Knight v CPSM Pty Ltd[2021] QDC 3

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff, Megan Knight, was employed by the defendant, CPSM Pty Ltd (CPSM), as a personal care assistant on a casual basis working at a facility owned by CPSM known as “CPSM Mt Coolum Aged Care” (the Facility).

2. [2]
   Ms Knight alleges that in the course of her employment she was exposed to a liquid chemical product, known as “D4”, in the workplace and developed a chemical hypersensitivity and other associated conditions, rendering her unable to work. 
3. [3]
   The relevant legislative regime is the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCRA).

The Plaintiff’s Pleaded Case

4. [4]
   Ms Knight bases her claim on breach of the contract of employment between herself and CPSM and breach of the duty of care owed by CPSM to her.
5. [5]
   The breaches of duty are particularised in the Amended Statement of Claim as CPSM having failed to:

   1. (a)
      Keep the Facility safe for the conduct of the plaintiff’s work;
   2. (b)
      Ensure that the chemical D4 was safe for use at the Facility and not harmful to the plaintiff;
   3. (c)
      Make reasonable enquiry by reference to the SDS (Safety Data Sheet) or otherwise as to the safety and properties of the chemical D4;
   4. (d)
      Protect the plaintiff from injury at the Facility;
   5. (e)
      Ensure that the plaintiff and other employees were instructed in the safe use of the chemical D4;
   6. (f)
      Make satisfactory arrangements to prevent the exposure or continuing exposure of the plaintiff to the chemical D4;
   7. (g)
      Prevent the other employees from using chemical D4 in the plaintiff’s presence;
   8. (h)
      Provide suitable protective clothing, gloves and masks for the plaintiff’s use;
   9. (i)
      Ensure that any or any reasonable warning was given to the plaintiff of the risks of exposure to the chemical D4; and
   10. (j)
       Warn the plaintiff of the risks of her suffering skin and respiratory sensitization to D4 and other chemicals as a result of her exposure to the chemical D4.
6. [6]
   The pleading draws no distinction between the duties alleged to be imposed under negligence, contract or statute and no submissions otherwise are made about the contractual claim.
7. [7]
   The defendant admits it owed duties imposed on it by law as the plaintiff’s employer but denies the matters alleged were express or implied terms of the contract of employment.  The duty is admitted to be to take reasonable care to avoid the risk of foreseeable injury to the plaintiff.  The defendant denies it was negligent and says it took adequate precautions for the safety of the plaintiff and the workplace was as safe as the defendant could possibly make it. 
8. [8]
   The quantum of damages claimed is disputed, including whether Ms Knight sustained personal injury, as alleged or at all.

LIABILITY

The Witnesses

9. [9]
   Ms Knight gave evidence and called Ms Emily Thomas, a registered nurse and care co-ordinator for the hostel section of the Facility at the relevant time.  Whilst Ms Thomas was in the care-coordinator role, in the period from November 2012 until May 2014 when working shifts in the hostels, Ms Thomas would be the registered nurse (RN) to whom Ms Knight would report.
10. [10]
    Ms Knight had indicated in the trial plan and in her opening that she would be calling additional employees who worked at the Facility but those additional witnesses did not ultimately make themselves available, despite the court indicating a willingness to take their evidence by telephone.
11. [11]
    CPSM called Mr Shane Winterton (a director of CPSM), Ms Lorraine Wright (clinical nurse manager and subsequently Director of Nursing employed by CPSM and working at the Facility at the relevant time), Ms Glenys Parsons (the head cleaner at the Facility at the relevant time) and Mr Brendan Turner and Mr Michael Howell (employees of Diversey, formerly Johnson Diversey, the suppliers of the chemicals used in cleaning at the Facility).
12. [12]
    Ms Knight called medical evidence from Dr Joseph Matthew (psychiatrist) and Dr Christine Oliver (Professor in Public Health at the University of Toronto).  CPSM called medical evidence from Dr Hasim Shaikh (psychiatrist) and Dr Matthew Brandt (physician).

The Evidence

Factual Context

13. [13]
    Ms Knight commenced working as a personal care assistant (also known as an assistant-in-nursing) (carer) at the Facility in about 2010.  She had worked a number of shifts at the Facility whilst an agency worker in the early part of 2010 and then commenced as an employee of the previous owner of the Facility, Peninsula Care Pty Ltd, on a casual basis in August 2010.  Ms Knight’s pre-employment medical certificate obtained in relation to her employment with Peninsula Care is dated December 2010.  There appears to have been a delay between her commencing employment and the provision of the certificate.
14. [14]
    CPSM purchased the Facility in late 2010 and Ms Knight was transferred and became an employee of CPSM.  In transferring employees to CPSM, as part of the sale process, CPSM did not require any employees to undergo a further medical assessment. 
15. [15]
    Ms Knight usually worked morning or afternoon shifts, and not the night shifts.  On average in the period up to September 2014, Ms Knight said she worked seven shifts a fortnight at the Facility.
16. [16]
    During this period, Ms Knight was also running her own business, Natural Surrender. The business involved a directory for living naturally, and retail of health products, both online and in the period from April 2014 to October 2014, also the sale of products from a stall at the Eumundi Markets.
17. [17]
    CPSM commenced operations in 2010 and acquired Mt Coolum as its first aged care asset.  The company subsequently went on to own and operate a number of aged care facilities.  By September 2014, the company owned and operated three aged care facilities.
18. [18]
    There were three directors of CPSM, all of whom were owners of the business.  Two of the directors, Shane Winterton, and Cliff Evans, had previously been RNs and were involved in the daily operations of the business.  Before becoming a director of CPSM, Mr Winterton was the Queensland State Manager of Health Scope Hospitals.  He began his career as a RN, later becoming a hospital administrator.  Mr Winterton was the director responsible for workplace health and safety at the Facility.  The third director was a chartered accountant.
19. [19]
    The Facility had 120 beds: a 40 bed nursing home and 80 beds in four 20-bed hostels, Wattle, Rose, Ivy and Jasmine.  Two of the hostels, Wattle and Rose, were for high care residents and always had two carers on any shift.  The other two hostels, Ivy and Jasmine, were for more independent residents and had only one carer rostered on each shift.
20. [20]
    On each shift, there would be one RN in charge of supervising the carers working in the four hostels and one RN in charge of supervising the carers in the nursing home.  The RN was responsible for looking after the medication side of things for the residents and the carers were responsible for looking after the residents’ care needs.  There was also a RN who held the position of clinical nurse manager and above the clinical nurse manager was the Director of Nursing.  Both persons in those positions did not work shift work but more usual business hours.
21. [21]
    At the start of each shift, there would be a handover between the RNs and carers for each shift.  Separate handovers occurred for those working in the hostel and those working in the nursing home.
22. [22]
    Following a shoulder injury in mid-2011, as part of her return to work programme, Ms Knight commenced working in the office of the Facility for approximately three months.  Ms Knight believed that she was going to be transitioned to working on a permanent part-time basis in the office.  However, the office position was filled by someone else and Ms Knight re-commenced working as a carer in September 2011, working more frequently in the hostels, rather than the nursing home.
23. [23]
    Each hostel had a kitchen area and servery from where the meals would be plated and served. The meals would be prepared and cooked in the kitchen of the nursing home and transported on a trolley to the kitchen area of the hostels.
24. [24]
    As a carer, Ms Knight’s duties included serving meals to residents and cleaning up after meal service. The carers worked in conjunction with the domestic staff and the cleaners, assisting those staff at meal times.  That assistance included cleaning the dining tables and servery at the end of meal time.
25. [25]
    Spray bottles containing D4 were used in the cleaning of certain areas of the Facility. Other cleaning products were also made available and used by staff.
26. [26]
    The trade name of the chemical, D4, is “Suma San Conc D4A”.  D4 contains the chemical, Didecyldimethylammonium chloride.  It is the pure product that is classified as hazardous according to the Australian Safety and Compensation Council’s criteria and, at the relevant time, was subject of a Material Safety Data Sheet dated 6 April 2010, which had been issued on behalf of the manufacturer and supplier (MSDS).  The references in the MSDS are to the product in its pure form.  The MSDS was on a wall displayed in the cleaners’ room where the raw chemical was kept.  The MSDS were regularly renewed by Diversey.
27. [27]
    The cleaners were responsible for diluting the D4 into spray bottles.  The cleaners’ rooms were located in the nursing home and in each of the hostels.  The spray bottles and other cleaning products were kept on cleaning trolleys, which were used by the cleaners as they moved around the Facility.  Some cleaning products were also kept in the kitchens of the nursing home and the kitchenettes of the hostels.
28. [28]
    In about September 2013, Ms Knight says she began to experience intermittent headaches when D4 was used in her presence and when she walked into areas where it had recently been used.
29. [29]
    In about March 2014, it is accepted that Ms Knight was requested to attend a meeting with the Director of Nursing, Lorraine Wright, and that in that meeting she reported her symptoms to Ms Wright.  It is not disputed that at the meeting it was agreed Ms Knight could continue to ask staff not to use D4 in her presence and could request that they warn her of any intention to use it. 
30. [30]
    Ms Knight says she was required to continue to work in areas of the Facility where D4 was being regularly used and her symptoms continued to worsen.
31. [31]
    On 14 September 2014, Ms Knight lodged a Workplace Incident Form (the Incident Form) which she had completed notifying CPSM of the circumstances and consequences of her exposure to D4.
32. [32]
    In completing the Incident Form, Ms Knight reported that the incident was said to have occurred on 14 September 2014 at 1300.  The type of injury was described as a “sickness akin to poisoning” and the incident was described as “Exposure to chemicals”.  In answering the question as to whether there were witnesses, it was said “Numerous staff on multiple occasions.”  The name of the RN/Supervisor on duty at the time was said to be Babaar Pandey.
33. [33]
    The incident was described as:

“Over 1 year ago, I Megan Knight developed high sensitivity to the D4 chemical used here to wipe benches etc.  This has been discussed at length with the DON & Matt Roberts & staff notified at least 6 months ago to notify me when they wish to use so I can work elsewhere for the 5-10 mins it takes for the surfaces cleaned to dry (I am only affected when this chemical [is] wet). Staff occurrences of using D4 in my presence continue to happen (though not as often) and I am always greeted with the “excuse” that they didn’t know, even though I have spoken to them myself on previous occasions.”

34. [34]
    On an attached page, Ms Knight listed all the effects of inhaling D4:

“sinus pain, headache frontal, pains in back of head, stiff neck, stiff shoulders, kidney pain, lymph node pain armpits, fogginess of brain, energy drained (to about 40% of normal energy), agitation, constipation, taking to my bed immediately after shift finishes (1500) and staying there till next morning has usually reclaimed normality.” It was said on the form, “but yesterday the following were added to the list – teary/ fragile emotions, burping, awake at 2am, extremely parched, only sporadic sleep after that.”  It was said, “This makes it incredibly hard to finish the shift (as being casual, no sick leave available and loss of income avoided) plus makes me unable to operate after the shift.”

35. [35]
    On the form, Ms Knight offered as possible solutions, “either change the chemical or properly inform staff or properly label the bottle.”
36. [36]
    On 19 September 2014, at the request of CPSM, Ms Knight attended upon her treating general practitioner, Dr Richards, and was given a medical certificate.  Dr Richards had been Ms Knight’s general practitioner (GP) for some 20 years.  CPSM offered to pay Ms Knight’s reasonable medical expenses.
37. [37]
    At a meeting between Ms Knight and management of CPSM on 25 September 2014, it was agreed Ms Knight could return to work on certain conditions and she did so on 28 September 2014.
38. [38]
    With financial assistance from CPSM, Ms Knight continued to seek medical diagnosis in the period between 28 September 2014 and 22 February 2015.
39. [39]
    Over the weekend of 20 February 2015, Ms Knight suffered a back injury unrelated to her work at the Facility.  She attended work on 23 February 2015 and again on 2 March 2015 but could not complete both shifts.  She remained unable to work because of that injury until 10 April 2015.
40. [40]
    Ms Knight did not return to work with CPSM after her shift on 2 March 2015.  Ms Knight says she has not been able to work since.
41. [41]
    CPSM sold the Facility to Estia Health with the changeover occurring in June 2015. The Facility became known as “Estia Mount Coolum”.

Matters in Dispute

42. [42]
    There are a number of areas where the evidence of the witnesses conflicts.  The issues in dispute on the facts concern the incident reporting structure at the Facility, the extent of the reporting by Ms Knight of her symptoms to others, and the system for the handling of chemicals at the Facility including on-site training.  There are slight differences concerning events after the Incident Form was competed.  It is convenient to commence with and recite the evidence of Ms Knight, and then to make findings as to each of these matters separately.

