by the alleged incident – where extent of injuries in dispute – where plaintiff had existing health and medical conditions – where quantum in issue – where plaintiff continued to work after the accident in altered employment and capacity.
Sections 32, 305B, 305C, 305D, 305E and 305F Workers Compensation and Rehabilitation Act 2003 (Qld); Item 96 Workers Compensation and Rehabilitation Regulations 2003 (Qld); sections 6 and 7 Law Reform Act 1995; sections 28 and 29 Workplace Health & Safety Act 1995 Qld).
Crowe v Wheeler & Reynolds (1985) 2 Qd R 84; Coote v Richards  QCA 112; Harris & Anor v Commissioner of Taxation & Ors  QSC 108; Beven v Brisbane Youth Service Inc  QSC 163; Jones v Persal & Company (a firm)  QCA 386; Adeels Palace Pty Ltd v Moubrak  HCA 48; Bankstown Foundry v Braistina (1985) 160 CLR 301; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; Wyong Shire Council v Shirt (1979) 146 CLR 40; Hopkins v WorkCover Qld  155; RACQ Insurance Limited v Brennan  QCA 150; Fail v Suncorp  QSC 077; Medlin v State Government Insurance Commission (1995) 182 CLR 1.
Mr G Crow QC of counsel for the plaintiff.
Mr J Rolls of counsel for the defendant.
Mr M O'Sullivan of counsel for the third party.
Macrossan & Amiet for the plaintiff.
Mullins Lawyers for the defendant.
Crown Law for the third party.
- The plaintiff was a support worker in the employ of the defendant. Her duties included care and transport assistance to clients of the defendant.
- The defendant is a charitable services provider of, amongst other things, home care and carer respite to persons from culturally diverse backgrounds.
- The third party is responsible for the administration and operation of the Ayr Hospital (“the hospital”).
- In this proceeding the plaintiff seeks damages for personal injuries and other loss and damage, arising from an incident at the Ayr Hospital parking lot on 15 June 2011. The injuries are said to have been caused by the negligence/breach of duty/breach of contract of the defendant. The third party is joined to indemnify the defendant in the event that the plaintiff is awarded damages.
- Both liability and quantum are in issue.
- On 15 June 2011 the plaintiff attended the hospital to meet Mr Beltrame, a client of the defendant, for his dental appointment at the hospital. Mr Beltrame, whom the plaintiff was assisting in her capacity as carer, was grossly overweight. He arrived at the hospital carpark in a maxi taxi.
- When the plaintiff arrived at the hospital carpark, Mr Beltrame was lying face down in the stationary maxi taxi with his legs halfway out of the taxi. He appeared distressed. How he was positioned in the maxi taxi, who was present inside it with him at the time of the incident and the manner in which he was extracted from the maxi taxi are matters in contention between the plaintiff and third party. The defendant’s other employees were not present. Whilst it conducted its own enquiries, the defendant has no actual knowledge of the incident, other than what the plaintiff has reported to it.
- The issues are (a) whether the plaintiff acted within the scope of her duties in assisting Mr Beltrame in the way that she did; (b) whether Mr Beltrame fell into the plaintiff during the attempts by the hospital staff to extract him from the maxi taxi, causing her to fall backwards in the vehicle and suffer injury; and (c) whether the third party was liable to indemnify the defendant if the plaintiff succeeded on liability.
The ruling made in the course of the trial
- The defendant and the third party have a mutual interest in respect of both liability and quantum, arising from their respective direct and indemnification positions. The defendant admitted injury was suffered by the plaintiff, but did not admit causation. Whilst the issues between the plaintiff and the defendant are governed by the Worker’s Compensation and Rehabilitation Act 2003 (Qld) (the “WCRA”), the issues between the defendant and the third party are not.
- I was required to make two rulings in the course of the hearing that regulated the way in which the third party, in particular, could present its case.
- Firstly, Mr O'Sullivan for the third party applied for leave to defend the claim made against the defendant, subject to the scope of that grant of leave: that is, the number of the plaintiff’s witnesses the third party was permitted to cross-examine and the breadth of that cross-examination.
- I granted the first application, which was regulated in the following respects:
- (a)that the third party was to be bound by the judgment given in the proceeding between the plaintiff and the defendant;
- (b)that the evidence in the proceeding between the plaintiff and the defendant was to be evidence in the proceeding between the defendant and the third party; and
- (c)that the third party have leave to cross-examine in respect of the plaintiff’s claim against the defendant.
- Insofar as the leave referred to in paragraph (c) is concerned, I had anticipated that the third party would cross-examine the plaintiff’s witnesses and be at liberty to call witnesses and to address or make submissions at the conclusion of the hearing. Indeed, the third party cross-examined the plaintiff, her lay witness and Dr Cook, an orthopaedic specialist. There was no cross-examination by the third party of the defendant’s lay witnesses.
- Secondly, Mr O'Sullivan applied for leave to cross-examine Dr Morgan, the defendant’s orthopaedic specialist. That application opened up the possibility that issues the defendant was unable to pursue in the doctor’s oral testimony in evidence in chief, might be open to be pursued by the third party, despite those issues not having been the subject of any report by the doctor.
- I refused the second application.
- In the columns that follow I have set out the competing allegations as between the plaintiff, defendant and third party.
- In the Amended Statement of Claim at paragraph 5 the plaintiff alleged that the incident was caused by the negligence and/or breach of contract and/or breach of statutory duty of the defendant, its servants and/or agents, expressed in the following terms:
Plaintiff’s Amended Statement of Claim
(d) Causing, permitting and/or allowing the plaintiff to be exposed to a risk of damage and/or injury of which it knew or ought to have known.
5.4. [Denied]. The plaintiff acted beyond the scope of her duty by deciding to place herself closer to Mr Beltrame’s body and to assist him in being lifted. The employer did not instruct the plaintiff to take these actions. The employer could not reasonably foresee the risk of this specific situation occurring.
(f) Failing to properly train the plaintiff.
5.6. [Denied]. The plaintiff underwent a thorough induction process which equipped her to carry out her work duties in a safe and appropriate way. By assisting with the lifting of Mr Beltrame she has acted outside the scope of her employment.
(g) Organising a taxi to collect Mr Beltrame from his home to take him to the dental appointment when it was known he experienced falls on a regular basis and had difficulty fitting into a maxi-taxi.
#5 [Denied]. It was not reasonable to do so. There was no ambulance available in the Burdekin Shire capable of transporting Mr Beltrame. The nearest available ambulance was 110km away in Townsville. At the time of the incident, this ambulance would only collect patients in Ayr if they had specialist appointments in Townsville itself.
(h) Failing to organise a specialised ambulance to transport Mr Beltrame to his dental appointment as recommended to the defendant by Belinda Wills, occupational therapist who carried out an assessment of Mr Beltrame on 18 January 2011.
#5 The failure to provide an alternative vehicle was not causative to the plaintiff’s injuries.
(i) Failing to organise a double seater wheelchair for Mr Beltrame so that he could be transferred from his home by taxi in a double seater wheelchair to his dental appointment and avoid any possibility of his falling and requiring assistance.
#5 [Denied]. It was Mr Beltrame’s option to purchase a double seater wheelchair if he chose. Disability Services Queensland did not provide Mr Beltrame with a double seater wheelchair. The defendant requested a quote for a double seater wheelchair but was not responsible for providing one to Mr Beltrame.
(q) Causing, permitting and/or allowing the plaintiff to accompany the client, Mr Beltrame, who had a history of falls without any mobility aids and/or wheelchair equipment.
#5 [Denied]. The defendant was [not] responsible for providing Mr Beltrame with mobility aides and/or wheelchair equipment.
Contributory negligence is pleaded.
Defendant’s Statement of Claim against the Third Party
Third Party Defence
The defendant alleges that the plaintiff’s injuries were caused via the negligence of the employees of the Ayr Hospital who attended on Mr Beltrame:
(i) failing to lift Mr Beltrame in a safe manner;
(ii) lifting Mr Beltrame in a negligent manner such that he fell onto the floor of the maxi-taxi and caused injury to the plaintiff;
(iii) failing to perform a risk assessment of the situation at hand;
(iv) failing to utilise or consider the utilisation of mechanical aids to assist in the removal of Mr Beltrame from the maxi-taxi.
