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Digby v The Compass Institute Inc[2015] QSC 308

Digby v The Compass Institute Inc[2015] QSC 308

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Digby v The Compass Institute Inc and Anor [2015] QSC 308

PARTIES:

MELANIE DIGBY

(plaintiff)

v

THE COMPASS INSTITUTE INC (ABN 74 168 383 378)

(first defendant)

AND

STATE OF QUEENSLAND

(second defendant)

FILE NO:

SC No 3490 of 2013

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

2, 3, 4, 5, 6, 26 March; 16, 17, 23, 24 April 2015

JUDGE:

Atkinson J

ORDER:

  1. Judgment for the plaintiff against the first defendant in the sum of $158,045.
  2. Case dismissed against the second defendant.

CATCHWORDS:

Uniform Civil Procedure Rules 1999 (Qld) r 5(1), r 375(1)

Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Australian Capital Territory v Crowley (2012) 273 FLR 370, cited

Czatyrko v Edith Cowan University [2005] HCA 14, (2005) 79 ALJR 839, applied

Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666, applied

Petchell v Du Pradal; Pia Du Pradal Pty Ltd v Petchell [2015] QCA 132, referred to

Torts – Negligence – Essentials of Action for Negligence – Standard of Care – Particular Persons and Situations – Other Cases – where the first defendant was an incorporated business providing disability services to young people – where the plaintiff was an employee of the first defendant – where the second defendant was the employer of a police officer, who attended at the first defendant’s premises to give a presentation to its clients – where, during the course of that presentation, the police officer turned on the siren of a police vehicle, which caused a client with physical and intellectual disabilities to startle and fall – where the plaintiff attempted to arrest his fall and, in doing so, suffered an injury to her right shoulder – where the plaintiff subsequently appeared to develop a constant tremor in her right hand and arm, along with severe pain throughout her right upper body – whether the first defendant had breached the duty of care owed as an employer by failing to provide a safe system of work – whether the second defendant owed a duty of care – whether the second defendant had breached any duty of care owed by failing to give a warning before turning on the siren

Torts – Negligence – Essentials of Action for Negligence – Damage – Causation – Other Cases – where the first defendant was an incorporated business providing disability services to young people – where the plaintiff was an employee of the first defendant – where the second defendant was the employer of a police officer, who attended at the first defendant’s premises to give a presentation to its clients – where, during the course of that presentation, the police officer turned on the siren of a police vehicle, which caused a client with physical and intellectual disabilities to startle and fall – where the plaintiff attempted to arrest his fall and, in doing so, suffered an injury to her right shoulder – where the plaintiff subsequently appeared to develop a constant tremor in her right hand and arm, along with severe pain throughout her right upper body – to what extent had the plaintiff suffered injury

Damages – Measure and Remoteness of Damages in Actions for Tort – Remoteness and Causation – Proof of causation – where the first defendant was an incorporated business providing disability services to young people – where the plaintiff was an employee of the first defendant – where the second defendant was the employer of a police officer, who attended at the first defendant’s premises to give a presentation to its clients – where, during the course of that presentation, the police officer turned on the siren of a police vehicle, which caused a client with physical and intellectual disabilities to startle and fall – where the plaintiff attempted to arrest his fall and, in doing so, suffered an injury to her right shoulder – where the plaintiff subsequently appeared to develop a constant tremor in her right hand and arm, along with severe pain throughout her right upper body – to what extent was the first defendant liable for costs of the plaintiff’s medical treatment, rehabilitation and medication

 

COUNSEL:

GR Mullins with JM Harper for the plaintiff

BF Charrington for the first defendant

MT O'Sullivan for the second defendant

SOLICITORS:

Maurice Blackburn for the plaintiff

MacDonnells Law for the first defendant

Crown Solicitor for the second defendant

 

 

  1. The plaintiff, Melanie Digby, was injured in rather unusual circumstances at her place of work, the Compass Institute at Palmwoods (“the Institute”).  The Institute provided disability services to persons between the ages of 18 and 25 years, with a range of intellectual or physical disabilities (referred to as clients or trainees).  The trial was to determine the extent of the respective liabilities of her employer and the State of Queensland for her injuries and the extent of those injuries.  There are many areas of dispute between the parties. 

Arrangements made prior to 18 June 2008

  1. The incident which led to Ms Digby’s injuries occurred on 18 June 2008 when a police officer, Senior Constable Readman, visited the Institute.
  2. The visit occurred after arrangements had been made between a group leader at the Institute, Jennifer Adermann, and the Queensland Police Service for a police officer to attend the Institute.  The precise nature of the arrangements that were made was one of the issues in dispute and so required an assessment of the relative credibility and reliability of the witnesses who gave evidence on the topic.
  3. Ms Adermann and Ms Digby are friends who have known each other for eight or nine years and are still in social contact with each other.  They met when they worked together at the Nambour Special School.  They both worked in the very high needs wing of the school assisting children with their physical needs.  First Ms Digby and then later Ms Adermann obtained employment at the Institute.  Ms Adermann was the group leader for a group of trainees at the Institute called the Training Unit and Ms Digby was her assistant.
  4. Ms Adermann’s evidence was that one of the educational programmes that was conducted with the Training Unit was a programme about stranger danger and whom the trainees could trust.  Ms Adermann’s evidence was that she telephoned the police station at Palmwoods to discuss having a police officer speak to the trainees.  She was referred to a specific officer at the Maroochydore Police Station who conducted that type of programme.  She then rang the Maroochydore Police Station and was put through to a police officer whom she referred to as “Mark Redford or something”.  That person was Senior Constable Mark Readman.
  5. Ms Adermann said that the telephone conversation occurred a couple of weeks before Senior Constable Readman’s visit to the Institute on 18 June 2008.  She said that he explained that he had a programme where he came out and talked to people in the community.  He would give a PowerPoint presentation and bring a police vehicle to the Institute to show it to the trainees and put on the lights and siren.  She said that that was “ideally” what they were looking for.  She said, however, that she told him they would have to manage the situation with the siren and the lights because the Institute had clients in various groups that were going to be invited that could have seizures or episodes and become distressed from the noise.  She said she did not recall what he said in response.  She said that she had told him she would call him back.  Her evidence was that she wanted to speak to other groups to see if they wanted to be involved and to finalise a date.
  6. Senior Constable Mark Readman has been a police officer for some 28 years.  He is presently attached to the Crime Prevention Unit on the Sunshine Coast.  He has been a crime prevention officer since 2000 and has performed that role on the Sunshine Coast since 2006.  His role in 2008 was to visit schools and other centres to give presentations with regard to crime prevention matters.
  7. Senior Constable Readman made an entry in his diary for 18 June 2008 that he had received a phone call from “Jenny”.  He assumed that the phone call was about a month before that.  Arrangements were made for him to give a presentation at the Institute on 18 June 2008 at about two o’clock.  His note says that the clients were between 18 and 24 years old, that he was to give a half-hour presentation on protective behaviours and that he should bring his laptop and data projector.  His note refers to “Jenny” and her mobile phone number.  He frankly conceded that he did not have a detailed recollection of the phone call apart from the note that he had made in his diary.  He said he had no further conversation with “Jenny” prior to 18 June 2008.
  8. Senior Constable Readman’s evidence was that during the telephone conversation with “Jenny” it was specified that a marked police car was to attend for the presentation.  He was asked to let the people at the Institute know when the lights and siren were going to go on.  He said he agreed as that was his usual practice.   Senior Constable Readman specifically denied that Ms Adermann informed him on the telephone that some of the trainees reacted adversely to loud noise, including by having seizures, and would need to be taken away or managed appropriately before he could activate the siren.
  9. Ms Adermann said she told Jan Thompson, who was the co-ordinator at the centre and her immediate superior, about the proposed visit by the police officer.  She said Ms Thompson asked her about whether she had made arrangements with the police officer in respect of the siren going off because of the propensity of some trainees to react and she informed Ms Thompson that she had done that.  Ms Thompson said she gave approval on condition that it was well planned and took account of the needs of individual clients, including Ryan Thrupp with his known tendency to startle on hearing loud noises.  She said that Ms Adermann told her that Mr Thrupp would be seated and there would be a countdown.  She said that Ms Adermann said she had emailed the police officer.  The detailed planning and arrangements were Ms Adermann’s responsibilities. 
  10. In cross-examination Ms Thompson said she was aware that part of the police officer’s demonstration would involve activating the lights and siren.  She agreed that there were a number of clients who were vulnerable to loud noise, including Mr Thrupp, and the Institute had internal documents on how to manage their vulnerabilities, although this information would not have made available to the police officer.  She said that she understood from her conversation with Ms Adermann that Mr Thrupp would be kept in a place where he was safe and comfortable, and given a warning and countdown to prepare himself before the siren was sounded.  She understood, however, that he was not to be kept inside the Institute but rather he would be taken up to the level where the police car was.
  11. Ms Thompson was of the view that the activation of the siren would increase the trainees’ ability to take in the information.  When asked if it would have been the most appropriate course to ask the police officer not to sound the siren, she said that it was not, because of the approach which is known as the “dignity of risk”.  Part of the philosophy of the Institute was to assist the clients to cope with the real world and to engage in active participation in life, not to shut them away from the community.  She agreed, however, that that meant that the Institute had a very high obligation to ensure that there was a firm plan as to what would happen and that everybody understood that plan - in particular, the police officer, as a stranger coming into the Institute with no knowledge of the particular needs of the clients.
  12. Sharon Smith, who was responsible for the group of trainees known as the Education Unit, gave evidence that Ms Adermann asked her if her trainees would like to participate in a presentation by a police officer during “careers week”.  The only other evidence Ms Smith offered about that conversation was, “before she finished that conversation she said I’ve already told him I’m going to – you know, not to sound any alarms or anything.”
  13. Ms Adermann gave evidence that a written risk assessment for the activity would have been done.  Ms Adermann said that a risk assessment had to be undertaken for any activity that was done at the Institute and she remembered discussing this with Ms Thompson and completing forms about risk assessment.  No such risk assessment was disclosed by the Institute.  I was informed by counsel that the Institute had apparently lost a box of documents whilst moving from one premises to another and it is possible that this document may have been amongst those documents.  It seems at least equally possible that no written risk assessment was undertaken.  Ms Thompson’s evidence in re-examination by counsel for the Institute was that she did not recall there being any written plan or risk assessment.  On balance I am not satisfied that any written plan or risk assessment was prepared.
  14. Members of the staff of the Institute were aware that it had a number of clients who were vulnerable to loud noises, such that if they were out in the street, they would wear earmuffs to stifle the noise.  There was one client, Mr Thrupp, who might have a seizure or an “episode” if there was a loud noise, even from the shutting of a cupboard door loudly.  Ms Adermann said that, although she did not remember the conversation, there must have been a second conversation with Senior Constable Readman where the date of 18 June 2008 was arranged. 
  15. At this point it would be useful to say something of the plaintiff’s background and circumstances.  The plaintiff Melanie Digby was born in January 1976 and so is now 39 years old.  She has two children: the older one, Jake, is now 18 and the younger one, Joseph (Joe), is now 17.  At the time of trial, she was in a relationship with Justin Kittlety.  After she completed year 12, Ms Digby undertook a TAFE course in childcare and then worked in childcare until her first child was born.  She moved to the Northern Territory around 2004 with her husband and children, and worked in a special education unit at the Nhulunbuy Primary School.  She later returned to live in Queensland with her sons and commenced work in April 2006 at the Nambour Special School as a teacher’s aide.  Later in 2006 she commenced working at the Institute as a support worker.  When Ms Digby started work at the Institute, the main aim of its programme was to teach the clients life skills, moving them from a classroom situation to being more independent.
  16. Ms Digby was provided with a position description when she started work at the Institute.  The position description contained, inter alia, guidelines for support workers which included the following, under the heading “Expectations of Supervision”:

