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Bishop v Compass Group Remote Hospitality Services Pty Ltd[2024] QDC 14

Bishop v Compass Group Remote Hospitality Services Pty Ltd[2024] QDC 14

DISTRICT COURT OF QUEENSLAND

CITATION:

Bishop v Compass Group Remote Hospitality Services Pty Ltd [2024] QDC 14

PARTIES:

JOANA LYN TAGLE BISHOP

(plaintiff)

v

COMPASS GROUP REMOTE HOSPITALITY SERVICES PTY LTD ABN 98 113 561 363

(defendant)

FILE NO.:

D 26/2022

DIVISION:

Civil Division

PROCEEDING:

Trial

DELIVERED ON:

21 February 2024

DELIVERED AT:

Mackay

HEARING DATES:

27 – 29 November 2023 and 19 February 2024 (written submissions dated 19 January, 2 and 7 February 2024)

JUDGE:

Rosengren DCJ

ORDER:

Judgment for the defendant

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where the plaintiff claims damages for bilateral elbow injuries suffered in the course of her employment with the defendant – where both liability and quantum of damages are in issue

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – CAUSATION – whether the plaintiff’s bilateral elbow injuries were caused by the employer’s negligence or breach of contract

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL DAMAGES – where the parties are in dispute as to the appropriate level of ISV

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNING CAPACITY – where the effect on employment is in issue – the appropriate method of allowing a global component

Uniform Civil Procedure Rules 1999 (Qld) r 157

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305B, s 305C, s 305D, s 305E, s 306J, s 306O, s 306N, s 306J

Workers’ Compensation and Rehabilitation Regulation 2003 (Qld) Sch 9, Sch 12

Gors v Tomlinson [2020] WASCA 164

Little v McCarthy & Anor [2014] QSC 274

March v E & MH Stramere Pty Ltd (1999) 171 CLR 506

Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264

Mount Isa Mines v Pusey (1970) 125 CLR 383

New South Wales v Moss [2000] NSWCA 133

Nilon v Bezzina [1988] 2 Qd R 420

O'Connor v Commissioner for Government Transport (1954) 100 CLR 225

Paul & Anor v Rendell (1981) 35 ALR 569

St George Club Ltd v Hines (1961) 35 ALJR 106 at 107

Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268

Yammine v Kalwy [1979] 2 NSWLR 151

COUNSEL:

P Cullinane for the plaintiff

H Berghofer for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

BT Lawyers for the defendant

Introduction

  1. [1]
    The defendant operated the Eureka mining camp for coal miners in Moranbah (‘the camp’).  The plaintiff was employed by the defendant as a type of kitchen hand, with the formal job description being a “utility attendant”.  She alleges that over a six-month period in 2019, she had to perform a range of duties that were repetitive and involved high forces and high static loads, which initially resulted in symptoms related to her right elbow.  She was then placed on modified duties during which she increasingly used her left arm, resulting in her developing symptoms related to her left elbow.
  1. [2]
    In May 2022, the plaintiff commenced this proceeding against the defendant for damages for personal injuries and other orders.
  1. [3]
    At the pre-trial hearing on 15 November 2023, directions were made for paragraph 11 of the statement of claim to be properly particularised in accordance with the requirements of rule 157 of the Uniform Civil Procedure Rules 1999 (Qld).  An amended statement of claim was filed on 17 November 2023 and an amended defence was filed on 21 November 2023.  Further particulars of paragraph 11 of the statement of claim were provided on 23 November 2023.
  1. [4]
    In the amended pleading, the plaintiff abandoned her allegations relating to the failure by the defendant to undertake risk assessments and training, and the failure to provide appropriate equipment for the performance of her work duties.
  1. [5]
    The plaintiff’s case on liability as argued, is that a reasonable person in the position of the defendant would have taken the following precautions which would have avoided the risk of injury:
  1. Providing another employee to assist the plaintiff during the breakfast shifts.
  1. Alternating repetitive and non-repetitive tasks.  This included ensuring the plaintiff did not perform repetitive tasks such as those involving sustained application of force or sustained movements (scrubbing pots, pans and baking trays; and scrubbing benches and other surfaces) for more than 30 minutes.
  1. Enforcing a system of work by which the plaintiff took her designated “smoko” breaks.
  1. [6]
    The trial was heard in Mackay over three days commencing 27 November 2023. The parties provided detailed written submissions supplemented with oral ones.
  1. [7]
    Apart from the plaintiff, the other lay witnesses called by her were Peter Summers, being her partner, and John Victoriano, another utility attendant who worked for the defendant over the relevant period. While Mr Victoriano would occasionally work with the plaintiff, he would mostly see her at the changeover as they tended to work opposite shifts. It was my impression that they all sought to answer questions honestly and directly. The same can be said for each of the defendant’s lay witnesses.  It is unsurprising that none of them had perfect recollections of each of the matters about which they testified.  In some instances, they were attempting to recall details of events that occurred more than four years earlier. 
  1. [8]
    It is the plaintiff who bears the onus of proof to satisfy the court on the balance of probabilities that her claim should be accepted. Wherever possible, I have sought to resolve conflicts between the plaintiff’s and other witness accounts by reference to the exhibits or to the inherent probabilities of the case.  Where this has not been possible, it has been necessary to resort to concepts of onus of proof.  I have indicated below the extent to which I have accepted or rejected the evidence of witnesses.

Relevant facts

Pre-employment assessment

  1. [9]
    In March 2019, prior to commencing employment with the defendant, the plaintiff was required to undergo a pre-employment functional assessment. This was undertaken by Jacob Watson, occupational therapist from Kinnect. The purpose of this assessment was to assess and screen for functional incapacity or other concerns that may increase the risk of a prospective employee suffering injury should they be employed in a particular role.
  1. [10]
    The job profile provided to Mr Watson for the purposes of the assessment stated that it was for a ‘utility’. This was generic, in the sense that it covered at least three different roles across the defendant’s various sites, being kitchen hands, housekeeping and administration type roles.
  1. [11]
    It was a requirement of the generic “utility” job profile that a person could frequently lift weights of between three and eight kilograms and could occasionally lift weights up to 20 kilograms from the floor to above shoulder height. The job profile stated that the sorts of heavier items that needed to be lifted by utilities were boxes of food items, bags of rubbish and linen.
  1. [12]
    Even though 20 kilograms was the maximum weight referred to in the job profile, Mr Watson tested the plaintiff’s ability to lift an additional five kilograms.  This is because it was part of the standardised pre-employment functional assessment.  The maximum weight the plaintiff was assessed as capable of lifting was 20 kilograms.  This was on a single occasion, and only from floor to waist height.  
  1. [13]
    The inability of the plaintiff to lift a weight of 25 kilograms was reflected in the report by an automated high-risk rating of ‘D’. It was recommended that she be restricted to lifting a maximum of 20 kilograms at waist height. The report was provided to the defendant’s work assessment team for review. Charissa Valenton is the defendant’s national manager of work health. She explained that despite the ‘D’ risk rating, the plaintiff was considered suitable to work in the kitchen hand type role she was being considered for. This is because such a role did not require her to lift weights in the order of 25 kilograms.
  1. [14]
    Ms Valenton was cross-examined about the fact that Mr Watson did not assess the plaintiff’s ability to lift 20 kilograms from waist to shoulder height. However, this is of marginal relevance because as discussed below, there is no evidence that the plaintiff’s work duties required her to lift boxes of food, bags of rubbish or any other items that were this heavy.

