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  4. Marchant v Workers' Compensation Regulator - [2023] QIRC 203

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Marchant v Workers' Compensation Regulator[2023] QIRC 203

Marchant v Workers' Compensation Regulator[2023] QIRC 203

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Marchant v Workers' Compensation Regulator [2023] QIRC 203

PARTIES: 

Marchant, Emelia

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2021/24

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

14 July 2023

HEARING DATES:

16, 17 and 18 March 2022

DATES OF WRITTEN

SUBMISSIONS:

Appellant's written submissions filed on 11 May 2022 and Respondent's written submissions filed on 30 June 2022

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

The orders contained in paragraph [215] of these reasons for decision

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – appeal against review decision of Respondent – Appellant employed by a company to work as a cleaner at the Wesley Hospital – Appellant suffered from long standing osteoarthritis to her left knee – whether Appellant suffered a work related aggravation of her left knee osteoarthritis – dispute about the duties performed by Appellant – whether Appellant’s work was heavy involving significant movement of her left knee or whether Appellant's duties were light in nature – finding that Appellant’s duties involved significant movement of her left knee – Appellant suffered aggravation of medial compartment arthritis and a meniscal tear –  Appellant suffered an aggravation of her personal injury which arose out of or in the course of employment and Appellant’s employment was a significant contributing factor to the aggravation – review decision of Respondent set aside and another decision substituted, namely, that the Appellant’s application for workers’ compensation is one for acceptance – parties to be heard about costs

EVIDENCE – ADDUCING EVIDENCE – GIVING EVIDENCE – CROSS EXAMINATION – application of the rule in Browne v Dunn – whether the allegation that the genesis of the Appellant's application for workers'  compensation was to search for a means to obtain treatment for a non-work related injury should have been put to Appellant in cross-examination before submission to that effect made – statement of rule in Browne v Dunn – discretion to remedy non-compliance with rule in Browne v Dunn – decision not to accept submission made in non-compliance with the rule

LEGISLATION:

Industrial Relations Act 2016, s 531

Workers' Compensation and Rehabilitation Act 2003, s 11, s 32 and s 558

CASES:

Amcor Ltd v Barnes [2012] VSC 434

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Bale v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498

Browne v Dunn (1894) 6 R 67

Camden v McKenzie [2007] QCA 136; (2008) 1 Qd R 39

Church v (Simon Blackwood) Workers' Compensation Regulator [2015] ICQ 031; (2015) 252 IR 461

Commonwealth v Beattie [1981] FCA 88; (1981) 53 FLR 191

Ellis v Q-COMP (No.2) [2005] ICQ 56;  (2005) 180 QGIG 1131

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Guymer v Workers' Compensation Regulator [2018] ICQ 009

Hancock v Q-COMP  [2007] ICQ 13; (2007) 184 QGIG 194

Heald v Q-Comp [2004] QIC 70; (2004) 177 QGIG 769

JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

Omanski v Q-Comp [2013] ICQ 7

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Payless Superbarn (NSW) Pty Ltd V O'Gara (1990) 19 NSWLR 551

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

State of Queensland (Queensland Health) v Q-Comp and Beverly Coyne [2003] ICQ 9; (2003) 172 QGIG 1447

Sweeney v He [2023] NSWCA 68

Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244

APPEARANCES:

Dr G. Cross of Counsel instructed by Mr M. Coughlan of Patinos Personal Lawyers.

Mr C. Clarke of Counsel directly instructed by Mr  M. Cutting and Ms A. Schultz of the Respondent.

Reasons for Decision

Introduction

  1. [1]
    Ms Emelia Marchant was employed as a cleaner with Quad Health Care Cleaning Services Pty Ltd ('Quad'). Ms Marchant was employed on a full-time basis. Quad provided cleaning services at the Wesley Hospital ('the Hospital').  Ms Marchant worked as a cleaner at the Hospital.
  1. [2]
    Ms Marchant worked at the Hospital between 16 June 2008 and 13 July 2020.[1]
  1. [3]
    On 27 July 2020, Ms Marchant lodged an application for workers' compensation with WorkCover Queensland for an injury to her left knee, which she described as a meniscal tear.[2] WorkCover rejected that application on the basis that it was not satisfied Ms Marchant's injury and symptoms were work-related. Ms Marchant sought a review with the Workers' Compensation Regulator ('the Regulator') which, by review decision dated 12 February 2021, confirmed the decision of WorkCover ('the review decision').
  1. [4]
    Ms Marchant appeals to this Commission against the review decision.
  1. [5]
    An appeal of this type is a hearing de novo[3] of the issue determined by the review decision.[4] The onus is on Ms Marchant to prove, on the balance of probabilities, that she has suffered an injury within the meaning of the Workers' Compensation and Rehabilitation Act 2003 ('the Act') .[5]
  1. [6]
    There is no dispute that, at all relevant times, Ms Marchant was a worker within the meaning of s 11 of the Act.[6] Further, there is no dispute that, at all relevant times, Ms Marchant suffered from longstanding osteoarthritis in her left knee.[7]
  1. [7]
    Ms Marchant submits that she suffered an aggravation of her pre-existing osteoarthritis of her left knee in the course of her employment and the aggravation arose out of her employment and her employment was a significant contributing factor to the aggravation.[8]
  1. [8]
    The Regulator contends that:
  • whilst Ms Marchant has sustained a personal injury, the correct diagnosis is left knee degenerative osteoarthritis;[9]
  • Ms Marchant's work duties as a hospital ward cleaner for Quad were light in nature;[10] 
  • the true nature and extent of Ms Marchant's work duties would not result in forces that would be considered sufficient to have been a significant contributing factor to her left knee osteoarthritis; [11]
  • there is insufficient evidence to satisfy, on the balance of probabilities, that Ms Marchant's personal injury arose out of, or in the course of, her employment with Quad and, further, that her employment with Quad was not a significant contributing factor to her personal injury;[12] and
  • the opinion of Dr Robin 'Sid' O'Toole, Occupational Physician (called by the Regulator) should be preferred over, and given more weight, than the opinion of Dr Bruce Low, Orthopaedic Surgeon (called by Ms Marchant).[13]
  1. [9]
    Ms Marchant gave evidence on her own behalf. Ms Marchant also led evidence from     Ms Jhonnesa Wintzloff,  Ms Jeramie Padasas, and Ms Mira Fitzgerald, all of whom were cleaners employed by Quad and who worked in the Hospital. Ms Marchant also led evidence from Dr Chris Kan, General Practitioner and Dr Low.
  1. [10]
    The Regulator led evidence from Ms Marilyn Heston and Ms Heather Grummet, both of whom are more senior employees of Quad. The Regulator also led evidence from Dr O'Toole.
  1. [11]
    Dr James Fardoulys, Orthopaedic Surgeon, was originally going to be called, to give evidence, by Ms Marchant. However, Dr Fardoulys was not called by Ms Marchant. The report of Dr Fardoulys, dated 15 October 2020 was, with the consent of Ms Marchant, tendered by the Regulator (Exhibit 18).[14] After the last scheduled day of the hearing, the Regulator was required to indicate if it was going to call Dr Fardoulys to give evidence. The Regulator did not call Dr Fardoulys as a witness.
  1. [12]
    The parties' final submissions were in writing.
  1. [13]
    Having regard to the parties' competing claims, the issues for my determination are:
  • what was the extent to which, if any, Ms Marchant bent her left knee, kneeled, squatted, climbed ladders, moved heavy rubbish or objects, or climbed stairs in the course of performing her duties as a cleaner? and
  • did Ms Marchant suffer an aggravation of the pre-existing osteoarthritis of her left knee which arose out of, or in the course of, her employment and was her employment a significant contributing factor to the aggravation?
  1. [14]
    In relation to the second issue above, a sub-issue is whether Ms Marchant suffered an activation of pain to her left knee when working as a cleaner at the Hospital.
  1. [15]
    For the reasons that follow, I find that Ms Marchant did suffer an injury within the meaning of the Act, and that her application for workers’ compensation, in respect of her personal injury to her left knee, should be one for acceptance.

What was the extent to which, if any, Ms Marchant bent her left knee, kneeled, squatted, climbed ladders, moved heavy rubbish or objects, or climbed stairs in the course of performing her duties as a cleaner?

  1. [16]
    There is a significant factual dispute about the extent to which, if any, Ms Marchant bent her left knee, kneeled, squatted, climbed ladders, moved heavy rubbish or items, or climbed stairs in the course of performing her duties as a cleaner ('the factual dispute').
  1. [17]
    The resolution of the factual dispute requires an assessment of the evidence of the lay witnesses, namely, Ms Marchant, Ms Wintzloff,  Ms Padasas, Ms Fitzgerald, Ms Grummett and Ms Heston.
  1. [18]
    Ms Wintzloff worked as a cleaner at the Hospital between 2012 and October 2021. Ms Wintzloff was initially employed as a ward cleaner in Ward 2E for about four months and then became a bed cleaner.[15] Ms Wintzloff also stated that she had worked in                Ward 7E,  which is a Urology ward where patients do not stay long, sometimes overnight or not at all.[16]
  1. [19]
    Ms Padasas worked as a cleaner employed by Quad at the Hospital between 2019 and January 2022,[17] and in that regard, she did bed cleaning in the day surgery for six months, she then did bed cleaning in wards all over the Hospital for another six months, such that she did bed cleaning all day, and then she became a ward cleaner.[18]
  1. [20]
    Ms Fitzgerald worked as a cleaner for Quad at the Hospital from 19 January 2012 until  5 October 2020.[19] Ms Fitzgerald worked as a bed cleaner for eight months, following which she became a ward cleaner in Ward 7E.[20]
  1. [21]
    Ms Grummet is employed by Quad and works at the Hospital. Ms Grummet was employed as the Day Shift Supervisor and, since 1 December 2021, has been employed as Manager when she replaced Ms Heston.[21] Ms Grummett first started working at the Hospital in 1989, has worked on and off at the Hospital since that time, and has been employed as a ward cleaner and a bed cleaner.[22]
  1. [22]
    Ms Heston was employed as Manager for Quad at the Hospital until November 2021. Prior to that, she was, for a period of about four years, a Supervisor for Quad at the Hospital and commenced as a cleaner at the Hospital about 14-15 years ago.[23]
  1. [23]
    The oral evidence given by the lay witnesses was reasonably extensive.
  1. [24]
    The resolution of the factual dispute is necessary in determining whether or not Ms Marchant has suffered an injury within the meaning of the Act because it is relevant to my assessment of the competing expert evidence.
  1. [25]
    To do proper justice to the arguments of the parties, it is necessary, in determining the factual dispute, to give detailed consideration to the oral evidence given by the lay witnesses and the parties' submissions about that evidence.

The parties' submissions

Ms Marchant

  1. [26]
    Ms Marchant submits that her left knee injury:
  • was an aggravation of pre-existing osteoarthritis of the left knee; 
  • occurred over a period of time in the course of her employment with Quad where she worked as a cleaner at the Hospital on a full time basis; and
  • occurred while she was performing her usual work duties which involved scrubbing bathroom tiles, bed cleaning, hanging curtains, high dustings and cleaning patients' rooms, public toilets, hallways, offices and stairs at the Hospital.[24]
  1. [27]
    Ms Marchant further submitted that the above work duties required kneeling, squatting and knee bending and that there were significant periods of climbing up and down ladders and stairs, and her work duties had a heavy physical demand.[25]
  1. [28]
    After summarising the evidence given by the lay witnesses, Ms Marchant submitted that her evidence, and that of Ms Wintzloff, Ms Padasas and Ms Fitzgerald was consistent in that the work duties, as cleaners, required extended periods of kneeling, squatting, climbing and knee bending.[26]
  1. [29]
    In particular, Ms Marchant submitted that:
  1. There is a consistency in the evidence of Ms Marchant with that of the three witnesses called in Ms Marchant's case. In particular, the evidence of Ms Fitzgerald, the auditor sits comfortably with the evidence of Ms Marchant and Ms Padasas and Ms Wintzloff.
  2. There does not appear to be any significant difference in the evidence of the Respondent's witnesses, Ms Heston and Ms Grummet.
  3. The evidence of the witnesses supports that the injury occurred while Ms Marchant was performing her usual work duties which involved scrubbing bathroom tiles, bed cleaning, hanging curtains, high dusting, cleaning patient's rooms, public toilets, hallways, offices and stairs at the Wesley Hospital.

The Regulator

  1. [30]
    The Regulator submitted that:
  • it can fairly be observed that Ms Padasas, Ms Wintzloff and Ms Fitzgerald seemed overly keen to stress to the Commission how hard Ms Marchant worked, subject to the limitation that Ms Padasas and Ms Wintzloff were not in a position to see the precise nature of Ms Marchant's work in regard to the involvement of her left knee, and that each of Ms Padasas and Ms Wintzloff conceded that to be the case;[27]
  • there are aspects of the evidence of Ms Fitzgerald that will cause legitimate reservations about accepting Ms Fitzgerald's description of the work duties performed by Ms Marchant, namely:
  • – the implausibility of her evidence about the propensity of mould build up after a few hours;
  • – her evidence that Ms Marchant would routinely clean every portion of the grout and that she saw Ms Marchant undertake this particular task, being evidence which does not accord with other evidence including that of Ms Marchant;
  • – her estimation that Ms Marchant would use the stairs three times every week, being evidence without any reasonable foundation;
  • – the questionable nature of her allegedly clear recollection that she saw Ms Marchant cleaning some stairs three years ago; and
  • – that her evidence began to  descend to the point where she began to answer questions she was not even asked in an attempt to bolster Ms Marchant's case;[28]
  • in relation to the evidence given by Ms Grummett and Ms Heston:
  • – in the past, they both worked as cleaners at the Hospital and both worked in the position of Site Manager, which entailed the supervision of cleaners;
  • – while they, like Ms Padasas, Ms Wintzloff and Ms Fitzgerald, were not in the position to directly observe Ms Marchant as to how she (Ms Marchant) went about her daily cleaning activities, as supervisors with long experience on the job, they were both capable of providing evidence as to how much squatting, kneeling, ladder work and climbing stairs might be reasonably expected to have been undertaken by Ms Marchant; and
  • – while their evidence on the above issue is not conclusive, it does provide some assistance in determining the issue, and Ms Grummett and Ms Heston did not exhibit the same zeal shown by Ms Fitzgerald when giving her evidence.[29]