Admitted that it was responsible for the administration and operation of the Ayr Hospital and for any acts or omissions of its employees performed during the course of their employment with the third party. Any greater responsibility than thus pleaded was denied as untrue.
Admits factual circumstances, save for the way Mr Beltrame was lying (either face down or face up), which is for the court to determine.
Evidence on liability
Induction and Training
- The plaintiff underwent some training after 17 May 2010, as a support worker. She had an induction on 24 May 2010 conducted internally by Ms Papale. She had done some external training in February 2007 in ‘nail technology’ and in February 2010 as a ‘carer’.
- The defendant provided to employees an ‘Employment Handbook for Support Workers and Volunteers’ (issued as revised in July 2009), which it refers to as a ‘guideline’ (“the handbook”) – Exhibit 11.
- The handbook sets out the terms and conditions of the plaintiff’s employment and refers to the rights and responsibilities of support workers and volunteers. It includes, inter alia, the exercise of proper care and skill when performing services, attending orientation programs and relevant training and reporting incidents/accidents immediately to the office on the day they occur. It also refers to ‘Setting Professional Boundaries’, including not giving out a home phone number without the case manager’s permission, not subjecting oneself or family to the strain of being “on-call” for the client’s problems outside of working hour and not letting the client have the employee do things that are beyond a support worker role, because it would be against the organisation’s policy to do so (and gives simple examples) or to do anything contrary to the guideline.
- Reference is made in a section ‘Training & Meetings’ to induction training having been given and to attendance at seminars and workshops in the course of normal training. In the section titled ‘Reporting Hazards’ recognition of hazards are said to be every worker’s responsibility: if an employee is injured at work he or she should seek medical attention immediately and, if the incident results in a workers’ compensation claim being made, they should ensure that all necessary work cover documentation is completed. The employee is offered help with completing any paperwork.
- In a section dealing with back injury, the employee is advised to read a document titled “A Worker’s Guide to Back Care”. One of the examples of work that the employee is not permitted to undertake involves lifting a client from the floor. The handbook continues: “… if the client[s] cannot help themselves up using a nearby chair/bed, you will need to have assistance from another person or ambulance. Make client comfortable whilst waiting”.
- The plaintiff had read parts of the defendant’s employment handbook and she had not lifted any client from the floor and she understood that if a client could not help themselves she would require assistance from another person or an ambulance and would make the client comfortable whilst waiting. She said that she could not give assistance if someone else was performing lifting because “you are not allowed to”.
- The training material (‘back-care’) was inadequate: ‘making client comfortable’ is not explained in a contextual way. The reference to ‘performing lfting’ is to a lift of a client from the floor. The context of that expression is quite clear in the training material. Mr Beltrame’s size and weight were such that a contemplated in the training material would have been impossible. No such ‘lift’ was attempted or made in this case.
Plaintiff’s account of the incident
- Mr Beltrame was a large man, weighing about 190kg, with both physical and intellectual disabilities. He arrived at the Ayr hospital in a maxi-taxi. He wore a calliper on his left leg. His left arm was not fully functional.
- The plaintiff had been instructed to meet Mr Beltrame at the hospital and when she arrived the taxi was already there. The plaintiff had driven her own car to the hospital and upon entering the carpark saw Mr Beltrame lying face down on his stomach on the floor of the maxi-taxi. His legs were hanging out of the sliding door of the taxi. The plaintiff said he appeared visibly distressed, was crying and trying to get himself upright. She was shocked by what she saw of Mr Beltrame. She said she was kneeling or sitting on the floor talking to him. She told him to stay there.
- The plaintiff rang her employer and told Ms Comas about the situation and asked that she call either the fire brigade or an ambulance for assistance. She recalled that approximately four telephone calls were made to Ms Comas. During the first telephone call Ms Comas told her to “just sit there with him and keep him calm”. The plaintiff said that her instructions from Ms Comas were to comfort Mr Beltrame. She recalled that at about the fourth telephone call she was told by Ms Comas that help would be on its way.
- The plaintiff said she got into the maxi-taxi through the wheelchair access entry in order to comfort Mr Beltrame and knelt on the floor in front of Mr Beltrame at his head. The interior rear of the taxi had a bench seat behind the interior divider. She talked to him and tried to keep him calm by telling him “everything is going to be alright and we’ll get you out of here as soon as we can”.
- A number of the hospital employees then came out to assist, including two male wards persons (“orderlies”). The two male orderlies were outside the maxi-taxi with one standing on each side of Mr Beltrame’s legs. One had Mr Beltrame’s left forearm, and the other his right forearm and they pulled each arm backwards in an attempt to lift him.
- The plaintiff said that whilst the orderlies were pulling Mr Beltrame backwards out of the maxi-taxi she was kneeling about half a metre away from his head. She “…was talking to [Mr Beltrame] in his ear and the other persons were present right in front of her.” She was leaning forward and lightly touching him on the shoulders “just to keep him calm and let him know [she was] still there and that he didn't need to worry”. The plaintiff’s hands were on Mr Beltrame’s shoulders and “…as he was going back with them, I was going with them” without any real pressure. She was “lightly pushing him…just going with his body”. In the process of being pulled, Mr Beltrame either slipped or the orderlies dropped him Mr Beltrame “leant on me and just all of a sudden I just had the biggest pain in my shoulder”. She struck her right shoulder on the nearest leg at the front of the corner of the seat. She sustained injuries as a result of that event.
- Whilst she was told to comfort Mr Beltrame she was not given any further or more specific direction about what that entailed. Ms Comas never told her that she could not help Mr Beltrame, but the plaintiff agreed that it was not her job to assist Mr Beltrame ‘physically to go anywhere’, because “he’s too big”. I do not consider that she did so.
- After the incident there was a staff meeting at the defendant’s office and she reported that she had suffered an injury and she just went home. Her shoulder was aching but she said “you just put up with it”. She thought she might have pulled a muscle.
- The plaintiff said she was not told by the defendant’s supervising staff to complete an incident report. She did so after a subsequent incident when then asked to do one. Her right arm was in a sling at that time and she only signed the document. It was filled in by someone else and backdated.
- The Incident Report is dated 15 June 2011. It includes the following information provided by the plaintiff:
“He slipped, falling on my shoulder – I didn’t have any obvious injury at the time, so I didn’t seek any medical attention,”
and the following notation by the defendant’s supervisor Ms Papali, made on 05 July 2011:
“Worker used her caring and first instincts to assist the client as taxi driver was showing no assistance towards the client. Therefore worker … contacted the office.”
- Ms Papali also said that “correct procedures were not followed… when client ‘has a fall.’”
- I do not agree with the statement about ‘correct procedures’, which I will discuss further.
Defendant’s understanding of the incident
- In its pleadings, the defendant says it does not know and therefore cannot admit what occurred at the Hospital. There is no issue about that pleading response. However, the defendant accepts that the plaintiff called Ms Comas about the plaintiff’s difficulty and was told to “comfort” Mr Beltrame.
- Ms Comas was at the time of the incident the senior information and technical officer. Her role included attending the reception and dealing with phone calls. In that context she was the plaintiff’s “supervisor”.
- She gave a different account of the telephone conversations between the plaintiff and herself. She told the plaintiff during their first telephone call: “I said all right, calm him down, the help will come. So I just – I said keep in touch with me.” Ms Comas said she then spoke to the case manager, Ms Maria Papale, and was given permission by Ms Papale to call the hospital emergency services.
- Ms Comas said she then called the plaintiff and said: “help is on its way, calm down… tell Mr Beltrame, you know, that help is coming. I was trying to calm her down, said, ‘Don’t be silly. Don’t do anything silly. Just wait for the help’”.
- Ms Comas only recalled the two conversations described above but agreed that there may possibly have been one more. I accept the conversations as described by the plaintiff. She was at the scene and was focused on the situation at hand. I prefer her evidence to that of Ms Comas and Ms Papali.
Third Party’s understanding of the incident
- The third party called four hospital staff as witnesses. Mr Beltrame was known to all staff due to his prior attendances at the hospital for various medical/health reasons.