Training of the plaintiff

  1. [15]
    The plaintiff commenced full time employment with the defendant on approximately 4 April 2019. At this time, Justin Whitely was the defendant’s general manager of health, safety, quality and risk. Mr Whitely had the over-arching responsibility for developing and implementing the policies and procedures for safe work practices for the defendant across its various sites, including at the camp.
  1. [16]
    The relevant procedures or methods for the performance of the various tasks which the plaintiff was required to perform were in documents called Safe Work Service Procedures (‘the SWSPs’). Those tendered as exhibits were relevant to wiping the tables and chairs; washing the pots; and operating the pot soaking machine, the floor scrubber, the tomato sabres, the bain-maries and the kitchen trolleys.
  1. [17]
    Mr Whitely explained that the contents of the SWSPs were informed by task-based risk assessments called Job Safety Environmental Analysis (‘the JSEAs’). These analyses involved breaking the task down into discrete steps while evaluating the hazard and the impact they would have, and then attributing a risk rating for the purpose of implementing controls.   The JSEAs were undertaken by the relevant team on site with the ultimate approval provided by Mr Whitely. Those tendered as exhibits related to operating the dishwasher, the kitchen trolleys and the tomato sabres; operating and cleaning the bain-maries; and preparation for washing and cleaning the pots and pans.
  1. [18]
    David Law was the manager of the camp and was responsible for the operations of it. He was involved in drafting the relevant SWSPs and he regularly reviewed them. He was also responsible for the development of the Standard Operating Procedures (‘the SOPs’).  An example of one of these is the SOP for Manual Handling[1].  Mr Law explained that this was developed by a cross-section of the workforce affected by manual handling tasks and was rolled out across the camp. 
  1. [19]
    The training provided to the plaintiff was comprehensive. She attended an induction course over several hours prior to commencing work with the defendant. She was given an employee handbook and shown a power point presentation. In addition, the plaintiff was required to read a number of the SOPs, including the one relating to manual handling. She signed a document confirming that she had read it. She also completed a question-and-answer document to demonstrate her understanding of it. This included that she understood that:
  1. she needed to avoid repetitive tasks;
  1. controls for manual handling risks included minimising the distance required to carry the load;
  1. hazardous manual handling included repetitive or sustained application of force, repetitive or sustained awkward postures, repetitive or sustained movement and application of high force;
  1. when performing a task, it was necessary to minimise the distance required to carry the load, to allow sufficient breaks and rotation of tasks, and to use a mechanical aid for lifts higher than shoulder height.
  1. [20]
    Further, the employee handbook included a health and safety standard for repetitive tasks, which set out the need for task rotation.
  1. [21]
    After the plaintiff had completed her induction, she commenced working for the defendant where she received on-the-job training over a three-stage process. It included a conditioning program where new employees commenced their duties on reduced hours and slowly increased them to full hours.  This was to assist workers who had not previously worked in the sort of bulk-catering services provided at the camp.  There was no requirement for the three-stage process to be completed within a set time. Rather, it was tailored to the individual employee.  It was provided by a more experienced worker who acted as a buddy.  In the event that an employee was having difficulties completing any stage, further training would be provided and consideration would be given to having a more senior employee, such as a Health Safety Environment and Quality adviser (‘HSEQ adviser’) becoming involved. 
  1. [22]
    It was usually the buddy who showed the plaintiff how to perform particular tasks. The plaintiff’s team leader or a supervisor could also assist with this. The plaintiff was required to complete a workbook for each stage of the training process.  There were opportunities at each stage for the buddy/team leader/supervisor to give feedback to the plaintiff. She could also ask any questions and provide feedback as to how she felt she was progressing with the training.  She was required to successfully complete one stage of the training before moving to the next.
  1. [23]
    The defendant’s records confirm that stage 1 of the three-stage process was completed by the plaintiff in the first two weeks of her employment with the defendant. The plaintiff signed a document confirming that she had received training with respect to the following tasks:
  1. sweeping and mopping the floor, including the use of the floor scrubbing machine;
  1. wiping and sanitising the tables;
  1. cleaning and sanitising the stainless steel benches;
  1. using the scrubbing machine;
  1. operating the kitchen trolley; and
  1. general cleaning.
  1. [24]
    After the plaintiff completed each of these tasks, she signed a document confirming that she had been trained on the safe way to complete them in accordance with the applicable SWSP, and that she felt confident to complete them.
  1. [25]
    During the two weeks of the first stage, the plaintiff attended pre-start meetings, was shown the SWSP folder and had it reinforced to her that she was not to work for more than 60 minutes on any individual task.
  1. [26]
    The plaintiff also signed a document confirming that she had received training about the need to be fit for work, the importance of pre-start stretches as well as repeated stretches throughout the shift, the desirability of taking a few minutes to think about the job and the hazards involved, the need to alternate repetitive with non-repetitive tasks and take regular breaks from repetitive tasks, and the requirement to report any incidents.
  1. [27]
    Towards the end of the stage-1 training, the defendant also arranged for an allied health professional to provide the plaintiff with ergonomic and manual handling training. The plaintiff participated in this training on 15 April 2019.
  1. [28]
    Over the following two or so weeks, the plaintiff participated in the second stage of the training. The introduction to the workbook for this stage reminded the plaintiff that she had the right to stop doing any job if she felt it was unsafe, and that she was encouraged to reach out to a team member if she found she was having any difficulties. The plaintiff signed a document confirming that she had received training with respect to the following tasks:
  1. operating a tomato sabre, a kitchen trolley, a dishwasher, a drink machine and a floor scrubbing machine;
  1. stacking and unstacking shelving in the food storage areas;
  1. changing over the kitchen for meal service; and
  1. washing pots.
  1. [29]
    After the plaintiff performed each of these tasks, she signed a document confirming that she had been trained on the safe way to complete them in accordance with the applicable SWSP, and that she felt confident to complete them.
  1. [30]
    During this stage of her training, the plaintiff was encouraged to feel confident to raise with more senior employees or other workers any issues about the work she was performing. The defendant referred to this as “Take Time Talk”.
  1. [31]
    In the feedback provided by the plaintiff on 22 May 2019, she said that she had learnt to follow the SWSPs. The input from her supervisor was that she needed to slow down and be always cautious. The plaintiff requested more one-on-one training. This was provided in the second week of this stage of the training, after which the plaintiff completed a questionnaire. In her responses, the plaintiff said that she did not have unrealistic time pressures, that she understood that she had some say over the way she performed her tasks, and that she could go to her supervisor or other workers with any problems.  She further said that she had found her supervisors to be helpful. Additionally, she said that if there were staff shortages, the increased workload could put pressure on workers causing aches and pains that could then lead to an injury.  Mr Law explained that this feedback would have been followed up by one of the defendant’s HSEQ advisors.  
  1. [32]
    Farsheed Mullan, head chef and supervisor of the kitchen, provided feedback to the plaintiff at the end of her stage 2 training. He considered that she did not solve common problems within the scope of her role and that she required more training and guidance around safe usage of equipment according to the SWSPs. It was also noted that the plaintiff had not completed the pot wash task, as she had a non-work-related sore wrist. It was the plaintiff’s evidence that after her sore wrist resolved, she was trained in the duties required in pot wash. She was shown how to use the power soaker machine and she knew that if it did not adequately clean a pot or tray that she could put them back in the machine to be soaked again.
  1. [33]
    The objective of the third stage of the training was to reinforce the learnings from the first two stages and for the plaintiff to become independent in the performance of her tasks. The plaintiff signed a document confirming that she had received training with respect to the following tasks:
  1. operating a tomato sabre, a kitchen trolley, a dishwasher, a drink machine and a floor scrubbing machine;
  1. wiping tables and chairs; and
  1. cleaning and restocking the fruit display.
  1. [34]
    After the plaintiff performed each of these tasks, she signed a document confirming that she had been trained on the safe way to complete them in accordance with the applicable SWSP and that she felt confident to complete them.
  1. [35]
    On 14 June 2019, the plaintiff underwent further ergonomic and manual handling training provided by an allied health professional.
  1. [36]
    At the end of both weeks of this third stage of her training, the plaintiff had discussions with John Bishop, a HSEQ advisor employed by the defendant. This was to enable her to provide feedback regarding any issues she was having performing any of the tasks, and for her to raise any concerns regarding the training she had received. The plaintiff was also required to answer 25 questions, of which she answered 21 correctly.  She was told the correct answers in relation to the remaining four.   She provided feedback that the defendant’s policies and procedures were “in black and white” which made it easy for her to refer to them.  She further said that the defendant was a good company to work for. 
  1. [37]
    The plaintiff was provided with additional training. BMA Mitsubishi Alliance was the holder of the lease on which the camp was located. It provided manual handling and unsafe work practices training to the plaintiff and other employees on 27 April and 19 May 2019.
  1. [38]
    Further, the defendant engaged external physiotherapists to attend the camp each month. They would walk around observing the workers performing their tasks and ask the workers about any issues they may have been experiencing. A report including recommendations would then be prepared by the physiotherapist.[2] Mr Law explained that any recommendations made in these reports would be actioned. 
  1. [39]
    Toolbox meetings and pre-start meetings provided opportunities for additional training of the workers and to re-enforce the defendant’s expectations in relation to safety. The former was usually held on a Sunday and there would normally be a topic for discussion each month. In addition, any recent work injuries would be discussed in order to enable the workers to take the learnings from them.
  1. [40]
    The pre-start meetings would be held at the commencement of each shift. A whole range of issues could be discussed at these, including any issues that may have arisen during the previous shift relevant to potential hazards, faults or processes which needed to be updated. There would be occasions where a HSEQ adviser may attend these meetings to speak to the team about particular safety issues. Workers were free to raise any issues. They were required to sign a document verifying that any faulty equipment had been reported, and that they were fit to perform their duties.