“You have a legal responsibility, as a Worker, to provide care appropriate to the needs of the person.  Therefore the person or people in your care must remain near you and be supervised by you at all times regardless of the activities of other people or children.  Particularly during work or training sessions, an individual or group must not be left without the supervision of at least one support worker.”

  1. Further, under the heading “No Aggression Policy”, the guidelines provided:

“Do not put yourself in a situation where you are at risk of being injured.  Specifically, do not manhandle or attempt to restrain a person if doing so would put your wellbeing at risk.  Intervene only if they are about to injure someone else or will inflict a major injury upon themselves.”

  1. Ms Digby was aware of the Institute’s Workplace Occupational Health and Safety document, which she signed on 18 April 2008.  She could not, however, recall if she had received any training on the safe manual handling of clients of the Institute.  She could not recall receiving any training on how to deal with someone who startled and fell to the ground, or how to protect her own health and safety in that situation.  Without such training, a written guideline would not, in my view, be sufficient to ensure safe behaviour.
  2. The records of the Institute showed that Ms Digby received internal “staff training” on 16 and 20 April, 3 to 6 July, 3 October 2007 and 1 February, 7 March and 16 to 18 April 2008, with an internal course referred to as “Op Proced” having also been undertaken by her on 26 October and 16 November 2007.
  3. Prior to the injury Ms Digby suffered, she was in part-time employment as a support worker at the Institute, working three days a week; she was in a new relationship; and her sons were at primary school.  She enjoyed an active social life, including activities with her sons such as playing football and cricket at home, and going camping and fishing.  The plaintiff did suffer an earlier injury to her neck in 2006 when teaching her sons how to do a back flip on a trampoline.  She said that she had no ongoing problem with that from June 2008.  She said that she had been hoping to obtain more working hours from the Institute once her sons went to high school.  Ms Thompson confirmed that Ms Digby was regarded as a good employee and had they had the funding, they would have offered her more hours of work.  However, even though the Institute expanded after June 2008, Ms Thompson was of the opinion that their funding model would have made it unlikely that more hours of work would have been offered to Ms Digby.
  4. As at the date of the incident, it appears that the Institute had 22 clients who were divided into four main groups.  Eighteen of the Institute’s clients were present on the day.  The four groups were called the Education Unit, the Focus Group, the Training Unit, and the Pre-vocational Unit.  The Training Unit, which was headed by Ms Adermann with Ms Digby as her assistant, had six clients in it.  The Pre-vocational Unit had six clients and two supervisors, Ross Tzvetkov and James McManis.  Ryan Thrupp was in the Education Unit headed by Sharon Smith with Naomi Davine as her assistant, although Ms Davine was not present on the day of the incident.  Amy Suttor, an administrative assistant and part-time support worker, took her place.
  5. Ryan Thrupp had an individual support plan but Ms Digby did not have had a copy of his plan because that was only given to the supervisors of the group that trainee or client was in.  Ms Adermann said all she would have known about it would have been what she heard through conversation because they might have to supervise other clients at lunch time and “things like that”.  Ms Adermann conceded that the supervisors of groups had limited knowledge of clients in other groups.
  6. Ryan Thrupp’s individual support plan mentioned under the heading “Shopping” that he needed significant support and close physical supervision because of unexpected noises and movements causing frights and falls.  Under the heading “Movement - Motor Skills”, it was said that Ryan Thrupp fell often from frequent startles and extreme fright response.  It was said that he therefore needed very close supervision and hands on support at all times.  It also provided that “when Ryan falls, he has nothing to protect him as his useful hand holds the walking stick and he has no use of the other.  Because his responses are generally slower, he is not fully able to protect himself as well as other people can”.  Under the heading “Risks and Safeguards”, the plan provided:

“Ryan has frequent and extreme fright response and falls.  He has hemianopia, fails to notice things on his left, can run into them and fall.  He requires close supervision at all times.”

  1. The Institute was well aware of Mr Thrupp’s propensity to fall unexpectedly and therefore it was its duty to ensure that its employees were trained in how to react safely near Mr Thrupp or any other trainee when such a fall occurred.
  2. Under the heading “Personal Dislikes” it was said that he disliked loud noises and being told what to do.  Unsurprisingly, the police officer was not given access to the individual support plan of Mr Thrupp or any other of the Institute’s clients.
  3. Mr Tzvetkov had previously worked with Mr Thrupp at the Institute and said that he needed assistance and supervision “to make sure that he didn’t get a fright.”  He had seen Mr Thrupp react on several occasions to an unexpected or loud noise, going into a severe spasm or type of convulsion whereby he would lose control of his muscles and fall.  He could be so affected by a car or a train sounding its horn outside, the sound of something dropping on the floor or even someone sitting next to him sneezing.
  4. The evidence of Ms Smith, the supervisor of Mr Thrupp’s group, was that he was easily startled by noise or even movement near him and his body would spasm.  She had seen him fall once at a shopping centre although she was not certain what had caused it.  It happened so quickly and unexpectedly that she was unaware of his falling until she saw him on the floor.  She said the staff were trained not to stop him falling in case they hurt themselves doing so.
  5. Ms Digby became aware when she was working at the Institute that Ryan Thrupp might react badly to loud noises.  She first became aware of that when a kitchen door was slammed one day and he startled and fell.  His reaction was some kind of epileptic seizure.  She had worked with the group he was in and knew he needed a cane for support when he was walking.  Her evidence was that there were other clients of the Institute who had similar problems with loud noise.  To deal with this, the Institute tried to limit noises as much as possible.
  6. Ms Digby said that there was no formal briefing as to what would occur when the police officer came to the Institute, although she knew that he was to do a talk on stranger danger and they were to look at the police car.
  7. In summary, I conclude from the relevant evidence set out above that Ms Adermann spoke to Senior Constable Readman on the telephone once before he attended at the Institute.  It was arranged that he would give a presentation lasting about half an hour about protective behaviours and demonstrate the functions of a marked police car.  He agreed to warn the people at the Institute when the lights and siren were going to be activated.  Ms Adermann did not specify to Senior Constable Readman that he would have to wait while the staff removed or otherwise managed the safety of clients before he activated the siren.  Members of staff had not been thoroughly briefed on what to do with the trainees when the police officer gave the warning that he was about to activate the siren.  There was accordingly insufficient planning by staff of the Institute, given the vulnerability to loud noises of some of the trainees, as to precisely what to do once the warning was given.