Ms Knight’s Evidence

Reporting of Symptoms

43. [43]
    Ms Knight said that on a shift in September 2013, she felt a headache come on as soon as she walked into the patient dining room of the Wattle hostel.  Ms Knight said that was the first occasion on which she had experienced any reaction.
44. [44]
    Ms Knight said that she noticed the carer with whom she was working with on the shift, whom she recalled as being Wendy Sutton, had a spray bottle in her hand and that she saw Wendy spraying the tables in the dining room.  Ms Knight said she asked the carer what was in the bottle and Wendy told her it was D4.  Ms Knight said she asked if it was a new chemical and was told by Ms Sutton that it had always been here.  Ms Knight said that prior to that conversation, she was not aware of the contents of the spray bottles.
45. [45]
    Ms Knight could not recall whether she had previously observed carers or other staff at the Facility using spray bottles.  Ms Knight said that she had never used the spray bottles herself.  Ms Knight said that if she was on cleaning duty at the conclusion of meal time in the dining room, she would use the cloth from the kitchen and on occasions would have with her a tub of hot water and/or detergent.
46. [46]
    Ms Knight said that prior to this time, while she was still working in the nursing home, she had started to experience dermatitis on her hands.  She said that she had mentioned her dermatitis to the RNs she was working with in the nursing home; though she gave no evidence of any particular conversation with any particular RN.  She said, it was only after she started investigating the effects of D4, that she appreciated her dermatitis was connected to being around D4.

Events between September 2013 and March 2014

47. [47]
    Ms Knight said that at some time during that shift in September 2013, when she first experienced the headache, she reported the headache to the RN on the shift.  Ms Knight could not recall the name of the RN on that shift. 
48. [48]
    Ms Knight said she told the RN that once she moved away from the area, the headache cleared after about 15 minutes.
49. [49]
    Ms Knight said that after the first incident in September 2013, each time she walked into a room where D4 had been sprayed, she would experience a headache.  Overtime, she said, her symptoms worsened.
50. [50]
    She said that on each occasion when she was working and D4 had been sprayed while she was in the same room, she would raise the issue with the other carer or the cleaner in the room.  She said she did not have to be in the same room but in the same vicinity for her symptoms to be felt. 
51. [51]
    She said the carers would only use the spray whilst in the dining area and when they were cleaning the tables and benches after meal time.  
52. [52]
    She said that the cleaners would use the spray more generally, in the common areas, in the residents’ bedrooms and bathrooms and in the lounge rooms of the hostels. She said the cleaners would clean the whole kitchen down using D4.  Ms Knight said that when they returned the “stuff” back to the kitchen at the end of meal time, she would be “walking straight into that mist”.
53. [53]
    She said that she would say the same thing on each occasion.  She said, “I believe that every shift I had a conversation with a co-worker or with a registered nurse who was on staff.”
54. [54]
    Ms Knight says that, on each occasion, at some stage during her shift when she had developed any symptoms during the shift, she would find the RN and tell them of the incident. 
55. [55]
    She said she would say to co-workers, “I don’t want this chemical sprayed around me.  Give me notice if you want to use it.”  She said she would have this conversation with her co-worker for a shift at the start of every shift in the kitchenette of the hostel, immediately after the hand-over meeting with the co-workers on the previous shift.  She said that she continued to mention it every shift until she became confident that her co-workers understood and then she would not mention it again.  She said that as her symptoms worsened, she started to complain more.
56. [56]
    She said that if any cleaners came through, while she was working in an area, she would mention it to them.  Ms Knight said that she did not usually see the cleaners using the spray bottles.  She said they were usually in different areas.
57. [57]
    She referred to RN Emily Thomas as one of the RNs that she told and who was the RN Ms Knight called as a witness at the hearing.  In cross-examination, Ms Knight accepted that she did not report it further than the RN at that stage.  In responding to a question to give as much detail as possible as to her conversations with RN Thomas, Ms Knight said, “Okay.  So I mean it was a repetitive thing.  Again I state that I believe that every shift I had a conversation with a co-worker or with a registered nurse who was on staff…about I don’t like this D4 or this happened today.”  She said, “I’m telling people.”
58. [58]
    Ms Knight was unable to recall the exact conversation or exact dates of any conversations either with RN Thomas or any other RN, but said they were happening all the time and she would say the same thing on every occasion.  Ms Knight said in discussing it with a RN it would have been, “This has occurred.  D4 has been sprayed.  I have had these symptoms.  I want this stuff kept away from me.”
59. [59]
    Ms Knight says she was reporting her symptoms to supervisors and other staff “all the time”.  She said as time went on, she would have expressed some frustration. She said she was asking, “Why do I not have any results yet? Why has nothing changed? Why is this still happening?”

March 2014 Meeting

60. [60]
    Ms Knight says that in March 2014, she was called to a meeting with Lorraine Wright.  She could recall, during a shift, being told that she was required to go and see Lorraine in her office.  She said she would have been told by either the clinical nurse manager or the RN on the shift.  She said that Lorraine had said to her that Matt Roberts, who Ms Knight described as a director, had asked Lorraine to speak to Ms Knight because Ms Knight had been telling the cleaners they could not use D4.
61. [61]
    Ms Knight said that she said to Lorraine:

“Sounds like Chinese whispers have been going on.  I have been getting some headaches and other symptoms from this chemical.  I don’t like it.  I’m trying to avoid it.  I’m telling other carers about it.  I’m asking them that if they must use it, if they would give me 15 minutes notice and – so I can get out of the room.  It’s – it’s so far affected me when it’s wet on the surface and if I can – and it’s been giving me headaches and if I can get away from it then the headache does seem to go away.  So at this point, I think I’m safe, once it dries.”

62. [62]
    Ms Knight said she told Lorraine that she did not use it and that she used hot water and dishwashing detergent and that she wore rubber gloves.
63. [63]
    Ms Knight said that Lorraine agreed she could continue to ask co-workers not to use it around her.  She said Lorraine agreed she should continue to report to the RNs and that Lorraine would continue to be informed.  She said Lorraine said that she would let everyone know and let the staff know not to use it around her.  Ms Knight said she remembered feeling intensely relieved that it was being discussed at this level, because “it was also very stressful at this point, very highly concerning”.
64. [64]
    Ms Knight said she did not have any further discussions with Lorraine Wright because she said it was decided that Ms Knight would continue to report to the RNs.  She said her focus was to report back to the RNs and all her comments were made to them.

March 2014 to September 2014

65. [65]
    Ms Knight said that after this meeting, she was waiting for changes to happen and “changes didn’t happen”.  She said she was reporting to the RNs and she was confident that they were reporting.  She said, “I was forming the impression that they were hitting a brick wall…”
66. [66]
    When questioned further, Ms Knight said she could not remember any particular conversations because “there were so many conversations.”  Ms Knight accepted she could not remember any actual conversations with RN Emily Thomas.
67. [67]
    Ms Knight said that despite her requests to co-workers, the spray continued to be used and her symptoms continued to worsen.  She said she would get a “prickle in her nose” when the spray had been used.  The irritation in her nose would then become a headache at the front of her forehead, then transfer round to a headache at the back of her head, her neck, across her shoulders and all down her spine would stiffen up, her kidneys would start “working overtime” and from the bottom of her ribs down to the top of her backside would burn.  She said, as a casual worker, she could not afford to say that she needed to go home.
68. [68]
    Ms Knight said the RNs said to her that they were telling everyone not to use it and she said they said to her to keep telling everyone not to use it.  In cross-examination, Ms Knight accepted that her employer was telling people not to spray it around her and had told her not to use it. 
69. [69]
    Ms Knight said that she was expecting something to be formalised.  She said there was a folder in the lunch room which contained memos and she looked through that folder on a few occasions and never came across any memo.
70. [70]
    In cross-examination, Ms Knight accepted that the spray was not being used around her as much, but said that her employer was not enforcing a system that would reduce her exposure to D4.
71. [71]
    She said “it wasn’t happening every shift” any more but it was still happening and her symptoms started to radically increase in about July 2014.  She said she experienced gasping when trying to sleep and that her hair went almost completely grey and took on a very unkempt state.  She said she was finding her work shifts “physically devastating” and she was “coming home so tired.”

Incident Form September 2014

72. [72]
    Ms Knight said that an incident occurred on 14 September 2014 when a spray bottle was used by one of the RNs directly behind her.  Ms Knight recalled the RN as being Babaar Pandey.  Ms Knight said she had been rinsing the dishes to put them in the dishwasher.  She said she got a prickle in her nose, turned around and Babaar was spraying D4 over the medicine trolley.
73. [73]
    As a result of that incident, Ms Knight decided that she would complete an incident form.  Prior to leaving the Facility at the end of the shift that day, she printed an incident form which she then completed at home that night.  The next morning, on 15 September 2014, prior to commencing her shift, she delivered the Incident Form to the office of Lorraine Wright, by placing it underneath Ms Wright’s closed office door. 
74. [74]
    Ms Knight said that no-one contacted her during her shift that day and she said it was not until the middle of her shift on 17 September 2014, at around 6.00pm, Shane Winterton and Lorraine Wright came to see her when she was working in the Wattle hostel and asked her to step outside on to the lawn area.  She said the meeting took over an hour.
75. [75]
    Ms Knight says that Mr Winterton said, “Now you’ve put it in writing, you’ve made it legal.”  She said Mr Winterton had said one of the other director’s wives had gone into anaphylactic shock in reaction to a chemical and gone into hospital.  She said Mr Winterton was concerned about allowing her back into the building.  Ms Knight said the meeting was on 17 September and that she did not have any more shifts until 22 and 24 September 2014.  She said Mr Winterton told her she would have to wait until he contacted her as he needed to sort his legal position out.  She said she found Mr Winterton’s comments “very shocking” because she thought “we were talking about my health.”  Ms Knight said she suggested, “Well, why don’t we just use another product, if I’m reacting to this one.”  She said Mr Winterton responded in the course of that meeting that that was impossible.

Events Subsequent

76. [76]
    Ms Knight received a letter from Mr Winterton, as the director and business manager of CPSM dated 19 September 2014.  The letter confirmed that Ms Knight was not to attend the workplace until some further medical advice could be sought and more investigations made, with CPSM offering to pay her reasonable medical expenses.  The letter stated that she would be paid for her forfeited shifts which were due to occur on 22 and 24 September 2014.
77. [77]
    Ms Knight said that she attended upon her treating GP, Dr Richards and sent to Mr Winterton a copy of the medical certificate signed by Dr Richards.
78. [78]
    Ms Knight says she then received a telephone call asking her to come into a meeting with Lorraine Wright.  She says the meeting took place on 25 September 2014.  She said Ms Wright did not enquire about her health at that meeting but told her she could return to work on normal duties, that she could lock away the D4 when on shift and she was to continue to tell staff not to use D4 around her.  She said she was told it was her responsibility to keep herself safe and that her employment would be terminated if she did not do so.  She said there was no discussion; just a set of orders given to her and then she was dismissed and made feel as though she had done something wrong. Ms Knight said that the meeting with Lorraine was the last time her employers instigated any contact with her on the subject of D4.
79. [79]
    Ms Knight said she returned to work on 28 September 2014 and she was put back on the roster.  She said she would speak to people at the beginning of the shift and then she would grab the spray bottles of D4 from under the kitchenette sinks and lock the D4 away in the store room.  Ms Knight said that at the end of the shift, she would bring the spray bottles back out of the store room. Despite taking these steps, Ms Knight said that the chemical continued to be used around her. 
80. [80]
    She said her symptoms continued to worsen.  On 1 October 2014, when she was working at her stall at the Eumundi Markets, she experienced the breathing problems, which worsened when she was driving back from the markets.  She was due at work in the afternoon but was taken by ambulance to the Noosa Hospital where she spent six hours in emergency.  Ms Knight says she was sent home with no answers.
81. [81]
    She said subsequent to that there was a particular altercation involving a young girl in the kitchen.  Ms Knight said it was the third time of telling the young girl about D4.  She said it resulted in an argument in the hallway, just down from Ms Wright’s office at night time.  Ms Knight said she called Ms Wright the next day to report the incident.  Ms Knight said that she made the phone call to Ms Wright on 19 November 2014.  Ms Knight said she did not complete an incident form because she said she was not allowed to complete the forms.
82. [82]
    During this period, Ms Knight sent a number of emails to Mr Winterton. In those emails, Ms Knight raised with Mr Winterton the fact that her hours had been reduced.
83. [83]
    Ms Knight says she was called to another meeting with Mr Winterton and Mr Evans at the end of her shift on 14 October 2014.  Ms Knight said that Mr Winterton was angry because of Ms Knight having referred in an email to Lorraine making a statement to her “in her usual acerbic style”.  She said Mr Winterton raised with her the issue of respect, the issues around her being a casual worker and her hours not being guaranteed and the issue as to the cost of her attendance upon Dr Solley, which Ms Knight said they agreed to cover.
84. [84]
    Ms Knight said that she then attempted to get a sample of the D4 to take to Dr Solley.  She said that was the first time she became aware of the MSDS that was on the wall in the cleaners’ room of the Wattle Hostel.  She said that was also the first time she realised the chemical in its raw state was kept in the cleaners’ room.
85. [85]
    Her next email to Mr Winterton was on 24 November 2014.  Following that email, Ms Knight had a conversation with Mr Winterton.  She said that conversation occurred in the reception area.  She said she raised with Mr Winterton an error in Dr Solley’s report and also again raised D4 being removed and another product being used instead.  She said Mr Winterton said, “We could get another chemical and [Ms Knight] might react to that and so it was impossible.”
86. [86]
    Ms Knight said she went on leave in mid-December 2014, resuming work on 4 January 2015. 
87. [87]
    Mr Winterton sent an email on 20 February 2015 in which he said, given Ms Knight’s on-going difficulties and his belief that there was nothing further they could do, he would require a full fitness clearance, and then he proposed that they meet.  Over the course of that weekend, Ms Knight suffered a back strain, unrelated to her work at the Facility.  She attended work on Monday, 23 February 2015 but could not complete her shift.  Ms Knight attempted another shift on 2 March 2015 but Ms Knight was still in pain.  She then obtained a medical certificate until 10 April 2015.
88. [88]
    Ms Knight completed a WorkCover claim for her back strain on 2 March 2015.  The claim for her back strain was for the period up to 10 April 2015 and then it converted to a WorkCover claim for the D4 issues.
89. [89]
    Ms Knight says that at that time she started to keep a health diary.
90. [90]
    Ms Knight says that Mr Winterton phoned her on 4 March 2015 and he offered her two weeks pay.  She said that Mr Winterton said that he thought her time at Mt Coolum Aged Care had ended and she said the two weeks’ pay offer was to pay her out. Ms Knight says there were half a dozen phone calls between herself and Mr Winterton between 4 March 2015 and 28 April 2015.  She said she made it clear that they were not being cleared and that any offer needed to be made in writing.  She said she then became fully engaged in her WorkCover claim.
91. [91]
    Ms Knight said that WorkCover called on 21 April 2015 and said that she had not been accepted for wage cover and told her to go back to work.  That position was confirmed in writing in letters dated 21 and 22 April 2015.  Ms Knight said that she then phoned Mr Winterton.  She told Mr Winterton that she was supposed to return to work.  She said that Mr Winterton said he had ordered that she be taken off the roster in March 2015 as “it was too risky”.