- Ms Marano, a clinical nurse in the Outpatients Emergency Department at the time of the incident, received a call whilst on duty there about a situation that had developed in the carpark. She went into the carpark alone, but returned and asked for an orderly to attend with her. She recalls two orderlies then went with her to the maxi taxi. She did not recall how Mr Beltrame was positioned but she recalled that he appeared distressed.
- Ms Marano says that when the orderlies got there she “let them do their thing” and “as far as I know, they just talked to him and tried to instruct him to stand up and get out of the taxi”. She was “sort of behind them” whilst the orderlies were with Mr Beltrame. She agreed that “when the wardsmen were trying to get Mr Beltrame out of the taxi she really couldn’t see what was going on inside the taxi at all”. However, she recalls Mr Beltrame somehow being extracted from the taxi and then pushed into the hospital in a wheelchair.
- Ms Warcon, an orderly, said that at the time of the incident she, two other orderlies and Ms Marano were at maxi taxi. She saw Mr Beltrame “half in the taxi, half out”, facing down and on his stomach. She put Mr Beltrame’s “legs underneath him to get leverage to go up”.
- Ms Warcon does not recall what the other staff were doing during the incident but said that they eventually extracted Mr Beltrame from the taxi by putting his feet under him, getting him up and putting him in the wheelchair. She recalled someone being around the taxi whilst they were extracting Mr Beltrame but she “[did not] recall exactly what they looked like or who [the person was]”.
- Mr Davies, an orderly, attended the carpark where he saw Mr Beltrame “halfway down the stairs, leaning into the stairs, and his leg was caught on one of the stairs, sort of”. He said that he thought it was the leg with the caliper that was caught. He observed that Mr Beltrame was distressed.
- He helped Mr Beltrame out of the taxi: “we just grabbed him, just helped him out: sort of grabbed his leg and helped him – pulled him out, sort of stood him up beside the taxi”. In cross-examination he was not sure whether he had grabbed Mr Beltrame by the legs or by the arms.
- He recalled someone else was in the taxi: “a lady sitting up… on the seats” but thought that she was “at the rear [of the] taxi”. However in cross-examination he said he really was not sure where the lady was. He could not recall whether Mr Beltrame had landed on the lady or not.
Mr Olsen, an orderly, said that he was asked to help at an incident in the car park involving Mr Beltrame whose “leg was caught somewhere in the taxi, and he was complaining about his leg because he couldn’t get up, and he was caught inside the taxi … it was a van type taxi with a middle door, and he was caught somewhere in the door”. He could not recall much of this incident. When asked if he remembered a female being present and accompanying Mr Beltrame he said “I only really remember Andrew [Mr Beltrame] in the taxi, and that’s all I was concentrating on”.
Other liability evidence
- Occupational therapist Ms Willis made a report addressed to the defendant dated 24 January 2011, after a request was made by the defendant “following a series of multiple ongoing falls at home.” The report referred specifically to Mr Beltrame’s needs. Ms Willis wrote that for community access, “a specialised ambulance which caters for the bariatric population needs to be arranged from Townsville should Mr Beltrame require transport assistance for medical appointments.”
- The Plaintiff’s lawyers wrote a letter dated 01 August 2016 to occupational therapist Katherine Purse requesting information about the transport of bariatric patients. In a report dated 04 August 2016, Ms Purse described the planning requisites of bariatric patients and their carer persons that, it seems, would involve the use of a risk assessment. Such an assessment required an enquiry as to the “environment in which the transport is taking place, as well as the carer availability and their level of skill and training.” The report also referred to the maintenance of “the safety, dignity and confidence of the patient and carer.”
- Ms Purse gave the following advice:
“The recommendation would have been that Mr Beltrame be transported in a bariatric wheelchair in a vehicle with a suitably designed lifting device. It is my understanding that most maxi-taxis with wheelchair lifter would meet the requirements for weight and wheelchair dimensions.
Alternatively, the Townsville Ambulance Service provides a bariatric patient transport service which can be arranged upon referral from a patient’s doctor and nurse. Ms Willis has also made this recommendation in her report of 24 January 2011.
Given even this limited information, it is quite clear that Mr Beltrame was at a high risk of falls and was not going to be able to safely mobilise to the level required to use a maxi-taxi in an ambulatory manner. His body weight alone indicates that it was unsafe for carers to assist with any mobility or transfers without appropriate equipment”
[that] The costs of bariatric wheelchairs varies depending again on a range of user factors such as weight and anthropometry, ability to self-propel, ability to transfer, requirement for lower limb, back and upper limb supports …”
Submissions on Liability
- Mr Crow submitted that there was little by way of factual dispute between the parties. He submitted that the defendant’s employee, Ms Comas did nothing more than direct the plaintiff to comfort Mr Beltrame. The plaintiff denied that she was told anything else. Indeed, the defendant’s amended defence says as much in paragraph 4.7. He submitted that the plaintiff had “lightly pushed” Mr Beltrame in carrying out her duties and that she could in any event “assist with lifting”, if that was a matter that she was required to do.
- He submitted that the defendant had foreseen issues in the care of and assistance to Mr Beltrame and had sought occupational therapy advice and received recommendations. However, the defendant failed to provide the means of assistance that had been recommended, which could have been done with little trouble or effort and at minimal cost to the defendant. In any event, he submitted that the last resort for the defendant was to withdraw the care and assistance services from Mr Beltrame until it was safe for their employees to provide it.
- Mr Crow had submitted that the defendant had not pleaded contributory negligence. Certainly, the amended defence does not plead contributory negligence in the customary way, such as was pleaded in the defence of the third party, but I am satisfied that paragraph 5.17 of the amended defence sufficiently raises contributory negligence.
- Finally, Mr Crow submitted that the statutory provisions in Queensland dealing with duty of care, its scope and its application were relevant in this case and should be taken into account. He submitted that the defendant’s negligence and breach of duty were established on the plaintiff’s evidence.
- Mr Rolls submitted that there was significant factual dispute. The defendant had no direct knowledge of what had occurred at the hospital car park. He confirmed that the plaintiff had rung the defendant’s office and was told by Ms Comas “to comfort” Mr Beltrame. He submitted that on the evidence there was no ambulance available in the Burdekin Shire capable of transporting Mr Beltrame to the hospital and that the defendant did not provide wheelchairs, including double-seated wheelchairs, to its clients. He submitted that only a local maxi taxi was available to transport Mr Beltrame. As to equipment being supplied for use by Mr Beltrame, the defendant did not supply the type of equipment required although he referred to evidence that it had previously hired wheelchairs from Red Cross, but they failed and closed down, a few years ago.
- He submitted that the plaintiff was simply to meet Mr Beltrame at the hospital and be present through his dental appointment to give assistance in interpreting conversation between the dentist and Mr Beltrame. He submitted that there was no requirement or expectation for the plaintiff to enter the taxi.
- He referred to the plaintiff having reported in a document given to her employer that she was “fine” after the incident and referred to the fact that she continued to work for the defendant and also in her night filling job at Woolworths, post incident.
- He submitted that the plaintiff gave inconsistent versions as to what she said she did. The left shoulder was more likely to have been implicated in the contact with the seat, not the right shoulder. This is speculative at best and ignores the dynamics that are inherent in the evidence of the plaintiff. He referred to the plaintiff’s “training” and her “instructions”. He said that Ms Comas’ evidence was not challenged by the plaintiff. There is no inconsistency with the plaintiff’ evidence.
- Mr Rolls said the defendant’s obligation was to take reasonable care. It discharged that obligation by reason of [Exhibit 11 and Ms Papale’s evidence of induction instructions]. There was no negligence or breach of duty established on the plaintiff’s case.
- With respect to the liability of the third party, Mr Rolls submitted that the hospital staff “allowed the plaintiff to be in close proximity to the extraction process”.
- If a finding to the contrary was made, in favour of the plaintiff, then the third party was responsible because of its greater control over what occurred at the hospital, to the extent of 75% of the liability. He said that the third party had allowed the plaintiff to be in close proximity to what was a dangerous and unstable situation in the carpark and that its employees failed to remove the plaintiff from that environment and permitted her to participate by providing assistance to its employees.