18 June 2008

  1. Ms Digby and her solicitors prepared a “mudmap diagram” of the Institute which shows that it is entered by a driveway off Briggs Street, Palmwoods.  There is a concrete driveway which ends with a concrete slab where a vehicle can park.  That is where the police car was parked by Senior Constable Readman on 18 June 2008.  Beyond that is a two-storey building where the activities of the Institute are conducted.  The office is in a building next door.  Between the concrete slab earlier referred to and the Institute building are two wide concrete steps leading down to the ground floor of the two-storey building.  From the steps there is a large concrete area under an awning outside to the door which is the entrance into the ground floor of the building.  The stairs are clearly delineated with yellow paint on the edge and on the risers.
  2. The upstairs area was referred to by the users of the Institute as the “dojo”.  It is one large area with a padded floor.  The concrete area which is covered by the awning on the ground floor now has an outside wall made of slats at the outer edge of the awning.  It appeared from the evidence that the slats were not put in place until after 18 June 2008.  The slats replaced a thick hedge which created a complete visual barrier between the door to the ground floor of the Institute and the concrete slab where the police vehicle was parked.  A number of photographs were tendered by the plaintiff to show the layout of the outside of the Institute taken some years after 18 June 2008.  A photograph tendered by the first defendant taken on the day of the incident by Sharon Smith shows some temporary fencing was then in place around the part of the garden closest to the driver’s side of the police car.  It also shows precisely where the police car was parked.  In spite of that, Mr Tzvetkov in his evidence, while conceding the photograph could be correct, maintained that the police car had been parked in a slightly different position.
  3. Ms Thompson, who was in the office next door on that day, said she spoke to Ms Adermann, who was very confident that there would be a countdown and a warning from the police officer.
  4. Ms Digby’s account of what happened on 18 June 2008 was that a police officer arrived at about 1:30pm.  Ms Adermann said she met him at some point after he arrived.  Ms Digby said that some members of staff and trainees went upstairs into the dojo, where the police officer gave his talk for about half an hour.  She said there were about 25 trainees and only three staff members in attendance for the entire presentation.  The three staff members were Ms Digby, Ms Adermann and Sarah Butler.  Mr Tzvetkov thought the talk happened in the morning, was given downstairs and lasted for about an hour and a half.  Ms Smith also thought that the talk was given downstairs rather than upstairs in the dojo.  She said that normally there were no chairs in the dojo.  Ms Suttor gave evidence that there was no lecture at all.  None of them was being deliberately dishonest.  This evidence is an illustration of the unreliability of memory even of witnesses doing their best to give an honest account.  None of them had made any contemporaneous notes and each first gave a statement about the events in 2011.
  5. After the presentation, Ms Digby said they all went back downstairs and the trainees went back into their own rooms inside the ground floor of the Institute.  She thought that the trainees would go in their groups to see the police car.
  6. Ms Smith’s evidence was that Ms Adermann said to her on that day words to the effect of, “don’t worry, we already know not to sound the siren.”
  7. Ms Adermann gave evidence about having discussions with the police officer when he arrived and at various times during the morning.  She said she told him that they would move the clients away from the area when the lights and siren were activated.  She said a discussion took place in the dojo before everyone went downstairs about the clients going up to the car in groups.  She said she again told the police officer they would need notice before the lights and siren were activated so that they could manage the situation.  She said the “work group” was to be the first to go to see the police car.  By this I take it she was referring to the Pre-vocational Unit.  They were to be followed by the Training Unit, which was supervised by Ms Adermann and Ms Digby.
  8. Ms Adermann’s evidence suffered from some degree of imprecision.  That is not surprising given the length of time between the incident and the trial.  Witnesses who have not taken contemporaneous notes often suffer from lapses in their memory of events that occurred some time in the past.  When details of what happened were put to her in cross-examination, the flaws in her memory were clear to see.  Ms Adermann first wrote a statement about what had occurred on 8 August 2011, three years after the incident.  This problem is exacerbated when, as was the case here, the witness has reasons to give a version of events which serves to justify retrospectively his or her own actions at the time and seeks to assist a friend and former colleague.  She gave her evidence with some marked resentment at being asked questions.  I am satisfied that she gave evidence that she had done what she should have done, rather than giving evidence of what she in fact did.  For these reasons, I have approached her evidence with some caution and considered it unreliable if contradicted by other evidence.
  9. Ms Smith’s evidence as to what the police officer was told was different from Ms Adermann’s but, of course, that does not mean it was correct.  The supervision of Mr Thrupp that day, which was Ms Smith’s responsibility, was, as will be seen, clearly inadequate and Ms Smith may have, unconsciously or otherwise, misremembered what she was told to justify her lack of supervision.  She did express some uncertainty in her memory of what was said, which satisfied me that although her evidence was somewhat unreliable she was not being deliberately dishonest.  She had no memory of the plan after the talk being that the groups would go to the police car separately.  Like the other employees at the Institute, she made no contemporaneous notes and was not asked to give a statement until three years later.
  10. Ms Digby said that a number of the trainees were extremely excited to see the police car and were congregating around a bench against the outer wall of the ground floor in the concrete area covered by the awning.  Ms Digby said that she was standing in the doorway to her classroom, which was just inside the entrance to the ground floor, and told the trainees that they should go back into their classrooms and wait for their turn to have a look at the police car.  However, it is apparent that a number of trainees, including Ryan Thrupp, who needed close supervision, were not being adequately supervised at this point.  I have concluded after a review of all of the evidence that there was not only inadequate planning but also inadequate supervision on the day.
  11. Ms Digby said the Pre-vocational Unit, under the supervision of Ross Tzvetkov, had already been up and had a look at the police car when she then took her class out.  She was standing just back from the bottom of the yellow concrete stairs when she noticed that a number of trainees from the Education Unit had come out with them.  She told them that they needed to go back into their classroom or to sit down on the bench outside.  They did not appear to have any support workers with them and it appears that they remained outside unsupervised.
  12. Ms Digby said that Senior Constable Readman was standing next to the driver’s door of the police car, which was open.  One of the Pre-vocational clients had the police officer’s vest on and Ms Digby said that Ryan Thrupp was standing directly on a diagonal in front of her when “all of a sudden”, the siren sounded.   She was asked by her counsel to mark a letter “M” on the spot where she was standing. 
  13. I should here give some description of Ms Digby’s appearance in the witness box, the significance of which will become apparent.  She had her lower right arm in a black compression glove and it was constantly shaking vigorously.  The shaking appeared to be quite uncontrollable.  However at the point where she was asked to mark the spot where she was standing with the letter “M”, she was able to mark it without any difficulty and her apparent uncontrollable shaking stopped altogether, although she remarked that her mark was “not going to be very tidy”.  Her apparently uncontrollable shaking also stopped completely when she marked the letter “R” where she indicated Ryan Thrupp was standing.  She said that Ryan Thrupp was standing slightly in front of her and to the right and that Jenny Adermann was standing slightly in front of him and to his right.  She then gave evidence that the police car was parked nose in on the concrete slab close to the two concrete steps that I referred to earlier. 
  14. Ms Digby’s counsel then asked her to mark where Jenny Adermann was standing.  At that point her right arm started to shake again and when she marked the letter “J” her hand was shaking apparently uncontrollably.  She marked Jenny Adermann as standing on the other side of Ryan Thrupp.  Her evidence was that she was standing in the position in which she is shown standing in a photograph which was tendered in evidence as exhibit 10F.  She estimated she was standing about five or six metres away from the police car.  She could see the police officer, the police car and the trainees who had gathered to look at the police car. 
  15. Ms Suttor gave evidence that she was standing just inside the front door downstairs.  It is apparent that from that position she could not have seen all the events and people that she said in her evidence that she saw.  Significantly, she was not in a position to hear what the police officer said.
  16. Mr Tzvetkov said he was standing near his group when they were talking to the police officer, who was showing them the inside of the police car.  He said members of his group were sitting in the police car.  He said he had been told, earlier in the morning, probably by Jan Thompson, when he had specifically asked about it, that they would be notified before the siren was turned on.  He said that he would then tell his clients that, if they wanted to, they could put their fingers in their ears or get earmuffs.    He said there was no warning that the siren was to be sounded.  He was himself shocked by how loud the siren was.  He readily conceded, however, that his memory of precisely what was said and what was happening was poor and that he did not hear what the police officer said before the siren was sounded.
  17. Ms Smith gave a vivid account of what she said she saw the police officer do.  She said that Ryan Thrupp was near the door to the downstairs part of the Institute, three metres from the yellow concrete stairs, and she was on the top step of the yellow concrete steps looking straight into the police vehicle.  She saw the police officer open the car door and reach in as if getting something out of the glove box when she heard the siren sound.  She did not hear what the police officer said before the siren was activated because her “whole focus was on the trainees, not what the police officer was saying.”  She said at that point she heard Ms Adermann, who was standing beside her, angrily say that she had told him not to do that.  She said she did not see what happened to Ryan Thrupp.
  18. Ms Adermann said that the siren went off without warning and “everybody got a fright”.  She conceded in cross-examination, however, that she could not now recall what the police officer said in the period leading up to the activation of the siren although she said “[she didn’t] believe he did a warning or a countdown.”
  19. Ms Digby’s evidence was that when the police siren went off, Ryan Thrupp started falling forwards towards the concrete step and bent at his hips, so she went to grab him, missed him with her left hand and grabbed his T-shirt with her right arm.  She hooked him around his stomach area to keep him upright and still on his feet.  She called out for help to Ms Adermann and she took his weight.
  20. Ms Adermann said that when she saw, out of the corner of her eye, Mr Thrupp start to fall, she grabbed him under his right arm with her elbow under his shoulder.  She said Ms Digby had probably reached him “a split second earlier” and took his weight with her right arm under his left shoulder.
  21. Ms Digby said she immediately felt pain in the front of her shoulder and in her back shoulder blade area.  She said she did not hear any warning from the police officer that the siren was going to go off.  She described the siren as being ear-piercingly loud. 
  22. Ms Digby said that she did not hear any warning or countdown before the siren of the police car was sounded.  Ms Digby was asked what she would have done with Mr Thrupp had she been made aware that the siren was about to be sounded.  She at first said she would not have done anything as he was not in her group.  She then said she would have led him away herself if there had been no time for the responsible person to reach him.  Ms Adermann said if she had heard a warning from the police officer she would have told him to wait as they had to remove their clients to the back of the centre.  When asked by counsel for Ms Digby whether the clients to be removed had been identified, her evidence was:

“We had identified them within our own group, but they hadn’t been identified to him, but – because there was clients in every group, and we were all responsible for our own clients.”

  1. It would seem therefore from what Ms Digby and Ms Adermann said that there was not a clear plan and that, as Mr Thrupp’s group leader was not near him and taking responsibility for him at the time, he may not necessarily have been moved in accordance with what Ms Adermann said was the plan.
  2. Ms Adermann’s self-serving qualification of her evidence in cross-examination by counsel for the Institute was unconvincing.  When asked about where Ryan Thrupp was prior to the incident by counsel for the second defendant, she repeated that he was not her responsibility.  She did not know if he was standing or sitting.  She did however agree that, had he been seated, that would have reduced the prospect that he would fall for whatever reason and suffer injury.
  3. Ms Digby said she acted on instinct to protect him from the fall.  She agreed that even if she had been told in a training session not to try to stop someone from “falling and smacking their head on concrete”, she still would have acted to protect him in the way that she did.  Ms Thompson’s evidence was that the staff were trained by Epilepsy Queensland not to intervene to try to catch a person having a seizure but rather to clear the area so that the person could fall safely.  However, nothing in the details of the reasonably extensive training programmes provided to Ms Digby showed that she had taken part in that training.  I conclude that she had not received the appropriate training.  Such training would have had as its focus modifying the instinctive reaction of a staff member to stop the fall in a way that left the staff member open to injury.  Notwithstanding her concession as to what her instinctive reaction would have been, if she had been trained, that reaction would have been modified and the risk of injury avoided.
  4. Ms Smith gave evidence that she took photos of the police officer surrounded by trainees, who looked happy or at least not concerned, after the time when the siren sounded.

Liability of the second defendant

  1. Senior Constable Readman’s evidence was that he had arrived at the Institute in a marked police vehicle, which was the Maroochydore school-based police officer’s car.  He was wearing his police uniform.  He parked on the concrete pad, where he was told to park because it was the safest option for the clients to view the vehicle.  He said he was greeted by staff and escorted to the Institute building where he set up and did his presentation in a large room.  He could not remember whether that was upstairs or downstairs.  He gave a presentation using his laptop and slide projector.  He thought there were about 15 people with disabilities and about six staff present, some seated and some standing, with all of the staff standing. 
  2. Senior Constable Readman’s presentation was about protective behaviours.  He explained that the common term used by other people is “stranger danger”.  He explained in his evidence that the police have not used the term “stranger danger” for the last twenty years because child abuse is more often committed by persons known to the child than by strangers.  His talk was more about empowering the clients with internal skills and therefore the emphasis was on two themes: that everyone has a right to safety and that if something awful happens to a person, that person should tell someone about it.  He explained to them about being a police officer, how they could identify him and what the role of a police officer was.  He also explained to the trainees about early warning signs that something bad had happened.  The presentation lasted about half an hour.
  3. At the end of the presentation, Senior Constable Readman asked the trainees if they wanted to go to see the police car.  He said they were excited about that so he packed up his gear and went out the back of the building and around to the police car.  The police officer said that, prior to going to the police car, he understood that before the siren was sounded, he was to advise everybody.  He said that was his normal course in any event.  He was in general familiar with and sympathetic to the needs of people with physical and intellectual disabilities because of experiences within his own family.
  4. Senior Constable Readman said he noticed a number of trainees had physical disabilities and some had far more severe mental disabilities.  After the presentation, one of them came up to the police officer and hugged him, which the police officer remembered as inappropriate given the topic they had just been discussing. 
  5. When he arrived at the car he put his laptop and data projector in the boot.  He picked up his bullet proof vest and put a plate in it, then unlocked the car to put the windows down and ensured the police radio was on.  He put his vest at the front of the police car on the driver’s side and waited for everybody to be ready to start the second half of the presentation.  As far as he was aware, there was to be just one presentation at the police car with everyone present.  He waited until everybody was stationary and looking at him.  He said there were people on the driveway and people down towards the building.  Once he thought everybody was ready, they were looking at him and there was no movement, he started his presentation. 
  6. Senior Constable Readman said that he was standing at about the position shown in exhibit 22; that is, at the front of the vehicle on the driver’s side.  He showed the trainees the police car and its various features, including the chequered band similar to the one on his hat, the word “Police” on the front of the police car, and the badge on the side of the police car which was similar to the badge on his shirt.  He then opened the door on the driver’s side to turn on the ignition.  He pushed the six buttons on the central console, which made all the lights come on, and explained the use of the lights.  He explained that some people do not see the lights on a police vehicle so he would therefore put on something that makes a loud noise.  Someone in the group yelled out, “siren”.  He told them there were three police sirens that make a loud noise and if they wanted to put their hands over their ears, he was going to put the siren on then.  He said he then went back to the police car, yelled out “1, 2, 3” and turned on the siren.
  7. He said he then turned the siren off and got out of the car, telling the group to give themselves a round of applause for being so brave.  He then continued on with the presentation about triple 0, which should only be used in an emergency, and other matters of interest to the trainees.  His evidence was that he did not see anyone fall.
  8. Senior Constable Readman said he was absolutely certain that he had given the warning that he was about to turn on the siren on that day.  He specifically denied that Ms Adermann said to him on the day that she wanted a warning before the siren was activated because they first had to move some of the trainees away.  He said that during the lecture, he told the staff and trainees that he would activate the lights and siren at the police car and that he also warned them before he did so.  If he had been requested at any stage not to turn on the siren at all or not to do so until some of the trainees had been led away and seated, he would have faithfully followed that instruction.
  9. True it is that Senior Constable Readman, like the employees of the Institute, did not make contemporaneous notes of what occurred.  There was no reason for him to do so.  But he was used to giving the presentation, his memory of what happened at the Institute was reasonably good and his evidence did not appear to be infected by exaggeration or self-justification.  In all of the circumstances and given the many contradictions in the evidence given by the employees of the Institute, I regard his evidence as to what occurred as more reliable than the evidence given by the other witnesses.
  10. Accordingly, I find that he gave the warning that the siren was to be turned on, which he had agreed to do.  He had not been told to do anything else, such as delay the siren after the warning was given.  That members of staff did not hear the warning or have forgotten that they heard it does not lead me to the conclusion that Senior Constable Readman did not give the warning that he said he gave or that he was given any instruction to wait after giving the warning.
  11. Whilst I accept that Ms Digby was injured in the circumstances she described by taking Mr Thrupp’s weight when he fell as a result of startling when the siren sounded, the reason for Mr Thrupp’s fall was the failure by employees of the Institute to plan the exercise properly and supervise the trainees, rather than any negligence on Senior Constable Readman’s part.  Accordingly, I am satisfied that there was no breach of the duty of care which may be owed by a police officer in Senior Constable Readman’s position to take reasonable care to avoid an injury to members of the public when it is foreseeable they might be injured by his actions.[1]