Incident Reporting System

92. [92]
    Ms Knight said that there had been a change in the reporting structure which meant that her reports to the RN were as far as she could go with reporting her symptoms.  Ms Knight maintained that she was not allowed to complete an incident form.  She said the reporting system required that the RN was the person who decided if an incident form was to be completed.
93. [93]
    Ms Knight maintained that the reporting system had changed at the Facility while she was working there.  She could not recall when the change occurred but she could recall at some point carers were no longer able to complete patient notes and she said that extended to carer’s completing incident forms involving either residents or staff. 
94. [94]
    Ms Knight said that meant that she was required to report all incidents through a RN and that the RN was the person responsible for determining if an incident form was completed and it was the RN who provided the incident form to management.  She accepted that if a form was completed for an incident she had reported, it would be signed by her and the RN.
95. [95]
    In the period between September 2013 until February 2015, when Ms Knight finished working at the Facility, Ms Knight said the reporting structure was always from the RN and from there to the Director of Nursing and then to the directors.

Training

96. [96]
    Ms Knight said that she had received no training on this product, in particular she referred to there being no training as to how to keep themselves safe from the product or that the product was even possibly a danger to staff.  She said she had to constantly enter areas where it was being used and she was completely ignorant of being in danger.  She said she knew nothing about D4. 
97. [97]
    She said the MSDS was unclear.  She said it talked about protective equipment but she was told nothing about who mixed it, what was the concentration and what measures were in place to ensure it was being mixed to the manufacturer’s concentration.  In giving evidence, she said she was hoping for that information from the witnesses in this trial.
98. [98]
    Ms Knight said she was concerned as to who was responsible for mixing the chemical in the spray bottles.  She said she could recall on one occasion when she putting the spray bottles away, she noticed that one bottle contained pink liquid and the other contained purple liquid.  Ms Knight said that really concerned her as to the level of concentration of the chemical in the bottles.
99. [99]
    Ms Knight said she was not aware of any risk assessment being conducted by CPSM.  She said she was not aware of any quality of air testing.
100. [100]
     Ms Knight said that her employer was not enforcing a system that would reduce her exposure to D4.  In cross-examination, Ms Knight accepted that her employer was telling people not to spray it around her and had told her not to use it. 
101. [101]
     Her evidence was that she had never used it. Ms Knight said the system was not successful.  She accepted that others were telling staff but staff were still using it.  She accepted it had improved but it had not stopped. 
102. [102]
     Ms Knight accepted that there was more general “on the job” training.  She described the training as continual and said that they were required to complete modules and said it was subject by subject. Initially she said it was in the classroom but subsequently became online. 
103. [103]
     She said much of the training had to be completed in a staff member’s own time.  She said they had to be up to date to be able to continue working.

Resolution of Factual Issues

104. [104]
     Some of Ms Knight’s evidence is supported by the evidence of other witnesses, but not much and most of it is contrary to the evidence given by other witnesses.

Reporting of Symptoms

105. [105]
     It is convenient to start with the extent of reporting by Ms Knight of her symptoms.
106. [106]
     One of the witnesses who says that Ms Knight had reported to her the existence of symptoms said to be related to the use of spray was RN Thomas.
107. [107]
     RN Thomas worked at the Facility at the same time as Ms Knight was working there.  RN Thomas still works at the Facility, now known as “Estia Mount Coolum”.  At the relevant time, RN Thomas was employed as a care co-ordinator for the hostel residents and all the staff that worked in that section.  Her Director of Nursing was Lorraine Wright and her evidence was that the carers would report to her and she reported to Lorraine.
108. [108]
     She said that as care co-ordinator, she was Ms Knight’s supervisor from approximately November 2012 until May 2014.  Sometimes, her role as the care co-ordinator would involve her working as the RN anyway. In about May 2014, RN Thomas changed roles to being night RN.
109. [109]
     RN Thomas said she could not recall when Ms Knight started to raise issues but she could recall an incident in the Wattle hostel during a shift when Ms Knight was opening windows and was very distressed because she was starting to get a headache.  She said Ms Knight was feeling really unwell.
110. [110]
     RN Thomas said Ms Knight had “like, watery eyes and she was saying people – I’ve asked people to stop using the spray because it’s been – you know, a reaction.”  RN Thomas said, “you could see she was physically – her eyes were red.  She didn’t look well and she needed to basically get out into the fresh air…”.  She said that she thought ultimately on that shift Ms Knight went home as she was feeling so unwell.
111. [111]
     In cross-examination, RN Thomas agreed that Ms Knight had also referred to her nose being very itchy, a sore throat and a headache; “kind of flu-like symptoms, I guess, but like, really quick onset.”
112. [112]
     She said that she could recall four or five times when Ms Knight was feeling unwell and needed to go home.  She said she could recall one occasion, possibly two, when Ms Knight went home feeling unwell and called in the next day still feeling unwell. RN Thomas said that she would then be responsible for finding a replacement staff member.
113. [113]
     RN Thomas said that when a staff member was feeling unwell and was sent home, she would have to report it up the line to her senior, who was to Lorraine Wright. 
114. [114]
     RN Thomas said that she could not recall specifically the conversations with Ms Knight about D4, but believes there would have been a handful of conversations when Ms Knight reported suffering symptoms from her suspected reaction to D4.
115. [115]
     In cross-examination, in answer to a question as to whether specifically between September 2013 and May 2014 Ms Knight had reported to her each and every occasion that Ms Knight worked with her, RN Thomas said, “She would have reported it a few times.” 
116. [116]
     Apart from the Wattle hostel incident, RN Thomas said she could not recall any other particular conversations. When asked if she could recall the period when complaints were being raised, RN Thomas said that it would have been when it was hot because she could recall there being complaints about the windows being open.  She said it would have been sometime, “like February, March, April”.
117. [117]
     This evidence is not consistent with the evidence of Ms Knight that she made constant complaints about the use of the spray to the RNs and her evidence of having made those complaints consistently since September 2013.
118. [118]
     Ms Knight’s evidence is also not consistent with other evidence.
119. [119]
     The defence called Ms Glenys Parsons who had been employed at the Facility as a cleaner for approximately 23 years and at the relevant time was head cleaner.  Ms Parsons said that she could vaguely remember Megan.  She said that she could recall, when she was cleaning down in the Wattle hostel, on one occasion being asked by Megan not to use the chemical as she was allergic to it.  She said that she can recall that she moved from that area and started doing work in another area and then returned to finish the kitchen area.  It is unlikely that if Ms Knight had complained as much as she says that Ms Parsons would not have recalled it.
120. [120]
     It is also surprising that those in management positions had not become aware of the complaints.
121. [121]
     The defence called Lorraine Wright who was a qualified registered nurse and the Director of Nursing at the relevant time.  Ms Wright commenced working for CPSM as a clinical nurse manager in May 2012 in the hostel area of the Facility, a position she held for about six months before she was appointed to the role as Director of Nursing; the title of that position being subsequently changed to Facility Manager.
122. [122]
     In her role as clinical nurse manager, Ms Wright was responsible for managing the RNs, enrolled nurses and carers who were working in the hostel area of the Facility.
123. [123]
     Ms Wright said that she recalled a conversation with Ms Knight following a conversation she had with the cleaning supervisor, Ms Parsons.  Ms Parsons had come to see Ms Wright to ask why they were not to use the cleaning products anymore.  She said that Glenys had explained to her that Ms Knight had asked her and other cleaners not to use the cleaning products anymore.  She said Ms Knight had said to her they were not to be used.  Ms Wright said she told Glenys that she would speak to Megan.
124. [124]
     Ms Wright’s recollection of the meeting with Megan is largely consistent with the evidence of Ms Knight, though both Ms Wright and Ms Parsons recollection is that the meeting was called as a result of a meeting between Ms Wright and Ms Parsons.  It is generally accepted the meeting took place in March 2014 and their evidence as to outcomes for the meeting is largely consistent.
125. [125]
     Ms Wright did not accept that she had received any reports from RNs prior to the conversation with Ms Parsons.  She said that she could not recall RN Thomas ever approaching her to raise the issue.
126. [126]
     Ms Wright said that when she did her daily rounds of the hostel she did not observe Ms Knight to be unwell.  She said there was “nothing obvious”.  Ms Wright said she did not observe “a runny nose, sneezing, itchy watery eyes.”  Ms Wright said there were no obvious signs of “typical allergy type symptoms”.
127. [127]
     The defence also called Mr Winterton.  Mr Winterton said that during conversations with Ms Knight he did not observe any of the symptoms of which she complained. He said he never observed Ms Knight in respiratory distress.  Mr Winterton said he spent an extensive amount of time working in anaesthetics and recovery where he was required to ventilate patients and watch for signs of respiratory distress.  He said that he felt relatively competent to identify respiratory distress and said that he never observed any signs and symptoms in Ms Knight.  He said they discussed with Ms Knight that she did not appear to be struggling to breathe in their presence at any time.
128. [128]
     These witnesses gave their evidence frankly and objectively. There was no appearance of Ms Wright, RN Thomas or Ms Parsons seeking to protect their employer or the business from any blame.
129. [129]
     The inference is inescapable that, in giving evidence, Ms Knight exaggerated the extent of her symptoms and complaints to her co-workers or the RNs.  It is also not probable that Ms Knight would complain to her fellow carers and cleaners about her situation to the extent that she alleges, and that those complaints did not escalate; either by her or others to senior management prior to March 2014.