- Liability was denied. Mr O'Sullivan submitted that the plaintiff did not come up to proof about causation. He submitted that the particulars of negligence alleged by the defendant were not put to any of the third party’s witnesses. There was no observance of the rule in Browne v Dunn by the defendant.
- He submitted that there was no evidence that anyone lost grip of Mr Beltrame and there was no proof of any negligence on the part of hospital staff. He said that the hospital employees had no notice that Mr Beltrame was to attend at the hospital. There was nothing more that the staff could have done in the circumstances to reduce the risk to anyone’s health or safety or what it was that they could otherwise have done. Mr O'Sullivan submitted that “the predicament encountered by hospital staff was merely caused by matters completely outside [their] control”.
Mr O'Sullivan submitted that the defendant did not cross-examine the hospital staff as to what they might have done to better manage the situation (in effect, a Browne v Dunn issue). Mr Rolls made a frankly unintelligible response in his submissions, to the effect that there was no need to “rechallenge their evidence in relation to [what had happened in extracting Mr Beltrame]”. That statement ignores the fact that the relevant evidence is not restricted to the defendant’s case against the third party, because in my view in a holistic sense it cannot be divorced from the liability evidence at large.
- He submitted that the plaintiff, in her handwritten statement, said she “pushed” Mr Beltrame up. That was beyond the scope of her duty. In her Notice of Claim she referred to an “attempted lift” which was something more forceful than a push. The plaintiff’s evidence did not establish ‘light touching’ of Mr Beltrame, but rather it was pushing and she was not required to do this.
- He submitted that at its highest, the evidence of hospital employees as represented by Mr Davies’ statement, “I thought we just grabbed him, just pulled him down and… put him up”.
- The plaintiff bears the onus of proof on liability for negligence and/or breach of duty in respect of any fact relevant to the issue of causation, on the balance of probabilities: s 305E WCRA.
- The defendant’s duty as an employer was to take reasonable care to avoid exposing the plaintiff to unnecessary risk of injury. The standard of care of the reasonable employer in setting up, implementing and maintaining a safe system of work must take into account foreseeable risks of injury, including those arising from the employee’s own negligence and the possibility that employees may take risks they consider necessary to do their work: McLean v Tedman (1984) 155 CLR 306.
- In Jones v Persal & Co (a firm)  QCA 386 White J at  that a duty upon an employer to foresee a “casual act of folly on the part of an employee not engaged in the task in hand” would “impose an unreasonable obligation on the [employer] and be inconsistent with its duty under the [WHSA]” (my underlining).
- The underlined statement above distinguishes Jones from this case. The plaintiff was carrying out her work task under the direction of the defendant’s supervisors. What is in issue is whether she should have been inside the maxitaxi and whether she should have placed her hands on Mr Beltrame as he was being removed by the hospital staff.
- I do not consider that the conduct of the plaintiff was in any way “careless.” Nor was it an “act of folly.” She was carrying out her work task that had been simply described as “comforting” Mr Beltrame. He was in a very distressed state as the defendant knew or at least must have known. His fall was a real risk that the defendant knew about, had sought and received expert advice about but had not given clear and unequivocal instructions to the plaintiff as to the extent of the “comfort” she should provide to Mr Beltrame.
- As was the case in McLean v Tedman, it was the way in which the plaintiff was expected and instructed to carry out her task that exposed her to a risk of harm in dealing with Mr Beltrame in his particular situation, he being a client that had a history of falls, would inevitably and understandably become distressed if he fell and created the need for a compassionate response from the plaintiff. That is what the plaintiff did in carrying out her instruction to “comfort” the client.
- In Wyong Shire Council v Shirt (1980) 146 CLR 40 at  in the judgment of Mason J (Stephen and Aickin JJ agreeing), his Honour held:
“A risk of injury which is quite unlikely to occur… may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.”
- The risk in this case was real. It was not farfetched or fanciful. It was plainly foreseeable. So what should the defendant have done to avoid that risk?
- In Beven v Brisbane Youth Service Inc  QSC 163, the rhetorical question referred to above was asked by Atkinson J at , in a case involving voluntary social work where a worker was sexually assaulted by a client. Her Honour’s answer to the question was:
“In this case, given the potentially serious consequences of that foreseeable risk eventuating, [the defendant] should have declined to continue to offer further services to T. The work of [the defendant] is important and socially valuable but that social value does not displace its duty of care to its employees. [The defendant] was aware that it was risky to Ms Beven to see T at her house. What the employer, however, failed to take account of was that when its employee saw T at her house on a regular basis, as was shown by her behaviour first to Ms Turner and then to Ms Christie, this led her to develop and express an unhealthy and unacceptable level of intimacy and sexualised behaviour towards that employee. True it is that the sexual assault did not occur in T’s home, but the visits by Ms Beven to T’s home as part of her work for [the defendant] created the relationship between T and Ms Beven which gave T the opportunity to take advantage of that relationship to engage in inappropriate sexualised behaviour towards Ms Beven, in this case a sexual assault.”
- The High Court set out the duty of care of an employer to an employee in Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, per Dixon CJ and Kitto J who held (at p 25) that the duty “…is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury.”
- Atkinson J wrote in Beven at , that the application of what constitutes a reasonable standard of care is a factual matter. Indeed, her Honour made the following observation, by reference to Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at , that I summarise: that the trend over time to safer work practices, the ‘development of legal principle’ and the greater capacity of employers to implement means of avoiding the risk of harm to employees, has evolved to a higher level obligation.
- As for the issue of whether there has been a breach of the duty to take reasonable care, Mason J in Wyong held at :
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.”
- Her Honour also wrote:
“ There is no policy reason why the employer should not be held liable or, to put it in the terms of s 305D(i)(b), it is appropriate in all of the circumstances for the scope of the liability of the employer, who was in breach of its duty, to extend to the injury caused by that breach.”
- Quite apart from common law duty, the statutory provisions that impose the duty should be taken into account: Adeels Palace Pty Ltd v Moubarak  239 CLR 429 at  and ; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.
- Sections 28 and 29 of the WHSA are relevant with respect to the duty owed to employees by employer.
“28 Obligations of persons conducting business or undertaking
- (1)A person (the relevant person) who conducts a business or undertaking has an obligation to ensure the workplace health and safety of the person, each of the person’s workers and any other persons is not affected by the conduct of the relevant person’s business or undertaking.
- (2)The obligation is discharged if the person, each of the person’s workers and any other persons are not exposed to risks to their health and safety arising out of the conduct of the relevant person’s business or undertaking.
- (3)The obligation applies—
- (a)whether or not the relevant person conducts the business or undertaking as an employer, self-employed person or otherwise; and
- (b)whether or not the business or undertaking is conducted for gain or reward; and
- (c)whether or not a person works on a voluntary basis.
29 What obligations under s 28 include
Without limiting section 28, discharging an obligation under the section includes, having regard to the circumstances of any particular case, doing all of the following—
- (a)providing and maintaining a safe and healthy work environment;
- (b)providing and maintaining safe plant;
- (c)ensuring the safe use, handling, storage and transport of substances;
- (d)ensuring safe systems of work;
- (e)providing information, instruction, training and supervision to ensure health and safety.”
- Sections 305B and 305C of the WCRA provide general principles relevant to the standard of care owed by an employer.
“305B General principles
- (1)A person does not breach a duty to take precautions against a risk of injury to a worker unless—
- (a)the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
- (b)the risk was not insignificant; and
- (c)in the circumstances, a reasonable person in the position of the person would have taken the precautions.
- (2)In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
- (a)the probability that the injury would occur if care were not taken;
- (b)the likely seriousness of the injury;
- (c)the burden of taking precautions to avoid the risk of injury.
“305C Other principles
In a proceeding relating to liability for a breach of duty—
- (a)the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
- (b)the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
- (c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.”
- Section 305D of the WCRA provides general principles with respect to causation.
“305D General principles
- (1)A decision that a breach of duty caused particular injury comprises the following elements—
- (a)the breach of duty was a necessary condition of the occurrence of the injury (factual causation)
- (b)it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).
- (2)In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.
- (3)If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach—
- (a)the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
- (b)any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
- (4)For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.”