Plaintiff’s work with the defendant 

  1. [41]
    Mr Law as the site manager was responsible for the operations of the camp, including the kitchen area where the plaintiff worked. His background was as a chef. He had also worked as a rehabilitation return to work coordinator. From a management perspective, there was also an assistant manager, supervisors, and team leaders. Mr Mullan was the supervisor of the kitchen until November 2019.  It was the team leaders who were the direct supervisors of the utility attendants in the kitchen, and they would report to the head chef.
  1. [42]
    The plaintiff was rostered to work for 14 consecutive days followed by seven days off work. Each shift was for approximately 10.5 hours, with a 30-minute break and two 10 minute ‘smoko’ breaks.
  1. [43]
    The camp could accommodate up to approximately 1,000 people, although the number of people residing there would vary. Tuesdays, Wednesdays and Thursdays tended to be the busy days. For the first three months, the plaintiff worked the dinner shift from 12.30pm to 11pm with four other utility attendants. For the following four or so months, she worked the breakfast shift from 1am to 11.30am with three other utility attendants. The plaintiff said that while there would usually be a full complement of utility attendants for approximately half of the 14-day roster, there could be staff shortages for the other half of the roster. I am not persuaded that staff shortages were a regular occurrence. This is because the defendant would engage labour hire workers, or would have other employees at the camp such as housekeepers to come and lend a hand if circumstances permitted.
  1. [44]
    There were four areas in the kitchen where the plaintiff and other utility attendants worked in and rotated through. Two of these were the dining and crib rooms. The remaining two were in the sink area.  One was the dishwasher area where the plates and cutlery were washed, and the other area was the pot wash where the pots and trays were washed.  The team leader for each shift would compile a roster of when and where each utility attendant would be working during the shift.[3]  
  1. [45]
    Food was available in both the dining and crib rooms. The difference between the rooms was that the dining room had approximately 40 four-seat tables for residents to dine at, while the crib room had no seating. It was a much smaller room where workers would come to get food and drinks which could be taken away. Both rooms had multiple service stations. The crib room did not serve hot food or drinks. Further, the cutlery was disposable and there were plastic containers, rather than plates. Both rooms had bain-maries like those shown in exhibit 16. The utility attendants were responsible for filling and replenishing the bain-maries with cold food items, while the chefs were responsible for those with hot food. Trays of variable sizes would be used in the bain-maries. The largest of these is also shown in exhibit 16. The smallest would only hold 400ml of product. The food available to workers in the crib room did not differ significantly between the breakfast and dinner shift. There was more variability in the dining room.
  1. [46]
    As would be expected, there were peak service periods in both rooms, which tended to coincide with the residents commencing or finishing their shifts at the mine. The plaintiff explained that in the dining room, the peak periods for the breakfast shift were normally for about an hour from 4am and then again for up to an hour and a half from 6am.  There were also two peak periods during the dinner shift.  The first one was for about an hour from 4pm, when the night shift workers would have dinner prior to commencing their shift, and then again for about two hours from around 6pm, after the day shift workers had completed their shift.   The peak times in the crib room were for up to two hours from about 4am for the breakfast shift and the same as the dining room for the dinner shift.   There were multiple tasks to be performed when working as a utility attendant in either of these rooms.  During the peak periods, it was necessary for the worker to concentrate on whatever needed to be done to facilitate the residents being fed.  Such constraints did not apply in the off-peak periods when workers had more flexibility in so far as rotating tasks.  Both rooms closed for dinner service to the residents at 9pm. 
  1. [47]
    Preparation was required when utility workers were working in both the dining and crib rooms. This would include retrieving and/or returning food and other items from the dry stores, cold rooms and freezers. It would also include opening tins with a can opener and cutting up fruits and vegetables. One of the vegetables that needed slicing was tomatoes. It was the plaintiff’s evidence that up to three boxes of tomatoes would need to be sliced at any one time and that this could take an hour or more. The slicing process would involve retrieving a tomato from a box, placing it in the tomato sabre and using one hand to push the handle down. The sabre would then slice the tomato into about eight slices. She would then use her other hand to place the sliced tomato onto a tray. The plaintiff said that this could be physically challenging if the blade on the sabre was blunt. Mr Mullan said that there were spare blades to replace those that had become blunt. Most of the other salad items that required slicing would be cut in half by the utility attendant and then placed in a food processor that would slice them.
  1. [48]
    The utility attendants were also responsible for stocking both rooms to ready them for service. Trolleys were made available for this purpose. This work would include the workers loading the trays of various sizes filled with a variety of food products onto the trolleys to be taken out to the bain-maries and placed in them. The plaintiff said that some of the heavier trays might have included chicken drumsticks or two five-kilogram bags of mozzarella cheese.  In cross-examination, the plaintiff said that at one point in time, she was not transferring the cheese into the tray until the tray was in the bain-marie.  Mr Victoriano said that the trays of cut watermelon and banana could also be heavy.  He said that for those heavier items, help was usually available from another utility attendant, or if the kitchen was short staffed, there could be a labour hire worker or an employee from housekeeping available to assist. Trolleys were also available for the utility attendants to transfer to the service station any other items that were necessary for service, such as bread/wraps, sauces and other condiments.  For the dining room these could also include juices and cordials, items for the tea/coffee station and plates/cutlery.
  1. [49]
    Once service had commenced in both rooms, the utility attendants were responsible for replenishing the cold bain-maires and service stations as required. Trolleys were available for this purpose. Sometimes the trays in the bain-maries would be replaced with another tray and other times the existing tray would be topped up. It was also necessary to replenish any of the service stations with other food items, drinks, crockery/cutlery etc. Service stations and the tables in the dining room were also wiped down during service periods as required.
  1. [50]
    After the last of the peak service periods for a shift had finished, the service stations in both rooms and the tables in the dining room needed to be left clean. The floors also had to be swept and mopped.
  1. [51]
    While it was the plaintiff’s evidence that it would take at least an hour to wipe the 40 tables in the dining area, I am not persuaded that she would regularly have been required to do this. It was her evidence that there would be occasions where she would be assisted by another worker. Further, not all of the tables would need to be cleaned after a service period. As Mr Victoriano explained, on quieter days, as many as half of the tables would not be used. In addition, even on busier days, at least some of the tables would be wiped during the service period, after the residents had finished their meals, reducing the number of tables to be cleaned after service. Mr Victoriano estimated that it would take approximately 15 minutes to wipe the tables down after a service period.[4]   It is worth observing that there was no evidence of the type of cloth that was used to do the wiping.  This is relevant for the reasons detailed in paragraph 92 below.
  1. [52]
    As to the sweeping and mopping, Mr Victoriano explained that apart from general dirt and debris, there was often some coal dust “here and there” on the floors making them somewhat harder to clean.  Mr Law explained that the presence of the coal dust would only make mopping the floor more work if it had not been swept up prior to being mopped.
  1. [53]
    The mopping would largely be done using a floor scrubbing machine that was operated by being pushed. This meant that a utility attendant would only need to manually mop those parts of the dining and cribs rooms that were not accessible by the floor scrubbing machine, such as against the walls, underneath the tables, and around the bain-maries and other service areas. The plaintiff gave rather vague evidence about the mop that was used. She said it was bigger and heavier than the one she used at home. In evidence-in-chief, she said that she would need to use “just a regular force” when mopping.[5]  However, in re-examination she said that it was “at least twice” as much force as she would use when compared to using her mop at home.[6]  She said that the mopping process in the crib room using the floor scrubbing machine and the mop might take approximately 30 minutes.  In the dining room the process could take at least an hour, or perhaps even longer if she did not have assistance.  Mr Victoriano’s evidence was inconsistent with this.  He said that even if the dining floor was really dirty, it would only take 30 to 45 minutes to mop. He also said that the mop used was like a normal one that would be used in a home.  