Ms Marchant’s hours of work, her work colleagues and supervisors

  1. [31]
    Ms Marchant’s evidence was that:
  • on Saturdays and Sundays she cleaned Ward 7E;[30]  and
  • on Ward 7E, she commenced work at 6.30 am and finished at 2.30 pm with a 15 minute morning tea break and half an hour for lunch and that Ward 7E is a very busy ward;[31]
  • in respect of the work she performed in Ward 7E, there were 30 beds and 28 bathrooms and the cleaning she performed in that ward involved squatting, kneeling, bending, scrubbing, pulling and pushing a trolley, climbing ladders to hang curtains and to perform high dusting, cleaning the stairs and mopping;[32]
  • on Mondays, Tuesdays and Wednesdays she was a ‘floater’ where she would fill in for cleaners at any part of the Hospital who were unable to come to work because of illness or because they were on leave;[33] and
  • in respect of the work she performed as a floater, her duties could change from day to day depending upon what work her supervisor directed her to perform, such that she could be directed to perform the same duties, for example cleaning bathrooms, cleaning under beds or hanging curtains, for an entire day.[34]
  1. [32]
    In cross-examination, Ms Marchant agreed that:
  • Ms Wintzloff, Ms Padasas and Ms Fitzgerald were workmates of hers;
  • Ms Wintzloff did not work beside her (Ms Marchant) each day to be able to observe what she (Ms Marchant) did;
  • Ms Padasas was not very often in the same room as Ms Marchant such that she (Ms Padasas) would not be able to see what she (Ms Marchant) did and how she (Ms Marchant) went about her work tasks; and
  • Ms Fitzgerald worked with her (Ms Marchant) on occasions, a couple of years ago when she (Ms Fitzgerald) was a bed cleaner and Ms Marchant was working in the ward, such that they would have been performing their duties in the same room.[35]
  1. [33]
    Ms Marchant further stated:
  • she knew Ms Heston, who was her Manager, and that she saw Ms Heston when she signed on, but did not see her throughout the day because Ms Heston stayed in her office;[36] and
  • she knew Ms Grummet was her supervisor and that she saw Ms Grummet during the working day because she would roam around the wards.[37]

My approach to the assessment of the evidence

  1. [34]
    There are some conflicts between the evidence given by Ms Marchant and the other five lay witnesses. These conflicts need to be resolved.
  1. [35]
    I need to be cautious about determining the credit of these witnesses solely by my observations of them when they were giving their evidence.[38] The rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.[39]  In the circumstances of the evidence that has been given by Ms Marchant and the five lay witnesses, it seems to me that the better guides to determining the reliability of their evidence are:
  • the plausibility and apparent logic of the events described by the witnesses; and
  • the consistency of the accounts of the events described as compared with other objectively established events.[40]
  1. [36]
    In my view, coming to an assessment of the duties performed by Ms Marchant and how she performed those duties, I acknowledge the Regulator's submissions that the other lay witnesses were not in a position to see the precise nature of Ms Marchant's work in regard to the involvement of her left knee. However, it seems to me that the better evidence to generally consider is Ms Marchant's evidence compared to:
  • the evidence of cleaners as to how they performed their duties; and
  • the extent to which Ms Marchant's immediate supervisor, Ms Grummett, accepted that Ms Marchant performed her duties as she (Ms Marchant) described.
  1. [37]
    In stating the above, there is some merit to the submission the Regulator made about Ms Fitzgerald. Ms Fitzgerald did, in some respects of her evidence, come across as an advocate for Ms Marchant. That does not mean, however, I should discount all of her evidence, particularly when it is not, in any significant way, at odds with the evidence of Ms Wintzloff, Ms Padasas and Ms Grummett.
  1. [38]
    Furthermore, in assessing the evidence, I generally place more reliance on the evidence given by Ms Grummett than Ms Heston, given that Ms Grummett was employed as the Day Shift Supervisor at the Hospital more recently to the time Ms Marchant worked as a cleaner at the Hospital. In addition, Ms Marchant's evidence was that she saw Ms Grummett during the working day because Ms Grummett would roam around the wards; and Ms Grummett's own evidence was that her duties involved conducting audits throughout the Hospital and checking on cleaners.
  1. [39]
    This is in contrast to Ms Heston.  Ms Marchant stated that she did not see Ms Heston much throughout the day because Ms Heston stayed in her office.  This was corroborated by Ms Heston who stated that she did spend a lot of time in the office other than when seeing staff when she (Ms Heston) did her rounds in the mornings.

Did Ms Marchant bend her left knee, squat and kneel when performing her duties as she described?

  1. [40]
    There is no dispute that Ms Marchant worked as a cleaner at the Hospital for almost          12 years until 13 June 2020. Further still, there is no dispute that, over that period of time, Ms Marchant worked as a ward cleaner and as a floater. 
  1. [41]
    Indeed, leaving aside the physical acts Ms Marchant undertook in performing her duties, there is no real dispute, having regard to the evidence of Ms Grummett, that Ms Marchant, in performing duties as a cleaner, had to:
  • clean the bathrooms on the ward,[41]  which involved, to some degree, scrubbing the grout of the tiles on the floors[42] and walls[43] of the bathrooms; and
  • clean the beds in the rooms, including cleaning under the beds.[44]
  1. [42]
    Furthermore, there is no dispute that Ward 7E was a busy ward. Ms Grummett's evidence in chief was that Ward 7E was a ward where there could be a lot of discharges in that of the 30 bedrooms, between 10 to 14 and up to 20 patients could be discharged on one day and, once patients were discharged, Ms Marchant's day may become more hectic, in that she would have to clean the rooms from which patients were discharged.[45]
  1. [43]
    Ms Heston's evidence was that Ward 7E is a busy ward in that there is a high turnover of patients, such that if a patient leaves, a cleaner could be asked to clean the room twice in a day.[46] While in re-examination, Ms Heston stated that Ms Marchant worked in            Ward 7E on Saturdays and Sundays and that ward was busier on Mondays to Fridays,[47] her evidence did not go so far as to state that Ward 7E was not a high turnover ward on Saturdays and Sundays.

Bending her left knee, kneeling and squatting when cleaning bathrooms

  1. [44]
    In respect of the work she performed in Ward 7E, Ms Marchant stated:
  • she scrubbed the bathrooms, which had tiles on the floor and walls, she did that with a scrubbing brush, which is the red coloured brush with a handle depicted in photograph ‘H’ of Exhibit 9; and when cleaning the floors with that brush, she would remove the handle and put her foot on the brush to clean the floors, which would include scrubbing the grout; [48]
  • it took a couple of minutes to clean a bathroom, but if it was bad, it could take between 20 minutes to half an hour;[49]
  • she used the blue coloured brush, depicted in photograph ‘H’ of Exhibit 9, to do high dusting on wardrobes;[50]
  • – she used the blue and white coloured brush, depicted in photograph ‘H’ of Exhibit 9, to scrub the grout on the walls and floor, and in that regard:
  • – she would be standing and bending her knees when cleaning the wall;
  • – she would be kneeling, with her right knee on the ground and left knee in a squatting position, when cleaning the floor; and
  • – she would be in a squatting position for a couple of minutes or longer if the floor was really dirty;[51]
  • sometimes she would have to:
  • – clean under the beds, which would involve her kneeling on both knees, and which would take her three minutes;[52]  and
  • – clean the whole of the beds,[53] and that when she stripped the beds, the sheets were put into a bag and put into a room in which to put the dirty linen;[54] and
  • – she would perform the above duties for each of the 28 rooms in Ward 7E;[55] and
  • in addition, she cleaned:
  • – the nurses stations;[56] and
  • – the two unisex public toilets, which were also tiled and of which she cleaned in the same manner as the toilets in the (patients’) rooms.[57]
  1. [45]
    In respect of the work she performed as a floater, Ms Marchant stated:
  • her duties could change from day to day, depending upon what duties her supervisor directed her to perform and depending upon what was needed, such that she could be directed to perform the same duties, for example, cleaning bathrooms, cleaning under beds or hanging curtains, for an entire day;[58]
  • she cleaned other areas such as the foyers and near the flower shop and, in respect of those areas, she:
  • – moved the bins; and
  • – cleaned and scrubbed the toilets in the same manner she cleaned the bathrooms in Ward 7E, which, if she needed to, involved squatting;[59] and
  • performed the same kinds of jobs she performed in Ward 7E, namely hanging curtains, cleaning under beds, making beds, picking up rubbish bins and pushing and pulling trolleys, and the work was performed at the same pace as in Ward 7E, but the rubbish bins were heavy in some areas.[60]
  1. [46]
    In cross-examination, Ms Marchant stated that:
  • she may have had to kneel on one or both knees depending on the job she was performing;[61]
  • the red brush depicted in photograph ‘H’ in Exhibit 9 could be used for cleaning the floor from a standing position without kneeling[62] by standing on the brush and applying pressure, usually with her left foot;[63]
  • the white brush, depicted in photograph ‘H’ in Exhibit 9, was used for cleaning the grout to clean two to three bathrooms every day, she would get down and kneel on her leg to perform that task, and that task involved cleaning mould, but when the mould got so bad that the cleaners could not clean it, other persons were hired;[64] and
  • as a floater, she knelt when performing bed cleaning, which would take between two to three minutes per bed, and would involve her bending down and kneeling on one or both knees.[65]
  1. [47]
    In further cross-examination, Ms Marchant stated that she squatted when she was picking up rubbish, and that she squatted each time she cleaned a bathroom. However, Ms Marchant accepted that first and foremost, when she cleaned a bathroom, she mopped it down from a standing position and that she used her left foot on the red brush to apply force as needed.[66]
  1. [48]
    Ms Marchant was then taken to Exhibit 10, which was a document dated February 2020, which Ms Marchant identified as the position description for her position at the Hospital.[67] Ms Marchant was taken to the third page which stated:

 Note: Patient Bathroom Tiles to be scrubbed fortnightly.

  1. [49]
    Ms Marchant agreed that was the situation at that time.[68]
  1. [50]
    After stating that the other circumstances in which she may squat was picking up rubbish, Ms Marchant agreed that what she was describing as squatting was her bending her knees slightly and her hips as if bending over to pick up some rubbish. Ms Marchant further stated that there were no other duties she had identified in respect of squatting.[69]
  1. [51]
    In re-examination, Ms Marchant stated that:
  • Exhibit 10 was the position description for her position as a ward cleaner in respect of the job she did on Saturdays and Sundays in Ward 7E;[70]
  • while the reference in Exhibit 10, in respect of cleaning bathroom tiles, was to 'Patient Bathroom Tiles to be scrubbed fortnightly' the cleaning work was done more than fortnightly especially when patients were discharged from the Hospital, which occurred on a regular basis because Ward 7E was a ward for Urology patients;[71] and
  • the work she performed, from Monday to Wednesday as a floater, was dependent upon the particular tasks she was to perform and that, in respect of such tasks, such as scrubbing toilets, cleaning beds and hanging curtains, she could be asked to perform those tasks for a particular number of hours or for a whole day[72] or days[73] and that she had been 'floating' since 2008.[74]
  1. [52]
    I accept Ms Marchant's evidence that when she scrubbed the bathroom tiles on the floor, she would use the red brush depicted in Exhibit 9, photograph 'H' by removing the handle and putting her foot on the brush to clean the floors. Ms Grummett agreed that it was quite possible that Ms Marchant cleaned the floors in that manner.[75] That physical act would involve Ms Marchant bending her left knee when she used her left foot to apply such pressure.
  1. [53]
    Ms Marchant stated that, in respect of two to three bathrooms every day, she used the blue and white coloured brush, depicted in Exhibit 9 photograph 'H', to scrub the grout on the bathroom walls and floor and, in doing so, she would be standing and bending her knees while cleaning the wall, kneeling with her right knee on the ground and her left knee in a squatting position when cleaning the floor, and would be in a squatting position for a couple of minutes or longer if the floor was really dirty. Ms Marchant's evidence was that it could take between 20 minutes to half an hour to clean a bathroom if it was bad.
  1. [54]
    The physical acts described by Ms Marchant, in performing her duties, were generally the same as described by Ms Wintzloff.  Ms Wintzloff's evidence was that:
  • she normally scrubbed two or three bathrooms a day using the red scrubber depicted in Exhibit 9, photographs 'G' and 'H', which she used to scrub the walls and sometimes the floor, it took about 5 to 10 minutes to clean a bathroom, and then if she had to clean the grout, it took 20 to 30 minutes;[76] and
  • she used the white brush depicted in Exhibit 9 photograph 'H' to clean the floor of the bathrooms which she did by squatting and kneeling and that if she was tired she would use the red brush to clean the floor by using her foot on the brush.[77]
  1. [55]
    In cross-examination, Ms Wintzloff stated:
  • despite Exhibit 10 stating that patient bathroom tiles had to be scrubbed fortnightly, she scrubbed three bathrooms each day,[78] the tool she used for doing that was the brush with the red sponge as depicted in Exhibit 9, photograph 'G';[79]
  • the scrubbing of the bathroom floor takes between 5 to 10 minutes and that, in doing so, and if her hands are tired, she uses her legs (using the brush with a red sponge) but that in doing so she stands up and would not kneel or squat;[80] and
  • she used the white brush (depicted in Exhibit 9, photograph 'H), to clean mould from grout in the bathrooms, which involved her kneeling and squatting, which took 5 to 10 minutes and she did that three times a day, but that if she could not remove the mould, it was removed by maintenance personnel.[81]
  1. [56]
    Ms Marchant's description of the physical acts she undertook in performing her duties was also generally the same as those described by Ms Padasas.
  1. [57]
    Ms Padasas' evidence in chief was that, in respect of the work she (Ms Padasas) performed in Ward 7E:
  • her usual day as a ward cleaner in Ward 7E involved cleaning the foyer, cleaning the three bathrooms in the middle of the Ward and the nurses' stations, and cleaning the patient bedrooms, of which there were 30, and that most of those bedrooms had a dedicated bathroom;[82]
  • her duties, when cleaning the bathrooms, involved scrubbing, high dusting, cleaning the toilet bowl, mopping and scrubbing the grout;[83]
  • she cleaned floors which involved her using the red brush, depicted in Exhibit 9, photograph 'H', to clean the surface of the floor which sometimes involved her using her foot on the brush to give her more strength to push the brush;[84]
  • she also used the white brush depicted in Exhibit 9, photograph 'H' to scrub the tiles, that it would take her 20 minutes to scrub the tiles and that she cleaned a number of rooms each day;[85] and
  • she scrubbed the bathrooms maybe three times a week.[86]
  1. [58]
    In cross-examination, Ms Padasas stated that:
  • when cleaning the tiled floors in the bathrooms, she used a mop, not depicted in Exhibit 9, and when she used the mop she used it in a standing position;[87]
  • in any 24-hour cycle, the bathroom in any of the rooms on Ward 7E would be cleaned once;[88]
  • stains on the tiles, such as from blood or urine, could be removed by putting foot pressure on the mop;[89] and
  • a brush was used to scrub the edges of the tiles to remove mould from the grout, and mould was not going to build up in a 24 hour period from one cleaning to the next, but she would get down on her knees to scrub the bathroom floor and she did that three times a week.[90]
  1. [59]
    In re-examination, Ms Padasas stated that each day she worked as a ward cleaner, she was scrubbing the tiled floors of three or four bathrooms and that it would take 20 minutes to scrub each of those bathrooms.[91]
  1. [60]
    Ms Fitzgerald's evidence was similar to that of Ms Marchant, Ms Wintzloff and Ms Padasas. Ms Fitzgerald's evidence in chief was that:
  • her role as a ward cleaner in Ward 7E required her to clean the whole ward which involved her taking between 10 to 20 minutes cleaning each room, depending on how dirty the rooms were,  and, in relation to those duties, she was required to clean the bathrooms;[92]
  • each of the patient rooms have a bathroom, four of the rooms share a bathroom and in relation to the brushes depicted in Exhibit 9, photograph 'H', the red coloured brush was used to scrub the floors and the walls, the white brush was used to scrub  the grout, the blue brush to wipe the light on the top of the sink and the last one to dry the wall;[93]
  • scrubbing the bathroom was a task performed every day, three or four bathrooms would be scrubbed every day and in using the red brush to scrub the floors of the bathrooms, she would stand on the red brush; and then she would use the grout brush where she would be in a squatting, and sometimes sitting, position to get to the grout on the corners of the walls, and it would take her 10 to 15 minutes to perform those duties depending upon how dirty the surfaces were.[94]
  1. [61]
    I also accept Ms Marchant's evidence because, it was, to a significant degree, corroborated by Ms Grummett.
  1. [62]
    In her evidence in chief, Ms Grummett stated that the cleaners would squat to get lower down to scrub the grout when they were scrubbing, but that cleaners had a fortnight to get their bathrooms scrubbed.[95] Ms Grummett also stated that while the presence of mould needed to be addressed, from her knowledge, it was not a regular requirement in respect of a bathroom floor for a ward cleaner to scour every portion of the grout with the white brush depicted in Exhibit 9, photograph 'H' because: 'You'd be there for hours'.[96]
  1. [63]
    In her evidence in cross-examination, Ms Grummett accepted that the scrubbing machine, depicted in Exhibit 9, photograph 'I', came into operation in August 2020 which was after Ms Marchant had ceased work.[97] Ms Grummett then gave the following evidence:

So you accept there was a lot of scrubbing going on prior to the machines being brought in?---Yeah, but at the same time, you didn’t have – because they’re such big wards, you didn’t have the time to be spending a lot of time scrubbing the showers. But at the same time, showers – if they did four showers in – through the day and scrubbed those areas, they would take probably up to 10 minutes to scrub that shower.