- The common law duty in respect of standard of care of an employer and as refined over time, remains extant despite the subtlety (as it might sometimes be expressed) in the statutory expressions in section s 305B, C and D. That common law duty constitutes the principles expressed in Wyong.
- Section 32 of the WCRA provides a definition of “injury” as “An injury is personal injury arising out of, or in the course of, employment.” So far as is relevant in this case, the employment is a significant contributing factor to the injury and includes an aggravation of a personal injury, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation.
- I do not consider that the duty of care owed by the defendant to its employees is varied or displaced by the charitable, social or community value or utility of the work carried out by its employees.
- The defendant had appropriate advice as to how to deal with Mr Beltrame: that is, to provide for use and respect of his transportation a bariatric ambulance or bariatric wheelchair. It did not do so.
- Furthermore, the support given to a client such as Mr Beltrame cannot be proscribed with specificity so as to cover all foreseeable events. It is unrealistic to require a support worker to provide undefined “comfort” to Mr Beltrame when the emerging situation (such as in this case) may be quite dynamic, given his history of falls – a matter of fact known by the defendant.
- The plaintiff did comfort Mr Beltrame. She was inside the taxi for that very purpose. I see nothing unreasonable about her placing herself in a position close to his head as he lay face down in the vehicle in a highly distressed state. Indeed, it would be hardly comforting for her to have been outside the vehicle speaking to him at arm’s length. The fact that she placed her hands on his shoulders as the others outside the vehicle pilled him up in order to bring his legs outside the vehicle so as to place him in a wheelchair, seems to me to be a perfectly natural, compassionate and comforting act as part of a process where the hospital staff were, in my view, doing the bulk of the physical effort to move Mr Beltrame. Whether she was “lightly touching” or “pushing” does not alter the fact that she was doing what she was told to do, as an incident of her employment, by the defendant.
- It follows that the plaintiff did not act outside the scope of her employment. The handbook and other training/induction documents did not specifically cover the situation faced by the plaintiff.
- Indeed, it is plain on the evidence that all that the plaintiff was told to do by Ms Comas was “to comfort” Mr Beltrame. She was not told anything else. Further, Ms Papale confirmed in testimony that the plaintiff could “assist with lifting.”
- If the defendant was unwilling or unable to do what it was advised to do by Ms Willis, it should not have exposed the plaintiff to what I consider to be plainly foreseeable risks to her health and safety that were inherent in her providing support to Mr Beltrame and created by requiring her, in the course of that “support”, to meet Mr Beltrame in the course of his hospital dentist visit, which necessitated him travelling in a maxi taxi that was not equipped with a bariatric device and in circumstances where no bariatric wheelchair had been provided.
- The defendant was negligent and failed in its duty of care to the plaintiff, and by reason of that failure she suffered physical injury for which the defendant is responsible. The foreseeability of the risk to the plaintiff was real. It would not have sought the expert advice of Ms Willis and in order to help provide a safe and proper system for the defendant’s employees and for the proper care of Mr Beltrame, if that were not so. The defendant did not act upon the expert evidence it sought and received from Ms Willis. I consider that it was unreasonable for it not to so act.
The third party
- Insofar as the third party is concerned, the hospital employees who were the third party’s witnesses, shed limited light on what occurred during the incident. They each do not recall the majority of the incident. Ms Warcon and Mr Davies recall someone being in or around the taxi during the incident. Ms Warcon, Mr Davies and Mr Olsen recall Mr Beltrame being half in and half out of the taxi (his legs hanging outside) at the time of the incident.
- No witness recalls precisely how Mr Beltrame was extracted: Ms Warcon says Mr Beltrame’s feet were put under him but does not say whether either his hands or feet were pulled; Mr Davies recalled that Mr Beltrame’s legs were pulled; and Ms Marano and Mr Olsen either cannot recall or do not know. None of the witnesses recall Mr Beltrame being dropped, or being dropped onto another person in the taxi.
- The hospital staff appear not to have been told of Mr Beltrame’s visit and were not ready to receive him, but acted relatively promptly to provide assistance when confronted by a difficult, distressing and dynamic situation in the carpark. They did what they could in circumstances of Mr Beltrame’s arrival in a maxi taxi in which he had fallen and was unable to get upright without the physical assistance of and physical exertion by others. They eventually were able to extract him from the maxi taxi and put him into a bariatric wheelchair (as I understand) which they had provided in order to take him into the hospital.
- I do not see what else the hospital staff could have done in those circumstances, other than what they did. The defendant has failed to demonstrate by any evidence what they could or should have done.
- There is no liability of the third party. It follows that the defendant is not entitled to indemnity or contribution by the third party.
- The defendant alleges contributory negligence by the plaintiff should the plaintiff succeed on liability against the defendant and pleaded:
“5.1.7. Further, the defendant says the plaintiff is fully responsible for her own injuries by:
- (a)acting outside the scope of her duties by assisting with the lifting of Mr Beltrame;
- (b)positioning herself where she was likely to be injured if the lifting of Mr Beltrame was undertaken incorrectly by the hospital staff.”
- The third party also alleges contributory negligence by the plaintiff and pleaded:
“7(d) Further and, in the alternative, the third party states that if this Honourable Court determines that the plaintiff did suffer injury and the pleaded accident then in that circumstance the third party states that any injury suffered was caused or contributed to by the negligent conduct of the plaintiff in:- (i) acting outside the scope of her duties with and contrary to instructions by her employer, the defendant, in assisting to lift or manoeuvre Beltrame; and (ii) positioning herself where she was likely to be injured when hospital employees were lifting Beltrame and transferring him to the wheelchair for transport to the dental clinic.”
- The claim for contributory negligence arises pursuant to section 6 of the Law Reform Act 1995, for indemnity or contribution. Section 7 of the Law Reform Act 1995 provides that “the amount of the contribution recoverable … shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage.”
- That exercise of discretion involves a comparison of the relative culpability of the parties of the extent to which each has departed from a standard of care that is reasonable. The whole of the conduct of each party falls to be considered and the court is to be cognisant of the relative importance of the conduct of each party in causing the damage: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492.
- The defendant asserts that the third party was more directly involved in the conduct giving rise to injury to the plaintiff and its employees were able to observe the plaintiff and assess any risk in doing what they did. That being the case, the third party should bear the majority of the contribution.
- For the third party it is asserted that the predicament encountered by the hospital staff, who had no notice per se of Mr Beltrame’s visit (albeit, he had a dentist’s appointment), was caused by matters outside the employee’s control. There was no evidence of any negligence supporting any vicarious liability of the hospital employee’s during the course of their rendering assistance to Mr Beltrame. There was no evidence that he fell on any person or that the plaintiff complained that she had been hurt. It was the defendant who had an agreed system of work and it was the plaintiff who acted in a way contrary to that system and to the instructions or expectations of her employer.
- Section 305F of the WCRA refers to contributory negligence.
“305F Standard of care in relation to contributory negligence
- (1)The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the worker who sustained an injury has been guilty of contributory negligence in failing to take precautions against the risk of that injury.
- (2)For that purpose—
- (a)the standard of care required of the person who sustained an injury is that of a reasonable person in the position of that person; and
- (b)the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.”
- I do not consider that the plaintiff failed to comply in any practicable or other sense with the instructions given by the defendant’s supervisors in respect of her health and safety. Nothing was provided in the way of mechanical or mobilisation equipment to provide for Mr Beltrame’s movements. Nor did she undertake her duty as instructed by the defendant, that is to provide comfort to Mr Beltrame, in any sense of there being an obvious risk to her health and safety by reason of her proximity to him in the maxi taxi and the efforts, primarily by the other persons outside, to raise Mr Beltrame from where he was lying prone and immobilised on the floor of the maxi taxi. Further, the plaintiff had attended the induction and other training provided by the defendant and there was nothing in that training or instruction that is relevant in the circumstances that arose in this case, other than the fact that she was given an instruction and she carried it out in a context where it could not be said, in my view, that she acted in any way that was unreasonable or inappropriate.
- I am satisfied that the defendant has, albeit in an unusual fashion, pleaded contributory negligence. However, the defendant has failed to prove the plaintiff’s conduct contributed to her injury. I do not consider that the plaintiff in doing what she did, in circumstances where I have found that she did what the defendant required her to do, in the holistic sense that I have described, was contributorily negligent on her part.