  1. [54]
    It was Mr Victoriano’s evidence that the floor scrubbing machine was not always working. He gave inconsistent evidence as to the frequency with which this would occur. He initially said in evidence-in-chief that it was broken “sometimes”.  Later in re-examination he said that it was broken “every now and then” and shortly thereafter said “most of the time”.  I am not persuaded that it was the latter.  There are two reasons for this.  First, the plaintiff made no mention of this.  Second, it seems inconceivable that such a problem would not have come to the attention of the more senior employees. As Mr Law explained, he was frequently in the kitchen area.   There were also pre-start meetings each day, where problems such as this could be specifically raised. It seems highly unlikely that the defendant would not have addressed such a problem if it existed “most of the time”.   
  1. [55]
    As explained above, the peak period for the breakfast shift was over by about 6am in the crib room and by about 7.30am in the dining room. The staff did not finish the shift until 11.30am. Thus, extra cleaning duties would routinely be completed prior to the end of the shift. The nature of these duties would vary daily. They could include cleaning the windows and air conditioner filters.
  1. [56]
    In relation to the dishwasher area, there was an automated machine with a conveyer belt system to wash and sanitise the plates. The duties of the utility attendant working at the dishwasher were to scrape the plates, spray them with a pre-rinse hose prior to loading them into the machine, and then unload them onto a trolley once they had been washed. The plaintiff explained that it would usually take approximately 10 minutes or more to unload the machine. She explained that during the first week of her training, she was told by a more experienced worker that to efficiently perform this task, she needed to grab two plates in each hand. However, she had apparently stopped this practice by 22 May 2019, and was thereafter only grabbing one plate in each hand.[7]  Mr Victoriano said that he would grab “two or three or probably more”[8]. The plaintiff said that there would be occasions where she would have the assistance of another worker when unloading the machine.  She explained that this area could be busy, particularly during peak periods in the dining room when the plates were in high demand.  
  1. [57]
    The final area where the plaintiff worked was the pot wash. A pre-rinse hose would be used to rinse off any food products from the pots and trays. They would then be placed in the automated power soaker machine. They would not always come out clean, meaning that utility attendances could be left to manually scrub them. The plaintiff said this could take between 20 minutes and more than an hour.  
  1. [58]
    Mr Victoriano said that sometimes a lot of force would be required to clean a tray. However, he would only find it a problem if he was cleaning a lot of them “like 18 or more”.  He said there would be occasions where it might have been necessary to leave a tray soaking if it was too difficult to clean.  He further said that a tray or pot could take longer to manually clean if there was a burnt food item on it, or if it had contained food items such as mashed potato, lasagne or quiche. It seems unlikely that the plaintiff would have been frequently manually cleaning pots with these sorts of food items in them during the months prior to the onset of her symptoms, given that she was working the breakfast shift.  Further, it seems that the plaintiff would seldom if at all, have been scrubbing trays or pots continuously for as long as an hour.
  1. [59]
    The evidence establishes that during a shift the utility attendants would be rotated through the four different work areas. There is no dispute on the evidence that the frequency of the rotation in the dining and crib rooms would be hourly. However, the evidence is not so uniform in relation to the dishwasher and pot wash. The evidence seems to establish that the frequency of the rotation would depend on who the supervisor was and would tend to be somewhere between half an hour and an hour.
  1. [60]
    Exhibits 1 and 9 are examples of rosters for utility attendants which include the sink area. The dates of them are not known. The top roster shown in exhibit 9 is for a morning shift. It covers the crib and dining rooms and the sink area, between 4am and 9am. There were two persons rostered on the sink area for some of these hours and a single person for the remainder of the hours.
  1. [61]
    The plaintiff said that there would usually be utility attendants rostered to both the dishwasher and pot wash in the sink area. She explained that on occasions one of these workers would take a break and the other worker would be responsible for both sinks over this period. The plaintiff said that this could occur in peak periods. I’m not persuaded by her evidence in this regard. This is because the preponderance of the evidence establishes that utility attendants would take their breaks in the non-peak periods of the shift.
  1. [62]
    It was the plaintiff’s evidence that she could also be left working in the sink area alone for up to an hour if there were staff shortages. I am not persuaded that this was a regular occurrence. As discussed above, the defendant’s work processes accommodated this contingency.
  1. [63]
    Mr Victoriano said that the extent to which the utility attendants would be rotated through the different areas would depend on who the supervisor was. He gave internally inconsistent evidence as to the frequency with which most supervisors would rotate the utility attendants. In evidence-in-chief he said that “every quarter of an hour you do rotate every now and then from different areas”[9].  However, in cross-examination, he said rotations would be every hour through the dining and crib rooms and every 45 minutes through each of the dishwasher and pot wash areas.  
  1. [64]
    While Mr Victoriano said that he had personally worked full shifts on the dishwasher, this needs to be considered in its proper context. It was his evidence that he would perform different tasks, including loading and unloading the plates and cutlery from the dishwasher, and retrieving dirty plates and cutlery from the service areas or from the tables in the dining area. It is worth observing that it was not the plaintiff’s evidence that she was ever required to work in the dishwasher or pot wash for an entire shift, or for a period of similar length.
  1. [65]
    The plaintiff claims that she was regularly unable to take her designated 10 minute ‘smoko’ breaks, particularly on Tuesdays, Wednesdays and Thursdays when it tended to be busy. She was aware that she should have been taking these breaks and understood why she needed to take them. Her reasoning for not taking them on some of the shifts was that her supervisor did not instruct her to take them. It was Mr Mullan’s evidence that there was no formal process requiring a utility attendant to seek the permission of their team leader to take a ‘smoko’ break, although the expectation was that such breaks would be taken in the non-peak periods of a shift. Mr Mullan further said that if he noticed a worker finishing a task during a non-peak period, he would check whether they had taken their break.
  1. [66]
    It is pleaded in the statement of claim that the plaintiff was required to work quickly. It is difficult to know what this means. What can be said is that the plaintiff participated in an induction and received extensive on-the-job training with subsequent training in relation to the safe performance of her work duties. As discussed above, this training was provided by more senior and experienced workers, allied health professionals and BMA Mitsubishi Alliance. During the second stage of the plaintiff’s training, she was given feedback that she needed to slow down and required further training in relation to this. This feedback was provided after which the plaintiff completed a questionnaire. The responses confirmed that she did not feel like she was working with unrealistic time pressures, that she knew that she was not required to do this, and she could speak to a supervisor about any such concerns.
  1. [67]
    According to the plaintiff, she noticed the onset of the symptoms in her right elbow not long after the cleaning duties she was performing had increased due to preparation for an upcoming annual audit. It is stated in Mr O'Sullivan’s report that this audit increased her work duties at the relevant time by as much as 20 percent. I am not persuaded by this. This is because while some further cleaning may have been required, the defendant had systems in place to ensure that unreasonable work pressures were not placed on the plaintiff and other utility attendants in the lead up to an annual audit. Relevantly, monthly food safety inspections of the kitchen area were performed by Mr Law and other employees with food safety knowledge.[10] Mr Law explained that the cleaning required for the monthly food inspections and the annual audits was built into the routine daily cleaning rosters for the utility attendants working on the breakfast shifts. He further explained that any significant cleaning issues would usually have been picked up during the monthly food inspections, with the last of these having only been completed within the fortnight before the audit.  It was Mr Victoriano’s evidence that if extra cleaning was required, other utility attendants would help.[11]  This was confirmed by Mr Law.