Thank you. The evidence of the cleaners yesterday, including the appellant, was that when they were cleaning the grout in the lower parts of the toilets or bathrooms and on the floor, that they would invariably either squat down, using the brush, or they would kneel down, using the brush, or one part of the evidence was that they’d change from squatting to kneeling. That’s not unusual, for them to perform - - -?---Squatting, yes. Kneeling – you’d be kneeling in bleach and whatever’s coming off the actual walls and floor, so - - - 

Yes. So do you accept that in the deep scrub process, particularly lower down on the walls, in the corners and on the floor, that it was common for cleaners to squat?---Well, mainly, that’s where the mould would start to grow.

Yes?---To be fair.

So they could be squatting – I think you said it takes 10 minutes to do the deep scrub. They could be squatting for up to 10 minutes - - -?---Yeah.

- - - in each of the toilets?---Yeah. That’s 40 minutes per day.

And – 40 minutes a day?---Times four rooms.

Yes. And if there were more problematic bathrooms, it’d be even longer?---Yes. It depends on the bathroom.[98]

  1. [64]
    I accept the evidence of Ms Marchant that, when ward cleaning as opposed to floating, she would, when cleaning bathroom floors, be bending her left knee, kneeling and squatting as she described. Further, I accept the evidence of Ms Marchant that she would be engaged in those physical acts, in respect of each bathroom cleaned, for the periods of time she described. In stating this, I find that Ms Marchant would scrub any mould on the grout, as she described, in about two or three bathrooms per day. In making this finding, I accept, as plausible, Ms Grummett's evidence that a ward cleaner would not scour every portion of the grout with the white brush depicted in Exhibit 9, photograph 'H'.
  1. [65]
    I also accept that Ms Marchant, when working as a floater, would be required to clean patients' bathrooms and, when doing so, she would be bending her left knee, kneeling and squatting as she described; and that she would be engaged in those physical acts, in respect of each bathroom cleaned, for the periods of time she described.
  1. [66]
    I further accept that Ms Marchant would be engaging in the physical acts I have described,  in the last two paragraphs above, over the course of her employment with Quad from 2008 until July 2020.

Kneeling when cleaning beds

  1. [67]
    As referred to above, Ms Marchant also stated that she would have to clean under the beds which would involve her kneeling on both knees and which would take her three minutes. That evidence was corroborated by Ms Wintzloff and Ms Fitzgerald and, to some degree, by Ms Grummett.
  1. [68]
    In re-examination, Ms Wintzloff relevantly stated, in respect of the work she performed in doing bed cleaning, that she would clean the patient's table but would predominantly focus on the bed and bedframe, cleaning the railings, the mattress and the base and wheels of the bed; and cleaning the base and wheels of the bed involved squatting and kneeling.[99]
  1. [69]
    Ms Fitzgerald's evidence in chief was that her role as a bed cleaner involved her cleaning the bed,  the  side-table  and the patient's table, that she had to kneel and squat to clean the base and wheels of the bed, and it took her 10 to 15 minutes to undertake the bed cleaning in each room.[100]
  1. [70]
    In respect of the duties of bed cleaning, Ms Grummett then gave the following evidence in cross-examination:

All right. The other job that you were asked about was bed cleaning?---Mmm.

The evidence yesterday in regard to bed cleaning by the four cleaners, including the appellant was that they would constantly squat down to get to the lower parts of the beds and under the beds and that they would squat while they performed that – that activity?---Mmm.

That was, I think, all four said that?---Mmm. 

Do you accept that that was how they did the work?---If – if that was their choice to do that. Normally, you wouldn’t squat. I’d work as I moved.

It’s a - - -?---And they would be moving. 

I interrupted you. Apologies?---Sorry.

It’s a personal choice. There’s no rule saying don’t squat or don’t kneel?---No.

It’s left to individual cleaners. Everybody’s different?---Yep.

They will find – find a way to do it which they feel comfortable. Is that a fair comment?---Yeah, yeah.[101]

  1. [71]
    As best as I understood Ms Grummett's evidence, the cleaning of under the beds happened each time a bedroom was cleaned.[102]
  1. [72]
    For all these reasons, I accept the evidence of Ms Marchant that when she was required to clean under the beds, this would involve her kneeling on both knees. On the evidence, Ms Marchant cleaned under beds each time she cleaned a bedroom. I further accept that Ms Marchant engaged in these physical acts over the course of her employment with Quad from 2008 until July 2020.
  1. [73]
    I find that:
  • Ms Marchant bent her left knee, squatted and knelt when cleaning bathroom floors,  in the manner she described and, in respect of each bathroom cleaned, for the periods she described;
  • Ms Marchant, each time she cleaned a bedroom and when cleaning under the beds, knelt on both knees; and
  • Ms Marchant engaged in the above mentioned physical acts over the course of her employment with Quad from 2008 until July 2020.

Did Ms Marchant climb ladders when performing her duties as she described?

  1. [74]
    In respect of the work she performed in ward 7E, Ms Marchant stated she used the ladder, depicted in photograph ‘B’ of Exhibit 9:
  • to perform high dusting, and in doing so, she would move up and down the ladder, from room to room, and those duties would take her a couple of minutes or so to perform;[103] and
  • to remove and replace long curtains in each room which weighed about two kilograms.[104]
  1. [75]
    Ms Marchant’s evidence in cross-examination was that:
  • she used the ladder (depicted in Exhibit 9, photographs 'B' and 'C') every day and the number of times it was used depended upon the number of rooms that had to be cleaned;
  • the taking down and rehanging of curtains did not occur every day, but that curtains needed to be changed every day in isolation rooms when a patient was discharged; and
  • when she was on the ladder, the only weight she had to lift was the curtains.[105]
  1. [76]
    In further cross-examination, Ms Marchant:
  • agreed that curtain hanging was only undertaken by her on the occasions where isolation patients had been discharged, but stated that there were times when she was ‘… doing curtains for a couple of months’ which she thought was in 2010;[106]
  • agreed that the high dusting on the top of televisions and wardrobes was done with the duster that had an extendable handle, but stated that she still needed the ladder if she could not reach;[107] and
  • stated that going up the ladder, she carried curtains she estimated weighed                    2 kilograms.[108]
  1. [77]
    In her evidence in chief, Ms Wintzloff stated that:
  • she performed high dusting by using a wand that stretched, but that she had to climb the ladder depending on the height of the ceiling;[109]
  • she used the ladder (depicted in Exhibit 9 photograph 'B') to '… do the curtains; to do the high dusting.';[110] and
  • the curtain work involved her climbing up the ladder, undoing the hooks on the two sets of curtains that are on the main window, bringing one set of the curtains down and then putting the other set of curtains up, and then completing that process for the other set of curtains.[111]
  1. [78]
    Ms Padasas' evidence in chief was that she used the ladder depicted in Exhibit 9, photograph 'B' in her role as a ward cleaner for the purposes of high dusting, taking down the curtains on the windows and in the shower and putting them back; and that the taking down of the curtains on the windows and replacing them involved taking and unhooking the curtains,[112] and that they were heavy, big curtains.[113]  Ms Padasas said that curtains may not be changed for '…months' but if the room is in isolation, the curtains would have to be changed.[114]
  1. [79]
    In cross-examination, Ms Padasas stated that a week may pass when curtains did not have to be changed, but if an isolation patient was discharged, the curtains had to be changed in that room.[115]
  1. [80]
    Ms Fitzgerald's evidence in chief was that in Ward 7E, she used the ladder, depicted in Exhibit 9, photographs 'B' and 'C', to clean high surfaces, such as the top of the wardrobes,  and to change the window and shower curtains; and, in respect of changing the window curtains, she did that by removing the curtain from its hooks and then putting back the curtain with the curtain hooks.[116]
  1. [81]
    Ms Grummett stated:
  • a bed cleaner would use a ladder to pull down curtains, but until about five years ago a person was engaged for four hours a day to replace curtains;[117]
  • a ward cleaner may use the ladder to clean on top of the wardrobes;[118] and
  • Ms Marchant could have been engaged for a whole day going up and down the ladder taking down and putting up curtains for an annual full clean.[119]
  1. [82]
    In cross-examination, Ms Grummett stated it was a personal choice as to whether a cleaner used the ladder in performing duties and that Ms Marchant regularly used a stepladder to do high cleaning and a stepladder was needed to change curtains.[120]
  1. [83]
    Ms Heston also stated that Ms Marchant would need to use the ladder if curtains needed to be replaced or to clean on top of a wardrobe. However, Ms Heston stated that, in respect of high-level cleaning, Ms Marchant would only use the ladder maybe once per week and, in respect of curtains, only when the curtains needed to be replaced.[121] 
  1. [84]
    In cross-examination, Ms Heston stated that:
  • the cleaners do the job in the manner they choose despite them being trained in the way to clean,[122] including using a stepladder to do dusting;[123] and
  • she expected that Ms Marchant would use the ladder to take down curtains and put them up.[124]
  1. [85]
    Having regard to all the above evidence, I find that that Ms Marchant would climb up and down the ladder - which, to be accurate, was a stepladder, with three steps - to perform high dusting on the tops of wardrobes and to change curtains.
  1. [86]
    Further, it appears not to be in dispute that Ms Marchant has been climbing up and down the stepladder to change curtains from when the full-time person employed to do that task stopped doing that task. Given the date Ms Marchant stopped working at the Hospital, and the date Ms Grummett stated that full-time person stopped doing that work, relative to the date Ms Grummett gave her evidence, I estimate Ms Marchant had been doing that work for at least the last three years of her employment.
  1. [87]
    In terms of the frequency in respect of which Ms Marchant would climb up and down the stepladder, it is difficult to say what that would be, other than to say it was regular depending upon when curtains needed to be changed and when high-level dusting was needed to be undertaken.
  1. [88]
    Furthermore, in respect of the manner in which Ms Marchant stated she changed curtains, I accept Ms Marchant's evidence because her evidence is consistent with the evidence of Ms Wintzloff and Ms Fitzgerald.
  1. [89]
    I find that Ms Marchant, in the course of her duties as a cleaner:
  • – for at least the last three years of her employment, would climb up and down the stepladder, to change curtains in patients' bedrooms, as and when the curtains required changing, and that she changed the curtains in the manner she described; and
  • – would climb up and down the stepladder to perform high dusting on the tops of wardrobes as and when required.

Did Ms Marchant move heavy rubbish/objects when performing her duties as she described?

  1. [90]
    Ms Marchant's evidence in chief was that:
  • she pushed the cleaner's trolley, depicted in photograph ‘G’ of Exhibit 9 –  which contained her cleaning implements, chemicals, and replacement paper towels and toilet paper – from the cleaner’s room to the hallway, and then between each room,[125] which involved her facing sideways not forwards, pushing the trolley forward with her right hand and pulling a water filled mop bucket trolley with her left hand behind her;[126] and
  • she cleaned inside and outside the bins located in the rooms, hallways, toilets and pantry, including the contaminated waste bins[127] and a general waste bin (which is approximately a metre high) both of which are heavier than the other bins, and the cleaning of bins required her to bend.[128]
  1. [91]
    Ms Marchant also stated that the trolley carried a stand vacuum cleaner, the vacuum cleaner was on wheels and that she had to pull the vacuum cleaner, which she described as big and heavy, behind her as she vacuumed.[129]
  1. [92]
    In cross-examination, Ms Marchant agreed that rubbish bags were transported on the trolley depicted in photograph ‘F’ of Exhibit 9.[130]
  1. [93]
    In her evidence in chief, Ms Wintzloff stated that:
  • the clinical waste bin depicted in Exhibit 9, photograph 'A' was about a metre in height, can sometimes be very heavy, and that she had to remove those bins;[131] and
  • she used a trolley similar to depicted in Exhibit 9, photographs 'F' and 'G' which she stated was difficult to push because they were bulky because of their weight.[132]
  1. [94]
    Ms Padasas' evidence in chief was that she used the trolley depicted in Exhibit 9, photograph 'F' which she stated usually had a vacuum on it and that she had to push the trolley with her left hand and carry a bucket in her right hand.[133]
  1. [95]
    Ms Fitzgerald's evidence in chief was that in relation to the trolley depicted in Exhibit 9, photographs  'F' and  'G', she pushed the trolley with one hand and pulled the mop bucket filled with water with the other hand, and stated it was difficult to push the trolley because it was heavy.[134]
  1. [96]
    Ms Grummett stated :
  • the clinical waste bin depicted in Exhibit 9, photograph 'A' is the same size as the bin in Ward 7E, but would not be as heavy, when full, as in other wards;[135] and
  • a lot of the cleaners tend to push the trolley (depicted in Exhibit 9, photographs 'F' and 'G') and all the buckets are in a cradle which has wheels on it.[136]
  1. [97]
    In her evidence in chief, after being referred to the picture of the trolley in Exhibit 9, photograph 'F', Ms Heston stated that that was one of the trolleys that Ms Marchant would have used as a ward cleaner, that such trolleys are not hard to push and they were quite light.[137] Ms Heston also stated that the mop buckets have wheels.[138]
  1. [98]
    Ms Heston also stated that Ward 7E would not generate a lot of clinical waste to go to a clinical waste bin, but that it was part of Ms Marchant's duties to empty the clinical waste bins located in Ward 7E by bending down, tying off the bag and taking the bag out to a utility room where it is placed in a bigger bin.[139]
  1. [99]
    In cross-examination, when it was put to Ms Heston that the evidence of Ms Marchant and other cleaners was that they would push the trolley (depicted in Exhibit 9, photograph 'G') with one hand and with the other, drag a mop and bucket as they went around to the different rooms, Ms Heston stated that was '… nothing that we encourage them to do.'[140] After stating that the mop buckets have wheels, and when Ms Heston was pressed further that the cleaners would drag the mop buckets around, Ms Heston stated:

Well, I’ve never seen them do that. A lot of the staff would use just the mop bucket with the chemicals and everything on that, and they’d work off that mop bucket. The cleaner’s trolley would come out of the cleaner’s room and get parked in a corridor and they would use the mop bucket. At the back of the mop bucket there is a tray where you could put your chemicals and your wipes and whatever you needed to clean the patient room with in the back of that, and the cleaners would use that mop bucket to do those chores.[141]

  1. [100]
    Ms Heston agreed that the trolleys were pushed around the Hospital on carpet.[142]
  1. [101]
    I am not persuaded by the evidence that Ms Marchant was required to lift heavy bags of rubbish out of the clinical waste bins on Ward 7E. While it was a requirement of her position to take the full plastic bags out of the waste bins and take them into the utility room, the evidence does not persuade me, given the nature of the ward, that these bins were heavy.
  1. [102]
    I am persuaded, given the consistency of the evidence as between Ms Marchant, Ms Wintzloff and Ms Fitzgerald, that the trolley was heavy because of the cleaning implements on it and that it was pushed by Ms Marchant on carpet. However, this effort was (obviously) limited to pushing the trolley between the patients' rooms on the ward.
  1. [103]
    I find that Ms Marchant pushed a heavy cleaning trolley in the course of performing her  duties as a cleaner, however, this only occurred on the ward and only between patients' rooms.