Liability of the Institute

  1. An employer owes a non-delegable duty of care to its employees.  This duty of care was set out by the High Court in Czatyrko v Edith Cowan University[2] in the following statement of principles on which the appellant in that case successfully relied:

“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.  If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.” (citations omitted)

  1. I am satisfied on the balance of probabilities that the first defendant, as Ms Digby’s employer, was in breach of its duty in both tort and contract to take reasonable care to avoid exposing her to the risk of injury and is liable for her injuries.
  2. The amended statement of claim pleaded the plaintiff’s cause of action in the following way:

“9.Further and/or in the alternative, the injuries to the plaintiff were caused as a consequence of the negligence and/or breach of contract of the first defendant;

Particulars

9.1The first defendant owed the plaintiff a non-delegable duty of care and is thereby liable for the negligence of Constable Readman;

9.2Failing to ensure that Constable Readman had the siren deactivated by turning the vehicle off with the ignition bypass deactivated;

9.3Failing to advise and reinforce to Constable Readman that he was not, under any circumstances, to activate the siren given the risk that clients might suffer seizures or a distressing reaction to loud and sudden noises.

9.4Failing to instruct the plaintiff that she should not attempt to stop or arrest the fall of a person suffering a seizure or fit and to let the person fall to the ground as an attempt to arrest the fall, exposed the rescuer to a risk of injury.

9.(a)Had the plaintiff been trained not to attempt to break the fall of a person suffering a seizure or fit she would not have attempted to save Ryan Thrupp striking the stairs as described in paragraph 6.9 above.”[3]

  1. This pleading was not entirely apt given the way the evidence fell during the trial.  Accordingly, the plaintiff sought leave, pursuant to directions given during the trial, to amend the statement of claim to add an additional paragraph 9.5 in the following terms:

“Failing to take all reasonable steps to ensure that [Senior] Constable Readman did not activate the siren without prior warning to the first defendant’s staff to ensure that clients at risk of becoming distressed or suffering seizures such as Ryan Thrupp could be removed from the area prior to the siren being activated.”

  1. I have determined to allow the statement of claim to be amended in the terms sought.  The amendment reflects the evidence led at trial.  Although the first defendant submitted that it was denied the opportunity to cross-examine Ms Adermann on this allegation, it does not suggest any line of questioning which it could usefully have followed which was different from the manner in which it conducted its case.  There does not appear to be any prejudice suffered by the first defendant.
  2. The amendment sought by the plaintiff in fact reflected a pleading by the Institute in paragraph 4(b) of its defence to the statement of claim, which provided:

“The first defendant says it took all reasonable steps to ensure that [Senior] Constable Readman did not activate the siren without prior warning to the first defendant’s staff to ensure that clients at risk of becoming distressed or suffering seizures such as Ryan Thrupp could be removed from the area prior to him doing so by providing several warnings to him …”[4]

  1. In its reply the plaintiff joined issue with this allegation.  In these circumstances, the first defendant had ample notice that this was or might have been a fact in issue, and the issue was fully ventilated at the trial.
  2. Rule 5(1) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) provides that the purpose of the UCPR is to facilitate the just and expeditious resolution of the real issues in civil proceedings.  That purpose is facilitated by r 375(1), which provides that the court may allow or direct a party to amend its claim or pleading at “any stage of a proceeding”.  It is desirable that the pleadings reflect the evidence led at the trial, particularly where the cause of action has not changed.
  3. The utility of allowing an amendment to the pleadings is illustrated by the following passage from Leotta v Public Transport Commission of New South Wales:[5]

“The duty of the trial judge was clear.  If in the cause of action upon which the plaintiff sued there had emerged at the conclusion of the evidence facts which, if accepted, established that cause of action, then it was the duty of the trial judge to leave the issue of negligence to the jury.  The pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence which had emerged.  Part 20, r. 1(2) of the New South Wales Supreme Court Rules provides that all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings.  Now, and for many years past, a plaintiff does not fail by being refused leave to amend or through failure formally to apply for amendment, where the evidence has disclosed a case in the cause of action fit to be determined by the tribunal of fact.  Particularly is this so when the action finally determines the rights of the parties in the cause of action.”[6]

  1. The Institute is liable for its negligence and breach of contract to its employee, Ms Digby, for failing to take all reasonable steps to ensure that Senior Constable Readman did not activate the siren without prior warning to the Institute’s staff to ensure that clients at risk of becoming distressed or suffering seizures such as Ryan Thrupp could be removed from the area prior to the siren’s being activated.  The Institute is also liable due to its failure to train Ms Digby not to attempt to stop or arrest the fall of a person suffering a seizure or fit and to let the person fall to the ground, as an attempt to arrest the fall would expose the rescuer to a risk of injury.

Report of the incident

  1. Ms Digby said that after the incident, she reported her injury to Ms Adermann and then to Ms Thompson.  The team leaders met with Ms Thompson to discuss what had happened.
  2. Ms Digby then went to see a doctor at the Palmwoods Medical Centre which was next door.  The doctor put her arm in a sling and gave her a prescription for Panadeine Forte.
  3. Later in the day both Ms Adermann and Ms Digby spoke to Ms Thompson.  Ms Adermann completed an incident report in which she recorded, “Ryan got a fright & fell forward shaking suddenly & [Ms Digby] grabbed him to stop him falling.  It was a reflex action & she has hurt her arm, shoulder, neck, chest etc in the process.”  Ms Thompson said she went with Ms Adermann and Ms Digby to the place where they said the incident occurred, which was just outside the doorway to the ground floor of the Institute.  Ms Adermann told her then that just prior to the incident Mr Thrupp had been seated waiting his turn.  Ms Digby confirmed this statement at the time.  Neither of those statements was consistent with the evidence given by Ms Adermann or Ms Digby at trial about where the incident occurred or Mr Thrupp’s position prior to the incident.

Effects of the injury

  1. The plaintiff bears the onus of proof of proving the quantum of the loss caused by her injury on 18 June 2008.  The court’s task in assessing that loss was made much more difficult because of her tendency to exaggerate and her lack of candour.  The best approach it appears to me is to assess her history, the medical reports, evidence of observations of her both when she was aware of being observed and when she was unaware of being observed, and finally, my assessment and observation of her in the witness box and in court generally.
  2. I have already dealt with my observation of her tremor ceasing entirely when she marked an exhibit as requested by her counsel.  At all other times when she was in court, whether giving evidence or otherwise, her arm had a quite violent tremor.
  3. Another troubling aspect of the evidence was found in the video surveillance of her in late 2013.  Covert video surveillance of Ms Digby was conducted on 7 September 2013 and 7 October 2013. That surveillance was revealing.  It shows Ms Digby performing a number of functions with her right hand, although it also tends to show some minor restriction in the use of her right shoulder.  She is shown driving a car.  Her right hand can be seen on the steering wheel.  It is quite apparent that her hand is not just resting on the steering wheel as she asserted in her evidence but rather is being used to manoeuvre the car around corners and to hold onto the steering wheel as she uses her left hand to change gears.
  4. She is also shown smoking a cigarette, which she is holding in her right hand.  At that point her wrist appears to be covered by a black brace.  Whilst she is holding a cigarette in her right hand, she rummages through her shoulder bag with her left hand, however she then throws the cigarette on the ground and stubs it out with her foot.  After that she rummages in her shoulder bag with her right hand.  She appears to use both hands to text on a mobile phone.
  5. When she is seen getting into the driver’s side of her car, she opens the car door towards her using her right hand.  When she gets into the car, she appears to use her left hand to shut the car door.  Her car keys are in her right hand.  In some of the footage she can be seen holding her mobile phone to her ear with her right hand.  At no point during the footage was there any evidence of any observable tremor at all in her right arm or hand.
  6. When she was asked during her evidence in court to replicate the movement of putting a cigarette to her mouth with her right hand, she demonstrated a gross tremor, not the smooth movement shown in the surveillance.  She unconvincingly attempted to explain the discrepancy by saying her tremor was deteriorating as time goes on. This does not explain why she did not have a tremor at all when using a mobile phone, unaware she was being observed, in late 2013 but had an extreme tremor in early 2015.
  7. Her evidence at trial with regard to the tremor, after cross-examination and hearing the evidence of some medical witnesses, was that it was not present immediately after her injury but started when she went to the physiotherapist about two months later.  She said that the physiotherapist gave her some exercises for that.  She said that in about 2010 or 2011 she developed a coarse tremor but it was not a “solid tremor” in that it was not constant.  She said when she went to use her hand or arm that would make the tremor start.  She said the tremor had become constant in about the middle of 2014.  She said she always had it when she went to see a doctor because driving distances in a car, even as a passenger, increased her pain levels, giving her a tremor.
  8. She also gave evidence that she is able to send messages on Facebook for several hours a day notwithstanding her constant tremor because she takes a break to walk around every 30 to 45 minutes.
  9. Ms Digby and expert witnesses gave evidence of what had transpired between the date of her injury and the time of trial including her symptoms and treatment.  She and other lay witnesses, together with some of the expert witnesses, gave evidence of the assistance she required or received.  I shall deal with these matters chronologically, keeping in mind my observations of her during the trial and what was revealed by the video surveillance.