- It follows that the allegation of contributory negligence by the defendant (and the third party) has not been proved to any degree and consequently they fail in that allegation.
Resolution of the Liability issue
- I find that the defendant is liable for the injury caused to the plaintiff. The injury was the direct consequence of the negligence and breach of duty of care of the defendant. The findings appear in the discussion (supra). I also find that the third party is not liable to indemnify the defendant.
- The Amended Statement of Claim includes the following in respect of the quantum claim:
- The defendant and third party each pleaded that the injuries and their consequences were not causally connected to the motor vehicle accident.
- The plaintiff claimed, and the defendant and third party responded, in their pleadings the following:
- Past loss of income and past loss of superannuation. The defendant pleaded that the claims were not supported by evidence and were disproportionate;
- Special damages. The defendant pleaded that these were overstated and unsupported;
- Future economic loss on the basis of significant limitation/restriction in the workplace, unfitness for light work where there was repetitive use of the right shoulder/arm required, a disadvantage on the open labour market and limitation on daily hours of work. The defendant pleaded that this was not proportionate to the injury or disability;
- Future expenses concerning medication, care and assistance, AAMI roadside assist and household expenses. (The defendant pleaded these were excessive and there was need demonstrated for them).
- Given my finding that the Third Party is not liable for indemnity or contribution, the quantum focus primarily concerns the plaintiff and the defendant.
- The details of specific claims are discussed further in the judgment, as is necessary. The WorkCover refund (expenses) and WorkCover and Fox v Wood were agreed in the pleadings.
- At the time of the hearing, the plaintiff resided in a de facto relationship on a small acreage property in the Burdekin. Her date of birth is 18 January 1967. She is now aged 50 years. She left school in Grade 8 at age 13 years and worked in various unskilled jobs over a four year period. She married at age 20 and has two adult children.
- Following the birth of her children she returned to the workforce in 1992, at about age 25 years. She was employed as a night-filler for Woolworths (for four years), house cleaner (for six years) and as a kitchenhand at Hall Creek Mine. She injured her lower back in the latter employment and was off work for about five months. Upon return to work in that employment she managed her back pain and avoided duties that aggravated the pain. She subsequently worked as a hotel cook (for six months) and in her own business as a nail technician (for four years). Her income from the latter employment was supplemented by other part-time work.
- Thereafter, she worked in hotels/clubs in various capacities and as a night-filler for Coles and Woolworths. At Woolworths she worked five to six hours in the evening, 20 hours per week and sometimes worked on a Saturday morning.
Employment with the defendant
- The plaintiff commenced work with the defendant as a support worker on 17 May 2010, working 15 to 20 hours per week on a few weekday mornings.
The injury and its sequelae
- The plaintiff injured her right shoulder in the incident on 15 June 2011. After the incident she continued working for the defendant and on a casual basis at her night-filling work for about a week and a half, but (between the subject incident and the subsequent incident involving the bathing of a patient) she worked only every second night doing light work. She said her employer knew she couldn’t lift cartons of any significant weight and she didn’t do that sort of work.
- In those two weeks or so between the subject incident and the incident involving the client in the shower she did not take sick leave because her work was “an easy job. All you had to do is get in the car and drive somewhere or take someone to a shopping centre or sit with someone. So it wasn’t as if I was doing anything extreme.”
- WorkCover payments ceased on 18 July 2012. She subsequently did some volunteer work in early 2014 and in June that year relocated with her partner to Karumba where they operated a hot bread shop.
- She worked in the business as a shop assistant and did the bookwork. Her hours were about 46 hours over five and a half days per week during the busy time of a seasonal year. The business is supported by casual employees working 30 hours or so and by a baking assistant (working a 55 to 65 hour per week at $25 per hour). The plaintiff is unable to do the baking work because it involves lifting weights above head height and at a distance which causes discomfort in her right shoulder.
- She said that she did some cleaning duties at the hot bread shop and put items in and out of display cases although most of the girls did all of that. She said she had to keep using both arms to keep them mobile. The hours of work that she did in the business reflected the busy season and was not all of the time. She said she had to be at the bakery “to do things” and that the staff did the shopfront and things associated with that and she would go out the back and do paperwork. The 46 or so hours per week that she might work “doesn’t mean I’m in the front serving people all the time”. Her back never gave her any trouble when she worked for the defendant or in the night-filling jobs. She did not agree that her pre-existing back condition stopped her from doing heavy work.
- She agreed that from late in June 2014 and since she had no medical attention concerning the shoulder because she was in Kurumba and there was no point in doing so.
- At the time of the hearing, the plaintiff was uncertain as to the continuity of the business and as to her fitness for work in competition with other more able bodied persons on the open labour market, because of her physical limitations, such as repetitive handling of objects (of a weight that causes discomfort) and the number of hours she can work daily.
- She said the shoulder interfered with her work at the hot bread shop at Karumba and but for the injury she would have been able to do more physical work such as that which she and her husband pay people to do. She said she would have stayed working for Woolworths and working for the defendant if she had not suffered the injury and the business of the hot bread shop was undertaken so that she could remain with her partner.
- Her right shoulder pain (and radiation of pain to her hand) interferes with her sleep and with her driving of motor vehicles. She has had treatment for pain, has had physiotherapy and underwent surgery with Dr McGuire. The surgery performed by Dr McGuire helped her right shoulder “a little bit”.
- She did have other health issues over time but nothing remarkable for someone of her age and nothing relating to the right shoulder. She said the work that she was able to do at the bakery was light work.
- She has a reduced capacity to have her arm elevated and to do some of her domestic tasks. She purchased a motoring assistance membership in case she needs to change motor vehicle tyres. She sees her general practitioner quarterly for scripts, has used home gym equipment in the past and does swimming sometimes, for exercise. She has in the past ceased pain medication because of its side effects. She currently takes only Panadol Osteo painkillers and an anti-depressant.
- At the meeting in the defendant’s office after the subject incident and during the birthday celebration, she was observed to have her arm extended and slightly elevated. A photo (Exhibit 16) was tendered. The plaintiff said she was standing behind the birthday employee and she put her arm out and up and “got a pain”. She said that in the original photo (rather than the photocopy that was tendered) “you can see my face and you can see I was in pain…when I moved my shoulder up”. She said it was when she moved it forward that she felt the pain. [In other words, as I understand her evidence, she was not feeling pain before she made the gesture].
- She said that at the present time, some years after the injury was suffered, she had more pain and could not travel in a motor vehicle as well as she used to.
- With respect to the tax returns and financial material tendered in the hearing, she believed the information contained in them to be true and correct to the best of her knowledge because the information from her MYOB was given to the accountant to prepare.
Medical report notes
- WorkCover on 31 October 2011 noted Dr Maguire reporting on 19 November 2011 that the plaintiff suffered “injury to right shoulder on 15.06.11. On reduced hours … light duties. Tendentious right supraspinatus.”
- The medical note described the fall of Mr Beltrame was “with his full weight [that] traction[ed] her right arm and she developed severe pain in her shoulder which has failed to resolve”; and on 12 January 2012 “tenderness to sub acromial region at the AC joint.”
- On 04 April 2012 the following is reported from an MRI: “a partial thickness tear of rotator cuff, marked sub-acromial inflammation and some degenerate change within her AC joint [and] some degenerate change in her cervical spine which is giving her some of the redicular pain down her arm”.
- There is a further note on 13 June 2012 which refers to an arthroscopy acromioplasty of the right shoulder and a note that it is not stable. It was noted that Dr McGuire disagreed with a contrary opinion expressed by Dr Ness. There is a further notation of an MRI investigation of the cervical spine dated 20 March 2013.
- Dr Cook provided a report dated 20 March 2007 regarding another incident at an earlier date than the subject incident, described as follows: whilst in the course of kitchen duties, the plaintiff had felt a “popping” and pain in her lower back. She was treated relatively conservatively and had physiotherapy. She continued to experience pain when working as a cook. Increased hours of work led to an aggravation of her lower back pain. She left that occupation and subsequently did nail technician work.