Did Ms Marchant climb stairs when performing her duties as she described?

  1. [104]
    Ms Marchant’s evidence was that:
  • when the lifts were not working, or if there were too many people waiting to use the lifts, she would sometimes be required to walk up and down the stairs depicted in photographs ‘D’ and ‘E’ of Exhibit 9;[143] and
  • that there were times when she was asked to clean the stairs when she worked as a floater.[144]
  1. [105]
    In cross-examination, in respect of her evidence about climbing the stairs between floors, Ms Marchant stated that it was not very often that the lifts were not working, but, when further pressed about when that occurred, stated that she could not remember.[145] Ms Marchant also seemed to agree that if a lot of people were waiting to use the lifts, it would have been easy for her to wait for a lift and that she could only move her cleaning trolley, between floors, by using the lift.[146]
  1. [106]
    Ms Marchant also agreed that it was the usual practice for stairs to be cleaned by male cleaners and that there were three occasions when she was required to clean stairs.[147]
  1. [107]
    In her evidence in chief, Ms Wintzloff stated that when she was a bed cleaner and was not busy, she had to clean the stairs if the person who typically performed that task was off sick.[148]
  1. [108]
    In cross-examination, in terms of whether Ms Marchant used the stairs, Ms Grummet stated that she did not know '…what Amelia did with the stairs'.[149]
  1. [109]
    Ms Heston's evidence in chief was that no cleaners cleaned stairwells located within the Hospital or in the car park.[150] 
  1. [110]
    Ms Heston's further evidence was that:
  • Ms Marchant would not need to use the stairs in the Hospital unless she wanted to  because there are three sets of lifts in every wing of the Hospital;
  • one of the lifts may break down from time to time, but the other two lifts would be working; and
  • Ms Marchant never came under adverse notice if she was spending too much time waiting for a lift and not using the stairs because, while the lifts can be a bit slow sometimes, a trolley cannot be pushed downstairs, so an employee would have to wait for a lift.[151]
  1. [111]
    In cross-examination, Ms Heston:
  • agreed that Ms Marchant's job required her to do a lot of walking;[152]
  • agreed that when the Hospital wing was built in which Ms Marchant work, the lifts did break down with regularity and that the lifts were very slow;[153]
  • agreed that there was a direction that cleaners would not get the same lift as paying customers, namely that patients and visitors will always get first preference of the lift;[154]
  • stated that because the pace of the (cleaning) work was so hectic, if someone waited too long for a lift, it would probably make it harder for the cleaner to finish the job that day;[155] and
  • stated that she could not really see Ms Marchant, when tasked with bed cleaning, using the stairs as opposed to waiting patiently for a lift, because she would need to use a lift in which to place her trolley.[156]
  1. [112]
    The evidence of Ms Marchant does not persuade me that it was a regular requirement for her to clean the stairs in the wing of the Hospital in which she worked.
  1. [113]
    Furthermore, I accept, on the evidence, that there may have been occasions when Ms Marchant used the stairs instead of using the lifts; however, it is impossible to make a determination about how frequent that was. On the probative evidence before me it seems that it was infrequent.
  1. [114]
    I find that:
  • it was not a regular requirement that Ms Marchant clean stairs in the Hospital; and
  • Ms Marchant infrequently used the stairs to move between floors in the Hospital.
  1. [115]
    By way of summary, I find that:
  • over the period of time Ms Marchant was employed as a cleaner by Quad at the Hospital, she:
  • – bent her left knee, squatted and knelt when cleaning bathroom floors,  in the manner she described and, in respect of each bathroom cleaned, for the periods she described;
  • – each time she cleaned a bedroom and when cleaning under the beds, knelt on both knees;
  • Ms Marchant, in the course of her duties as a cleaner:
  • – for at least the last three years of her employment, would climb up and down the stepladder, to change curtains in patients' bedrooms, as and when the curtains required changing, and that she changed the curtains in the manner she described; and
  • – would climb up and down the stepladder to perform high dusting on the tops of wardrobes as and when required;
  • Ms Marchant pushed a heavy cleaning trolley in the course of performing her  duties as a cleaner, however, this only occurred on the ward and only between patients' rooms; and
  • it was not a regular requirement that Ms Marchant clean stairs in the Hospital and she infrequently used the stairs to move between floors in the Hospital.

Did Ms Marchant suffer an aggravation of the pre-existing osteoarthritis of her left knee which arose out of, or in the course of, her employment and was her employment a significant contributing factor to the aggravation?

The Act and relevant principles

  1. [116]
    An aggravation of a physical injury is an 'injury' within the meaning of the Act if the aggravation arises out of, or in the course of employment, and the employment is a significant contributing factor to the aggravation.[157]
  1. [117]
    The activation of pain is equated with the aggravation of an existing physical injury even though there is no change to the underlying pathology.[158] There is no distinction between an 'exacerbation' and 'aggravation' of an injury[159] and 'aggravation' includes 'acceleration'.[160]

Did Ms Marchant suffer an activation of pain to her left knee when working as a cleaner at the Hospital?

  1. [118]
    Ms Marchant submitted that her evidence was that when the pain in her knee came on, she was performing her work duties.[161]
  1. [119]
    The Regulator submitted that there is little satisfactory evidence to establish that Ms Marchant experienced left knee symptoms at work.[162]
  1. [120]
    Before dealing with this specific issue, it is necessary to deal with a precise submission made by the Regulator by which the Commission is invited to draw a conclusion about the motivating reason Ms Marchant made her application for workers' compensation.

The Regulator's submission that the genesis of Ms Marchant's application for workers' compensation was to search for a means to obtain funding to treat her osteoarthritic knee

  1. [121]
    The Regulator submitted that it is open to the Commission to take an adverse view of Ms Marchant's credibility and reliability, on the basis of how the evidence, which might establish that Ms Marchant experienced pain when she was undertaking her allocated work duties, emerged.[163]
  1. [122]
    The Regulator then submitted:
  1. (1)
    The appellant's evidence in chief proceeded without any reference whatsoever to any claim that she experienced pain in her left knee as she went about her various duties;
  1. (2)
    The following question was then put to the appellant:

"Now, if you could rank the difficulty of jobs when you are working as a floater, what was the job that gave your knee the most problem?"

This question can be fairly characterised as being quite specific in seeking to identify which floater duties were problematic for the applicant's left knee;

  1. (3)
    In response, the applicant offered the following answer:

"All my – my duties, day to day duties contributes my knee pain because that job is – keeps repeating every day."

It is self-evident that this answer was really non-responsive to the question. Moreover, the claim that "all the duties day to day" were causing her knee pain, would seemingly be a gross overstatement.

The appellant's counsel then asked the following leading question:

"Were you able to squat with your knee when it was painful?"

  1. (4)
    The Regulator's objection to that leading question was upheld. It was accepted that up until this time in the appellant's evidence, there had been no mention by her of experiencing pain as she went about any of her work duties;
  1. (5)
    It was only then after this interchange that the appellant offered the evidence regarding her experiencing pain as she undertook all of her work duties.
  1. This piece of evidence has to be assessed in light as to what the contemporaneous records reveal. If this onset of pain which is alleged to have been associated with "all" of the appellant's work duties, then it would have featured as part of the history provided to the general practitioner. The GP consultation notes for 8 June and 15 June are silent on any such claim. On 13 July 2020, it was noted as follows:

"Was sent home from work today, knee pain

– works as a cleaner

– pain worsened on Saturday night

– does not recall any trauma to the knee"

31. Further on 17 July 2020, the appellant sees Dr Kan again. His note reveals quite unambiguously:

"No event to cause the problem"

  1. By this stage, it had become necessary to seek an MRI investigation which is likely to have been a cost borne by the appellant. Dr Kan's clinical note then reads as follows:

"May be possible to claim through WorkCover as patient worked as a cleaner

at the Wesley for 12 years plus

Carries bucket of cleaning agents

Climbs stairs and ladder

Lots of bending"

  1. On 23 July 2020, the appellant again consults Dr Kan. By this time, the MRI investigation had revealed a number of findings in respect of the appellant's left knee. Dr Kan's note then records:

"Need to see orthop specialist

Should be able to claim under WorkCover

Explained" (the underlining is mine)

  1. It is submitted that the way in which this evidence emerged from the appellant and the contents of Dr Kan's notes reveal that the genesis of the claim did not occur by way of the appellant attending upon her GP and directly stating an association between her work duties and her left knee condition, but rather the evolution of a serious knee condition which would entail specialist attention and the search for a means of funding such specialist treatment.[164]
  1. [123]
    The Regulator then submitted:
  1. The content of these GP records were put to both the appellant and Dr Kan.
  2. In conclusion on this point, it is submitted that the collective weight of these demonstrated shortcomings in the appellant's evidence would lead the Commission to be reluctant to accept her evidence in the absence of some other supporting evidence. The reality is that such supporting evidence simply does not exist.[165]
  1. [124]
    In cross-examination Ms Marchant:
  • disagreed with the proposition that when she was describing the duties she performed as a cleaner at the Hospital during her evidence in chief, she never mentioned the fact that she had knee pain when completing those duties;[166]
  • agreed that she only started suffering knee pain for a couple of months prior to 13 July 2020;[167]
  • agreed that she was diagnosed by Dr Kan as having osteoarthritis in her left knee in January 2004, in respect of which she had some time off work and then returned to work on a part-time basis in February 2004;[168]
  • agreed that she then saw Dr Kan on 15 June 2020 to discuss an X-ray of her  left knee, that Dr Kan told her she had osteoarthritis in respect of which Dr Kan suggested she take Nurofen;[169] and
  • agreed that she again saw Dr Kan on 13 July 2020 about her left knee pain, in respect of which Dr Kan recorded that she had been having issues with pain for about a month.[170]
  1. [125]
    The transcript soon after records:

Okay. Now, you saw him again. You went down on the 17th of July?---Seventeenth of July? 

It’s the next one down that says:

Two months left knee pain, no improvement.

?---Yeah.

Ibuprofen gave side effects.

And he’s recorded there: 

No event to cause the problem. Does not wake the patient, occasional locking.

Okay? And he arranged, on this occasion, for you to have an MRI scan?---Yes.

Okay. It’s got recorded then:

May be possible to claim through WorkCover as patient works as a cleaner as Wesley 12 years plus, carries bucket of cleaning agents, climbs stairs and ladder, lots of bending.

Remember discussing that with Dr Kan?---Yes.

Okay, all right. So do I take that to mean there was a concern about the cost of an MRI?---Yes.

And he raised the prospect that you may be able to claim that cost through WorkCover?---Yes, he mentioned that. 

All right. Was this the first discussion with Dr Kan about, you know, what you did at work in respect of your knee?---Yes.

I see. Okay, he sees you again six days later. By this stage, you’ve got the MRI?---Yes.

All right. And he told you that, for want of a better term, there are a number of problems with your knee, isn’t there? Do you agree with me or not?---Sorry. Sorry, because I was - - - 

Okay, all right, all right. That question didn’t - - -?---Can you please - - -

- - - really ask you to look at the documents - - -?---Yeah, can you please - - -

- - - but I’ll repeat the question?---Yes.

Okay? You go back to see him on the 23rd of July and he’s got the MRI results, hasn’t he?---Yes.

Okay. And for want of a better term, he told you that there are a lot of problems with your left knee?---He didn’t say about a lot of problems.

Well, okay, look, I’m trying to sum up what he may have said. You discussed what the MRI showed, is that right?---Yes.

Did he convey to you that, you know, that MRI showed a number of things wrong with your knee?---No, he only said that he saw the MRI, it needs operation.

Okay, all right. Okay. Then it records: 

Need to see orthop –

this is over the next page. It’s at the top of the next page?---Okay.

It says:

Need to see orthop specialist. Should be able to claim under WorkCover. Explained.

Now, what did he explain to you? Do you remember?---Explained to me the WorkCover.

Beg your pardon?---The WorkCover.

Okay. Well, what did he explain to you? What do you recollect?---Dr Kan told me that – is that what you mean? Dr Kan - - -

I’m asking you, okay, just so you’re clear, when he says explained, what did he explain to you?

What do you remember?---He said to me that you can claim that to WorkCover.

Okay, all right. Anything else?---And I said to him but – but doc, I didn’t have a report in at work and he said it doesn’t matter.