Incident Reporting System

130. [130]
     In all of this time there was, as mentioned earlier, only one incident form lodged by Ms Knight.  The evidence of other witnesses in relation to the use made by staff of incident reports is different to that given by Ms Knight.
131. [131]
     RN Thomas said there was a system in place for incident reporting, though she did not give further evidence on the subject.
132. [132]
     Following the purchase of the Facility by CPSM, Mr Winterton said CPSM overhauled the management systems used in the Facility, including the reporting systems and the management of chemicals used on site.  He said he believed the changes occurred in about 2011/2012. 
133. [133]
     Mr Winterton said the change in the quality management system involved changing the forms available for use by staff, including the annual leave forms, the hazard forms and the incident forms.  The system chosen was called “Frontline Aged Care”.  That system has not subsequently been changed.
134. [134]
     Mr Winterton said that the forms were available at all times for all staff in the nurse’s stations.   He said there were two nurse’s stations in the Facility; one in the nursing home and the other in the Jasmine hostel.  He said the Jasmine hostel was about 60 to 80 metres away from the Wattle hostel.  He said the nurse’s stations were open areas that staff could access at any time.
135. [135]
     Mr Winterton said that if any staff member had an injury on site they are told to report that to the RN in charge on the shift and a form could be filled out with the staff member and the form could be passed through to management.  He said, if a staff member had an injury which required medical attention or the staff member had to leave site, then he would be contacted in his role as the Workplace Health and Safety Officer on site.
136. [136]
     Mr Winterton said that a staff member could “…grab a form from the nurse’s stations and fill them out themselves any time they please.”  He said they are certainly not required to report the matter through the RN; though he accepted that was one system.
137. [137]
     He said that all incoming staff were made aware of how to report an incident and who to report it to.  He said as part of the rollout of the new quality management system, there was training for all existing staff.
138. [138]
     Mr Winterton confirmed that the Incident Form completed by Ms Knight was one of the new forms.  Mr Winterton said that the completion of an incident form was a frequent and regular occurrence.
139. [139]
     Mr Winterton said that all incident forms that were received were kept and forwarded for review by the Workplace Health and Safety Committee every quarter.  He said they would have many incident forms reported to the Committee every quarter.  He said that representatives from the different areas of the business were part of the committee.  He said that numerous ‘carers’ were part of the committee.  He said there were also “registered staff, domestic staff, administration staff, management, [and] maintenance.”
140. [140]
     He said that the names of all workplace health and safety staff were published and made aware to all other staff so that if any staff wanted to raise a concern, they could raise that with any of the workplace health and safety staff members, rather than approach him or complete a more formal incident form.  
141. [141]
     He said a communication book was maintained in the staff room, “if things needed to be communicated to staff, memos and so forth, changes, they are all put into there.”
142. [142]
     Mr Winterton said that, apart from Ms Knight’s issues with D4, no other issues with D4 had ever been reported at any time.
143. [143]
     Ms Wright agreed that there had been a change in reporting, but said this was around progress notations in residents’ files.  She said it was decided that the RNs and enrolled nurses, and not the carers, should do more of the progress notations on residents’ files.  She said that carers had not been trained in the completion of those notes and this led to the change in the system.
144. [144]
     Ms Wright said that anyone who had an incident knew how to access the incident forms and how to fill the forms out. 
145. [145]
     Ms Wright said that staff did have to report the incident to the RN on the shift because, she said, the RNs needed to be aware an incident had occurred.  She said the name of the RN was to be included on the incident form.
146. [146]
     Ms Wright said that there was no directive ever given that carers could not fill out the incident forms.  She said that often carers would fill out forms and not report it to anyone and that caused problems in terms of tracking the incident.  She said it was for that reason that staff were told to inform the RNs of incidents during a shift.
147. [147]
     It is improbable that a modern workplace would not have a reporting system as explained by Ms Wright, and it is unlikely that Ms Knight was unable to lodge an incident form. Ms Knight’s evidence as to the reporting system and her not being allowed to independently lodge an incident form is simply not believable; it goes against the evidence of the other witnesses and against her own actions in ultimately completing the Incident Form.  Her evidence on this issue significantly affects the credibility of her evidence as a whole and was clearly directed to attempting to impose the knowledge of her symptoms on management at an early point in time.

Training

148. [148]
     The credibility of Ms Knight generally is important in assessing her evidence and complaints regarding training.
149. [149]
     RN Thomas said the RNs did receive some training about the storage of chemicals and cleaning products and making sure they are safe and away from residents.  She said RNs would not have received training on all the chemicals used in the Facility.
150. [150]
     She said carers would have received similar training to the RNs, which she described as, “it would have been more for the hazardous effects…and keeping safe storage.”
151. [151]
     She said she did not personally have training on D4.  She said she was aware that there was a MSDS for D4 and she said she thought it would have been kept in a folder in the cleaners’ rooms and the main office as well.
152. [152]
     She said when staff first started working there was induction training, though she said most of it was now online but agreed that back in 2014 it would have been more in paper form.
153. [153]
     RN Thomas agreed that staff were trained generally on topics such as safety in the workplace, safe manual handling and that there were extensive workplace health and safety training programs offered on site and the training programs and safety modules were updated regularly.
154. [154]
     RN Thomas agreed that if someone did not complete their training they would be followed up by management to undertake the training before they continued with their work.  She agreed there was a system in place of incident reporting and there was a lot of focus on safety in the workplace and safe work practices.  RN Thomas added, “there always is”.
155. [155]
     Ms Wright said there was mandatory training for staff which included elder abuse, infection control, and chemical handling training.  She said that there were quite a few that fitted under the mandatory training requirements but she could not remember all the names. 
156. [156]
     Ms Wright said that there was direct personal care training for staff and residents, particularly regarding manual handling, documentation and accountabilities.  She said in her role from time to time she would provide clinical training to staff but she could now not recall particulars of the training that she had provided.  Ms Wright said that training was provided throughout the year.
157. [157]
     Ms Wright said that staff were required to sign off when they attended training. 
158. [158]
     There were no documents showing that Ms Knight was given any training in relation to the chemical D4 or its use. There is, however, plenty of evidence as to the training generally undertaken at the Facility. 
159. [159]
     Mr Winterton said that when the Facility changed over to a new dispensing system and new chemicals, all existing staff were provided training on the new system.  His evidence was that the extent of training depended on the nature of their work.  He said that all new incoming staff were provided training on chemical usage and handling, with the domestic staff (kitchen, laundry and cleaning staff) receiving more intense one on one training than the carers.  He said the carers were provided more basic information on the products being used and what products should be used on particular surfaces.  He said the information for the carers was contained in information sheets.  No information sheets were tendered in evidence; though the MSDS relating to D4 and its use at the Facility was tendered. 
160. [160]
     Mr Turner, an account executive of Diversey, confirmed that Diversey as the supplier of chemicals to the Facility, also conducted monthly service visits to the Facility in which he would go in and check that the chemicals were being used correctly, check the dishwashers and the dispensing units were all operational and provide any necessary training.  Mr Turner said the staff were taken through the training program called “Safe Handling of Chemicals”.  Mr Turner explained that training program was just a basic do’s and don’ts on how to handle chemicals safely and when to wear protective equipment.  He said he would also go through what he called “Product Application Training”, which he described as training as to the products that are used on site and how to use them correctly.  Mr Turner said that the training program offered by Diversey was a prescribed training program with a PowerPoint presentation that would either be put up on a screen or an A3 flip chart used to take staff through the program, depending on whether the Facility had access to a projector. 
161. [161]
     He said that most sites would have training once a year to familiarise staff and/or reacquaint them with the chemicals and the safe handling of the chemicals.
162. [162]
     In relation to D4, he said they would usually show the staff how to fill the bottle up with the water first, slide the bottle into the dispenser and then give one pump on the grey button on the front of the dispenser which puts one shot of the product into the bottle and then the top is screwed on it.  The system stops too much chemical being put into the bottles.
163. [163]
     Mr Turner said that they are always training staff, “to make sure you only put one shot into the dispenser”.  He said he would explain to staff that if they put too much chemical into the bottle then they would end up over concentrating it, and he said then it becomes a bit of a non-rinse sanitiser that they would need to actually wipe down the surface afterwards to rinse it off.  Mr Turner explained that this particular sanitiser was a non-rinse sanitiser, as long it was mixed correctly.
164. [164]
     Ms Parsons confirmed that staff received education on a regular basis; once or twice a year.  She described the training as including how the cleaning was to be done, how the chemicals were to be used and how to fill the spray bottles using the dispensary units at the Facility.  Ms Parsons confirmed that the training was provided by the supplier of the chemicals. 
165. [165]
     Ms Parsons said that they explained in the training that people were not to spray the chemicals in the air, but rather to spray it on the surface and wipe it off.  She said that it was explained that employees were not to mix the chemicals. 
166. [166]
     Taking the evidence as a whole into consideration and the credibility of Ms Knight, I am not persuaded that Ms Knight did not receive any training on the safe use of chemicals, including D4.

Events after Incident Form

167. [167]
     There are not many differences in the evidence concerning the events after Ms Knight completed the Incident Form.
168. [168]
     Ms Wright said that upon receipt of the Incident Form she would have asked Megan to come and see her.  She said she could not recall when that conversation occurred, though she believed the meeting would have occurred in her office.
169. [169]
     Ms Wright said that she did not recall a meeting between herself, Mr Winterton and Ms Knight on the lawn area outside the Wattle hostel at around 6.00pm, as suggested to her by Ms Knight.  Ms Wright said that it would be unusual for her to be on the premises at 6.00pm and unusual for her to conduct a meeting outside in a public area.
170. [170]
     She said that her usual process would be to talk to the person involved, usually in the private area of her office, she would have had a discussion about her concerns and explained that the next process would be to escalate the matter to Mr Winterton.  Ms Wright said that she was not sure when she sent the Incident Form to Mr Winterton but she has recorded on the Incident Form that it was sent to Mr Winterton and she knows that she did escalate it.
171. [171]
     She said that it is documented on the Incident Form that she also notified her clinical manager at the time, who it is noted on the form was Cynthia Bull.
172. [172]
     Ms Wright said she could not recall a meeting with Ms Knight on 25 September 2014, though accepted that she could not recall the dates of her meetings.  She also could not recall what date Ms Knight returned to work.
173. [173]
     Ms Wright said she could recall during this period a discussion with Ms Knight in which she said she wanted to lock the D4 away.  In cross-examination, Ms Wright did not accept that in the meeting with Ms Knight that she told Ms Knight “to keep [herself] safe or [her] employment will be terminated.”  In answering a question from Ms Knight, Ms Wright said that she would not use that terminology “with you or anyone”.  Further, she said that it was not her decision to make to terminate someone’s employment.
174. [174]
     Ms Wright said that she recalls the extra measures put in place following receipt of the Incident Form was to move Ms Knight from the Wattle hostel, to being rostered to work in the Ivy or Jasmine hostels, because then she would be the sole carer and have greater control over her environment.  She said that she thought that suggestion was raised by Ms Knight but that she thought that was a “good suitable measure to take so I was happy to follow along with that.”  In cross-examination, Ms Wright accepted that Ms Knight may not have always been rostered to work in the Jasmine or Ivy hostels but said that she believed they had tried to roster her in the ‘one carer’ hostels.
175. [175]
     Mr Winterton said that following receipt of the Incident Form from Ms Knight, he recalls that he was involved in several conversations with Ms Knight.  Mr Winterton also said he could recall walking through the Wattle hostel in the week or days before the Incident Form was submitted and being approached by Ms Knight and the issue being raised.  He said that prior to that he had no knowledge of there being any issue around D4.
176. [176]
     Mr Winterton said he recalled a meeting shortly after the Incident Form was lodged.  He said that he recalls Ms Knight, Mr Evans and himself were at the meeting.  He said he recalls initially all the conversations were on site.
177. [177]
     He said he recalls at the first meeting after the lodgement of the Incident Form, Ms Knight outlined her concerns.  He said she spoke about her respiratory distress, headaches, nausea, pain (aches and pains around the body) and congestion of her airways.  He said he also particularly recalled her concerns in relation to her breathing at night and her struggling for breath.  Mr Winterton said that he particularly recalls that she said the only way she could get any relief was to make a poultice and insert it up her nose.  Ms Knight denied that she had ever said that or that she had ever used a poultice.  She said she had referred to lying backwards and dripping liquid coconut oil up her nose.
178. [178]
     Mr Winterton had no recollection of a meeting at which he and Ms Wright were present nor any meeting on the lawn outside the Wattle hostel.
179. [179]
     Mr Winterton said that at the first meeting he told Ms Knight that they would have to consider the matter, seek advice and ensure she was safe.  He said they needed to try and work out the best way forward.  He denied that he said because she had lodged an incident form that she had now “made it legal”.  He said he was concerned about Ms Knight’s welfare and needed to consider what they should have in the workplace for her at this time.
180. [180]
     Mr Winterton agreed that Ms Knight asked if they could “just get rid of D4 and use another product.”  Mr Winterton said that he had said they would turn their mind to it as they were not adverse to changing it.
181. [181]
     Mr Winterton sent a formal response to Ms Knight by a letter dated 19 September 2014.  The letter contained a requirement that Ms Knight attend upon her GP, with an offer to pay any reasonable appointment costs or in the alternative for her to attend one of their associated GP’s at their expense.  Ms Knight attended upon her own GP, Dr Richards.
182. [182]
     When being questioned by Ms Knight, Mr Winterton agreed that in one of the meetings he mentioned his wife going into anaphylactic shock through exposure to a chemical and of her being hospitalised.  Mr Winterton said that conversation occurred in the administration building and that Cliff Evans was present.
183. [183]
     Mr Winterton said that after the first meeting, he sought advice from Johnson Diversey and spoke to Mike Howell, whom he was referred to via Brendan Turner, the Relationship Manager at the time.  He said as a result of those discussions he realised that the active ingredient in D4 was a product used in numerous other sanitising agents, including Pine O Cleen and Febreze.
184. [184]
     Mr Winterton said that, when they realised D4 was in so many other commonly used products, he concluded that changing D4 for another product was not going to be a solution for removing D4 from the workplace.
185. [185]
     In an email dated 13 October 2014, Ms Knight requested that the company pay for her to be allergy tested by Dr Solley.  In that email Ms Knight raised concerns that her hours of work had decreased.  While Mr Winterton denied it was related to the D4 issue, he admitted there had been a decrease.
186. [186]
     Ms Knight said that following receipt of the email, she was then called to a meeting by Mr Winterton.  Mr Winterton did not dispute that another meeting took place in the middle of October and that he and Mr Evans would have been present at the meeting.  Mr Winterton said that the company agreed to pay for the testing by Dr Solley and that was subsequently confirmed by email.
187. [187]
     Mr Winterton said that following receipt of Dr Solley’s report, they were satisfied that if steps were taken to ensure that Ms Knight was not exposed to the chemical, it simply would not be an issue.  Mr Winterton understood the report to be saying that if there is a sensitivity to a chemical and it is removed from the environment around the person, then that should rectify the situation.
188. [188]
     Mr Winterton said that they then focused on Ms Knight not being required to use the product and informing other staff that they should not use the product around her.  He said instructions were given to the staff working in the area where Ms Knight worked.  He said they provided directions for Ms Knight to remove herself from D4.  He said the instructions to staff were given by Ms Wright, Mr Evans and himself.
189. [189]
     He said he could recall there was a memo directing staff not to use the product around Ms Knight. He said he did not now have a copy of the memo.  He said he did not have copies of any memos that were sent that long ago.
190. [190]
     He said that from his recollection he believed that Ms Knight was moved to work in the hostel on a more regular basis and left the nursing home because there was less cleaning and sanitising agents and products used in the lower care areas than in the nursing home.
191. [191]
     Mr Winterton said that once they had taken those steps, he believed the workplace was safe for Ms Knight.
192. [192]
     Mr Winterton said that in late 2014, early 2015, Ms Knight had an unrelated back injury at home which removed her from the workplace for some period of time. Following her back injury, he could recall a few conversations with her on the phone. 
193. [193]
     He said he could recall a conversation with Ms Knight on the phone at around the time of the back injury.  He said he believed her back injury led right up until the time where CPSM sold Mt Coolum Aged Care to Estia Healthcare.
194. [194]
     Mr Winterton said that he could recall after her return to work, Ms Knight continued to express her concerns around the use of D4.  He said they continued to direct her not to use D4 and to direct other staff not to use it around her.  Mr Winterton said as a result of the advice received from the supplier and the medical advice, they reassured her that if she was not around the product she would not have an issue and that it was unlikely that the product was causing all of her symptoms.
195. [195]
     He said he understood that Ms Knight would gather up any of the product at the start of her shift and she would put the product away so other people could not use the product around her during her shift.  He said they had no issue with that.  He said they took the view that if that made her more comfortable, that was fine.
196. [196]
     Mr Winterton said he did not observe Ms Knight to have any issues following her return to work.
197. [197]
     Mr Winterton said there were other email exchanges between Ms Knight and himself.  He said Ms Knight continued to express her concerns with D4.  He said their view was that they could not substantiate that, but they understood her concerns.  He said they believed that Ms Knight felt the best way forward was not to be in that kind of healthcare environment anymore.  He said at that point they made her an offer to settle her employment.  He said that was shortly before the transfer of the business.
198. [198]
     Both Ms Wright and Mr Winterton gave careful considered evidence, making concessions where appropriate.  There was nothing in their evidence which suggested they were trying to protect CPSM or themselves from any criticism.  Each remained appropriately forthright when matters were put to them by Ms Knight in cross-examination which conflicted with their own recollection.  They both appropriately accepted that they had no difficulty with Ms Knight otherwise as a worker.
199. [199]
     On the other hand, in addition to her exaggeration of her symptoms and complaints, Ms Knight gave evidence in relation to her economic loss claim and in particular her evidence as to the extent of her incapacity, which was simply not credible, and is inconsistent with her own documented life story. That evidence will be dealt with later.  For present purposes it is sufficient to say that where the evidence called by the defence differed from that of Ms Knight, I prefer that evidence.  This preference includes, but is not limited to the dispute, so far as there is one, in relation to the events after the Incident Form was submitted.