- The pain was described as extending at times to the left calf muscle. She had headaches when the pain flared up. She also suffered numbness/tingling around her tailbone if she had to sit for too long. A CT scan in December 2005 disclosed minimal degenerative changes in the lumber spine, but at L5/S1 “a small central posterior disc protrusion” was described. An MRI scan in February 2006 disclosed essentially, a normal lumber spine. No disc prolapse was seen.
- Dr Cook diagnosed a de-generalised musculo-ligamentous injury and/or soft tissue injury to the lumber-sacral spine; aggravation of very early degenerative changes at L4/5 and L5/S1; and injury to the left sacroiliac joint. He thought there was room for improvement and the problem had been overcome to a large degree. He thought it, at the time of this report, premature to assess any permanent or partial impairment.
- Dr Cook provided a report with respect to the subject incident dated 01 June 2013, following a consultation on 24 January 2013. He also gave oral testimony.
- He was informed of the incident with Mr Beltrame and that hospital staff were ‘getting him up’ in the taxi. He recorded that the plaintiff was also inside the taxi, “pushing in order to help the others but then the client fell backwards onto a steel frame of the seat in the taxi, injuring her right shoulder”. She had reported the incident on that day but nothing was said or done then, although she continued to have right shoulder pain. She reported that the pain gradually got worse as she worked at the night-filling job and in the carer’s job over the next 10 days.
- The further [shower] incident on 01 July 2011 occurred and she had complained of “sudden sever pain in her right shoulder”. Dr Cook noted there had been surgery on 13 June 2012. He reported that the plaintiff had no recollection of ‘accidents, injuries or problems of any sort’ in relation to her right should prior to 15 June 2011.
- Dr Cook diagnosed “soft tissue injury to the right shoulder resulting in a partial thickness or intra-substance tear of the supraspinatus tendon, a tear of the labrum (SLAP Lesion), tearing of the transverse ligament anterior right shoulder allowing dislocations of the long head of the biceps tendon” (which he noted had all been treated surgically by Dr McGuire).
- Dr Cook opined that there had been a direct injury to the right acromioclavicular joint and “aggravation to nil to very minimal pre-existing degenerative changes of osteoarthritis in the right acromioclavicular joint”.
- Dr Cook said that he “felt” (that is, was of the “opinion”) that as at 24 January 2013, the plaintiff “was not fit for any form of work even of the light nature … [with] no constant or repetitive use of the right shoulder and arm…[no] handling of any objects of more than 1 or 2 kg and [no] work above shoulder height”. He felt that the plaintiff would “not be able to carry out any work of a heavy, moderately heavy or even work of a light nature with the above limitations and restrictions”.
- Dr Cook assessed 13% permanent partial impairment of the right upper limb and 10% permanent partial impairment of the right acromioclavicular joint, with a WPI of 13% (all subject to a time of a further [6-8 months] to allow further improvement.
Consultation by plaintiff’s lawyers with Dr Cook
- The plaintiff’s lawyers consulted with Dr Cook prior to the trial. In that consultation the following record (expressed by way of summary by me) was made.
- Dr Cook had assessed the WPI of 13% on the clinical examination conducted on 24 January 2013. Dr Morgan had assessed the 12% WPI based on clinical examination on 1 August 2013. Dr Cook agreed with Dr Morgan’s assessment of a WPI at 12%, on the basis that there may have been some very slight improvement between the dates of the two examinations but nothing significant and he thought Dr Morgan’s assessment ought to be considered as one of maximum medical improvement. He agreed that it was reasonable to assume that in the absence of the accident the plaintiff would have continued in an asymptomatic manner, as reported by Dr Morgan and that therefore there was a link between the accident and her ongoing circumstances. He agreed with Dr Morgan’s opinion that theoretically, if the plaintiff could control her pain, she might be able to find a very light office job with a sympathetic employer.
- However, Dr Cook considered the area of disagreement between he and Dr Morgan was the apportionment of one-half (6%) of the permanent impairment only to the accident by Dr Morgan. He understood that Dr Morgan had taken a view that the resection and arthroplasty of the acromioclavicular joint could not be causally linked to the incident. He supported his opinion, different from that of Dr Morgan, on the following bases:
- The multiple investigations carried out on the right shoulder…showed no significance pre-existing degenerative changes in the right shoulder and only mild or early changes in the right acromioclavicular and there would be considered to be no more or less than age related.
- The operation note of Dr McGuire indicated to Dr Cook that the surgery carried out was appropriate, in view of the failure of conservative treatment. Dr Cook agreed completely with Dr McGuire and his findings upon the operation.
- He was of the view that if the plaintiff had not sustained her injury on 15 June 2011, she would have been able to continue working until normal age of retirement without any difficulties or problems from her right shoulder, assuming retirement age to be around 65 years.
- The plaintiff, when seen by him in January 2013, had denied any previous injuries or problems of any sort in relation to her right shoulder prior to the date of the incident. He said this was consistent with Dr Morgan’s report, provided the plaintiff’s history was accurate and correct. He expressed the view that the whole of the assessment was appropriate and did not require any apportionment in respect of any pre-existing degenerate changes.
- Dr Morgan provided a report dated 02 August 2013 following a consultation on 01 August 2013. He also gave oral testimony. He reported that the plaintiff complained of ongoing right shoulder discomfort, particularly a “near constant” ache of variable severity with an associated burning sensation. The discomfort was made worse by most shoulder activities. On clinical examination he reported that the right shoulder girdle was characterised by wasting of the deltoid and the supraspinatus. He noted previous surgery: there was a 3cm scar over the anterior aspect of the joint that had lost 20% of flexion, 20% of abduction and 40% of internal rotation. Extension was restricted by 10%. The right biceps muscle had lost 10% of normal power and appeared to be slightly lower in the arm than the other side. He surmised that there had been some de-functioning of the long head of the biceps tendon.
- He reviewed imaging reports and said the plaintiff had described what appeared to be a direct blow applied to the joint from an antero-superior location and that considerable force may have been applied. There was a very strong temporal link between the onset and persistence of her discomfort and the accident. He thought it was possible that the plaintiff had sustained some form of soft tissue injury to the rotator cuff. He said that had it not been for the accident it would be reasonable to assume that the plaintiff would have continued in an asymptomatic manner. Therefore he considered there was a link between the accident and her ongoing circumstance.
- Dr Morgan assessed a total loss of 12% WPF. He considered that the surgery she underwent had not involved the acromioclavicular joint and could not be causally linked with the accident. Therefore only half of the measurable loss was attributable to the injury that is, 6%. He considered the plaintiff’s future remunerative prospects were seriously compromised: she would have difficulty with any activity involving use of the right upper limb, especially in a horizontal or overhead position. He thought that she was capable of work in administrative or clerical occupation. He thought that she would benefit from some outdoor domestic assistance with customary chores.
- In cross-examination, Dr Morgan said there was some sort of indirect link between the various claimed incapacities (including future economic loss, domestic assistance) with the assessment of 12%. He confirmed to Mr Crow QC that it was reasonable to conclude that without the accident the plaintiff was likely to have remained asymptomatic and there would have been no need for Dr McGuire to attempt the surgery that he performed. She also would not be suffering the 6% WPF due to the acromioclavicular joint partial re-section.
- In re-examination he said that part of Dr McGuire’s surgery was directed at matters linked with the accident and part was not. He said the surgery appeared to be a reasonable step. The part that was not linked with the accident was the excision of the outer end of the clavicle (the de-functioning of the acromioclavicular joint), which caused an impairment of 6% WPF.
Submissions on quantum
- Mr Crowe submitted there were no inconsistencies in the plaintiff’s evidence and that the court should accept her as an honest witness. He said that the plaintiff had received cortisone injections for her shoulder, underwent surgery and had several months of physiotherapy and guided rehabilitation exercise. That was independent evidence of the plaintiff’s disability and the effect it had on her capacity to work.
- He submitted that the defendant had not discharged the onus of proving with specificity any contributing effect of the plaintiff’s back condition and could not now say that it was a matter to take into account.