Sorry, you didn’t have a what?---I didn’t have a report at work and – and he’s told me it doesn’t matter, you can claim that through WorkCover because of your – because of your job, it gradually happens.[171]

  1. [126]
    As I understand paragraph 34 of the Regulator's written submissions, it submits that the Commission should not accept that there is any causal connection between the pain           Ms Marchant experienced in her left knee and to her work as a cleaner at the Hospital because, on the only reasonable construction of that paragraph:
  • Ms Marchant, herself, never drew that connection when consulting Dr Kan; and
  • the real reason for Ms Marchant's workers' compensation claim was to seek funding for specialist treatment for her left knee osteoarthritis.
  1. [127]
    It is true that Ms Marchant was cross-examined about her consultation with Dr Kan on 17 and 23 July 2020, and about Dr Kan's record of those consultations, as set out in paragraph [125] of these reasons; and that Ms Marchant agreed that Dr Kan raised the prospect of her claiming the cost of the MRI and of specialist consultation through WorkCover.
  1. [128]
    However, in my opinion, as a matter of fairness to Ms Marchant, it should have been put to her, in cross-examination, that she made her claim for workers' compensation because, as was submitted by the Regulator, it was to search for a means by which funding may be obtained for specialist treatment for her osteoarthritic left knee. While Ms Marchant made no submissions in reply about this issue, it is a matter that I cannot ignore.[172]
  1. [129]
    This issue raises the question of the application of the rule in Browne v Dunn.[173] That rule applies, having regard to ss 531(2) and (3) of the Industrial Relations Act 2016, in proceedings before the Commission in relation to appeals under ch 13, pt 3, div 1 of the Act.[174]
  1. [130]
    In the often cited decision about this rule, Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation,[175] Hunt J relevantly stated:

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.[176]

  1. [131]
    In Amcor Ltd v Barnes,[177] Vickery J relevantly stated of the rule:

[107] The rule in Browne v Dunn was analysed by Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (a firm).  From this and other authorities the following elements of the rule may be discerned:

  1. (a)
     The rule in Browne v Dunn is a rule of fairness which requires a party or a witness to be put on notice that a statement made by the witness may be used against the party or witness or to be put on notice that an adverse inference may be drawn against the witness or an adverse comment made about the witness in order that the witness may respond to that issue and give an explanation: Browne v Dunn [1894] 6 R 67 Lord Herschell LC (at 70), Lord Halsbury (at 76-7); Bulstrode v Trimble [1970] VR 840 at 849; Karidis v General Motors Holdens Pty Ltd [1971] SASR 422 at 425-6; Allied Pastoral Holdings Pty Ltd v FCT (1983) 44 ALR 607 at 623; White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 216.
  1. (b)
     The significance of the rule is that it requires notice to be given of a proposed attack on a witness or on the witness' evidence where that attack is not otherwise apparent to the witness.  The rule does not require that there be put to the witness every point upon which his or her evidence might be used against him or her or against the party who calls the witness: Browne v Dunn, Lord Herschell LC (at 70); White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 217.
  1. (c)
     Where, it is manifestly clear that the party or witness has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling, such as where notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so obvious, that it is not necessary to waste time in putting questions to him upon it, the rule may be dispensed with, where no unfairness will arise: Browne v Dunn, Lord Herschell LC (at 71); White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 217.
  1. (d)
     Notice of the relevant attack need not necessarily occur in cross-examination so long as it is otherwise clear that it will be made: Allied Pastoral Holdings Pty Ltd v FCT (1983) 44 ALR 607 per Hunt J (at 623); White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 217-218.
  1. (e)
     The necessary notice may be effected in pleadings, in an opening or in the manner in which the case is conducted: Seymour v Australian Broadcasting Commission [1977] 19 NSWLR 219 at 224-5, 236; Jagelman v FCT (1995) 31 ATR 467 at 472 -3; Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1 at 15; White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 218.  To this list I would add notice given through witness statements or affidavits exchanged in advance of the trial.
  1. (f)
     The rule has its foundation in the fair administration of justice: Browne v Dunn, Lord Halsbury (at 76-7).[178]
  1. [132]
    The Regulator's submission at paragraph 34 of its written submissions is one that relies upon an inference to be drawn from other evidence, namely, the extent of Ms Marchant's evidence about her experiencing left knee symptoms while working at the Hospital and her discussion with Dr Kan on 17 and 23 July 2020. The inference sought to be drawn is that Ms Marchant made her workers' compensation claim to search for a means to fund treatment for her osteoarthritic left knee, being an injury which is not work related. It is Ms Marchant's credit that is sought to be impugned, not that of Dr Kan.
  1. [133]
    Nothing was raised in the Regulator's Statement of Facts and Contentions that such a contention was part of the Regulator's case.[179]
  1. [134]
    While it was the case, in the cross-examination of Ms Marchant, that her attention was drawn to Dr Kan's clinical notes dated 17 and 23 July 2020, about what she said to Dr Kan and what she remembered Dr Kan explaining to her about '… WorkCover', that, in my opinion, did not go far enough as a matter of fairness to Ms Marchant.
  1. [135]
    In particular, the questions put to Ms Marchant about her discussions with Dr Kan on 17 and 23 July 2020, about the concern of the cost of the MRI and specialist consultation and that Dr Kan had raised the prospect with Ms Marchant that she may be able to claim the cost of the MRI and specialist consultation through WorkCover, in my opinion, falls short of putting to Ms Marchant that her workers' compensation claim, subsequently made on 27 July 2020, was to search for a means by which funding may be obtained for specialist treatment for her osteoarthritic left knee.   
  1. [136]
    Regarding the submission made by the Regulator in paragraph 34 of its written submissions, before that submission could be made, Ms Marchant should have been given the opportunity to respond to the contention that the reason for her workers' compensation claim was to search for a means of funding specialist treatment for her non-work-related, osteoarthritic left knee. Ms Marchant was not given that opportunity. This is particularly so given the reasonably serious nature of the allegation.[180]
  1. [137]
    I have discretion as to how to deal with non-compliance with the rule in Browne v Dunn, and the aim of the exercise of that discretion is to secure fairness having regard to the circumstances of the case.[181] This may include not allowing a submission to be made that a witness' evidence should not be accepted.[182]
  1. [138]
    This part of the Regulator's case, as a matter of fairness to Ms Marchant, should have been put to her. The contention at the heart of this aspect of the Regulator's case is significant. The parties' final submissions were in writing and were made after the parties had the opportunity to peruse the transcript. This issue was only discernible from reading those submissions.
  1. [139]
    In these circumstances, I will not have regard to the submission made by the Regulator as referred to in paragraph 34 of its written submissions; specifically, the submission that the genesis of Ms Marchant's workers' compensation claim occurred by way of the evolution of a serious knee condition which would entail specialist attention and the search for a means of funding such specialist treatment.
  1. [140]
    Having come to this conclusion, this is not to say that I should not, more generally in assessing Ms Marchant's case, take into account her evidence about when she claims her knee symptoms arose or the evidence of her consultations with Dr Kan.

What is the evidence that Ms Marchant experienced left knee symptoms when working at the Hospital?

  1. [141]
    As referred to earlier in these reasons at paragraph [121], the Regulator submitted that it is open to the Commission to take an adverse view of Ms Marchant's credibility and reliability on the basis of how the evidence, which might establish that Ms Marchant experienced pain when she was undertaking her allocated work duties, emerged.[183]
  1. [142]
    As also referred to earlier in these reasons at paragraph [122], the Regulator submitted, by reference to Ms Marchant's evidence in chief about when she experienced pain in her left knee and the clinical notes of her consultations with Dr Kan, that if Ms Marchant attributed the onset of left knee pain to all of her work duties, then it would have featured as part of her history provided to Dr Kan.[184] In particular, it was submitted that Ms Marchant only gave evidence in chief of her experiencing pain when she undertook all of her work duties following the Regulator's upheld objection to a leading question asked of her about this topic.[185]
  1. [143]
    I am unable to take a negative view of Ms Marchant's credit for the reasons given by the Regulator. There are a number of reasons for this.
  1. [144]
    First, there was nothing in the way Ms Marchant's evidence in chief emerged, about when she was experiencing left knee pain, that causes me to doubt or question the veracity of her evidence.
  2. [145]
    Ms Marchant's evidence in chief about the issue of pain in her knee was:

How did you feel at the end of a day when you’re working as a floater? Did it have any impact upon you?---Yes, felt tired, my knees sore, my hip is sore and when I come home, I have to sit down and – and relax my knee.

All right. And there was one occasion or occasions that’s going to be mentioned that you bumped your knee or bumped your body at some stage. Did bumping your body or bumping your knee, is that a isolated or is it a single event or does it happen regularly, you bump yourself?---It happened regularly.

Regularly?---Yes, especially when I’m rushing because it’s busy day. When it’s busy, I forget and just bump and just – and just continue my job.

Okay. Now, do you remember when you first had problems with your left knee? Do you remember when that occurred?---It was month of April. 

Which year?---Twenty-twenty. I feel – I feel sore knee but I can still manage but I can still manage to do the job. That’s why I didn’t have it off or I just kept going, still kept working.

And when you’re working, did that change the pain in the knee? Did it increase the pain or did it just - - -?---Increase the pain until I was limping.

And when you went home for the night on – was the knee sore?---It was sore.

And did resting make it any better or - - -?---Just a little bit.

Did you take some – sorry, I’ll let you finish?---Yeah, and then the next day, can 5 come back to work again and the same pain.

Did the pain come back or increase when you went back to work?---Yeah.[186]

  1. [146]
    Ms Marchant, very soon after, then gave the following evidence:

Now, if you could rank the difficulty of jobs when you’re working as a floater, what was the job that gave your knee the most problem?---All my – my duties, day to day duties, contributes my knee pain because that job is – keeps repeating every day.[187] 

  1. [147]
    It seems obvious that this question was directed to Ms Marchant's suites as a floater because part of her evidence prior to this question concerned her duties as a floater. Following that, the objection referred to by the Regulator in its submissions was taken to the next question asked of Ms Marchant.[188] Ms Marchant left the court room while submissions on the objection were heard.[189] Then, after the objection was dealt with,  Ms Marchant returned to the court room, resumed giving evidence and stated:
  • that the duties she was performing when the soreness came on in her knee included squatting, kneeling, bending, climbing stairs, climbing ladders and pushing and pulling the trolley;[190]
  • that the pain got '… more and more and more' when she was doing those activities;[191] and
  • that she did not tell the supervisors she was having those problems, but that a couple of days before she stopped working, her manager noticed that she was limping and Ms Marchant told her manager that she had a sore knee.[192]
  1. [148]
    Ms Marchant concluded her evidence in chief by stating that:
  • she had been experiencing knee pain at work for a couple of months prior to that time; and
  • she felt her knee pain increased until, on the morning of 13 July 2020 when she was at work performing bed cleaning work, she was limping and she could not walk anymore due to pain at which point her supervisor told her to go home.[193]
  1. [149]
    Part of the submission of the Regulator appears to be that Ms Marchant's evidence in chief, about the pain she experienced when performing certain physical acts in the course of her work duties, should not be accepted because it was only given at a time after the objection being taken by the Regulator. 
  1. [150]
    I cannot accept that submission. This is because, as set out earlier, prior to the objection, Ms Marchant had given evidence in chief that her repetitive work duties caused her knee pain.  After the objection was made and after Ms Marchant resumed giving her evidence, she gave evidence about the activities she was performing when her left knee soreness –  that she spoke of in her evidence in chief prior to the objection – came on. The flow of that evidence does not persuade me that Ms Marchant's evidence in chief, after the objection, was contrived.
  1. [151]
    Secondly, there are the clinical records of Ms Marchant's consultations with General Practitioners about her left knee pain in mid-2020.
  1. [152]
    Ms Marchant saw Dr Kan on 8 June 2020 complaining that she had left knee pain for '… 2-3 weeks', in respect of which an X-ray was requested.[194] There was a further consultation for left knee pain on 15 June 2020, the diagnosis of which was osteoarthritis and it was suggested to Ms Marchant she regularly take Nurofen for a week and for there to be a review if her pain persisted.[195]
  1. [153]
    On Monday, 13 July 2020, Ms Marchant again presented with left knee pain in respect of which she stated, to a different General Practitioner at the same practice as that of Dr Kan, that:
  • she been having issues with the pain for about a month;
  • she was sent home from work on that day due to the pain;
  • that she worked as a cleaner and that her pain worsened on (the previous) Saturday night, although she did not recall any trauma to the knee.[196]
  1. [154]
    Four days later, on 17 July 2020, Ms Marchant again consulted Dr Kan, and informed Dr Kan that she had two months of left knee pain with no improvement. Dr Kan requested an MRI of her left knee. The consultation record states:

may be possible to claim through work cover as patient works as a cleaner at wesley for 12 years +

carries bucket of cleaning agents

climbs stairs and ladder

lots of bending.[197]

  1. [155]
    Ms Marchant then consulted Dr Kan five days later on 23 July 2020 following the MRI being undertaken of her left knee, the result of which was recorded as '… Complex tear of the posterior horn and posterior meniscal root complex of the medial meniscus with a displaced fragment.' The following was also recorded:

need to see orthop specialist

should be able to claim under WorkCover

explained.[198]

  1. [156]
    The documentary evidence of Ms Marchant's consultations with the General Practitioners she saw is generally consistent with Ms Marchant's evidence in chief that she had been suffering pain in her left knee for a couple of months prior to mid July 2020.
  1. [157]
    Thirdly, Dr Kan's evidence in chief was that:
  • he first treated Ms Marchant on 26 June 2003;
  • in January and February 2004, he saw Ms Marchant for left knee pain she had for a few months;
  • he next saw Ms Marchant about her left knee pain on 8 June 2020; and
  • by June 2020, he had known Ms Marchant had been a cleaner for quite a period.[199]
  1. [158]
    In cross examination, Dr Kan agreed that Ms Marchant had not given him any history of suffering knee pain in the course of her duties prior to 8 June 2020.[200] However, Dr Kan disagreed he would have asked her if she was suffering knee pain in the course of her duties because '… often we are led by the patient's complaints rather than if we don't ask them everything that they are not seeing us about.'[201]
  1. [159]
    Further, as submitted by Ms Marchant,[202] when Dr Kan saw Ms Marchant on 17 July 2020, he took a history of two months of left knee pain and of some of Ms Marchant's work activities,[203] and when asked why he took that history that time as opposed to his earlier 2020 consultations with Ms Marchant, Dr Kan stated:

I guess as a GP, when someone presents with pain to the knee, you – in general, you would assume it’s maybe from the osteoarthritis. Most of those things would be self-improving within a – a few weeks and if it doesn’t, then we go to the next step and take a little bit more interest into why the area – so that – that’s why I took into account because I knew she has been a cleaner for a long time, so we thought we better ask a few more questions about that, see if that may be playing a part.[204]

  1. [160]
    The evidence then is that at that consultation on 17 July 2020, upon requesting the MRI to be taken of Ms Marchant's left knee, Dr Kan was of the view, as he conceded in cross-examination, that the cost of the MRI may possibly be claimed through WorkCover.[205] The evidence also is that at the further consultation on 23 July 2020, Dr Kan, again as he conceded in cross-examination, was of the view that in respect of the '… fairly big problems in respect of her left knee joint', it may be possible a claim could be made under WorkCover.[206]
  1. [161]
    I accept that there was no discussion between Ms Marchant and Dr Kan about Ms Marchant's duties as a cleaner having any relationship to her left knee pain until his consultation with her on 17 July 2020. On that date, Dr Kan requested the MRI and he gave consideration to whether there was a relationship between Ms Marchant's duties as a cleaner and her left knee pain. However, following Dr Kan receiving the results of the MRI of Ms Marchant's left knee, it was at the next consultation, on 23 July 2020, that            Dr Kan was of the view that specialist intervention was needed and that Ms Marchant  '… should be able to claim under WorkCover' which was explained to her.[207]
  1. [162]
    Leaving aside for the moment what I should make of the value of Dr Kan's clinical opinion about any relationship between Ms Marchant's work as a cleaner and her left knee pain, on an objective consideration of this evidence, I am unable to readily form a negative view of  Ms Marchant's credit and reliability because of her failure to attribute her worsening left knee pain to her employment as a cleaner when she was seeking treatment from Dr Kan.
  1. [163]
    As referred to earlier, it was only at Ms Marchant's consultation with Dr Kan, on 17 July 2020, that Dr Kan formed a view that her left knee pain may have a relationship with her duties as a cleaner. It does not automatically follow that Ms Marchant's credit and reliability is diminished because, upon her seeking treatment from her General Practitioner about her left knee pain, it was her General Practitioner that first raised any connection between Ms Marchant's left knee pain and her work, rather than Ms Marchant.
  1. [164]
    For these three reasons, I am unable to accept the submissions made by the Regulator that I have referred to in paragraphs [121] and [122] of these reasons.
  2. [165]
    I accept Ms Marchant's evidence was that she first had problems with her left knee in April 2020 at work and that when she went home at night, her knee was sore.
  1. [166]
    I find that Ms Marchant did suffer an activation of pain to her left knee, when working as a cleaner at the Hospital, from about April 2020.