Onset of symptoms and work thereafter

  1. [68]
    At 6am on 19 October 2019, the plaintiff reported to a security officer that she had some discomfort in her right elbow after her shoulder was lightly contacted by a self-closing swing door.  This was reported to HSEQ and about an hour later she was reviewed by John Murphy, HSEQ advisor.  The plaintiff told Mr Murphy that she noticed the discomfort in her elbow when wiping tables and mopping, and that she had been working harder than she ordinarily would in preparation for an upcoming audit.  
  1. [69]
    Mr Murphy requested that the plaintiff to be reviewed by a paramedic. She applied ice and elevated her arm. When seen by a paramedic a few hours later, the plaintiff had slight pain in her elbow but no issue with her shoulder. She said that she had first noticed the discomfort about a week earlier. The paramedic found slight discomfort in her elbow but no problems with her shoulder. He suggested she take Nurofen and arranged for a review with a physiotherapist, which occurred a couple of hours later. The physiotherapist thought the plaintiff had tendonitis in her elbow, but considered that she could complete full duties, albeit with reduced efficiency.
  1. [70]
    On 20 October 2019, when the plaintiff was working in the dining room she again met with Mr Murphy. She confirmed that she was rotating her arms and tasks and said that she was gripping fewer plates. When the plaintiff spoke to Mr Murphy again on the following day, she said that she had only felt a slight sensation during her pre-start stretches but had felt some increasing discomfort when handling plates, and that she had rotated to other tasks and had been able to complete the shift. He walked around with the plaintiff to determine the tasks that she could safely perform on the breakfast shift. He also spoke to her about the need to stop and rotate tasks if her elbow was symptomatic.
  1. [71]
    The plaintiff completed a statement on 21 October 2019 in relation to her right elbow symptoms. She stated that when she did light duties the pain would re-emerge.[12] 
  1. [72]
    On the following day, the plaintiff told Mr Murphy that she had worked steadily and rotated throughout the day, resting particularly when feeling discomfort. He checked on what he considered to be the natural inclination of the plaintiff to “jump in and get the job done” and he was satisfied that she was not doing this.  
  1. [73]
    The plaintiff performed suitable duties between late October 2019 and mid May2021, and only in the dining room.[13]  Over this time her duties were regularly reviewed, and the duties the defendant allowed her to perform were documented, as were the restrictions.  She remained working full-time on the same roster but worked her normal duties at a reduced pace, taking breaks as required and alternating “handedness” of tasks.  The restrictions initially involved modifying her work pace, rotating tasks according to comfort, avoiding repetitive or sustained gripping or wiping motions, and working between waist and shoulder height.  Her duties initially included laundry tasks, assisting with retrieving and replenishing stock not weighing more than five kilograms, and limited cleaning in housekeeping.  Although the suitable duties plans stated that the plaintiff could operate the floor scrubber, she said that she did not do this and she could not recall whether she operated the dishwasher.  She understood that she was not to lift more than five kilograms.[14]
  1. [74]
    Mr Law assisted the plaintiff with her rehabilitation over this period. He explained that the suitable duties plans were based on the recommendations of the treating doctors, physiotherapists, and other treatment providers. Mr Law would discuss each plan with her and the supervisors and team leaders, so that they were all aware of the duties it was considered she was fit perform. Mr Law regularly met with the plaintiff and had numerous discussions with her about the work she was doing. One of those discussions centred around his concern that the plaintiff was going beyond her suitable duties because she perceived that she needed to be able to perform her full duties. He reinforced to her the need to limit her duties to those stipulated in the suitable duties plans. 
  1. [75]
    The plaintiff explained in evidence that even when she was working on light duties her right elbow symptoms were such that every task she did, no matter how light, would cause her pain. Her elbow was even sore when she was not using it.[15] The plaintiff further said that when doing tasks such as cleaning the tables, she would alternate between both of her upper limbs.  She continued to sweep but did not mop. She was no longer scrubbing pots or trays.  Sometimes she would work at the sink loading and unloading plates or trays into the automatic washers.  She would grab one plate with both of her hands.  The plaintiff commenced feeling pain in her left elbow in early 2020. 
  1. [76]
    The suitable duties plan concluded in mid-2020 and the plaintiff’s WorkCover claim was closed in late May 2021. Approximately 12 months later, she moved to working in the office and reception at the camp performing administrative duties, including checking the residents in and out of the camp, preparing reports and checking rooms. The plaintiff continues to work there. While she can perform most duties, fast typing and the repetitive use of the mouse when using the computer aggravates her elbow pain. At the end of each evening shift, the office area is swept and mopped. She avoids the mopping where possible as it also aggravates her elbow symptoms.

The evidence of Justin O'Sullivan

  1. [77]
    The plaintiff led evidence from Justin O'Sullivan, in the form of a report dated 1 November 2021. He also gave oral evidence. On 24 November 2023, I heard objections to and made rulings about the admissibility of some parts of his report.
  1. [78]
    Mr O'Sullivan describes himself as an ergonomist and safety consultant, with a bachelor’s degree in physiotherapy and a master’s degree in occupational health and safety. In his report, he concluded that the “apparent” defects in the defendant’s system of work related to the lack of task rotation for prolonged, repetitive tasks such as the mopping, and a failure to ensure that the plaintiff took her allocated breaks. I do not consider his evidence was particularly helpful in determining the disputed issues. This is because there were several factors which militated against much weight being given to his views.  First, the report was prepared in the pre-litigation period based on an email dated 9 July 2021 (presumably the instructions provided by the plaintiff’s solicitors) and a single zoom interview with the plaintiff on 4 August 2021. While Mr O'Sullivan also considered some medical material as detailed on the last page of his report, none of this material was tendered as an exhibit at the trial. 
  1. [79]
    Second, Mr O'Sullivan’s opinions were given in circumstances where he did not attend the camp for the purpose of undertaking an inspection of it. Further, he did not observe the plaintiff or anyone else performing any of the tasks performed by the defendant’s utility attendants working in the kitchen area. In addition, Mr O'Sullivan was not provided with any information about the particular equipment that the plaintiff would use when performing her duties. He also had no information about the training provided to the plaintiff or the defendant’s system of work, apart from what the plaintiff told him. It was Mr O'Sullivan’s evidence that the reason he referred to his report as a preliminary one was because it was his expectation that he would be provided with further information prior to furnishing a final report. This did not occur.
  1. [80]
    Third, in arriving at his criticisms of the defendant’s system of work, Mr O'Sullivan made numerous assumptions that were not confirmed in the evidence. Some examples of these are that:
  1. the kitchen operated in a similar way to other mining camps that he had been to, which were not operated by the defendant;
  1. the defendant did not provide any manual handling training to the plaintiff;
  1. there were breakfast shifts when the plaintiff was the only utility attendant working in the kitchen area;
  1. the plaintiff did not take any ‘smoko’ breaks;
  1. the mop used by the plaintiff was similar to a heavy-duty cotton mop, and the bucket used to wring the mop was or was similar to an Oates Duraclean one;
  1. the forces he calculated that were required to wring out a mop were the same or similar to the forces that would have been required to wring out a mop that the plaintiff used at work;
  1. the wiping duties were regularly performed by the plaintiff using a Chux cloth;
  1. the plaintiff was lifting cartons of fresh vegetables (including onions) and fruit weighing up to 20 kilograms;
  1. vegetables other than tomatoes had to be manually sliced by the plaintiff;
  1. just prior to the onset of the plaintiff’s symptoms in October 2019, her workload had increased by approximately 20 percent in preparation for an audit.

Liability

  1. [81]
    There is no dispute the defendant, as the plaintiff’s employer, owed her a duty to take reasonable care not to expose her to an unnecessary risk of injury in carrying out her work. It is well established that what is a reasonable standard of care for the safety of an employee is not a low one.[16] 
  1. [82]
    What is in dispute here is whether the plaintiff has established a breach of that duty, and that any breach was causative of the development of the plaintiff’s bilateral elbow condition.

The issue of breach

  1. [83]
    It is necessary to consider the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘the Act’).  Pursuant to s 305B(1), an employer does not breach a duty to take precautions against a risk of injury to a worker unless the risk was foreseeable, not insignificant and in the circumstances a reasonable person in the position of the employer would have taken the precautions.  An objective enquiry is required when considering whether an employer has breached its duty of care and the court’s attention is directed to the level of risk that needed to be guarded against.
  1. [84]
    Foreseeability is concerned only with the identification of those risks of injury in relation to which the defendant's general duty of care extends. In assessing whether a risk of injury is foreseeable, it is not necessary for the precise harm to have been foreseeable, provided the harm is of the same kind or type as that which was reasonably foreseeable.[17]  It is also not necessary for the precise sequence of events by which the harm came about to have been foreseeable. It is sufficient if a consequence of the same general character as that which followed the negligence, was reasonably foreseeable.
  1. [85]
    According to the plaintiff, the risk that was foreseeable was the risk of sustaining an upper limb sprain or strain in the course of her work duties. As much had been appreciated by the defendant in its own processes of identifying and managing such risks. In recognition of this, a significant component of the plaintiff’s induction and on-the-job training had focussed on the need to avoid repetitive tasks and those involving the sustained application of force. Further, the JSEA for pot washing had identified that the risk of a worker sustaining a strain or sprain from the repetition involved in this task was such that regular 30-minute breaks needed to be taken. Therefore, I am satisfied that such a risk was foreseeable in the sense mentioned in s 305B(1)(a) of the Act, in that it was real and not insignificant.
  1. [86]
    Confronted with a foreseeable risk of injury, it was incumbent on the defendant to take reasonable measures to meet that risk of injury. The court is required to determine the response that a reasonable person would have made to that risk, having regard to the probability and seriousness of the potential injury as required by s 305C(2) of the Act. At this stage of the inquiry into breach, the court is more concerned with the probability or the likelihood of the relevant harm, rather than with its foreseeability.[18]
  1. [87]
    The evidence establishes that the defendant had engaged in a systematic consideration of the risks. Through the JSEAs process, it had assessed hazards and potentially hazardous tasks in the workplace to identify whether, and if so, how such tasks posed unnecessary risks of injuries to employees. This then informed the content of its SWSPs, which were designed to identify and implement reasonable safe work procedures in order to avoid exposing employees to the risk. As is apparent from paragraphs 15 to 40 above, the plaintiff received extensive and ongoing training about these safe work practices. 
  1. [88]
    It is the plaintiff’s case that when taking into account the probability and seriousness of the potential for a worker to sustain an upper limb sprain or strain injury, a reasonable person in the position of the defendant would have taken the additional precautions referred to in paragraph 5 above.  These are addressed in turn below.