Chemical D4

200. [200]
     Leaving aside the disputed evidence, the most significant aspect of the case concerns the nature of the chemical D4 and the manner in which it was stored and used at the Facility.  It is necessary to consider a particular employee’s position as regards the use of that chemical after that susceptibility is known to the employer, but consideration is also to be given to the reasonableness of the use of the chemical in the first place and its manner of use.
201. [201]
     Ms Knight gave some evidence as to her observations of the use of D4, but otherwise the evidence about the chemical and its use was called by the defence.  Given that the chemical and its use is at the heart of the case, it is necessary to say something about it.  There is a high degree of uniformity of evidence on the subject, and none of it was contested.  It is unremarkable.  I accept the evidence of Mr Winterton, Ms Parsons, Mr Howell and Mr Turner as to the chemical and its use and storage at the Facility.
202. [202]
     The chemicals used by staff at the Facility were introduced to the site shortly after the purchase of the Facility by CPSM.  The implementation of the changed system was done under the supervision of Diversey.  The chemicals used at the Facility were obtained by Diversey from one of its distributors, Bunzl. 
203. [203]
     Diversey installed dispensing units in all of the cleaners’ rooms.  This was a “closed system”, which meant that no one was required to handle the products.  It involved inserting a canister into the dispensing unit.  The cleaning staff were responsible for inserting the canister.  The dispensers were designed to release, with the push of a button, the required amount of chemical into the spray bottles.  The dispensers squirted three mls of the D4 into a spray bottles which contained 750mls of water, giving the desired dilution at 0.4 per cent, making the actual level of D4 in the solution in the spray bottles 0.02 per cent.  The cleaners were responsible for filling the spray bottles with the 750ml of water.
204. [204]
     The new dispensing system meant that the cleaners were no longer required to take the caps off cleaning products and pour the chemicals into a receptacle.
205. [205]
     The raw chemicals were stored in the cleaners’ rooms.  There was a cleaners’ room in each building; a room in each of the 20-bed buildings in the low-care facilities and one in the nursing home.  In each cleaners’ room there was a cleaner’s trolley and typically only the cleaners would go in there.  Other staff could go in if they needed to get a mop and bucket, but it was a staff-only secure area.  One of the last things the cleaners did every day before they left the site was to fill a bucket with some sanitising agent and water and leave the bucket and mop ready to be accessed and used by the night staff.
206. [206]
     Spray bottles containing cleaning product were available in the cleaners’ rooms and also available in some of the clinical treatment rooms and some of the kitchens/kitchenettes where food was prepared and/or served.
207. [207]
     The staff from Diversey were regularly on site.  It was their job to visit the site monthly and to test and ensure the equipment including the dispensers were working properly, to check the stock levels and that the products were being kept in the right place and to make sure the safety data sheets were kept up to date.
208. [208]
     Ms Parsons said that the benches in the kitchen and kitchenettes were cleaned before and after meal time with the general purpose cleaner and then D4 was used as a sanitiser.  Ms Parsons said that all chemicals were in a spray bottle.  She said the cleaning products were taken around the Facility on a cleaner’s trolley.
209. [209]
     Ms Parsons said her practice was to always spray the general surface cleaner on a cloth and then she would use the cloth to wipe down the surface.  She said that once the bench was dry, she would then spray the sanitiser on the bench and allow it to air dry.  The sanitiser was only for the kitchen areas, by that she meant the main kitchen as well as the kitchenettes of the hostels.  She said she did not use D4 in the patients’ bedrooms or bathrooms. 
210. [210]
     D4 is commonly used in the cleaning and sanitation industries.  The chemical, Didecylimethylammonium chloride, would be found in products promoted as sanitisers or disinfectants.  A chemical with a similar active molecule, but slightly different structure but as a class of compounds, is found in consumer products such as Pine O Cleen, Febreze and Clorox-type disinfectants.
211. [211]
     Diversey were a multinational global company and the products they presented to the marketplace were the type of product used all over the world and the company regarded it as safe when used as directed.
212. [212]
     Mr Turner said, as part of the service offered by Diversey, they always do training.  He said that when they first set up a site, they train all the staff and then after that it is ongoing training, as required by the actual site.

Extent of Ms Knight’s Injuries

213. [213]
     Given that damage is an essential element of the cause of action in negligence, it is now necessary to consider the evidence relating to it.

Ms Knight’s Evidence

214. [214]
     Ms Knight’s claim is for physical and psychological injuries allegedly sustained as a result of events between September 2013 and April 2015.
215. [215]
     Ms Knight’s evidence is that she initially experienced a headache as soon as she walked into an area where D4 had been sprayed.  She said subsequently it became a headache and a tickle in her nose. 
216. [216]
     Ms Knight said initially once she left the area where the D4 had been sprayed, “after about 15 minutes the headache cleared”.
217. [217]
     She said it would be an irritation in the nose, a headache at the front, at the back and then in her neck, all down her spine and across her shoulders would stiffen and she would get, what she termed kidney pain. She said her energy would drop, “like I was coming down with the flu.”  She then said, it led to a point where she was coming home from a shift and going, “Oh, I’m just – it’s just like physically devastating for days.”  She said it got to a stage where she was “actually having to go to bed after a shift and stay there till the next morning, to come back to normal.”
218. [218]
     She said that in January 2014 she got a blocked left nostril which she could not overcome and she says the blocked left nostril “still persists today”.              
219. [219]
     In reporting her symptoms to doctors, she said she had developed breathing problems which consistently affect her sleep. She said the heat worsened her breathing problems.
220. [220]
     She complained of experiencing “dizzy spells”.
221. [221]
     She identified abnormal nerve sensations which lead to pain and numbness.  She described herself as suffering with “chronic fatigue” which makes her spend 12 hours every day in bed.
222. [222]
     In describing her symptoms to doctors in 2017, she states that her system has been suppressed, interfering with her ability to deal with any physical illnesses and stresses and says that she has suffered a psychological problem “from lack of medical attention, despite asking for it consistently over the past four years.”
223. [223]
     Ms Knight prepared and provided to all doctors a 200 page document titled, “Health Diary” in which she recorded her physical dysfunction and distress for the period 22 February 2015 to 16 May 2016.
224. [224]
     The physical symptoms experienced by Ms Knight are listed in paragraph 12 of the Amended Statement of Claim as sinus pain, headaches, neck stiffness, kidney pain, lymph node (armpits) pain, loss of energy, agitation, constipation, tearful emotions, reflux, thirsty, sleep interference, nasal obstruction, skin rashes and breathing difficulties; all of which are alleged to be continuing.
225. [225]
     In the Amended Statement of Claim, it is alleged that Ms Knight has been diagnosed as suffering from Multiple Chemical Sensitivity (MCS) due to exposure to chemicals in the workplace and that she has developed a chemical hypersensitivity to the chemical D4 and that she was now sensitive to all chemicals and continued to suffer the symptoms previously detailed, as well as others.  In paragraph 24 of the Amended Statement of Claim the symptoms are listed as:

    “● pain in the epigastric area/lower ribs kidney area (like a band)

• chest wall pain upper, mid and lower chest
• back pain, muscle spasm, neck pain, myalgia
• nasal congestion mainly left side
• sensation of bulge in throat
• hoarse voice
• poor appetite weight loss, low energy
• deterioration in general voice and singing voice
• excess mucus production and post nasal drip
• shortness of breath which waxes and wanes in consistency
• itch and formication of skin
• electric shock type sensations on skin
• itchy sore dry eyes
• very dry skin/lips and hair
• headaches and brain fog
• unusual sweats and changes in body odour
• dizzy spells
• poor concentration
• poor short term memory”

226. [226]
     In paragraph 25 of the Amended Statement of Claim, it is alleged Ms Knight was suffering “an undifferentiated somatoform disorder and an adjustment disorder with mixed depression and anxious mood, in partial remission.”

Expert Evidence

227. [227]
     The plaintiff called Doctors Oliver, Matthew and Solley.  The defendant called Doctors Shaikh and Brandt.
228. [228]
     With the exception of Dr Oliver, all doctors called had examined Ms Knight for the purpose of giving their reports.
229. [229]
     Dr Oliver, currently working as an adjunct professor, whose area of specialisation as a physician was also in occupational and environmental medicine, provided a report dated 5 March 2019.   Dr Brandt, also a consultant occupational and environmental physician, examined Ms Knight in June 2016 at the request of WorkCover and provided a report dated 23 June 2016.  Dr Solley, an allergist, examined Ms Knight and conducted allergy tests in 2014, and provided a report dated 26 November 2014. 
230. [230]
     Doctors Matthew and Shaikh, both consultant psychiatrists, assessed Ms Knight a week apart in September 2017; Dr Matthew at the request of the solicitors who were then acting for Ms Knight and Dr Shaikh at the request of the solicitors for the defendant.
231. [231]
     All doctors were provided any medical reports which had been prepared prior to the date of their examination of Ms Knight.  The reports provided included reports from a number of doctors who were not called and whose reports were not tendered in evidence in these proceedings. Prior to giving evidence, all doctors were provided with the MSDS for the chemical D4 as prepared by Diversey.