Did the aggravation of Ms Marchant's left knee osteoarthritis arise out of, or in the course of, her employment and was her employment a significant contributing factor to the aggravation?

  1. [167]
    A degenerative condition may be aggravated in the sense that it may be made worse; that is, after the aggravation, the degenerative disorder is worse than it was before.[208] There can also be an aggravation in the sense of an increase of symptoms associated with a degenerative condition which, after the cessation of the symptoms, returns to its pre‑aggravation state.[209] An aggravation, in both these senses, is compensable.[210]
  1. [168]
    For an aggravation to occur, the employment must significantly contribute to the occurrence of the injury. It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence.[211] There is no requirement for a claimant to show that the aggravation is a significant aggravation.[212]
  1. [169]
    Three experts gave oral evidence in relation to these questions, namely Dr Kan, Dr Low and Dr O'Toole. As referred to above, Dr Fardoulys' report, dated 15 October 2020,[213] was tendered but he was not called to give oral evidence.
  1. [170]
    Dr Kan's opinion was that Ms Marchant's injury was a combination of the work and her age related degenerative change in that no amount of cleaning in a normal home environment could match the amount of stress put on the joints in a full-time work capacity as a cleaner.[214]
  1. [171]
    Dr Low's opinion was that Ms Marchant had suffered an aggravation of medial compartment arthritis of the left knee plus or minus torn medial meniscus which made the symptoms acute, being a significant aggravation from repetitive activity in the workplace.[215]
  1. [172]
    Dr O'Toole's opinion is that, in summary, climbing stairs repeatedly of more than 15 flights per day, and squatting and knee bending for a total of more than one hour per day for more than one year, has been shown to increase osteoarthritis of the knee, but that was not a threshold Ms Marchant reached in her role.[216]
  1. [173]
    In summary, Ms Marchant submits that:
  • on the evidence of all the lay witnesses called, Ms Marchant's work duties did require extended periods of kneeling, squatting, climbing and bending;
  • the pain in her knee came on when she was performing work duties;
  • the evidence of Dr Kan and Dr Low should be preferred to that of Dr O'Toole because Dr O'Toole did not take a detailed enquiry into the mechanism of her injury and the work duties; and
  • on her evidence, and on the evidence of Dr Kan and Dr Low, the aggravation of her left knee osteoarthritis occurred in the course of her employment and her employment was a significant contributing factor to the aggravation.[217]
  1. [174]
    The Regulator, in summary, submits that the evidence does not establish, on the balance of probabilities, that Ms Marchant's work activities aggravated her left knee osteoarthritis.[218] In making that submission, the Regulator further submits that:
  • Dr Low's evidence should not be preferred over that of Dr O'Toole because:
  • – Dr Low's first report (Exhibit 1) does little to particularise any of the specific work duties which would impact upon Ms Marchant's knee and how those work duties would have aggravated her left knee condition;
  • – it is unacceptable to accept the assertions by Dr Low:
  • in his second report (Exhibit 2) that he had been a practicing orthopaedic surgeon for 40 years and that he '… has formulated in his own mind an opinion as to what is right and what is wrong and what is the truth and what is not the truth'; and
  • in his evidence  that  '… all the evidence in the world is not going to make me agree with Dr O'Toole', and his reference to Dr O'Toole's experience in respect of surgical procedures;
  • – Dr Low had not operated  on Ms Marchant's left knee and refused to respond to  questions about that proposition and to questions regarding Dr O'Toole's  experience  as an Occupational Physician  in determining the effects of work on various parts of the human body; and
  • – Dr  Low's  opinion  was in stark contrast to that of Dr Fardoulys to whom       Ms Marchant was referred for treatment by Dr Kan;[219]
  • the Commission should attach little weight to Dr Kan's opinion because of inconsistencies in his various reports about Ms Marchant's work duties having a significant contribution to her left knee condition and because he is a doctor giving treatment or advice to Ms Marchant as an injured person;[220] and
  • Dr O'Toole's evidence should be preferred because:
  • – as an Occupational Physician, he is better placed to make the determination on the causation of an injury due to his training and experience;[221]
  • – he had a clear understanding of Ms Marchant's work duties;[222]
  • – his use of medical and epidemiological literature, in coming to his opinion, was proper and cautious;[223] and
  • – in coming to his opinion, compared to the generalities of a cleaner's work referred to by Dr Kan and by Dr Low, he identified various work activities performed by Ms Marchant which could potentially lead to a work-related aggravation of her left knee osteoarthritis.[224]
  1. [175]
    In Ribeiro v Workers' Compensation Regulator,[225] I summarised the established principles that may be considered where there is competing medical evidence about whether there is a causal connection between an injury and a worker's employment. Having regard to the expert evidence in the present case, and the submissions made about the expert evidence, the principles that may have application are:
  • the primary duty of a tribunal is to find ultimate facts, and, in so far as is reasonably possible to do so, to look not merely to the expertise of the expert witnesses, but to examine the substance of the opinion expressed; and in doing so, the tribunal may not accept the opinion of an expert witness, and in cases where the experts differ, the tribunal will apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted;
  • a qualified medical practitioner may, as an expert, express an opinion as to the nature and cause, or probable cause of an injury, but it is for the tribunal to weigh and determine the probabilities, and in doing so, the tribunal may be assisted by the medical evidence; however, that task is for the tribunal not the witnesses and the tribunal must ask itself whether, on the whole of the evidence, it is satisfied on the balance of probabilities of the fact;
  • when faced with competing opinions, which are both supported by sound reasoning, the tribunal's function is to decide the issue at hand and that may require the tribunal to accept one opinion over the other, and in doing so the tribunal would not normally substitute its opinion on the medical diagnosis for that of the experts and give scientific medical reasons for doing so; the tribunal's persuasion to prefer one opinion over another may well be based on factors such as that the expert's opinion was tested under cross‑examination, or that the opinion was given by a person eminent in his or her field, or that the opinion was supported by clinical observations; and
  • if the factual underpinning of the report is disturbed by, for example, the rejection by the tribunal of parts of that underpinning, then it follows that the report itself is weakened to that extent.[226]

Dr Low's evidence

  1. [176]
    In his report dated 24 May 2021 (Exhibit 1), Dr Low recorded the history given to him by Ms Marchant of her injury, namely:
  • she slowly developed left knee pain;
  • there was no incident, it just happened at work;
  • her pain got so bad in April/May 2020 she stopped work on 13 July 2020, it was mild in the past, but it got very bad in that she started limping and she could not continue;
  • her work involves bending, kneeling, squatting, climbing, carting heavy rubbish and she has done that continuously for 24 years; and
  • she has been working five days a week since 2005 and her work as a cleaner was heavy physical repetitive work.[227]
  1. [177]
    In that same report, Dr Low opined:

ANSWERS TO SPECIFIC QUESTIONS

  1. Please confirm your diagnosis of the injuries sustained by the claimant over a period of time.

The diagnosis is aggravation of medial compartment arthritis of the left knee plus or minus torn medial meniscus which made the symptoms acute. A significant aggravation from repetitive activity in the workplace.

The injuries are consistent with the mechanism of injury which is repetitive overuse over many, many years. Aggravation of medial compartment arthritis and a meniscal tear. She did a lot of bending, kneeling, squatting, climbing ladders, moving heavy rubbish around for 24 years as a cleaner. She has worked for Quad Cleaning Services Wesley Hospital since 2008 for the last 12 years.

  1. Please confirm the injuries sustained are consistent with the mechanism of injury described being over a period of time.

The injury which is aggravation of medial compartment arthritis is consistent with the mechanism of injury.[228]

  1. [178]
    In his evidence in chief, Dr Low stated:

I took you to – I started our conversation with reference to your curriculum vitae and in particular, comments in regard to where you worked and the director of orthopaedics at the Townsville Hospital. In that, if I can quote, many years of experience working in hospitals throughout the world and in Queensland, have you had cause to notice or consider the work activities of cleaners in the hotels in which  you were director of orthopaedics?---I’ve seen – every occupation on earth, I don’t think there’s an occupation I haven’t dealt with. I mean - - -

I’m more - - -?--- - - - a cleaner is representative of someone who has to do a lot of physical work and puts a lot of stress on their knees over many, many years. There’s a lot of kneeling, there’s a lot of squatting, there’s a lot of pushing, there’s a lot of pulling, there’s a lot of having to work in confined spaces with your – with your – in a kneeled, squatted position and have to carry and go up and down steps and ladders and inclines. Lot of twisting on the knees. There’s a lot of stressors involved on the knees over many, many years. 

Is that – sorry?---Could cause an – it would cause an aggravation of – of arthritis in the knees.[229]

  1. [179]
    In cross-examination, Dr Low:
  • opined, having regard to his diagnosis referred to in paragraph [177] of these reasons, that often a torn meniscus is what brings the symptoms of arthritis to light;[230]
  • opined that it is impossible to tell between a torn meniscus in an arthritic knee because the symptoms are exactly the same;[231] and
  • conceded that it was feasible to conclude that the torn meniscus, the tear of the medial meniscus, which made Ms Marchant's symptoms acute, was a result of some physical activity which did not involve any of her work activities.[232]
  1. [180]
    In re-examination, Dr Low stated that on the balance of probabilities, it is more likely that the work has caused a significant aggravation (to Ms Marchant's osteoarthritic left knee) rather than anything she did in her own personal life in that she is not a sports woman, she did not run marathons, did not play basketball, did not climb mountains, she did not ride bikes or go to the gym all the time, and has never had an accident. Dr Low further stated that Ms Marchant was 63 years of age, has primary arthritis that has occurred in a middle-aged woman and on the balance of probabilities it has been aggravated from the years and years of working as a cleaner.[233]
  1. [181]
    Dr Low, in further re-examination, stated:

There’s a big difference between causation and aggravation. Causation is like when you fall off a tree and break your leg and as a result, you’ve got a – a malunion of a fracture. That’s causation. This is aggravation, not causation, and that’s the only point that I’m trying to make. It’s been aggravated, on the balance of probabilities, by years of being a cleaner. There’s nothing in her private life that’s caused it. It’s – it’s most likely due to work. And the meniscal tear is – is not something to focus on. That’s just part and parcel of the arthritis. That’s all the meniscal tear is. Often a meniscal tear will lead to the presentation of arthritis because most people with arthritis can get – can live with it and get by. It’s only when you – something acute happens, which is part of the degenerative aging process, like a torn meniscus that becomes unstable, that a person with arthritis seeks attention.[234]

Dr O'Toole's evidence

  1. [182]
    Dr O'Toole compiled two reports, the first dated 21 August 2020 (Exhibit 7) and the second being a supplementary report dated 27 July 2021 (Exhibit 8).
  1. [183]
    In his first report, Dr O'Toole was asked whether he considered Ms Marchant's employment to be a significant contributing factor to her injury. Dr O'Toole opined:

No. This is a natural degenerative process. None of the tasks performed in her role had been shown in the literature to be significant contributing factors in the development of the osteoarthritis of the knee.[235]

  1. [184]
    In his supplementary report, Dr O'Toole was asked to give a detailed description of the literature upon which he relied in coming to the above opinion expressed in his first report.
  1. [185]
    In that regard, Dr O'Toole stated:

Further to my response to the previous question, the literature surrounding occupational risk factors for development of OA[236] of the knee is quite clear, and constantly being reviewed by Occupational and Environmental Physicians.

Systematic review of the literature has shown that there is an association between the development of knee OA, with some activities that are performed in the workplace, at particular levels of exposure or occurrence. These activities are:

  • Kneeling
  • Squatting and knee bending
  • Combinations of activities including;

o  Kneeling and squatting with heavy lifting

o Squatting, kneeling and climbing; and

o  Knee bending and heavy physical loading.

There is insufficient evidence to support the following workplace activities having an association with development of OA.

  • Jumping
  • Lifting
  • Sitting
  • Standing and walking

There is an accepted increased risk for women who climb stairs repeatedly, for more than 15 flights per day, which is a threshold that Ms Marchant does not reach in her role.

Squatting and knee bending for a total of more than one hour per day for more than one year has been shown to increase the risk of OA)[sic] of the knee,  but again, this is not a threshold that Ms Marchant reaches in her role.

There is a significant risk of developing OA in individuals who combine prolonged kneeling, prolonged squatting and heavy lifting, however this evidence is limited to individuals who lift greater than 25kg regularly, and squat for greater than one hour per day or kneel for greater than one hour per day, which Ms Marchant does not do in her role.[237]

  1. [186]
    In his evidence in chief, Dr O'Toole was asked what Ms Marchant described to him in respect of the nature of the work duties. Dr O'Toole's evidence was:

I understood the – the nature of her work duties was – whilst performing the role of a cleaner. It is a role that requires her to push a trolley around that contains her equipment, carrying rags, it carried her equipment – sorry, bags of rags, let me clarify that. She’s required to clean surfaces, either with a cloth or a duster. She’s required to mop surfaces using a mop and a mop and bucket to carry empty – or to empty bins and therefore carry the contents with her to that trolley, and to dispose of them.

Okay. Did she say much to you about any kneeling or squatting duties in the course of her work duties?---If I haven’t mentioned it there, then I – it wouldn’t have been raised. I don’t recall specifically whether she did or not, however all of those particular activities would’ve been mentioned in the report, if she found them to be of concern.[238]

  1. [187]
    In cross-examination, Dr O'Toole was asked if he asked Ms Marchant how much squatting and kneeling was involved in performing her duties as a cleaner. Dr O'Toole's answer was in the negative, and he stated that he specifically '… asked her the tasks that she performed and which I can extrapolate from that how much kneeling, et cetera, is performed.'[239]
  1. [188]
    Dr O'Toole was further pressed about his understanding of the tasks performed by Ms Marchant. In this regard, the transcript records:

So, Doctor, I suggest to you that the six lines in your report of 21 August 2020 shows no effort by yourself to understand the particularities of her employment situation and her employment duties?---Well, I respectfully disagree with that. I’ve – as I said, an understanding of an individual’s tasks does not – is not reflected through the brevity of a report. There’s – I have taken an occupational history to understand what she performs, and in comparison to a lot of the other – and I would say all of the other specialists that have provided reports, I am the only one that’s actually been and directly observed and undertaken the tasks of a cleaner, which is paramount in my role as an occupational physician. 