Additional assistance

  1. [89]
    According to the plaintiff, the defendant ought to have provided her with additional assistance when working in the dining area on the breakfast shift. I am not persuaded that a reasonable person in the position of the defendant would have considered this necessary. The evidence establishes that the plaintiff routinely worked with three other workers on this shift. There is simply no evidence that this was an insufficient staffing arrangement. Further, as discussed above, the defendant had systems in place to manage inevitable staff absences.

Rotation of tasks

  1. [90]
    It is pleaded in paragraph 11 of the amended statement of claim, that the system of work that would probably have protected the plaintiff from the risk of injury is one where her work duties were rotated. In particular, it is alleged that when scrubbing the pots and pans, and wiping the tables and other surfaces, the frequency of the rotation ought to have been in the order of 30 minutes. This is in circumstances where these duties were repetitive and involved a sustained application of force and/or involved an awkward posture.
  1. [91]
    With respect to the wiping of tables and other surfaces, the evidence relevant to this is summarised in paragraph 51 above. I am not persuaded that it was incumbent on the defendant to implement and enforce a system whereby the plaintiff did not wipe tables and other surfaces for more than 30 minutes.   This had not been identified as a risk minimisation strategy in the risk assessments undertaken by the defendant.   There is no other evidence to support this.
  1. [92]
    The task of wiping down tables assumed some significance in Mr O'Sullivan’s report. He explained that it is not necessarily the task itself that exposed the plaintiff to the risk of injury; rather it is the type of cloth used to perform the task. Mr O'Sullivan went on to explain that the use of Chux wipes exposes a worker to a higher risk of injury than the use of bulkier cloths, such as microfibre ones. Suffice to say, there is no evidence that the plaintiff was using Chux wipes when wiping tables and other surfaces. Further, Mr O'Sullivan considered that additional strain would have been placed on the extensor tendon region of the plaintiff’s elbow based on the assumption that the upcoming audit increased the plaintiff’s cleaning duties by approximately 20 percent. As discussed in paragraph 67 above, this assumption is not borne out in the evidence.
  1. [93]
    Turning to the scrubbing of the pots and pans, the defendant’s own risk assessment had identified the risk of a sprain or strain injury from this task if a worker was to perform it for longer than 30 minutes.[19]  Mr Whitely explained that this risk existed because of the repetitive nature of the movements required by the worker, in circumstances where the same limited muscle groups were being activated.  This was confirmed by Mr Law.[20] I do not accept the defendant’s submission that this risk assessment did not remain operative at the relevant time.  There was no evidence to this effect.
  1. [94]
    Having identified this risk, it appears that the defendant did not implement and enforce an appropriate system whereby workers did not scrub pots and pans for more than 30 minutes. It did not make its way into the relevant SWSP, the training provided to the plaintiff or the systems in place for the rotation of duties.
  1. [95]
    In my view, the risk of injury was sufficiently probable and serious to justify the precaution of enforcing a system involving the frequency of rotation out of pot washing duties as had been considered necessary by the defendant.

“Smoko” breaks

  1. [96]
    The evidence in relation to the ‘smoko’ breaks is summarised in paragraph 65 above. I have concluded that a reasonable person in the position of the defendant would have taken the precaution of having a system in place whereby the team leader of each shift was responsible for ensuring that the workers took their designated ‘smoko’ breaks. Such a system could have been easily implemented. It was obvious in prospect, as evidenced by the focus in the plaintiff’s training on the potentially repetitive nature of her work duties and the need for regular breaks. There could be no suggestion that such a measure involved any conflict with the defendant’s other responsibilities.
  1. [97]
    In conclusion, the defendant had a duty to implement systems whereby utility attendants were rotated out of the pot wash every 30 minutes and routinely took their designated ‘smoko’ breaks. The application of the principles in s 305B of the Act compels the conclusion that the defendant breached this duty.

The issue of causation

  1. [98]
    Having established that the plaintiff was owed a duty of care and that the duty was breached, the plaintiff must also establish that the failure to exercise due care caused or materially contributed to the damage complained of. The requirements to establish causation are set out in s 305D of the Act and are a restatement of the common law ‘but for’ test. It is to be assessed as a matter of common sense and experience.[21]  Pursuant to s 305E of the Act, the onus of proving any fact relevant to the issue of causation is on the plaintiff, applying the balance of probabilities test. 
  1. [99]
    Even where a defective system of work increases the risk of an injury, this does not necessarily demonstrate that an employer’s actions in breach caused the injury.[22]  Equally, a causal connection is not satisfied merely because the plaintiff was at work and there is a temporal relationship between the workplace and the onset of her elbow symptoms. 
  1. [100]
    Drs Angus Nicoll and Chris Blenkin, both orthopaedic surgeons have expressed differing opinions regarding the causal relationship between the plaintiff’s bilateral tennis elbow and her work duties with the defendant. Dr Nicoll examined the plaintiff at the request of her solicitors on 11 February 2022 and 8 September 2023. He has provided reports dated 9 March 2022 and 16 October 2023. There is also a file note of a conversation that occurred between the plaintiff’s counsel and Dr Nicoll on 3 November 2023.  Dr Blenkin’s examinations were at the request of the defendant’s solicitors.  They took place on 21 July 2022 and 29 August 2023.  He has provided reports dated 30 August 2022 and 29 August and 23 November 2023.
  1. [101]
    There is no dispute between these experts that the plaintiff has bilateral tennis elbow. It is understandable that the plaintiff would think it is connected with her work duties. While the evidence suggests that it possibly is, this is not enough. There is the competing hypothesis that her elbow condition can be explained by her age and constitution. This is in circumstances where many people develop it without exposure to any occupational risk factors.
  1. [102]
    For the plaintiff to succeed, she must demonstrate that the hypothesis consistent with negligence on the part of the defendant is the more probable one.[23]  I am not satisfied that she has discharged her onus in this regard, for the reasons detailed below.  
  1. [103]
    First, the plaintiff relies on Dr Nicholl’s evidence in support of the existence of a causal connection. However, Dr Nicoll assumed that the plaintiff was undertaking moderately heavy to heavy tasks involving force and repetition (being prolonged periods of mopping, using the floor cleaning machine, scrubbing heavy pots and pans, and lifting heavy trays of food) for approximately 75 percent of each shift. These assumptions were not borne out by the evidence. It is also worth noting that in Dr Nicholl’s report of 8 September 2023, he refers to reports of Drs Price and Journeaux.   Those reports were not tendered or otherwise referred to in the evidence.   Further, in Dr Nichol’s evidence, he referred to having been shown some images, including of an industrial dishwasher and the stacking and unstacking of it and of an industrial floor cleaning machine.  None of these images are exhibits and it is not known whether the pieces of equipment shown in the images are like those operated by the plaintiff.  It is also not known whether the process for stacking and unstacking the dishwasher, as shown in those images, replicates how the plaintiff performed this task at work.   
  1. [104]
    Second, I accept Dr Blenkin’s evidence that the physical nature of the plaintiff’s work fell well short of being commensurate with the sorts of occupations for which there are known risk factors for tennis elbow. According to the American Medical Association Guide to the Evaluation of Disease and Injury Causation, Second Edition (‘the AMA Causation Guide’), this relationship has been demonstrated in construction workers and meat packers.  It has also been demonstrated in racquet sports.  Dr Blenkin explained that the other types of occupations for which there are known risk factors for tennis elbow are carpentry, oyster shucking, and in jobs requiring work to be performed with a grinder.  In Mr O'Sullivan’s report, he also referred to research into the prevalence of tennis elbow in catering workers and cleaners.  He noted that the plaintiff performed both catering and cleaning tasks. However, the research Mr O'Sullivan referred to with respect to catering workers focussed on cooks and chefs in restaurant settings.  Those jobs bear little similarity to the work the plaintiff was doing.  Further, while the plaintiff performed some cleaning duties, it was not her primary role as she was also performing numerous other tasks.  In addition, the study in relation to cleaners found toilet cleaning scored second highest for upper limb musculoskeletal risk. The plaintiff did not clean toilets.
  1. [105]
    Third, it is perhaps unsurprising that neither epidemiology data nor studies have identified the type of work the plaintiff was doing as having known risk factors for tennis elbow. This is because according to the AMA Causation Guide, it is only when a person is performing those tasks which require both force and posture, that they are exposed to the highest risk of developing this condition. While high repetition has also been shown to potentially be a risk factor, this is only when it is combined with one or more other risk factors, such as force and/or posture. A low risk exists where a person is performing a task that is either forceful or requires an awkward posture.
  1. [106]
    Fourth, I accept Dr Blenkin’s evidence that some of the tasks referred to by Dr Nicoll, including the scrubbing of pots and pans, is unlikely to have exposed the plaintiff to the risk of tennis elbow. This is because performance of these tasks does not tend to promote excessive force at the extensor origin of the elbow, which is a requirement for the existence of this condition.
  1. [107]
    Fifth, there is no persuasive evidence that the failure of the plaintiff to always take her ‘smoko’ breaks caused or contributed to her tennis elbow.
  1. [108]
    Sixth, the plaintiff developed tennis elbow in her left upper limb, despite not performing those heavy to moderately heavy work tasks which Dr Nicoll considered were likely to explain the same condition in her right upper limb.[24] 
  1. [109]
    Seventh, I accept Dr Blenkin’s evidence that the temporal connection between the onset of the plaintiff’s elbow symptoms in both upper limbs is consistent with a constitutional explanation for the development of it.
  1. [110]
    Eighth, as Dr Nicoll explained, irrespective of the plaintiff’s exposure to potential occupational risk factors, her small stature and slight build placed her at an increased risk of developing this condition.
  1. [111]
    Ninth, the plaintiff’s gender and age are the other constitutional factors that predisposed her to an increased risk of developing tennis elbow. Support for this can be found in the epidemiology studies referred to in the AMA Causation Guide. It is also consistent with the clinical experience of Drs Nicoll and Blenkin. Indeed, the plaintiff had degeneration in her right elbow around the time that she first noticed her symptoms.[25] 
  1. [112]
    Tenth, I accept Dr Blenkin’s evidence that it is to be expected that the plaintiff would experience pain in the workplace when she uses her hands, just as is the case for non-work activities. It is only in this sense that it could be said that the plaintiff’s work duties have temporarily aggravated her elbow condition. This necessarily means that I am not persuaded by Dr Nicoll’s possible explanation for the elbow condition – being that the plaintiff had some asymptomatic changes to her upper limbs because of her constitution and age, that only became symptomatic as a result of her work duties.
  1. [113]
    It is for the above reasons that I am of the view that it is probable, or at least equally possible, that the plaintiff’s bilateral tennis elbow can be explained by factors unrelated to her work duties, namely her gender, age and constitution.