Dr Oliver

232. [232]
     Dr Oliver was called in support of the claim by Ms Knight that she was suffering from MCS.  Dr Oliver obtained her doctor of medicine degree in 1970 from the University of North Carolina, Chapel Hill, completing post-doctoral studies in Public Health at the Harvard School of Public Health in 1979.  She is currently an adjunct professor at the Dalla Lana School of Public Health at the University of Toronto and had been appointed to the Ontario Task Force on Environmental Health.  She had held various hospital positions, the last of which was for the period 1992 to 2017 as an associate physician at the Massachusetts General Hospital.
233. [233]
     Dr Oliver had not examined Ms Knight.  Her diagnosis was first made in a report dated 12 March 2018.  In the report, Dr Oliver refers to a telephone consultation with Dr Gupta, a doctor who described himself as a specialist GP and who had treated Ms Knight and had made a diagnosis for Ms Knight of MCS.  Dr Oliver listed as the material reviewed the Incident Form, emails from Ms Knight detailing her symptoms, reports of Doctors Gupta and Higgins, Ms Knight’s treating GP since May 2015, and the report of Dr Matthew dated September 2017.
234. [234]
     The emails from Ms Knight said to have been received by Dr Oliver were not identified by Dr Oliver in her March 2018 report.  Dr Oliver was requested to provide any emails to the court and the finalisation of her evidence was adjourned to enable that to occur.  Included amongst the emails is a three page email from Ms Knight dated 6 March 2018 detailing her symptoms and history of exposure.  The email refers to the concentration of D4 being five percent and lists her symptoms as including sensitivity, breathing, body pains, constant illness and infections, brain fog and chronic fatigue in which Ms Knight referred to not being able to sit at a desk since 2015, walking being easier than standing and needing to lie as often as possible.  At the time of providing her 2018 report, in an email dated 13 March 2018, Dr Oliver wishes Ms Knight “good luck in Court.”  Whilst Dr Oliver stated that she would have made notes of her ‘consultation’ with Dr Gupta, she maintained that she was not able to locate a copy of the notes made.
235. [235]
     Neither Doctors Gupta nor Higgins were called as witnesses in these proceedings and the reports of Dr Gupta were not admitted into evidence.  The report of Dr Higgins referred to by Dr Oliver was admitted into evidence, but only as proof that it was sent, not as proof of its contents.
236. [236]
     Dr Oliver gave a further report dated 5 March 2019.  In providing her 2019 report, Dr Oliver confirmed her earlier opinion that Ms Knight had MCS and detailed the additional material reviewed; which included the MSDS for D4A (dated 6 April 2010), the Noosa Hospital records, the report of Dr Solley and various medical and scientific literature.
237. [237]
     Despite her diagnosis, in giving oral evidence Dr Oliver stated, “…it was my understanding that my role was not to determine diagnosis and causation”, though she said she was happy to do that, and in fact she had already done that in her reports.  She said, “My understanding was that my role was to testify with regard to the disease multiple chemical sensitivity, its validity, its recognition, how it is diagnosed.”
238. [238]
     In her 2019 report, in support of her diagnosis, Dr Oliver stated:

“Her exposure history, symptoms and clinical course fit the consensus criteria for case definition published in the Archives of Environmental Health in 1999 (Bartha, 1999):

1. The symptoms are reproducible with [repeated chemical] exposure.
2. The condition is chronic.
3. Low levels of exposure [lower than previously or commonly tolerated] result in manifestations of the syndrome.
4. The symptoms improve or resolve when the incitants are removed.
5. Responses occur to multiple chemically unrelated substances.
6. Symptoms involve multiple organ systems.”

239. [239]
     Dr Oliver considered that these yardsticks had good discriminant validity for cases of MCS.  In her report Dr Oliver, however, did not justify, by reference to Ms Knight’s history, symptoms or clinical course, the basis for the conclusion that Ms Knight fitted the criteria.
240. [240]
     Neither report identified the actual symptoms relied upon.
241. [241]
     In giving oral evidence, Dr Oliver referred to Ms Knight’s reported exposure to D4, the symptoms which Ms Knight described and as reported by Doctors Gupta and Higgins, the fact that Ms Knight had reported excellent health prior to this exposure, that the medical evaluations revealed no other explanation for the symptoms being reported, that the symptoms occurred in association with exposure to chemicals and that her symptoms improved when she was removed from exposure.
242. [242]
     In evidence, Dr Oliver said the symptoms she relied on in giving her initial 2018 report were headaches, fatigue, loss of concentration and breathing difficulties. 
243. [243]
     Dr Oliver identified the fact that the symptoms as reported affected more than one body system.  She referred in particular to the central nervous system and the lower respiratory system.  The symptoms identified by Dr Oliver as impacting the central nervous system and reported by Ms Knight were said to be fatigue, difficulty concentrating, brain fog, dizzy spells and poor short-term memory and in the lower respiratory system were said to be breathing, nasal congestion, a hoarse voice, a bulge in the throat and tightness across the chest.  In addition, she said Ms Knight reported headaches and bloating.
244. [244]
     Dr Oliver’s view was that over time, the symptoms became chronic and the symptoms occurred in response to exposure to multiple, often unrelated, chemicals.  Dr Oliver did not place any caveat on the conclusions she reached, despite its dependence on the symptoms as reported by Ms Knight.
245. [245]
     In discussing the chemical D4, Dr Oliver regarded D4 as a hazardous chemical and said that inhalation posed a great threat to health.  Dr Oliver did not refer to any literature or research to support this assertion.  She stated that the Incident Form discloses that in September 2014, Ms Knight was exposed to an aerosol of the D4 product.  In her view, aerosols posed a greater danger than a chemical in its liquid form, because “…it’s more readily available for inhalation and it’s inhaled into the lungs and dispersed…”
246. [246]
     The concentration levels of any exposure did not appear to impact Dr Oliver’s conclusion.  In cross-examination, she could not remember whether Ms Knight had said her exposure was to the product in its pure form, nor did it matter the strength of the product to which she was exposed; though in reliance on the MSDS for the product, Dr Oliver stated that D4 constitutes five percent of the product with the other 95 percent being non-toxic.  When it was explained to Dr Oliver that the exposure of Ms Knight was in fact to a solution with no more than 0.04 percent of D4 in it, not five percent, Dr Oliver said that would not change her opinion.  She said, “I don’t know whether she was exposed to the raw materials or not, but in my opinion, it is likely that during the course of that exposure she gradually developed sensitivity to that product so that…it would not be unexpected that she would have a reaction to more dilute product.”  Dr Oliver did not attempt, however, any explanation of the basis for her conclusion that at any dosage a reaction could occur.
247. [247]
     Dr Oliver referred to the risks of exposure to the vapour from the raw chemical being stored in an open container or from a large spillage of the raw material. There was no evidence to support exposure from either of those sources.
248. [248]
     Dr Oliver would not accept that the product was commonly found throughout the world.  She would not accept that it was used in general household cleaning products.  She said that it was not commonly found in household cleaning products in the US because she said “it’s such a strong chemical”.  Her evidence in relation to its use as a cleaning agent is inconsistent with the evidence given by both Mr Turner and Mr Howell, who worked with Diversey, the supplier of the chemical, that the ingredient commonly used in cleaning products was sold by the company throughout the world.
249. [249]
     Dr Oliver said that MCS may cause depression or anxiety, however considered that somatoform disorder is a common misdiagnosis confirming her view, that “fundamentally it is a physical disease.”
250. [250]
     Dr Oliver did not agree that as a result of her exposure, Ms Knight had a temporary self-limiting mucous membrane irritation of the upper respiratory tract.
251. [251]
     The evidence of Dr Oliver did not impress. Whilst initially in 2018 Dr Oliver was wanting further details of Ms Knight’s history to support the making of a diagnosis, Dr Oliver appears to have accepted and acted on the statements made by Ms Knight without challenging them.  This is significant because of the doubts that exist in my mind as to Ms Knight’s credibility.
252. [252]
     In any event, in diagnosing Ms Knight, Dr Oliver acted on reports by Doctors Gupta and Higgins which were not proven.
253. [253]
     In reaching her conclusion, Dr Oliver did not give any scientific basis for her conclusion about chemical sensitivity or the chemical D4.  She appeared very interested in asserting a cause and was not careful in the way she reached her conclusion.

Dr Brandt

254. [254]
     In contrast, Dr Brandt, also a specialist and consultant occupational environmental physician, considered that there was insufficient scientific evidence to support a causal connection between intermittent low level exposure to aerosolised droplets of diluted D4 chemical solution and the subsequent onset and persistence of multiple varied non-specific symptoms.  Dr Brandt opined that it is unlikely that Ms Knight’s described pattern of exposure would have resulted in any degree of significant pathology beyond a temporary/self-limiting mucous membrane irritation of the upper respiratory tract.  Dr Brandt considered that her work-related condition is likely to be stable and stationary.
255. [255]
     Dr Brandt had examined Ms Knight in May 2016 and gave a report to WorkCover dated 23 June 2016 in which he had assessed Ms Knight as having no rateable permanent impairment.  A record of a conversation between Dr Brandt and counsel for CPSM signed and dated 8 March 2019 by him was tendered.  Prior to the conversation, Dr Brandt had been sent Dr Oliver’s 2018 report.  Prior to giving oral evidence, Dr Brandt was shown Dr Oliver’s 2019 report.
256. [256]
     In the record of the telephone conversation with counsel for the defendant, Dr Brandt was referred to the symptoms reported by Ms Knight as detailed in the Amended Statement of Claim.  Dr Brandt remained of the view that it was difficult, based on the medical and occupational history and published toxicology information, to reconcile the degree and extent of ongoing physical symptomatology and disability with Ms Knight’s described exposure to D4 spray.  Dr Brandt explained that there was no evidence that a chemical at those sorts of described doses, given its toxicological profile, which he addresses at length in his written report, would result in immunological changes or cause a physiological reaction that would lead to multi-organ dysfunction. 
257. [257]
     He explained that the main toxicological concerns that were described in the scientific literature was in relation to people who had really high level of exposures where they could get quite significant local damage; well beyond the sort of concentrations that would have been encountered in Ms Knight’s situation.  He referred to exposures from a large spillage or splash of the chemical in its pure form, of which there was no evidence here.  He explained that the product has a very low vapour pressure, making it unlikely to enter the breathing zone of an individual, absent a significant spill.  Entering a room where the raw product was stored would not place an individual at any risk.
258. [258]
     Dr Brandt remained of the view that, as a result of the described exposure profile “it would be extremely unlikely for her to have experienced any systemic absorption of this chemical resulting in toxic organ damage.”
259. [259]
     Dr Brandt further confirmed, “From documentation review, there was no objective evidence that she had developed respiratory sensitisation, and no documentation of a diagnosis of occupational asthma.”  He referred also to skin sensitisation resulting in an allergic contact dermatitis and said that in the material reviewed there was no objective diagnosis by a doctor of a dermatitis issue in Ms Knight.  In giving evidence, Dr Brandt carefully reviewed the prior medical reports and could find no evidence of any objective investigation.
260. [260]
     Dr Brandt considered that Ms Knight’s reported left sided nasal obstruction was consistent, at least in part, with a reported identification of a left nasal septum deviation, unrelated to exposure to D4.
261. [261]
     In giving evidence, Dr Brandt confirmed his view that, the exposure had caused in the worst case scenario, being a self-limiting temporary mucous membrane irritation of the upper respiratory tract, then when the exposure was ceased you would expect the condition to resolve.  Dr Brandt explained that the inflammation and swelling in the lining caused by the localised irritation as a result of the exposure would resolve and the pre-existing nasal mucosa or lining would be restored.  He stated that one would expect the condition to be self-limiting. 
262. [262]
     In the report of the conversation with counsel for the defendant discussing the possibility of MCS diagnosis, Dr Brandt referred to having considered a review article and literature review current as at February 2019. 
263. [263]
     Dr Brandt stated that it is a controversial condition being a subjective illness marked by recurrent, vague, non-specific symptoms attributed to low levels of chemical, biologic or physical agents without any objective alterations in function.  He stated there are no laboratory tests or scans that will confirm a diagnosis. 
264. [264]
     Unlike Dr Oliver, Dr Brandt did not consider it to be a distinct valid medical entity nor that there was a reliable case definition or set of diagnostic criteria.  He referred to reports identifying a strong association with psychiatric disorders.
265. [265]
     In giving his evidence, Dr Brandt was a careful, considered expert, explaining in some detail the basis for the conclusion he had reached.  In responding to questions raised by Ms Knight, he was prepared to review the material he had available to him in forming his opinion but remained firm in his conclusions.  Whilst not a psychiatrist, he showed empathy for Ms Knight’s ongoing illness, referring to the suffering and disabilities she describes, and said he felt there must be some psychological component to it.  In other words, he did not adopt a partisan attitude.
266. [266]
     I accept the evidence of Dr Brandt, and certainly prefer it over the opinion of Dr Oliver.

Dr Solley

267. [267]
     As part of the initial response to the Incident Form, Ms Knight saw an allergist, Dr Solley, who examined Ms Knight and provided a report dated 26 November 2014 to her then treating practitioner.  In the end, the view of Dr Solley was not inconsistent with the opinion of Dr Brandt.
268. [268]
     In his report, he had concluded that he considered Ms Knight was probably hypersensitive to particular agents in the workplace but agreed any sensitivity would be dependent on the subjective complaints and that the complaints would have to be established and proven.  Further, in cross-examination, he accepted that he had no objective test to prove or disprove hypersensitivity to chemical fumes, or vapour.  He accepted it was possible that someone could be telling you they were hypersensitive, when in fact they were not.
269. [269]
     He said he did not consider that the nasal congestion was related and nor did he consider Ms Knight to be reporting it as a symptom.  He considered it was something independent of chemical exposure, agreeing with the view of Dr Brandt.
270. [270]
     Dr Solley considered that if someone were hypersensitive then they should avoid the reagent which is causing the symptoms.  He agreed that when they step away from the exposure it should usually resolve, though accepted that if they develop a hypersensitivity then sometimes the symptoms may last for hours and even days afterwards.  He said it depends on the degree of reactivity but accepted in most cases, once a person is removed from the exposure it stops.