2008

  1. Ms Digby injured her right shoulder and attended a local general practitioner, Dr Ann Rushton, on the day of her injury.  She said that her arm remained in a sling over the ensuing days and she did not return to work.  It remained painful.  She said that the injury did not settle over the next couple of weeks.  She did not drive for about 12 months after she was injured.  She has never returned to work.
  2. Her evidence was that she then saw an orthopaedic surgeon, Dr Daniel Lane.  It appears from other medical reports that he diagnosed her with subluxation of her right shoulder.  Her evidence was that she had pain in the back and front of her shoulder and pins and needles in her arm.  Her arm remained in a sling.  An MRI scan on 8 July 2008 identified a fibro cartilaginous (Bankart) lesion.
  3. Dr Lane recommended physiotherapy, which she undertook.  Her WorkCover records show that she received physiotherapy from Mark Purcell from August to October 2008.  She said that the physiotherapist first noticed her tremor about two months after her injury.  Before that, she said, she had not had a tremor.
  4. Her WorkCover records show that she consulted Dr Lane between July and November 2008.  Ms Digby said that she when saw Dr Lane later in 2008, her condition had not improved.  She was not able to lift her arm or lift anything with her arm.  Lifting her arm caused a tremor and pain.  She was given an injection of local anaesthetic by Dr Lane during that period.
  5. Ms Digby consulted her usual general practitioner, Dr John Harland, on 24 October 2008.  She reported pain into her right hand with colour changes and pins and needles so he was concerned that she may be developing what was then called reflex sympathetic dystrophy, now known as complex regional pain syndrome (CRPS).  He ordered a bone scan.  CRPS was not found on the scan but residual rotator cuff injury was found.
  6. On 27 November 2008, she saw Dr Harland again complaining of more pain.  She continued to consult with Dr Harland who added various medications to deal with her reported pain, depression, anxiety and difficulty with sleeping.

2009

  1. In early 2009 Dr Harland referred Ms Digby to an orthopaedic surgeon, Dr Darren Marchant.  By then, she said, she had a tremor and severe pain with pins and needles.  The tremor was not at that stage constant.  Her WorkCover records show that she saw Dr Marchant between January and September 2009 and then in January 2010 and in September-October 2010.  She was seen at the Brisbane Private Hospital in May 2009.
  2. She also consulted Dr Geffen at Canossa Care, who was a pain specialist.  According to her WorkCover records, she saw Dr Geffen between January and July 2009.  She underwent a pain management programme at his suggestion.  She lived in for a two week period.  That appears to have been in February 2009.  She said there was no improvement in her pain level or tremor.  Following that programme, Dr Marchant undertook an arthroscopic debridement of her shoulder, but she said there was no improvement in her pain.  The medical evidence was that the arthroscopy revealed some mild inflammation but no gross abnormalities in her shoulder joint.  She then returned to the Canossa Pain Management Programme for a further five-day treatment in May 2009.
  3. On 7 May 2009 she consulted Dr Harland and told him she had had an operation the previous week and her pain had “gone through the roof”.  Dr Harland noted she had “Tremor R hand +++”.  This is the first mention of her tremor in his notes.  On 27 May 2009, she told Dr Harland that she had had one episode where a physiotherapist put needles in her back and severe pain ensued.  Dr Harland then referred her to a pain specialist, Dr Peter Georgius.
  4. On 23 July 2009, she reported to Dr Harland that she was starting to get a tremor in her right leg.  That did not continue.  On 11 September 2009, Dr Harland noted she had developed “alopecia areata”, small bald spots on the scalp and often caused by stress and anxiety.  He said it was usually self-limiting.  Ms Digby reported to Dr Harland a bad weekend of pain on 26 October 2009 and that she wanted to change her anti-depressants.
  5. She reported to Dr Harland on 14 December 2009 that she was unable to cope with her return to work schedule.  He said that was doing a few hours a week including bookkeeping.  She reported to him that by the time she got home she was in severe pain.  He said they were increasing her hours so he reduced it to one hour a day, four times a week.
  6. Before her injury, Ms Digby said she maintained and cleaned her house and maintained the garden.  She did all of the cooking.  After her injury, she was visited by Chris Birtles, a representative from North Coast Rehabilitation Services, and subsequently six hours of house cleaning was provided to her. Her WorkCover records show that North Coast Rehabilitation Services provided services to her from August 2008 to March 2011.  Bromilow Home Support Services provided domestic assistance from August 2008 until July 2009, then Wondermums Cleaning Services provided domestic assistance from July 2009 to April 2011.  Mowing was done by her sons and three or four times by clients from the Institute.  After that, she obtained professional mowing services seven or eight times.
  7. In mid- to late 2009, Chris Birtles installed a steering knob on her steering wheel and she was able to return to driving.  She was able to drive a manual car.
  8. She gave evidence that her relationship with her sons had deteriorated by the middle of 2009.  After the incident, she was unable to play sport with her sons at home or take them to the beach, fishing or camping.  Her sons helped her around the house and with cooking.  She estimated that together they helped her for “close to an hour” every day.  They complained that she was moody and grumpy.  Her relationship with her then partner broke up because he told her that she was making his life miserable.

2010

  1. In 2010 Ms Digby continued to see Dr Georgius.  Her WorkCover records show that as happening in May and December 2010.  In May 2010, Dr Georgius performed a suprascapular nerve block, but Ms Digby said that as soon as the local anaesthetic wore off the pain was back again.  Dr Harland’s notes of 21 September 2010 suggest that Dr Georgius diagnosed CRPS and recommended a spinal nerve stimulator, but Ms Digby did not want that.
  2. She also saw a chiropractor during 2010.
  3. Ms Digby saw another pain specialist, Dr O'Callaghan.  He gave her facet joint injections but she said they did not improve her symptoms.  She attended at the Mater Private Hospital in March 2010.  Her WorkCover records showed she consulted Dr O'Callaghan between January and April 2010. 
  4. Her evidence was that during 2010, she saw a psychologist, Barry Kerr, weekly.  She found her consultations with him useful.  WorkCover records show that she saw Mr Kerr from March 2009 to June 2011.  Mr Kerr considered that she had clinically significant depression in the form of an adjustment disorder with mixed anxiety and depressed mood.[7]
  5. Ms Digby said that in early 2010 she participated in a return to work programme with Wondermums Cleaning Services.  Her position required her to answer the phone and take bookings, give quotes and do inspections.  For three weeks she did one hour a day for four days but she did not cope with the work.  She said she would forget to pass on messages and was cramping quite badly from sitting at the computer screen in the office sending out invoices.
  6. Dr Harland referred her to a neurologist, Dr Patrikios, on 13 May 2010.  She continued with her extensive pain medication.  Dr Harland added MS Contin, a slow release morphine, on 28 July 2010 after she reported to him that she had done a 10-hour training course which led to severe pain.
  7. Ms Digby saw Dr John Cameron, a neurologist, for the purposes of a medico-legal report on 11 June 2010.  His first report is dated 14 June 2010.  He reported the symptoms she described to him as pain in the anterior aspect of her right shoulder and spreading all over her shoulder girdle down the back to her lower thoracic region on the right; hypersensitivity through the shoulder girdle and right upper limb; colour change in her right hand; hot spots in her shoulder; a cold feeling around her right elbow; swelling of her right hand which caused her to use a wrist support and glove over the preceding year and a half; cramping in her right upper back; and pain in the right side of her neck.  She told him that two or three months after her injury,[8] she had developed a coarse shake in her right hand and chin, and that it had been “ages” since she had used her right upper limb in day to day activities.
  8. His examination of her did not reveal the temperature, skin and other changes which she described.  His opinion was that she may have suffered a mild Bankart injury to the right shoulder joint which had been repaired surgically.  Since the injury she had developed non-organic disturbance in the right upper limb and non-organic sensory disturbance.  She had developed a psychogenic tremor in the right upper limb.  In oral evidence, Dr Cameron said that there is no neurological condition which is consistent with the tremor she had acquired.  In his report, he noted that she had no evidence of any organic neurological disturbance in her right upper limb or hand and no features to support a diagnosis of CRPS.  He said that in the presence of a non-organic disturbance her prognosis was poor.  He believed she did not require any further medical or surgical intervention.  In his opinion the only activity that was going to benefit Ms Digby was for her to dispense with the wrist brace and to become actively involved in using the right upper limb and hand with increased activity in the ensuing months.  He said in cross-examination that this was because a lot of the findings seen in CRPS come from the person just not using the arm.