Conclusion as to liability

  1. [114]
    The plaintiff has not established any causal link between any act or omission of the defendant and her elbow condition.  Her claims in negligence and contract must be dismissed. 
  1. [115]
    It remains necessary to assess the damages I would have awarded, had the plaintiff been successful.

Quantum

  1. [116]
    The plaintiff was born on 29 April 1981. She was in her late 30s over the period when she sustained the alleged injuries. She is now 42 years of age. She lives with her partner, Peter Summers. She does not have children.

General damages

  1. [117]
    In early 2020, the plaintiff’s general practitioner referred her to Dr Dorgeloh, orthopaedic surgeon. She attended upon him in March 2020. He diagnosed tennis elbow and recommended corticosteroid injections. She had two of these, resulting in only a modest improvement in her symptoms. Dr Dorgeloh also recommended further physiotherapy. The plaintiff told Dr Nicoll in February 2022, that while this therapy had improved her strength, she did not think it had been overly beneficial in relieving her symptoms. Since this time, she has continued to manage her symptoms using analgesics and anti-inflammatory medications, massages and self-directed exercises.
  1. [118]
    The plaintiff said in her evidence that her right elbow continues to be more painful than her left. She further said that when she drives, she needs to be positioned close to the steering wheel so that she does not extend her arms. She also carries bags with bent arms and can no longer sleep on either side for more than 10 minutes. She continues to perform the bulk of the household duties but is more cautious and takes her time.   She has reduced her gardening activities on account of her elbow symptoms.  Mr Summers confirmed the difficulties which the plaintiff experiences in performing household chores, and the reduction in her level of gardening since the onset of her elbow related symptoms.  
  1. [119]
    As to the assessment of whole person impairment, Chapter 16 in the American Medical Association Guide to the Evaluation of Permanent Impairment 5th Edition (‘the AMA Guide’) provides criteria for evaluating permanent impairment of the upper extremities.  Tendinitis can attract a permanent impairment under 16.7d of the AMA Guide.  This is if a tendon has ruptured, or there been surgical release of the flexor or extensor origins or lateral epicondyle, or excision of the epicondyle.  None of these applied to the plaintiff.  Dr Nicoll accepted that under this chapter the plaintiff could not be given a permanent impairment rating, even if her condition was to persist for some time. 
  1. [120]
    While the AMA Guide emphasises objective assessment of impairment, pursuant to Chapter 18, the whole person rating may be increased by up to three percent. This is if the burden of the plaintiff’s condition has been increased by pain-related impairment in excess of the pain component incorporated into Chapter 16. It was in reliance on Chapter 18 that Dr Nicoll assessed a three percent whole person impairment.
  1. [121]
    On the other hand, Dr Blenkin assessed a zero percent whole person impairment and did not consider that a pain rating under Chapter 18 was warranted. Further, he explained that the natural history of tennis elbow is invariably one of resolution. Dr Blenkin could see no reason why the plaintiff’s condition would not follow this ordinary course, particularly following the conclusion of the litigation.  I accept this.
  1. [122]
    An award for general damages must be assessed in accordance with the Workers’ Compensation and Rehabilitation Regulation 2003 (Qld) (‘the Regulation’).  The award is intended to compensate the plaintiff for pain and suffering and loss of amenities of life. While the extent of whole person impairment assessed by the medical experts is important it not the sole consideration. The award ought to reflect the level of adverse impact of the injuries on the plaintiff.  In assessing general damages, the court is required to assess an injury scale value (‘ISV’) from the range of ISVs stated in Schedule 9 of the Regulation.  Section 306O of the Act provides for the calculation of general damages according to the assessment of the ISV and the formulae provided.
  1. [123]
    This case concerns multiple injuries, being bilateral elbow related injuries. It is therefore necessary to determine the dominant injury as it is defined, have regard to the range of ISVs applicable to that injury, and determine where in the range of ISVs provided for that injury it should fall. It is then necessary to determine whether the maximum ISV in that range adequately reflects the adverse impact of all the injuries. If it is not sufficient, then the ISV might be higher but not more than 25 percent above the maximum dominant ISV selected.
  1. [124]
    The plaintiff claims $20,720 for general damages. This equates to an ISV of 12, in accordance with Item 102 of the Regulation. This item is for moderate elbow injuries and has an ISV range of 6 to 12. It provides that an ISV at or near the top of the range will be appropriate, if there is a moderately severe injury to the elbow of the dominant upper limb requiring prolonged treatment and causing a DPI of 10 percent.
  1. [125]
    The ISV of 12 claimed by the plaintiff is based on an ISV of 9 for the dominant injury of tennis elbow in her right upper limb, with an uplift to an ISV of 12, to account for the same condition in her left upper limb.
  1. [126]
    Item 103 0f the Regulation is for a minor elbow injury which will cause no permanent damage and no permanent impairment of function. The ISV range is 0 to 5. Examples of this injury are a minor soft tissue injury with pain, a minor tennis elbow syndrome or a laceration.
  1. [127]
    Bearing in mind that the plaintiff is in her early 40s, and there has been some disruption to her life caused by these injuries, however in circumstances where I accept that her bilateral elbow condition is likely to resolve, I am satisfied that an ISV of 3 reflects the impact of the injuries to both of her elbows. Applying Schedule 12 of the Regulation, results in an award of $4,470.
  1. [128]
    Pursuant to s 306N(1) of the Act, a court cannot award interest on general damages.

Past economic loss

  1. [129]
    There is no claim for past economic loss.