Psychiatric Evidence

271. [271]
     The issue of a potential psychiatric disorder having been raised by a number of doctors investigating Ms Knight’s physical symptoms, Ms Knight attended upon a number of psychiatrists.  The two psychiatrists who gave evidence in these proceedings assessed Ms Knight one week apart in September 2017.  Of significant concern is the difference in the history given by Ms Knight to each psychiatrist. 

Dr Matthew

272. [272]
     In his written report in September 2017 and in giving his evidence in chief, Dr Matthew concluded that Ms Knight’s condition was “well represented by a diagnosis of a somatoform disorder.” Dr Matthew explained that the diagnosis meant that the current physical symptoms experienced by Ms Knight are without a physical cause. Given the absence of any reported sexual symptoms, Dr Matthew described the diagnosis as “undifferentiated somatoform disorder.”
273. [273]
     He considered that there was an underlying adjustment disorder with depression and anxious mood, though considered both those conditions to be in partial remission.  He considered her to have a disorder as distinct from having just symptoms on the basis that a disorder suggests a functional impact on the person.
274. [274]
     In reaching his conclusions in his written report, Dr Matthew relied on the history as provided by Ms Knight as to the limitations arising from her physical condition on her current functioning, commenting that her level of functioning was poor.  Dr Matthew referred to Ms Knight spending considerable time in bed, with there being days when she was unable to do much, her considerable withdrawal and loss of interest in things and the fact that she was not able to do two things in a day.  Whilst she still attended church, her attendance was variable.  She reported not being able to sit at a desk because her body was screaming out, “I need to lie down” and to her having “some poor concentration and blurred vision” and irritability. 
275. [275]
     He noted Ms Knight reporting a reduced level of self-care: no longer showering as much as she had previously done.
276. [276]
     He described Ms Knight at the time of interview as being “agitated, angry and dysphoric but not pervasively depressed.”
277. [277]
     In his written report, Dr Matthew in referring to the Health Diary noted that what was striking about the document was Ms Knight’s “preoccupation and distress” with regard to her physical symptoms in general and her respiratory issues.  He noted the emphasis placed by her on her persisting issues.
278. [278]
     Dr Matthew considered that sometimes Ms Knight’s descriptions of her conditions were odd and described in a manner that was very different to the way most people would express physical conditions.  Dr Matthew did not, however, consider them bizarre; though he commented that they were bordering on bizarre.  Dr Matthew commented that she had also reported kidney problems without any evidence for that.  He observed that it is unlikely that someone seeking to illicit sympathy and care would present with such symptoms which would not make sense to others. 
279. [279]
     In his report and in evidence in chief, Dr Matthew stated that it was outside his expertise to determine whether Ms Knight’s physical symptoms were the result of exposure to chemicals but noted both Dr Brandt’s opinion and the conclusion reached by the Medical Assessment Tribunal that Ms Knight developed temporary irritant effects, secondary to exposure to a chemical, which caused temporary upper respiratory tract symptoms. The significance of that conclusion to the initial opinion of Dr Matthew was that he regarded the suffering of those physical symptoms as the physical trigger.  Dr Matthew explained that at the point where the physical symptoms had resolved, he considered the state of mind became a significant cause of the ongoing symptoms.
280. [280]
     Using the psychiatric impairment rating scale, Dr Matthew’s conclusion at that time of his report was that Ms Knight had a permanent whole person impairment of 17 per cent and he considered that the severity of her condition would prevent her from participating in paid employment, now and in the foreseeable future.  Dr Matthew stated that his conclusions were based on his firm impression that Ms Knight was not deliberately constructing her reported symptoms; though acknowledged that it was the court that determined issues of truth.
281. [281]
     In reaching that conclusion, Dr Matthew considered that Ms Knight would be unlikely to engage in psychological treatment as she does not believe that her condition has a psychological base, and if she did engage any improvement would be expected to be very slow.
282. [282]
     In cross-examination, Dr Matthew was taken to a number of Facebook posts of Ms Knight for the period between 28 August 2013 and 7 March 2019.  The extract of the Facebook posts were contained in two level arch files, which Dr Matthew was taken painstakingly through.  Dr Matthew was given an opportunity to read the particular posts to which his attention was being drawn.
283. [283]
     He was referred to Ms Knight’s Health Diary, her extensive affidavit material in these proceedings and the work done in promoting her business and asked as to the impact of her ability to prepare such material to his conclusions as to the level of her impairment.
284. [284]
     Some two hours into the cross-examination and towards the end of the day, but with a view if possible to finish the doctor’s evidence that day, Dr Matthew was asked as to whether he would like a short adjournment to reflect.  Dr Matthew considered that a short break would be very helpful.  The court adjourned for 25 minutes.  Dr Matthew had a copy of the Facebook posts.
285. [285]
     Upon resuming, Dr Matthew commenced by observing that his opinion had changed. He commented that what he had now seen changed his view “quite profoundly”.  In so concluding, Dr Matthew was careful and reflective as to the material he had been shown.  He commented that he was mindful that Facebook is a tool of signalling the quality of your lifestyle to others and that it represents only a moment in time and that he accepted the history was that there were good days and bad days and that he hadn’t seen every day. 
286. [286]
     Being mindful of those limitations, Dr Matthew said that Ms Knight was fit for full-time work in her previous capacity and is not suffering a psychiatric illness.  He stated that the physical findings and psychological functioning is not in keeping with the history obtained.  He said, “there was an unresolvable incongruity between the history that I obtained and the extra information he was provided, even taking into account those earlier caveats.” 
287. [287]
     Nevertheless, Dr Matthew stated that “there is still something not quite right about her descriptions” and her preoccupation with her physical experiences.  He referred to the 200 page journal, the 100 videos of her sinus problem, the renal pain, anger with conventional medicine, desperate seeking of alternative health and her ongoing investment or psychological assessment of her physical state.  He considered that “there is something happening”; a strong psychological component in her experiences but it cannot support a diagnosis of a psychiatric disorder. 
288. [288]
     In reaching that conclusion from the Facebook posts he was shown, he identified in particular her involvement in a women’s convention over a two day period, her involvement in organising things including what appeared to be a group to climb Mt Coolum, the photo of her harnessed, climbing and suspended on the mast of a boat and her travelling overseas extensively.  On the basis of that further information, Dr Matthew concluded that Ms Knight has no functional impairment on any of the six criteria and her percentage impairment using the PERS guidelines is zero.  Having so concluded, Dr Matthew said, however, that “I am convinced there is still something within Ms Knight’s expression of her physical suffering that indicates some psychological disturbance, but I cannot reach a conclusion of a psychiatric illness.”
289. [289]
     When pressed in cross-examination, Dr Matthew did not consider that the further information changed his view that Ms Knight does not suffer from a psychotic illness.
290. [290]
     Believing that there was still some psychological disturbance, the origin of which he could not explain, he considered that Ms Knight would benefit from psychotherapy to assist her to make sense of whatever has happened within her, though he considered that Ms Knight’s ability to engage in that would be very low.

Dr Shaikh

291. [291]
     The change in opinion of Dr Matthew meant that his opinion aligned with the opinion Dr Shaikh.  Dr Shaikh had provided his written report to the solicitors for the defendant dated 9 October 2017 following an examination of the plaintiff on 20 September 2017.  A record of a conversation between himself and counsel for CPSM on 5 March 2019 was tendered.
292. [292]
     Dr Shaikh had the report of Dr Sharon Harding, also a consultant psychiatrist, who had examined Ms Knight in February 2016, at the time of writing his report.  Dr Harding was not called to give evidence in the proceedings, nor was the court provided with a copy of her report.  While giving evidence, Dr Shaikh was shown and asked to read the report of Dr Matthew, who had examined Ms Knight one week prior to Dr Shaikh on 14 September 2017.  As Dr Shaikh gave evidence before Dr Matthew, when giving evidence, he was not aware of the change in view of Dr Matthew.
293. [293]
     In giving her history to Dr Shaikh, Ms Knight reported her appetite was fine, she showered regularly though sometimes bursting into tears in the shower and was engaged with her friends and her church and attended regularly.  Ms Knight admitted to travelling to France with her daughter and husband for two and a half weeks in June 2017 to attend her niece’s wedding and to Japan in April 2017 for seven weeks. 
294. [294]
     When asked, during his evidence, whether he had been told that Ms Knight had also travelled interstate, he said he had not been told but that he was told “she was doing what everyone else could do and she was quite active”.
295. [295]
     At the time of her consultation with Dr Shaikh, Ms Knight was not in receipt of any physical or psychiatric treatment.  Dr Shaikh reported that, at the time of the consultation, Ms Knight was in a highly agitated state which was persistent throughout the assessment.  He had noted that, apart from the agitation, she did not appear to be emotionally disturbed.
296. [296]
     Dr Shaikh considered that Ms Knight was keen to discuss her own agenda, describing her as having “fixed ideations in relation to her physical ailments” and considered her insight to be poor. 
297. [297]
     Dr Shaikh concluded that, “On the basis of available physical evidence, there is nothing to suggest that Ms Knight has experienced an injury which has led to ongoing physical impairment or requirement for treatment.”  He accepted that Ms Knight may have had an adjustment disorder but considered it had resolved.  If one had existed it would have been present in late 2015, when she perceived a lack of support for her physical injury and she experienced emotional distress.  Dr Shaikh noted that Dr Harding, who appeared to accept there may have been such a disorder, considered that it had resolved by February 2016.
298. [298]
     Dr Shaikh considered that Ms Knight’s history is “reflective of personality vulnerability” which he considered were likely related to a prejudicial childhood and also included “borderline and narcissistic traits”.  He commented that Ms Knight’s experienced psychological phenomena since her initially experienced physical symptoms in late 2014 to early 2015 is “nothing but an expression of her frustration in response to her notion of her physical complaints not being acknowledged.”
299. [299]
     He described her as having “a destructive lack of insight which interferes with her judgement” which he concludes has led to “somatic manifestation of various physical complaints, without identified pathology.”  Dr Shaikh also did not consider at the time of the assessment that it could be classed as a delusional phenomenon.  However, in giving oral evidence, he commented that given that it has persisted for a further two years (since he had assessed her), then the only way he could explain it is that there is some level of delusional involvement, in that she believes there is something wrong without that actually being the case.  He said that any delusional disorder would be reflective of underlying vulnerabilities, not a work related disorder.  He considered it is highly unlikely that “any psychological treatment would be of therapeutic benefit”. 
300. [300]
     He concluded that Ms Knight does not currently experience symptoms reflective of any psychiatric disorder.  He considered her day-to-day functioning to be quite reasonable, referring to her holidays to France and Japan in the months preceding the assessment, and that there was no evidence of impaired cognition.  He noted that she is able to watch movies and spend “arduous periods of time preparing her diary and WorkCover statements”, concluding that any distress now is solely related to the compensation process which he said “cannot be deemed a work-related phenomenon”.
301. [301]
     In referring to Ms Knight having reported to Dr Harding (in February 2016) that she was engaged in self-employment and online investments for approximately 20 hours per week, Dr Shaikh stated, “I have not much doubt that Ms Knight does have the capacity to engage in paid work and this is not affected from a psychiatric perspective.”
302. [302]
     Dr Shaikh, like Dr Matthew, was a careful considered expert, who found the difference in the histories provided surprising.  He did not waiver in his views, even after being asked about the conclusions reached by Dr Matthew in his initial report.

Findings as to Injury

303. [303]
     The evidence does not support the conclusion that at the time Ms Knight worked at the Facility that she suffered chemical sensitivity as a consequence of the use of D4.  There is no expert evidence capable of persuading this court that the low levels of exposure which occurred in this case could have resulted in the symptomology alleged by Ms Knight.  In any event, as I have said, I do not accept that Ms Knight suffered from the symptoms she alleges and certainly not to the extent she alleges.
304. [304]
     I am prepared to leave open the possibility that expert opinion could prove that certain individuals might be hypersensitive to low levels of exposure to the chemical, but the expert opinion in this case was not of that quality, and, in any event, that evidence might be affected by the individual’s own reporting as to the result of that exposure.  As I have indicated, I do not accept Ms Knight’s evidence as to the consequence of her exposure.
305. [305]
     I found both Dr Matthew and Dr Shaikh to be considered and careful experts and I accept their opinions that Ms Knight has no psychiatric or psychotic disorder. 
306. [306]
     I do not accept the opinion of Dr Oliver that Ms Knight is suffering from MCS as a result of her exposure to D4 at the Facility, preferring the considered, nonpartisan evidence of Dr Brandt that Ms Knight had a self-limiting condition which has now fully resolved.
307. [307]
     On the basis of the evidence I accept, Ms Knight had and has no ongoing impairment, partial or total, preventing her from working.

Content of Duty

308. [308]
     The existence of a duty of care is not disputed.  The question is the content of the duty and whether or not there has been a breach.
309. [309]
     At common law, 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.”^[1]  The obligation does not impose a duty to prevent potentially harmful conduct.  It is an obligation to take reasonable care, having regard to the information actually or constructively known to the defendant.^[2]  The breach must be assessed prospectively, not retrospectively.^[3]  The assessment is to be made considering whether a reasonable person in the defendant’s position would have foreseen that its conduct involved a risk of injury to the plaintiff or a class of persons including the plaintiff and if so, what a reasonable person would do by way of response to the risk.  That involves a consideration of the magnitude of the risk and the degree of probability of occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and other conflicting responsibilities the defendant may have.^[4]
310. [310]
     These principles are reinforced by s 305B of the WCRA which provides as follows:

“305B General Principles

(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.