- He submitted that the plaintiff’s earnings in the 2011 financial year were $442.00 per week (working for the defendant and for Woolworths) and that this was evidence of her earning capacity. She would have continued working at that level but for the shoulder injury. As it is now the position, she and her partner took a life-change decision and moved to Karumba and the bread shop business. The business has incurred expenses solely as a consequence of the plaintiff’s incapacity, which the plaintiff would ordinarily be entitled to claim half by way of damages.
- He and Mr O'Sullivan were in agreement about the correct assessment for pain and suffering.
- Mr Rolls submitted that the plaintiff’s demeanour immediately post-incident was contrary to her having suffered any identifiable injury. There was no consultation with a doctor until much later in time. Mr Rolls submitted that the evidence of Dr Morgan should be accepted, that any injury was fairly minor and the subsequent and unrelated injury suffered during showering Mr Papale in July was more serious.
- It was submitted that in the 2011 financial year the plaintiff earned income of about $349.00 net per week for a period ending June 2014, less 12 weeks for possible post-surgery absence from work, arriving at a figure of $48,000.00 for past loss of income.
- He submitted that there was no specific evidence of future economic loss and that the plaintiff’s pre-existing back condition – “she was never destined to do heavy work [sic]” - was a relevant matter to take into account. He submitted that a global assessment of $30,000.00 ought to be made with future loss of superannuation to follow that figure.
- Finally he submitted that there was no evidence supporting any award in respect of medication, gym equipment or future medical consultations and that the Fox v Wood claim “is what it is”. The interest figure was agreed.
- Mr O'Sullivan submitted that the back condition was significant but it was unrelated to the incident. That condition alone prevented the plaintiff from doing any moderately heavy work. He submitted that any injuries suffered in the incident had only a marginal effect on the plaintiff and any such effect was only short-term. He submitted that the plaintiff had conceded in the ‘Incident Report’ that Mr Beltrame fell onto her shoulder.
- He submitted that the injury suffered was a moderate shoulder injury.
- Loss of income was $450.00 per week for one year and $500.00 for two further years. The plaintiff had thereafter worked full-time in the bakery for long hours. The financial records provided were largely unexplained and unhelpful.
- The other quantum figures were interest for 5.08 years. Future economic loss was assessed at $30,000.00 and he adopted the quantum statement (with a 50 percent deduction) for future loss of superannuation, future medical expenses and special damages.
- I am satisfied that the dynamics of the causation are as described by the plaintiff. Mr Beltrame fell back and into contact with her and the plaintiff’s right shoulder was forced into the metal leg of the seat in the maxi-taxi. She suffered immediate pain to a previously asymptomatic shoulder. She received conservative treatment but surgery became necessary, carried out by Dr McGuire.
- There is really no controversy in the medical evidence. The difference between Dr Cook and Dr Morgan is the 50% apportionment that Dr Morgan applied to their agreed WPI of 12%. I am satisfied that the difference arises out of Dr Morgan’s early assessment without full appreciation of the detail of the surgery. He considered that but for the incident the plaintiff “would have continued in an asymptomatic circumstance”.
- I find that the surgery is causally linked to the incident and, applying the principles discussed in Hopkins v WorkCover Qld  155, at  – , the WPI is 12%. The injury is a moderate shoulder injury – Item 96, at or near the top of the range.
- An ISV of 15% is appropriate for what is a painful right shoulder that required surgical intervention. General damages are therefore $21,000.00.
- I have referred to the onus borne by the defendant in respect of pre-existing conditions. The observations at  in Hopkins are apposite to that.
- The plaintiff did not finish grade 8 at school. Her employment has been of a manual nature. There had been an annual increase in her earnings in the four years preceding the incident.
- The financial documents (primarily the tax returns) assist in the assessment of financial loss. So does the evidence of the plaintiff about the arrangements at the Karumba business and the additional employee costs incurred as a consequence of the plaintiffs disability and her inability to do tasks that she would otherwise have done. However, there is nevertheless an area of uncertainty about this and there is in this case a degree of “phophesying” necessarily involved in the assessment. In that respect I have had regard to the principles discussed in RACQ Insurance Limited v Brennan  QCA 150 at  – ; Fail v Suncorp  QSC 077; and Medlin v State Government Insurance Commission (1995) 182 CLR 1, per McHugh J at 16.
- Whilst I have taken a more conservative approach than the raw figures in, and possible projection of earning capacity arising from, the quantum evidence I nevertheless consider a figure of $400.00 averaged per week, is appropriate.
- The past economic loss figure for the period 01 July 2011 to 18 April 2017 (302.57 weeks x $400.00 per week) is $121,028.00. Interest on past loss of income is the difference between that figure as assessed by me and the net WorkCover compensation paid to the Plaintiff ($121,028.00 less $40,538.83 = $80,489.17 x 1.375% x 5.8 years) is $6,419.00. Past loss of superannuation ($110,000 x 9.51%) is $11,509.76.
- There is similar uncertainty about future economic loss. The Plaintiff rightly considered that she is at a disadvantage on the open labour market when competing with more able bodied persons: her shoulder disability and the limitation it imposes on working hours and upon work tasks requiring repetitive movement and weight handling restrictions, may make even lighter work more difficult. She has also had time on workers compensation which may be a disincentive to potential employers. She is currently 50 years of age. She has worked all her life (except the very few years having children). I consider her to be a woman with a commendable work ethic who finds employment at the level of her educational and work experience and more recently that work shared with her partner in the business operation. In my view it is not unreasonable to accept that she would have worked to retirement to at least age 65 years. Her back condition has not troubled her to any great extent in the past, although she said she wore a back brace for a period when employed by Woolworths. Taking that into account and giving some further consideration to the back condition on her future employability as she ages, I have assessed a notional retirement age of about 62 years.
- I assess future economic loss at $400.00 per week for 12 years [multiplier 474] of $189,600.00, less 10% for contingencies = $170,640.00. Future loss of superannuation at 11% amounts to $18,770.40.
- Special Damages are $13,721.00, including the plaintiff’s out of pocket expenses of $8,925.00, pharmaceutical expenses (excluding Pristiq/Desvenlafaxine) of $266.00 (rounded down) and past health, medical and associated travel expenses of $4,530.00. WorkCover special damages are $13.721.00.
- I am not satisfied that the exercise equipment are items for which the Plaintiff should be compensated as the evidence of use is minimal. The Plaintiff no longer seeks cleaning expenses.
- The WorkCover refund is $44,761.83 and the Fox v Wood amount is $4,223.00. With respect to future medical expenses, I do not allow the GP visit expenses. I make no allowance for Pristiq or for pool membership/attendances. The latter really falls into the same category as the exercise equipment, which I have not allowed. I do not allow cleaning expenses.
- I have not allowed a sum for future household assistance, the evidence being non-specific. She is also able to do similar tasks in the business at Normanton. I have not allowed the AAMI Roadside Assist claim. The Plaintiff, despite her injury, is really in no different position than other citizens who live and work in remote townships and the likelihood of vehicle travel is unknown and for tyre-changing assistance is speculative.
Summary: quantum assessment
Past economic loss $121,028.00
Interest on past economic loss $6,419.00
Past loss of superannuation $18,770.40
Future economic loss $170,640.00
Future loss of superannuation $11,509.76
Fox v Wood $4,223.00
Special damages (WorkCover) $9,640.66
Special Damages (Plaintiff) $13,721.00
Less WorkCover refund $44,761.83
- I will hear the parties as to costs.
- Judgment for the plaintiff against the defendant.
- Judgment for the Third party against the defendant.
- WorkCover to pay the plaintiff damages in the sum of $332,189.99.
- I will hear the parties as to costs.
Note: After delivery of the judgment on 19 April 2017 the parties advised me that there were some calculation errors in my quantum assessment. The parties agreed, in correspondence with the court, on the correct calculations. I agree with those calculations. They reflect the substance and intent of the judgment on and assessment of quantum. I re-opened the judgment on 28 April 2017, invoked the ‘slip rule’ (rule 388 UCPR) and delivered the judgment as corrected, in the text where necessary and in the summary table.
- Published Case Name:
Therese Gai McCormack v Ethnic Community Care Links Inc & Anor
- Shortened Case Name:
McCormack v Ethnic Community Care Links Inc
 QDC 102
Durward SC DCJ
28 Apr 2017