Future economic loss

  1. [130]
    The plaintiff completed a Bachelor of Commerce in the Philippines. Prior to emigrating to Australia in late 2008, she worked in the retail industry and in recruitment, largely performing administrative, book-keeping and other office-based duties. She also completed a certificate in aged care.
  1. [131]
    Upon her arrival in Australia, the plaintiff did not seek to work in an office as she did not consider that she was sufficiently proficient in English. Instead, she worked as a kitchen hand at a Shell roadhouse for approximately three months. Over the following decade she worked on a casual basis for Subway at Sarina. For about seven of those years, she also worked on a casual basis at McDonalds in Mackay.
  1. [132]
    Despite the plaintiff’s bilateral tennis elbow, she has managed to remain in full-time employment with the defendant and in circumstances where there have been increases in her income. She earned an average net weekly income of $682.84 in the 2017 financial year, $649.98 in the 2018 financial year, $693.48 in the 2019 financial year, $957.03 in the 2020 financial year, $996.30 in the 2021 financial year, $1,030.59 in the 2022 financial year and $1,078.98 in the 2023 financial year.
  1. [133]
    While the plaintiff has not to date suffered any ongoing loss of income as a result of her elbow condition, she claims a global sum of $300,000, on the basis that she is vulnerable in her current role and susceptible to an aggravation of her injuries. It is further said that she will be at a gross disadvantage on the open labour market should her current employment with the defendant cease.
  1. [134]
    As explained above, since approximately mid-2022, the plaintiff has been working for the defendant in an administrative role. Even though this role usually attracts a slightly higher salary than what she is currently earning, the plaintiff has not accepted the repeated offers of her supervisor, Jesse Pomare to be transferred permanently to it. She is well regarded by him. Further, it is a role that would also provide the plaintiff with better promotional opportunities.
  1. [135]
    I agree that the relevant assessment of damages ought to be made on a global basis in accordance with s 306J of the Act. In determining the appropriate figure, it is necessary to consider what would have happened to the plaintiff had she not been injured and what will happen now.[26] It is sufficient for the plaintiff to prove that there is a chance that her elbow injuries will be productive of financial loss.[27]  The Court must do the best it can to make a judgment and assessment on a percentage basis, or otherwise of the value of the incapacity.[28]  The discretionary judgment needs to encompass a range of possible outcomes, some of which may be no more than a real possibility.[29]
  1. [136]
    There are many imponderables in assessing the probable loss moving forward. At one extreme is the possibility that the plaintiff will lose her current job soon, and despite her residual employment capacity, struggle for years to find more than occasional casual work. At another extreme is the contingency that her symptoms will resolve at the conclusion of the litigation, and that she will remain working in administration for her current or another employer until her late 60s. These and other more probable contingencies must be considered.
  1. [137]
    While the plaintiff appears to have job security with the defendant, the mining industry is confronted with risks not shared by many other industries. This is due to its ‘boom or bust’ nature and the fact that the longer-term viability of coal mining in Australia is somewhat guarded. Further, there is always the prospect of the camp being acquired by a different operator, impacting upon her job security.
  1. [138]
    I am satisfied that the plaintiff’s future, in both her injured and uninjured state, likely lies in the food service industry or office-based administrative type roles. It seems that she can largely perform the range of duties that are expected in her current administrative role with the defendant. To the extent that there are limitations, there is the significant chance that her symptoms will progressively resolve.
  1. [139]
    Having regard to the nature of the plaintiff’s residual symptoms, her age, her work history and the fact that she has sustained relatively minor elbow injuries attracting an ISV of 3, I assess her future economic loss at $30,000, inclusive of superannuation.

Special damages

  1. [140]
    WorkCover expenses amount to $10,730.34.
  1. [141]
    The plaintiff claims $2,174.28 for pharmaceutical, medical and travel expenses. I have allowed this.  The plaintiff has also apparently spent $2,520 on whole body massages in circumstances where the injuries are limited to her elbows.   I have allowed $840 for the massages.  The total allowance for out-of-pocket expenses is approximately $3,015.

Interest on out-of-pocket expenses

  1. [142]
    The plaintiff is entitled to interest on $3,015 at the agreed rate of two percent for a period of 4.35 years. This results in a figure of $265.

Future expenses

  1. [143]
    The plaintiff claims a total of approximately $12,000 for future expenses. $7,000 of this is for the prospect that the plaintiff will have surgery. However, Dr Nicoll’s explained in evidence that surgical intervention is not routinely undertaken for tennis elbow as the outcome can be variable. He went on to explain that it can sometimes make a patient’s pain worse. No allowance is made for this. The remaining $5,000 is for ongoing expenditure on pharmaceuticals, massages, physiotherapy treatment and massages. It was the evidence of the plaintiff that she continues to take pain relief and anti-inflammatory medication which can be as much as four tablets at a time. She also gets her arms massaged on her days off and does exercises at home.  She said that she plans to consult a doctor if her symptoms get worse.  
  1. [144]
    In my view it is appropriate to make a global assessment of $1,200 for future out-of-pocket expenses.

Summary of damages award

Head of damage

Award

General damages

$  4,470 

Future economic loss (inclusive of superannuation)

30,000

Special damages

  13,746

Interest on out-of-pocket expenses

       265 

Future out of pocket expenses.

   1,200

Subtotal

  49,681

Less WorkCover Refund

  10,730

Total

$ 39,951

Orders

  1. [145]
    There will be judgment for the defendant.
  1. [146]
    I direct that any submissions in respect of costs, or alternatively a proposed draft order if the parties are agreed, be filed within fourteen days.

Footnotes

[1] At exhibit 6.3.

[2] Exhibit 22 is an example of such a report completed by a physiotherapist who was at the camp on 26 and 27 August 2019. 

[3] Examples of these are in exhibits 1 and 9.

[4] T2-40, ln 19-31.

[5] T1-22, ln 46.

[6] T2-21, ln 4-6.

[7] Exhibit 4, T-43, ln 12-14. 

[8] T2-41, ln 15-35.

[9] T2-37, ln 15-20. 

[10] Examples of the forms completed following a monthly inspection are in exhibit 21. 

[11] T2-39, ln 9-18.

[12] Exhibit 13. 

[13] As shown in the roster at the bottom of the page in exhibit 9.

[14] T1-31, ln 27.

[15] T2-8, ln 23-28.

[16] O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 230.

[17] Mount Isa Mines v Pusey (1970) 125 CLR 383 at 390.

[18] Gors v Tomlinson [2020] WASCA 164 at [61].

[19] Exhibit 10A.3.

[20] T2-108, T3-12.

[21] March v E & MH Stramere Pty Ltd (1999) 171 CLR 506. 

[22] Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268.

[23] St George Club Ltd v Hines (1961) 35 ALJR 106 at 107.

[24] The plaintiff gave evidence that while on suitable duties she did not mop floors, use the floor scrubber, wash heavy pots and pans, or lift weights heavier than five kilograms. The duties she performed are pleaded in paragraph 5 of the amended statement of claim.

[25] Results of ultrasound examination on 1 November 2019.

[26] Paul & Anor v Rendell (1981) 35 ALR 569 at 571 per Lord Diplock; Little v McCarthy & Anor [2014] QSC 274.

[27] Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264.

[28] Yammine v Kalwy [1979] 2 NSWLR 151 at 155; Nilon v Bezzina [1988] 2 Qd R 420 at 424.

[29] New South Wales v Moss [2000] NSWCA 133 at 87.

Close

Editorial Notes

  • Published Case Name:

    Bishop v Compass Group Remote Hospitality Services Pty Ltd

  • Shortened Case Name:

    Bishop v Compass Group Remote Hospitality Services Pty Ltd

  • MNC:

    [2024] QDC 14

  • Court:

    QDC

  • Judge(s):

    Rosengren DCJ

  • Date:

    21 Feb 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Gors v Tomlinson [2020] WASCA 164
2 citations
Jump To
Cite 1 - [2020] WASCA 164
Cite 2 - [2020] WASCA 164
Little v McCarthy [2014] QSC 274
2 citations
Jump To
Cite 1 - [2014] QSC 274
Cite 2 - [2014] QSC 274
March v E & MH Stramere Pty Ltd (1999) 171 CLR 506
2 citations
Jump To
Cite 1 - (1999) 171 CLR 506
Cite 2 - (1999) 171 CLR 506
Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264
2 citations
Jump To
Cite 1 - [2021] QCA 264
Cite 2 - [2021] QCA 264
Mount Isa Mines v Pusey (1970) 125 CLR 383
2 citations
Jump To
Cite 1 - (1970) 125 CLR 383
Cite 2 - (1970) 125 CLR 383
Nilon v Bezzina[1988] 2 Qd R 420; [1987] QSCFC 108
2 citations
Jump To
Cite 1 - [1988] 2 Qd R 420
Cite 2 - [1988] 2 Qd R 420
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
2 citations
Jump To
Cite 1 - (1954) 100 CLR 225
Cite 2 - (1954) 100 CLR 225
Paul & Anor v Rendell (1981) 35 ALR 569
2 citations
Jump To
Cite 1 - (1981) 35 ALR 569
Cite 2 - (1981) 35 ALR 569
St George Club Ltd v Hines (1961) 35 ALJR 106
2 citations
Jump To
Cite 1 - (1961) 35 ALJR 106
Cite 2 - (1961) 35 ALJR 106
State of New South Wales v Moss [2000] NSWCA 133
2 citations
Jump To
Cite 1 - [2000] NSWCA 133
Cite 2 - [2000] NSWCA 133
Stitz v Manpower Services [2011] QSC 268
2 citations
Jump To
Cite 1 - [2011] QSC 268
Cite 2 - [2011] QSC 268
Yammine v Kalway (1979) 2 NSWLR 151
2 citations
Jump To
Cite 1 - (1979) 2 NSWLR 151
Cite 2 - (1979) 2 NSWLR 151

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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