You – after – and my terminology – the brief summary of her work activities, the six lines. Then you confirm that the symptoms or the complaints are not – work isn’t a significant contributing factor; is that correct?---That is correct.

Would you accept that osteoarthritis can be caused or brought forward by work activities?---In some activities, yes.

Yes. When – in your report of 21 August 2020 there’s no mention that you’ve undertaken tasks in a hospital, or undertaken any research, or provided any detailed  reports in regard to hospital cleaners. When did you do that?---As I mentioned before, the majority of my role supervising cleaners has been performed in housekeeping environments, in hotels, large hotels, small hotels. And the observations that I’ve had of directly cleaning in a hospital environment, from the cleaners that I employed when I ran hospitals in the Royal Australian Air Force. And also direct observations during clean-up processes after traumas, etcetera, within hospitals. I worked in those.

  1. [189]
    Dr O'Toole was also cross-examined about his understanding of whether cleaning activities, such as squatting and kneeling, can aggravate osteoarthritis. The transcript records:

Did you ask her – and you know that osteoarthritis and cleaners – there’s a prevalence of osteoarthritis in cleaners, or a – arthritis – sorry, osteoarthritis can be aggravated by cleaning activities such as squatting and kneeling. You’re aware of that, aren’t you?---I’m aware that they’re – and when you say “prevalence”, prevalence means that there is merely the presence of a condition.

Yes?---I’m aware there is a prevalence within cleaners, which is consistent with the equal population. I agree that individuals who perform activities such as squatting or kneeling, who have arthritis of the knees, will have pain associated with that. It doesn’t mean that the kneeling and squatting is causing it, though.

Yes. Or it’s aggravating it. It’s possible it’s aggravating the underlying osteoarthritis. You would agree with that, wouldn’t you?---No, aggravation means that it is permanently changing, the disease progression. Whereas, if it’s causing symptoms, that’s potentially an exacerbation, or merely a symptom associated with the activity.[240]

  1. [190]
    In assessing the evidence of the specialist physicians, I prefer the evidence of Dr Low over that of Dr O'Toole.
  1. [191]
    This is not because Dr Low is an Orthopaedic Surgeon and Dr O'Toole is an Occupational Physician. Both are expert witnesses who are qualified to express an opinion about whether Ms Marchant's employment was a significant contributing factor to any aggravation of her left knee osteoarthritis, based upon:
  • their qualifications, training and professional experience; and
  • their understanding of Ms Marchant's duties and, in respect of performing those duties, the physical acts she undertook.
  1. [192]
    The reasons I prefer the evidence of Dr Low are twofold.
  1. [193]
    First, on the facts I have found, regarding Ms Marchant bending her left knee,  squatting, kneeling and climbing ladders in the course of her duties as a cleaner at the Hospital, those facts, while not exactly the same, bear a reasonably close resemblance to the description of the facts relied upon by Dr Low in coming to his opinion that the physical acts undertaken by Ms Marchant aggravated her pre-existing left knee osteoarthritis.
  1. [194]
    It is to be remembered that Dr Low stated that the physical acts performed by Ms Marchant as a cleaner for 24 years, upon which he based his opinion, were her bending, kneeling, squatting, climbing ladders and carting heavy rubbish.[241]
  1. [195]
    Dr Low's understanding of those matters is in contrast to that of Dr O'Toole who, when asked if he had asked Ms Marchant how much squatting and kneeling was involved in her performing her duties as a cleaner, stated he did not but specifically asked Ms Marchant the tasks that she performed, from which he could extrapolate '… how much kneeling, et cetera, is performed'.[242]
  1. [196]
    Despite Dr O'Toole's experience in observing cleaners at work, I am not confident in accepting Dr O'Toole's opinion based upon him drawing inferences about the physical acts undertaken by Ms Marchant from her answers to his questions about the work tasks she performed.
  1. [197]
    Secondly, Dr Low's evidence was clear in that he based his opinion upon whether the physical acts undertaken by Ms Marchant in performing her duties as a cleaner, namely, bending, kneeling, squatting, climbing ladders and carting heavy rubbish, may have aggravated Ms Marchant's osteoarthritis in her left knee, as opposed to whether those physical acts may have caused Ms Marchant's osteoarthritis in her left knee.
  1. [198]
    In my opinion, based upon the evidence given by Dr O'Toole, he did not consider that Ms Marchant may have aggravated her pre-existing left knee osteoarthritis by performing the work duties in the physical manner she undertook those duties. I form this view for two reasons.
  1. [199]
    In the first place, Dr O'Toole's opinions, expressed in his initial report and then in his supplementary report, were about whether or not Ms Marchant's duties as a cleaner amounted to a significant contributing factor in the development of osteoarthritis in her left knee.
  1. [200]
    In the second place, on the evidence, Dr O'Toole's understanding of what might amount to an aggravation of Ms Marchant's osteoarthritis supports Ms Marchant's case. As referred to in paragraph [189] of these reasons, when asked about whether Ms Marchant's work may have aggravated her osteoarthritis, Dr O'Toole's view was that an aggravation only occurs where there is a permanent change in the progression of the disease '… whereas if it’s causing symptoms, that’s potentially an exacerbation, or merely a symptom associated with the activity'.[243]
  1. [201]
    This former view about a permanent change in the progression of the disease, however, accords with what amounts to an aggravation of an injury within the meaning of the Act.
  1. [202]
    In this regard, Dr Low stated in his evidence:

WITNESS: Well, I’m not saying that her – her arthritis is due to the - - -

DR CROSS: Feasible, sorry?--- - - - cleaning activities. If you read in my report carefully, you’ll see that she’s got constitutional arthritis. It’s just happened. It’s not secondary to any one event; however, the only comment that I’ve made is all those years of cleaning has aggravated her tendency towards constitutional progressive arthritis. That’s the only comment that I’ve made. 

Doctor - - -?---There’s been an aggravation from those years and years and years of being a cleaner is the only point that I’ve made and I’ll stand by that point.[244]

  1. [203]
    As referred to earlier in these reasons, a degenerative condition may be aggravated in the sense that it may be made worse; that is, after the aggravation, the degenerative disorder is worse than it was before.
  1. [204]
    For these reasons, I prefer the evidence of Dr Low.
  1. [205]
    Two further matters need to be stated in relation to the expert evidence.
  1. [206]
    First, I am not persuaded one way or the other by Dr Fardoulys' report.  Unlike Dr Low and Dr O'Toole, Dr Fardoulys did not give oral evidence and was not subject to cross-examination about his opinion. In any event, Dr Fardoulys' opinion was equivocal. In his report he stated, in respect of Ms Marchant informing him that her claim for workers' compensation had been rejected, '… this would often be the case where although her work probably does have a lot to do with degeneration it's impossible to prove this and these types of pathology are very common in this age group.'[245]
  1. [207]
    Secondly, I am cognisant of Dr Kan's opinion about the connection between the increased pain suffered by Ms Marchant in her left knee and her work duties. However, given the specialist expertise of Dr Low and Dr O'Toole, I am more confident in coming to a conclusion about whether or not Ms Marchant's employment was a significant contributing factor to the activation of pain in her left knee by considering the evidence of Dr Low and Dr O'Toole in light of the facts, as I have found, about the physical acts undertaken by Ms Marchant in the performance of her duties as a cleaner at the Hospital.

Conclusion about whether Ms Marchant's employment was a significant contributing factor to the aggravation of her left knee osteoarthritis

  1. [208]
    Dr Low opined:
  • the diagnosis for Ms Marchant is aggravation of medial compartment arthritis of the left knee plus or minus torn medial meniscus which made the symptoms acute; and
  • Ms Marchant's injuries are consistent with the mechanism of injury which is repetitive overuse over many years because Ms Marchant did a lot of bending, kneeling, squatting, climbing ladders, and moving heavy rubbish around for 24 years as a cleaner.
  1. [209]
    Ms Marchant's 24 years as a cleaner includes her last 12 years employed by Quad. While I have not found that Ms Marchant moved heavy rubbish or frequently climbed stairs, I have found that, over her 12 years as a cleaner at the Hospital, Ms Marchant performed duties which involved her bending her left knee, kneeling, squatting and climbing stepladders. Although I have found that the climbing of stepladders to change curtains only occurred over the last three years of her employment, the other physical acts were constant and involved stress on her left knee over a long period of time. Further, during that time, Ms Marchant had osteoarthritis in her left knee, being first diagnosed by Dr Kan in 2004.[246]
  2. [210]
    My view is that having regard to the physical acts performed by Ms Marchant, as I have found, over the 12 years she worked as a cleaner for Quad at the Hospital, the aggravation of Ms Marchant's left knee osteoarthritis arose out of her employment as a cleaner employed by Quad at the Hospital, and that her employment was a significant contributing factor to that aggravation.

Conclusion

  1. [211]
    In this appeal, the onus was on Ms Marchant to prove, on the balance of probabilities, that she suffered an injury within the meaning of s 32 of the Act.
  1. [212]
    For the reasons I have given, Ms Marchant's personal injury of an aggravation of medial compartment arthritis arose out of, or in the course, of her employment with Quad, and her employment with Quad was a significant contributing factor to that aggravation.
  1. [213]
    The review decision of the Regulator is set aside and another decision is substituted for it, namely, that Ms Marchant's application for workers' compensation, the subject of this proceeding, is one for acceptance.
  1. [214]
    I will hear the parties as to costs.

Orders

  1. [215]
    I make the following orders:
  1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 12 February 2021 (Reference 57676) is set aside and another decision substituted, namely, that the Appellant’s application for workers’ compensation, the subject of this proceeding, is one for acceptance.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. (a)
    the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Friday, 28 July 2023; and
  1. (b)
    unless otherwise ordered, the decision on costs be determined on the papers.

Footnotes

[1] The Workers' Compensation Regulator's statement of facts and contentions filed on 3 August 2021 ('the Regulator's contentions'), Attachment A, page 2, para. 11.

[2] Ms Marchant's statement of facts and contentions filed on 25 May 2021 ('Ms Marchant's contentions'), Attachment A, page 1, paras.1-2.

[3] Church v (Simon Blackwood) Workers' Compensation Regulator [2015] ICQ 031; (2015) 252 IR 461, [24]-[30] (Martin J, President).

[4] Ibid [33]-[38].

[5] State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447, 1448 (President Hall).

[6] The Regulator's contentions, Attachment A, page 8, para. 1.

[7] Ms Marchant's written submissions filed on 11 May 2022 ('Ms Marchant's submissions'), para. 3, first dot point  and the written submissions of the Workers' Compensation Regulator files 3 June 2022 ('the Regulator's submissions'), para. 3.

[8] Ms Marchant's submissions, page 43, para. 3.

[9] The Regulator's contentions, Attachment B, page 8, para. 2.

[10] The Regulator's contentions, Attachment B, page 8, para. 3.

[11] The Regulator's contentions, Attachment B, page 8, para. 4.

[12] The Regulator's contentions, Attachment B, page 8, paras. 5 and 6.

[13] The Regulator's contentions, Attachment B, page 8, para. 7.

[14] T 2-98, ll 10-14.

[15] T 2-2, ll 38-46.

[16] T 2-4, l 46 to T 2-5, l 6.

[17] T 2-25, ll 3-12.

[18] T 2-25, ll 17-39.

[19] T 2-46, ll 29-37.

[20] T 2-47, ll 5-11.

[21] T 3-5, l 26 to T 3-6, l 1.

[22] T 3-6, ll 36-46.

[23] T 3-41, ll 17-46.

[24] Ms Marchant's submissions, para. 3.

[25] Ms Marchant's submissions, para. 4.

[26] Ms Marchant's submissions, para. 110.

[27] The Regulator's submissions, para. 18.

[28] The Regulator's submissions, para. 19.

[29] The Regulator's submissions, paras. 20-21.

[30] T 1-13, ll 1-2.

[31] T 1-19, ll 18-26.

[32] T 1-13, ll 13-26.

[33] T 1-12, l 42 to T 1-13, l 11 and T 1-22, ll 35-37.

[34] T 1-22, l 35 to T 1-23, l 33.

[35] T 1-50, l 32 to T 1-52, l 7.

[36] T 1-30, l 44 to T1-31, l 8.

[37] T 1-31, ll 10-17.

[38] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [30]-[31] (Gleason CJ, Gummow and Kirby JJ).

[39] Camden v McKenzie [2007] QCA 136; (2008) 1 Qd R 39, [34] (Keane JA, McMurdo J [64] and Douglas J [65] agreeing).

[40] Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, [309] (Wigney J).

[41] T 3-9, ll 4-5.

[42] T 3-12, ll 17-47.

[43] T 3-13, ll 5-11.

[44] T 3-10, ll 26-32.

[45] T 3-8, ll 30-47.

[46] T 3-49 ll 41-47.

[47] T 3-59, ll 23-29.

[48] T 1-14, l 14 to T 1-15, l 35.

[49] T 1-15, ll 44-46.

[50] T 1-16, ll 13-15.

[51] T 1-16, l 18 to T 1-17, l 8.

[52] T 1-18, ll 24-38.

[53] T 1-21, ll 6-14.

[54] T 1-31, ll 36-44.

[55] T 1-18, ll 40-45.

[56] T 1-21, ll 16-17.

[57] T 1-21, ll 16-26 and ll 38-43.

[58] T 1-22, l 35 to T 1-23, l 33.

[59] T 1-23, l 35-47.

[60] T 1-24, ll 1-25.

[61] T 1-35, l 32.

[62] T 1-36, ll 11-12.

[63] T 1-37, ll 6-16.

[64] T 1-36, l 24 to T 1-37, l 4.

[65] T 1-38, ll 1-28.

[66] T 1-38, l 40 to T 1-39, l 35.

[67] T 1-39, ll 42-47.

[68] T 1-40, l 14.

[69] T 1-40, ll 41-47.

[70] T 1-56, l 45 to T 1-57, l 8 and T 1-57, ll 23-27.

[71] T 1-57, l 38 to T 1-58, l 10.

[72] T 1-58, l 15 to T 1-59, l 12.

[73] T 1-60, ll 37-38.

[74] T 1-58, l 15 to T 1-59, l 41.

[75] T 3-13, ll 24-40.

[76] T 2-7, ll 16-36.

[77] T 2-8, ll 1-39.

[78] T 2-19, ll 1-24.

[79] T 2-19, ll 25-28.

[80] T 2-20, ll 4-18.

[81] T 2-21, ll 1-26.

[82] T 2-27, l 46 to T 2-28, l 14.

[83] T 2-28, ll 18-25.

[84] T 2-30, ll 22-40.

[85] T 2-30, l 42 to T 2-31, l 14.

[86] T 2-31, ll 20-31.

[87] T 2-39, ll1-36,

[88] T 2-40, ll 27-34.

[89] T 2-41, ll 1 to 34.

[90] T 2-41, l 38 to T 2-42, l 29.

[91] T 2-43, l 27 to T 2-44, l 4.

[92] T 2-48, ll 23-33.

[93] T 2-49, l 43 to T 2-50, l 13.