2011

  1. Ms Digby first attended at Therapy Solutions on 4 March 2011 when she was seen by the occupational therapist Cho Lee Ng.  He prepared a report dated 10 June 2011.  He reported that post-injury, Ms Digby was unable to return to work with the Institute.  She undertook some employment with Wondermums Cleaning Services in early 2010 but reported to him that although she was still employed by this company, she was not performing those duties at present due to a recent “flare up” in her condition.  She continued to be in receipt of WorkCover benefits.
  2. So far as the activities of daily living, Mr Ng said that she lived in a four-bedroom house on a standard suburban block in Nambour with her two children, aged 12 and 13 years old.  Historically, she had been responsible for the completion of all indoor domestic chores as well as the outdoor yard tasks.  She reported to Mr Ng that she continued to attempt some chores around the house, although she found that the ongoing pain and functional restriction adversely affected her capacity to do them.  She continued to perform meal preparation and washing up daily, and would wash clothes a few times a week.  She reported that WorkCover were currently providing her with home cleaning services, with two cleaners performing the majority of the domestic household chores.  She received six hours’ assistance a week.  The cleaners would sweep, mop, vacuum the home, hang and fold the laundry, dust and de-cobweb around the house, clean windows, and clean the bathrooms and toilets.  She received further domestic assistance from Kennella Ashworth from May to June 2011.
  3. She said that her children assisted her with meal preparation, washing up and grocery shopping at the supermarket.  She said her children would mow and carry out other gardening duties on a weekly to fortnightly basis.
  4. She described difficulty with driving and had been provided with a steering wheel knob to assist.  She described her pain symptoms as being “like a thousand little men stabbing plus tearing with knives and feels like it’s on fire.”  She said that she suffered from sleep disturbance, poor concentration and short term memory problems, low mood and reduced energy levels, poor motivation, poor appetite and suicidal ideation.  He noted that she was wearing a compression glove over her right hand and forearm.  He said that her right hand grip strength was unable to be accurately assessed using a dynamometer due to a severe tremor and shaking through the right upper limb with attempts to grasp the device.  She reported to him that her tremor worsened with intentional movements.  This was, of course, different to her behaviour in court where the intentional movement of marking the place she was asked to mark on the exhibit led to her tremor ceasing for that time altogether. 
  5. Mr Ng noted that movement of the joints in the upper right limb was difficult to assess due to the tremor, although full flexion in the right elbow was observed.  He noted significant restrictions in the movements of her right shoulder and that she described a locking of the joint with movement.  She also described tenderness in the sub-scapular region, extending into the medial morder of the scapula.  Mottling and redness in the palmar surface of her right hand and fingers were noted.  Mr Ng was of the opinion that she had a capacity for occupations in the sedentary to light range only.  However, in the work she was asked to undertake of only four hours a week she continued to suffer persistent aggravation of her symptoms and ceased work.  He indicated that she had a severe occupational disadvantage.  He opined that without “significant amelioration of her current high subjective pain experience and symptomology, I believe this woman will be unable to return to work.”
  6. Where Mr Ng noted that she had “low mood and reduced energy levels”, he reported that she said that she preferred to stay at home and on most days, if the phone rang, she would not answer it because she preferred to avoid speaking to people and wanted to forget about the world.  In cross-examination he agreed that she did not tell him that she spent four or five hours at least two days a week socialising with some of her more than 250 friends on Facebook.  With regard to the tremor which made it impossible to obtain a dynamometer reading, he agreed in cross-examination that her severe tremor was quite inconsistent with what he saw on the DVD of the covert surveillance which was taken.  For example, he said that he saw her open and close a car door, so she should have been able to grip and grasp a dynamometer.
  7. Nevertheless Mr Ng was very cautious about her employability.  He agreed that she might be able to look after children in their own home if they were over six years old and there was no expectation for her to do any housework or prepare dinner.  He was also uncertain whether or not she would be able to do the amount of typing that might be required in administrative-type work.
  8. In June 2011, Ms Digby’s WorkCover claim came to a close and she no longer received household assistance or medical treatment from the specialists that she had been seeing.  She gave evidence that between 2011 and the present time, she had managed her condition by seeing her general practitioner Dr Harland and that her parents had paid for her to undertake an alternative treatment known as kinesiology. 
  9. In July 2011, her older son Jake moved to Gladstone to live with his father.  In 2011, she commenced having a relationship with Jason Kittlety although they do not live together.  She said she still obtains household assistance from her younger son, Joe.
  10. Ms Digby saw the psychiatrist Dr Chris Cantor on 22 August 2011.  His report is dated 29 August 2011.  He recorded that she had a gross tremor of her right hand and forearm throughout his interview with her.  In his opinion it was likely that psychological factors were making a significant contribution even though the primary cause of her pain was the physical injury.  In his opinion, she was experiencing marked occupational disability associated with her pain, making her unemployable on the open market; moderate domestic disability; marked social disability; and marked recreational disability.  Dr Cantor recommended psychiatric treatment although he thought the benefits might be moderate.  He provided an assessment of the various costs he thought might reasonably be incurred.
  11. Dr Mark Tadros, a consultant in rehabilitation and pain medicine, reported on Ms Digby’s condition on 24 August 2011.  He said that she described global cervical and thoracic pain with global right upper limb pain.  She reported that she had colour change, swelling of her arm and quite a severe tremor.  She reported to him that she had noticed a change in her hair and fingernails and described ongoing headaches.  He said there did not appear to be any motor deficit in her upper limb other than the tremor.  She reported feeling depressed.  She told him that by then, her older son had moved to live with his father in Gladstone.
  12. Dr Tadros described Ms Digby on examination as having “a very coarse, unusual tremor in her right upper limb.”  In cross-examination, he explained that the word “unusual” is used by doctors when there are psychological contributors to the tremor.  He said that on close examination, she had a normal neurological examination.  She had decreased range of motion in her shoulder but this was very difficult to assess due to her pain.  He thought, however, that she had signs of adhesive capsulitis with globally reduced range of motion in her right shoulder.
  13. His suggested treatments were to reduce the range of medications she was on, for her to have ongoing psychological/psychiatric treatment and ongoing rehabilitative measures such as hydrotherapy, physiotherapy and pharmacological management.  He expected that over time her adhesive capsulitis would settle down and she would be able to return to her previous employment.
  14. Ms Digby saw a psychiatrist, Professor Harvey Whiteford, on 25 August 2011 for the purposes of an independent medico-legal assessment.  His report was dated 26 August 2011.  She told him that she rarely used her right arm.  He noted that she had a pronounced tremor throughout the interview.  Professor Whiteford reported that his examination showed that she had clinically significant anxiety and depression.  He questioned her about any other psychosocial stressors which could have contributed to her distress.  She told him that her older son had moved to live with his father one month earlier, which she interpreted as a rejection of her capacity to adequately provide for her son.  She did not, however, tell him that she had been physically abused by the father of her children during their marriage.
  15. On 9 September 2011, she attended on Dr Harland complaining of panic attacks.  He increased her dosage of diazepam.