4. (d)
   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)—

5. (e)
   the probability that the injury would occur if care were not taken;

6. (f)
   the likely seriousness of the injury;

7. (g)
   the burden of taking precautions to avoid the risk of injury.”

Findings as to Liability

311. [311]
     In this case there is no evidence capable of being relied upon which shows that the use of the chemical D4 imposed a risk to employees; particularly in its diluted form and particularly given the dispensing system adopted for its use.
312. [312]
     It is well known that a defendant must take their victim as they find them, but, in this case there is no evidence, apart from her own protestations, that Ms Knight had any particular vulnerability to the chemical, and, given the evidence, particularly as it emerged from the evidence of Dr Matthew, I do not accept the validity of those protestations.
313. [313]
     In any event, once CPSM, through Ms Wright, became aware of the complaints, it did, in my view, act reasonably, with employees being requested not to use the product around Ms Knight. At that time, as there is presently, there was nothing to indicate that D4 was a product which imposed a risk to employees, or that Ms Knight was genuinely vulnerable to its use.
314. [314]
     In addition, it is clear that some strong cleaning product was required at the Facility and the chemical was no different from other chemicals contained in other products in everyday use.
315. [315]
     In general, breach of the duty of care as an employee has not been proved.
316. [316]
     It is desirable that consideration be given to the particular breaches of which complaint is made.

Enquiries as to Use of D4 at Facility

317. [317]
     As stated previously, CPSM engaged the services of Diversey in relation to the supply of chemicals to the Facility and Diversey were responsible for producing the material safety data sheets in relation to all chemicals used on site.  The sheets were kept where the raw chemical products were stored.
318. [318]
     The dispensing system used for the preparation of the chemicals for use by staff ensured that cleaning staff were appropriately protected and that the product being used by staff did not contain chemicals in excess quantity.
319. [319]
     There is no evidence which persuades me that the chemical D4 is harmful in its diluted state, which is the form in which it was used here.
320. [320]
     I accept the evidence given that in an aged care facility, it was not an option not to use sanitizer and disinfectants and I accept the evidence that the chemicals in the cleaning products used were ones which were widely used.
321. [321]
     I accept the evidence given that appropriate precautions were taken in the use of the chemicals in the Facility.
322. [322]
     Given the evidence, the plaintiff has not proven that CPSM failed to ensure that the chemical D4 was safe for use at the Facility and not harmful to Ms Knight and that Ms Knight has not proven that CPSM had failed to make reasonable enquiries by reference to the MSDS or otherwise as to the safety and properties of the chemical D4, as was alleged in paragraphs (b) and (c) of paragraph 28 of the Amended Statement of Claim.

Instructions as to Safe Use of D4

323. [323]
     The evidence of Mr Winterton, Ms Wright, Ms Parsons and both Mr Turner and Mr Howell of Diversey is that there was a comprehensive programme of training at the Facility in relation to chemical handling, including D4.  I reject the evidence of Ms Knight in relation to this and other issues for the reasons already provided.  The result is that Ms Knight has not proved that CPSM failed to ensure that Ms Knight and other employees were instructed in the safe use of the chemical D4 as alleged in paragraph (e) of paragraph 28 of the Amended Statement of Claim.

Preventing Plaintiff’s Exposure to D4

324. [324]
     It appears to be suggested in the Amended Statement of Claim that during her employment period, CPSM ought to have prevented Ms Knight being exposed to the cleaning product containing the chemical D4 in its diluted form, including the period prior to Ms Knight first noticing her symptoms in September 2013 and after she had her meeting with Ms Wright; which appears to have been about March 2014.
325. [325]
     It is almost impossible to find that exposure to the chemical in a general sense during the period of her employment involved any breach of duty, however, for two reasons: the first relates to the chemical D4 itself; which, as I have held, was safe for use in the form it was used and reasonable to be used, and the second relates to the absence of evidence that those managing the Facility had any knowledge either of the problems Ms Knight says she was experiencing or that there was a problem with the chemical D4.
326. [326]
     The position changed slightly with the meeting between Ms Knight and Ms Wright. There seems to be no real dispute that during the course of the meeting it was agreed that Ms Knight could continue, as she was doing, to request staff not to use the spray around her, she could continue as she had always done not to use the spray herself and she could leave the room to avoid being present if the spray was being used.  At the suggestion of Ms Knight, it was agreed that she would usually be rostered to work in the hostels with more independent residents, rather than the nursing home or the hostels with high care residents, so she would be the only carer working on a shift and have greater control of her work environment.  It was agreed that the usual reporting system would be that Ms Knight would report complaints through the RNs, but that did not preclude Ms Knight reporting back to Ms Wright.
327. [327]
     After the conversation with Ms Knight, Ms Wright spoke again to Ms Parsons.  She asked Ms Parsons to tell her cleaning staff that they were not to use the spray around Ms Knight.
328. [328]
     RN Thomas said that she believed there was a memo written to staff about Megan’s D4 issues, and she thought it was probably written by Lorraine Wright.  Ms Wright said that she could not recall putting a memo out following the initial meeting and said she had been unable to find a copy of one.
329. [329]
     Apart from the existence of an agreed solution, the difficulty with the plaintiff’s allegation is that it presumes that CPSM had an obligation to prevent Ms Knight being exposed to the chemical.  I have already held that I am not satisfied that the chemical causes sensitivity of any magnitude or that the plaintiff suffered from it.
330. [330]
     In addition, as Ms Wright said, CPSM was not only trying to accommodate Ms Knight at the time but had to also keep the safety of residents in mind as well.
331. [331]
     Ms Wright explained that in her role her job was not only to care for the staff but to maintain the safety of the residents and that infection control was a huge part of residents’ safety.  Ms Wright explained that the residents are vulnerable, being the elderly.  She said she could not just say to Megan that she could move the spray out of the Facility altogether.  She said she had to consider all factors in her decision.
332. [332]
     Upon lodgement of the Incident Form, the matter was escalated to upper management, within a period of less than one week, a proposal was made for the obtaining of medical advice, consideration was being given and advice sought in relation to changing to another product rather than D4 and it was confirmed with Ms Knight that she was not required to use the product and that she could continue to request staff not to use the product in her presence and to leave the room if it was being used. 
333. [333]
     Ms Knight was removed from all shifts while she obtained medical advice.
334. [334]
     In the result, Ms Knight has failed to prove that CPSM failed to make any satisfactory arrangements to prevent the exposure or continuing exposure of Ms Knight to the chemical D4 and failed to prevent other employees from using the chemical D4 in the Ms Knight’s presence, as alleged in sub-paragraph (f) and (g) of paragraph 28 of the Amended Statement of Claim.

Provision of Suitable Protective Equipment

335. [335]
     Gloves were available at all times and masks were available on request.
336. [336]
     There is no evidence capable of being accepted that there were risks of exposure to the chemical D4 in its undiluted state, or that the plaintiff personally was at risk. 
337. [337]
     In those circumstances, the plaintiff has not proved that CPSM failed to provide suitable protective clothing, gloves and mask for Ms Knight’s use, as alleged in sub-paragraph (h) of paragraph 28 of the Amended Statement of Claim.

Warnings

338. [338]
     Training was given to staff, steps were taken to avoid staff coming into contact with the raw chemical and a system was in place to ensure that the appropriate quantity of chemical was added to the spray bottles.
339. [339]
     The evidence is that appropriate steps were taken to ensure that staff were informed in relation to the chemicals being used on site and there was a MSDS in existence and that sheet was appropriately updated from time to time.  I am satisfied that CPSM took seriously their responsibilities by engaging Diversey, and that Diversey took seriously their role in relation to the production of material safety data sheets and Diversey took seriously their role of training staff in the use of the chemicals at a site.
340. [340]
     In those circumstances, Ms Knight has failed to prove that CPSM failed to ensure that any or any reasonable warning was given to Ms Knight with a risk of exposure to the chemical D4 or to warn Ms Knight of the risk of her suffering skin and respiratory sensitisation to D4 and other chemicals as a result of exposure to the chemical D4, as alleged in sub-paragraphs (i) and (j) of the Amended Statement of Claim.

Keeping the Facility Safe and Protecting the Plaintiff from Injury

341. [341]
     There remains the general allegations made in sub-paragraphs (a) and (d) of paragraph 28 of the Amended Statement of Claim that the defendant failed to keep the Facility safe for the conduct of the plaintiff’s work and to protect the plaintiff from injury at the Facility.  The allegations are met by the evidence and the conclusions reached in relation to the particular acts of negligence.  The allegations fail.

QUANTUM

342. [342]
     It remains necessary to assess damages in the event that I am found to be wrong in dismissing the claim against CPSM.
343. [343]
     There are considerable difficulties in attempting to assess damages independently of the findings on liability.  Important findings have been made about Ms Knight and the concept of chemical sensitivity.  The evidence of Ms Knight as it related to her alleged symptoms could not be accepted. It was not supported by the evidence of other people who gave evidence and who had observed her, and was inconsistent with her life experiences as shown by her on social media.  The version put by Ms Knight is not consistent with the expert evidence (which I accept) that, to the extent that chemical sensitivity exists, once a person is removed from the environment, the symptoms cease.  The expert evidence (which I accept) is that chemical sensitivity may be a condition suffered by people exposed to large doses, but that was not the case here.
344. [344]
     Dr Brandt was of the view that it was difficult, based on the medical and occupational history and published toxicology information, to reconcile the degree and extent of ongoing physical symptomatology and disability with Ms Knight’s described exposure to D4 spray.  Dr Brandt considered that there was no objective evidence that she had developed respiratory sensitisation or occupational asthma, or dermatitis. 
345. [345]
     Dr Solley, although he considered Ms Knight was probably hypersensitive to particular agents in the workplace, agreed that the assessment was based on subjective complaints.  Importantly Dr Solley said that, once a person who is affected steps away from the exposure, it should usually resolve.
346. [346]
     Neither Doctors Matthew nor Shaikh considered that there was anything which would support a diagnosis of a psychiatric disorder.  There is accordingly no basis to assess an amount under schedule 9 of the Workers Compensation and Rehabilitation Regulation 2003 (Qld) (Regulations).
347. [347]
     There is accordingly no evidence that Ms Knight has any condition, let alone a permanent disability, arising from the exposure to the chemical D4.  There is accordingly no basis for calculating damages under the Injury Scale Value system contained in the Regulations.
348. [348]
     The medical evidence affects the whole claim for damages.  There is no evidence that supports the proposition that Ms Knight has a condition which has impacted her capacity to work or would justify an award of damages for economic loss, or any special damages.
349. [349]
     Ms Knight claims loss of income between 14 September 2014 to March 2015 at $350 per week, and a further loss of $750 per week until 15 August 2017, and future economic loss of $700 for 10 years.
350. [350]
     If I had found that Ms Knight was suffering any injury at work, it would have been reasonable to assess the loss of income for the period between September 2014 and March 2015, when she was requested not to return to work until her claim was investigated; less, of course, the period Ms Knight was incapacitated by her back injury.
351. [351]
     The assessment thereafter is problematic because there is no evidence (which I accept) that the alleged chemical sensitivity from her work with CPSM caused any permanent incapacity.  At best for Ms Knight was the evidence of Dr Solley who stated that once the source of the irritant is removed, the condition resolved.
352. [352]
     In short, I am unable to find that any absence from work by Ms Knight in the past was, or as to the future will be, as a consequence of the chemicals used at CPSM.
353. [353]
     Ms Knight claimed a variety of medical expenses; which were set out in a schedule. The schedule included spices, herbal vitamins, coconut water, oils, milk for yogurt and some other products which Ms Knight described as “useless”.  Ms Knight was involved and interested in alternative medicines.  The inference is inescapable that these expenses arose from that viewpoint. There is nothing to indicate that the expenses arose from the alleged injury.
354. [354]
     The same schedule also sets out various expenses for petrol, tolls, parking and trains; presumably for doctors’ appointments.  If I had found that there was an injury and that CPSM had caused the injury to Ms Knight I would have allowed those expenses. I would not have allowed, however, expenses at Officeworks, given the absence of any explanation as to how that related to the alleged injury.
355. [355]
     There is proof, in the form of correspondence from Medicare and WorkCover, that moneys have been expended on medical expenses for Ms Knight.  If I had found that there was an injury and that CPSM had caused the injury to Ms Knight I would have allowed those expenses.
356. [356]
     There is a claim for the future cost of counselling, medication and treatment, and travel expenses.  I am not satisfied that Ms Knight would benefit from any counselling, and in any event, I do not consider that she has a psychiatric disorder, let alone one that arises from her employment.  There is nothing that supports any expenditure for medication or treatment; even if I had found that Ms Knight suffered from the injury alleged.

Conclusion

357. [357]
     The claim is dismissed.
358. [358]
     I will make orders for the parties to make submissions on costs, unless costs can be otherwise agreed between the parties.