[94] T 2-50, l 15 to T 2-51, l 19.

[95] T 3-11, l 44 to T 3-12, l 2.

[96] T 3-13, ll 5-9 and T 3-14, ll 6-17.

[97] T 3-23, ll 41-47.

[98] T 3-25, l 43 to T 3-26, l 26.

[99] T 2-23, ll 28-35.

[100] T 2-47, ll 34-47.

[101] T 3-26, l 28 to T 3-27, l 2.

[102] T 3-27, ll 31.

[103] T 1-17, ll 10-34.

[104] T 1-18, ll 1-19

[105] T 1-42, ll 1-44.

[106] T 1-53, ll 25-33.

[107] T 1-53, ll 35-45.

[108] T 1-55, l 40 to T 1-56, l 2.

[109] T 2-3, ll 40-47.

[110] T 2-5, ll 10-21.

[111] T 2-6, ll 1-22.

[112] T 2-33,l l 9-44.

[113] T 2-34, ll 40-43.

[114] T 2-34, ll 1-3.

[115] T 2-42, l 38 to T 2-43, l 8.

[116] T 2-52, l 36 to T 2-53, 16.

[117] T 3-11, ll 1-24.

[118] T 3-15, ll 28-29.

[119] T 3-20, ll 4-21.

[120] T 3-28, ll 9-29.

[121] T 3-45, ll 1-19.

[122] T 3-50, l 31 to T 3-51, l 3.

[123] T 3-54, ll 40-45.

[124] T 3-55, ll 24-32.

[125] T 1-19, ll 4-16.

[126] T 1-19, l 28 to T 1-20, l 8.  

[127] Of which one was depicted on photograph ‘A’ of Exhibit 9, which Ms Marchant indicated was about 800 mm high: T 1-22, ll 20-27.

[128] T 1-20, ll 10-44.

[129] T 1-27, l 43 to T 1-28, l 26.

[130] T 1-55, ll 23-38.

[131] T 2-4, ll 10-36.

[132] T 2-10, ll 18-24.

[133] T 2-28, l 39 to T 2-29, l 27.

[134] T 2-49, ll 19-26.

[135] T 3-16, ll 35-44.

[136] T 3-19 ll 10-25.

[137] T 3-47, ll 20-24.

[138] T 3-47, ll 26-34.

[139] T 3-46, ll 7-23.

[140] T 3-56, ll 6-8.

[141] T 3-56, ll 15-21.

[142] T 3-56, ll 1-2.

[143] T 1-21, l 44 to T 1-22, l 18.

[144] T 1-22, ll 29-30.

[145] T 1-41, ll 20-26.

[146] T 1-41, ll 28-46.

[147] T 1-52, l 39 to T 1-53, l 19.

[148] T 2-11, l 36 to T 2-12, l 1.

[149] T 3-31, ll 23-25.

[150] T 3-46, ll 41-42.

[151] T 3-47, ll 1-16.

[152] T 3-56, ll 23-26.

[153] T 3-56, ll 27-41.

[154] T 3-57, ll 1-8.

[155] T 3-57, ll 10-13.

[156] T 3-57, ll 14-19.

[157] Workers' Compensation and Rehabilitation Act 2003, s 32(3)(b)(i).

[158] Commonwealth v Beattie [1981] FCA 88; (1981) 53 FLR 191, 201 (Evatt and Sheppard JJ).

[159] Omanski v Q-Comp [2013] ICQ 7, [11] (President Hall).

[160] Workers' Compensation and Rehabilitation Act 2003, sch 6 (definition of 'aggravation').

[161] Ms Marchant's submissions, page 42.

[162] The Regulator's submissions, para. 12.

[163] The Regulator's submissions, para. 29.

[164] Emphasis added.

[165] Footnotes omitted.

[166] T 1-34, ll 1-24.

[167] T 1-35, ll 6-9.

[168] T 1-43, l 3 to T 1-45, l 6.

[169] T 1-46, ll 21-32.

[170] T 1-46, ll 34-39.

[171] T 1-48, l 24 to T 1-50, l 15.

[172] Bale v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498 ('Bale'), [64]-[67] (Allsop P, Giles JA and Tobias AJA) and Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, [72] and [75] (Heydon, Crennan and Bell JJ).

[173] (1894) 6 R 67.

[174] Ellis v Q-COMP (No. 2) [2005] ICQ 56; (2005) 180 QGIG 1131, 1133 (President Hall), Hancock v Q-COMP                  [2007] ICQ 13; (2007) 184 QGIG 194, 195 (President Hall) and Guymer v Workers' Compensation Regulator [2018] ICQ 009, [16]-[20] (Martin J, President).

[175] [1983] 1 NSWLR 1. See also Sweeney v He [2023] NSWCA 68, [83] (Ward P, Brereton JA [170] and Mitchelmore JA [186] agreeing).

[176] [1983] 1 NSWLR 1, 16.

[177] [2012] VSC 434.

[178] Citations omitted. This summary was recently adopted by Lee J in Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 [49].

[179] The Regulator's contentions, Attachment B, paras. 3-7

[180]  Bale (n 172), [78]-[79].

[181] Payless Superbarn (NSW) Pty Ltd V O'Gara (1990) 19 NSWLR 551, 556 (Clarke JA).

[182] Ibid 557.

[183] The Regulator's submissions, para. 29.

[184] The Regulator's submissions, paras. 29-33.

[185] The Regulator's submissions, para. 29 (4)-(5).

[186] T 1-24, l 27 to T 1-25, l 8.

[187] T 1-25, ll 19-21.

[188] T 1-25, l 23 to T 1-26, l 18.

[189] T 1-25, l 41 to T 1-26, l 23.

[190] T 1-26, ll 29-35.

[191] T 1-26, l 42 to T 1-27, l 3.

[192] T 1-27, ll 22-29.

[193] T 1-28, ll 33-46.

[194] Exhibit 5, Surgery consultation record for 8 June 2020.

[195] Exhibit 5, Surgery consultation record for 15 June 2020.

[196] Exhibit 5, Surgery consultation record for 13 July 2020.

[197] Exhibit 5, Surgery consultation record for 17 July 2020.

[198] Exhibit 5, Surgery consultation record for 23 July 2020.

[199] T 1-62, l 14 to T 1-63, l 27.

[200] T 1-71, ll 35-37.

[201] T 1-71, ll 39-41.

[202] Ms Marchant's submissions, paras. 120-121.

[203] Exhibit 5, Surgery consultation record for 17 July 2020.

[204] T 1-63, ll 18-25.

[205] T 1-71, ll 23-34.

[206] T 1-71, l 46 to T 1-72, l 4.

[207] Exhibit 5, Surgery consultation record for 23 July 2020.

[208] Heald v Q-Comp [2004] QIC 74; (2004) 177 QGIG 769, 771 (President Hall).

[209] Ibid.

[210] JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13, [4] (President Hall).

[211] Ibid [3].

[212] Ibid [5].

[213] Exhibit 18.

[214] Exhibit 4, page 1.

[215] Exhibit 1, page 5, para. 1.

[216] Exhibit 8, page 10, para. 6.

[217] Ms Marchant's submissions, page 42, paras. 1-4.

[218] The Regulator's submissions, para. 16.

[219] The Regulator's submissions paras. 37-40.

[220] The Regulator's submissions paras. 41-47.

[221] The Regulator's submissions paras. 49-53.

[222] The Regulator's submissions paras. 54-55.

[223] The Regulator's submissions para. 56.

[224] The Regulator's submissions para. 57.

[225] [2019] QIRC 203 ('Ribeiro').

[226] Ribeiro (n 225), [43], [44], [51] and [53] respectively. Citations omitted.

[227] Exhibit 1, page 2.

[228] Exhibit 1, page 5, para.1.

[229] T 1-79, ll 1-15.

[230] T 1-80, ll 26-31.

[231] T 1-80, ll 45-46.

[232] T 1-81, ll 1 to 5.

[233] T 1-86, ll 39-47.

[234] T 1-87, ll 1-12.

[235] Exhibit 7, page 60.

[236] Which stands for osteoarthritis.

[237] Exhibit 8, pages 10-11. Footnotes omitted.

[238] T 2-63, ll 1-5.

[239] T 2-73, ll 44-47.

[240] T 2-74, l 44 to T 2-75, l 5. Emphasis added.

[241] Exhibit 1, page 5, para. 1.

[242] T 2-73, ll 44-47.

[243] T 2-75, ll 1-5.

[244] T 1-86, ll 14-20.

[245] Exhibit 18.

[246] Exhibit 5, Surgery consultation record for 5 January 2004.

Close

Editorial Notes

  • Published Case Name:

    Marchant v Workers' Compensation Regulator

  • Shortened Case Name:

    Marchant v Workers' Compensation Regulator

  • MNC:

    [2023] QIRC 203

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    14 Jul 2023

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
Allied Pastoral Holdings P/L v Federal Commissioner of Taxation (1983) 44 ALR 607
2 citations
Jump To
Cite 1 - (1983) 44 ALR 607
Cite 2 - (1983) 44 ALR 607
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
3 citations
Jump To
Cite 1 - [1983] 1 NSWLR 1
Cite 2 - [1983] 1 NSWLR 1
Cite 3 - [1983] 1 NSWLR 1
Amcor Ltd v Barns [2012] VSC 434
2 citations
Jump To
Cite 1 - [2012] VSC 434
Cite 2 - [2012] VSC 434
Bale v Mills (2011) 81 NSWLR 498
3 citations
Jump To
Cite 1 - (2011) 81 NSWLR 498
Cite 2 - (2011) 81 NSWLR 498
Cite 3 - (2011) 81 NSWLR 498
Bale v Mills [2011] NSWCA 226
2 citations
Jump To
Cite 1 - [2011] NSWCA 226
Cite 2 - [2011] NSWCA 226
Browne v Dunn (1894) 6 R 67
5 citations
Jump To
Cite 1 - (1894) 6 R 67
Cite 2 - (1894) 6 R 67
Cite 3 - (1894) 6 R 67
Cite 4 - (1894) 6 R 67
Cite 5 - (1894) 6 R 67
Bulstrode v Trimble [1970] VR 840
1 citation
Jump To
Cite 1 - [1970] VR 840
Camden v McKenzie[2008] 1 Qd R 39; [2007] QCA 136
4 citations
Jump To
Cite 1 - [2007] QCA 136
Cite 2 - [2007] QCA 136
Cite 3 - [2008] 1 Qd R 39
Cite 4 - [2008] 1 Qd R 39
Church v Simon Blackwood (Workers' Compensation Regulator) (2015) 252 IR 461
2 citations
Jump To
Cite 1 - (2015) 252 IR 461
Cite 2 - (2015) 252 IR 461
Church v Workers' Compensation Regulator [2015] ICQ 31
3 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Cite 3 - [2015] ICQ 31
Commonwealth v Beattie [1981] FCA 88
2 citations
Jump To
Cite 1 - [1981] FCA 88
Cite 2 - [1981] FCA 88
Decision Commonwealth v Beattie (1981) 53 FLR 191
2 citations
Jump To
Cite 1 - (1981) 53 FLR 191
Cite 2 - (1981) 53 FLR 191
Ellis v Q-COMP (No. 2) [2005] ICQ 56
2 citations
Jump To
Cite 1 - [2005] ICQ 56
Cite 2 - [2005] ICQ 56
Ellis v Q-COMP (No.2) (2005) 180 QGIG 1131
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 1131
Cite 2 - (2005) 180 QGIG 1131
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
2 citations
Jump To
Cite 1 - (2003) HCA 22
Cite 2 - (2003) HCA 22
Guymer v Workers' Compensation Regulator [2018] ICQ 9
2 citations
Jump To
Cite 1 - [2018] ICQ 9
Cite 2 - [2018] ICQ 9
Hancock v Q-COMP [2007] ICQ 13
2 citations
Jump To
Cite 1 - [2007] ICQ 13
Cite 2 - [2007] ICQ 13
Heald v Q-COMP (2004) 177 QGIG 769
2 citations
Jump To
Cite 1 - (2004) 177 QGIG 769
Cite 2 - (2004) 177 QGIG 769
Heald v Q-COMP (2004) QIC 74
1 citation
Jump To
Cite 1 - (2004) QIC 74
Heald v Q-Comp [2004] QIC 70
1 citation
Jump To
Cite 1 - [2004] QIC 70
Jagelman v FCT (1995) 31 ATR 467
1 citation
Jump To
Cite 1 - (1995) 31 ATR 467
JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13
4 citations
Jump To
Cite 1 - [2013] ICQ 13
Cite 2 - [2013] ICQ 13
Cite 3 - [2013] ICQ 13
Cite 4 - [2013] ICQ 13
Karidis v General Motors-Holdens [1971] SASR 422
1 citation
Jump To
Cite 1 - [1971] SASR 422
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
2 citations
Jump To
Cite 1 - [2011] HCA 11
Cite 2 - [2011] HCA 11
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
2 citations
Jump To
Cite 1 - (2011) 243 CLR 361
Cite 2 - (2011) 243 CLR 361
Omanski v Q-COMP [2013] ICQ 7
2 citations
Jump To
Cite 1 - [2013] ICQ 7
Cite 2 - [2013] ICQ 7
Owen Richard Hancock v Q-COMP (2007) 184 QGIG 194
2 citations
Jump To
Cite 1 - (2007) 184 QGIG 194
Cite 2 - (2007) 184 QGIG 194
Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551
3 citations
Jump To
Cite 1 - (1990) 19 NSWLR 551
Cite 2 - (1990) 19 NSWLR 551
Cite 3 - (1990) 19 NSWLR 551
Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1
1 citation
Jump To
Cite 1 - (1997) 145 ALR 1
Ribeiro v Workers' Compensation Regulator [2019] QIRC 203
3 citations
Jump To
Cite 1 - [2019] QIRC 203
Cite 2 - [2019] QIRC 203
Cite 3 - [2019] QIRC 203
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
2 citations
Jump To
Cite 1 - [2019] FCA 496
Cite 2 - [2019] FCA 496
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
1 citation
Jump To
Cite 1 - (1977) 19 NSWLR 219
State of Queensland (Queensland Health) v Q-Comp & Coyne [2003] ICQ 9
2 citations
Jump To
Cite 1 - [2003] ICQ 9
Cite 2 - [2003] ICQ 9
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Sweeney v He [2023] NSWCA 68
2 citations
Jump To
Cite 1 - [2023] NSWCA 68
Cite 2 - [2023] NSWCA 68
Transport Workers ’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244
2 citations
Jump To
Cite 1 - (2021) 308 IR 244
Cite 2 - (2021) 308 IR 244
Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873
2 citations
Jump To
Cite 1 - [2021] FCA 873
Cite 2 - [2021] FCA 873
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169
5 citations
Jump To
Cite 1 - (1988) 156 ALR 169
Cite 2 - (1988) 156 ALR 169
Cite 3 - (1988) 156 ALR 169
Cite 4 - (1988) 156 ALR 169
Cite 5 - (1988) 156 ALR 169

Cases Citing

Case NameFull CitationFrequency
Smith v State of Queensland (Queensland Health) [2023] QIRC 2962 citations
1

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