2012

  1. Ms Digby saw Dr Gilpin, an orthopaedic surgeon specialising in the upper limb, on 3 January 2012 for the purposes of a medico-legal report.  Dr Gilpin had trouble examining her right arm because of the tremor in that arm.  His report is dated 6 January 2012.
  2. Dr Gilpin described the history of her complaint and the treatment she had received.  As for her current symptoms, he referred to the tremor which affected the whole of her right upper limb, stiffness in her right shoulder and elbow, and pain from her neck down to the mid-thoracic spine, as well as throughout the whole of the upper limb to her fingertips.  She said the pain was enough to wake her two to three times a night.  She also referred to cramping in her back and sensory dysfunction as well as swelling and discolouration of her hands.  She gave Dr Gilpin her views of how it affected her activities of daily living, sports, hobbies and work, and recalled her work history.
  3. Dr Gilpin said that examination of her was extremely difficult due to a number of features associated with her assessment.  She developed a severe tremor and shaking in the whole of her right upper limb which lasted through the whole length of the interview and the consultation.  It impeded the examination as at times it was extremely severe.  He said that at no time did he see her without this severe shaking in her right upper limb.
  4. There appeared to be a number of what he considered to be observed pain behaviours.  The first was the severe, non-specific tremor and shaking.  In oral evidence, Dr Gilpin said that there is no known neurological cause for such tremor or shaking.  He had previously seen patients with a non-physiological shake as a manifestation of pain, but never one as extensive or major as Ms Digby’s.  In his report, he also noted that she presented with a wrist and hand glove.  He noted some muscle wasting of the shoulder girdle but no overt wasting of the right limb apart from in the hand.  He agreed in cross-examination that the muscle wasting in the shoulder was indicative of a lack of use.
  5. Dr Gilpin’s opinion and prognosis was given in the following terms:

“The nature of this lady’s problems are difficult to identify due to the complexity of the examination and the limitations upon the examination due to the abnormal shaking and clonic-tonic movements in the upper limb.  The claimant appears to have 2 likely problems:

  1. A soft tissue injury in and around the right shoulder
  1. A non-organic psychiatric problem which embraces issues associated with a pain syndrome and perhaps some sort of conversion disorder.”
  1. Dr Gilpin said it would appear, based on previous investigations, that there was no significant organic pathology in and around the right shoulder.  He thought it was reasonable to believe that she had sustained some sort of soft tissue injury to the shoulder area which was not a major injury.  She did not have CRPS.  Dr Gilpin opined that, from the perspective of organic pathology, there should be no real reason why she should not be able to return to some form of employment, but her current prospects for employment appeared to be bleak.  He did not believe there was any orthopaedic treatment or further rehabilitation which was likely to provide any benefit to her.  He believed that there was likely to be some restriction in the shoulder function which resulted in a degree of permanent physical impairment.
  2. Professor Whiteford prepared a further report on 17 February 2012 after reading the report of Dr David Gilpin.  He said that, having regard to that opinion and accepting that Ms Digby did not have CRPS, it was likely that there was a significant somatoform disorder present.  This, he reported, was likely to take the form of both conversion symptoms as well as pain.  He said that she met the American Psychiatric Association’s Diagnostic and Statistical Manual, 4th edition (DSM IV) Diagnostic Criteria for an atypical somatoform disorder.  Psychiatric treatment was therefore indicated.  He believed she required specialist psychiatric treatment in combination with a multidisciplinary pain management programme.
  3. Professor Whiteford said a complicating factor was the involvement of the litigation, which might well be producing conscious or unconscious symptom exaggeration in addition to the somatoform disorder.  He said that determining the extent to which litigation was likely to be a significant contributing factor was particularly difficult in a complex case such as this.  In summary, he recommended specialist psychiatric treatment in the context of multidisciplinary pain management, acknowledging that resolution of her disability was compromised by ongoing litigation.
  4. Ms Digby also saw Dr Mark Robinson, an orthopaedic surgeon who also specialises in the upper limb for the purposes of a medico-legal examination on 21 February 2012.  His first report is dated 5 March 2012. 
  5. Dr Robinson said that when he examined her, she was wearing a black, compressive glove on her right hand and forearm, and had a dark, light-weight shawl around her neck, draped over her right shoulder and upper limb.  He said there was a paucity of spontaneous movement involving her right limb.  It was held close to her body and there was a coarse tremor involving the hand, wrist and forearm.  The frequency of the tremor remained relatively constant and the amplitude varied significantly during phases of the consultation.
  6. Dr Robinson said that examination of her right upper limb revealed significant wasting of the right limb compared to the left and there was also slight wasting of the upper and lower parts of the arm.  He said the skin on the right arm was slightly atrophic and there was depigmentation of skin distal to the elbow, consistent with long-standing use of the compression glove or splint.  When Dr Robinson examined her right shoulder, he said she voluntarily restricted her shoulder motion.  He was unable to test muscle strength against resistance but she demonstrated reasonable muscle strength when attempting to resist movement to the limited range which he was able to demonstrate.  He was unable to formally assess movement in the right wrist because of the tremor.  He said that x-rays and ultrasound of her right shoulder from June 2008 appeared normal.  Although an MRI scan had reported a Bankart lesion, he was unable to see it on the hard copies of the scans and said that it was not confirmed at the time of Dr Marchant’s surgery.
  7. Dr Robinson’s diagnosis was that she had suffered from a soft tissue sprain in the right shoulder and right adhesive capsulitis/frozen shoulder.  In addition, he diagnosed (outside his area of expertise) CRPS type 1 and reactive depression.  In his opinion, her presentation at the consultation was a consequence of an abnormal pain response to a relatively minor structural injury.  He assessed a level of permanent impairment.  He said she had been unable to return to paid employment.
  8. Dr Cantor provided a supplementary report on 16 March 2012 with particular focus on Professor Whiteford’s contention that Ms Digby was suffering from atypical somatoform disorder.  His report pointed to the problems which have been documented with regard to what he called “the dated somatoform disorder concept”.  He said, citing research by Michael Sharp and Richard Mayou, that modern evidence suggests that the conceptualisation of somatoform/somatisation is simplistic and favours instead a multifactorial aetiology with interacting psychological, social and biological factors.  He said that the prospects for fully successful treatment were limited but that it should be possible to achieve modest but worthwhile symptom reduction.  He referred to the treatments he had previously outlined and said that he also agreed with Professor Whiteford’s suggestion that it might be beneficial for her to attend a multidisciplinary pain programme such as that run by the Wesley Hospital.  He gave the cost of that over a two-week period as a day patient of $4,579 plus GST.
  9. Professor Whiteford again reported on 16 May 2012 that the prognosis for Ms Digby’s somatoform disorder, including her future engagement in remunerated employment, would depend on her response to treatment.  The course of such a disorder varies considerably.  He said that, in his opinion, patients whose presentation was not complicated by litigation might take six to 12 months’ treatment before there was a return to a reasonable level of functioning.  He noted the costs of providing appropriate psychological and psychiatric treatment.  Although the outcome of treatment could not be predicted with any degree of precision, especially while litigation was ongoing, he was of the opinion that with successful treatment, the level of impairment should be minimal.
  10. Dr Robinson reported again on 12 March 2012 after reading the report by Professor Whiteford.  He said that it illustrated the complexity of Ms Digby’s presentation.  He said that, from a structural or anatomical point of view, she appeared to have developed a post-traumatic frozen shoulder.  This diagnosis was supported by symptom relief from injections into the glenohumeral joint for the duration of action of local anaesthetic.  He repeated that he was not qualified to provide an opinion on the nature of the chronic pain syndrome nor the psychological/psychiatric consequences of the injury.
  11. Dr Cantor prepared a further report on 8 August 2012.  While he agreed with the treatment recommendations of Professor Whiteford, he disagreed with his opinion that with successful treatment, the level of impairment should be minimal.  Dr Cantor said that in Ms Digby’s specific circumstances, he considered it highly unlikely that she would be left with minimal impairment even with relatively successful treatment.  In his view, even if the treatment were unusually successful its impact on her long-term impairment would be likely to be modest.
  12. It appeared from material from Ms Digby’s Facebook account (which was only revealed during the trial) that she told a friend on 10 October 2012 that she desperately needed his help, as her 14 year old had become very abusive to her, to the point that she was scared for her life.  She did not reveal this problem to any of the doctors who examined her.  Nor did she tell any of the medical experts who examined her that she had sent her younger son to stay with his father for a time even though he wanted to come home.  She told a friend on Facebook of the trouble she had been having with him “for way too long”.  She also referred to her “new man”, Justin.

2013

  1. It appeared from material from Ms Digby’s Facebook account that her younger son had attempted suicide using her medication on 19 January 2013 which, unsurprisingly, she described to a friend as her “worst nightmare”.  Again, she did not reveal this to the psychiatrists who examined her.  An entry on Facebook on 20 January 2013 showed that she was concerned that the Department of Child Services was to visit and might determine that she was not a fit mother.
  2. She admitted in cross-examination that she regularly spends hours sending and receiving messages on Facebook.  She agreed she had posted photographs on Facebook of herself camping with her sons on two different occasions after her injury.  She had been to football matches, a rock concert in Brisbane and Aussie World.
  3. She had met two new partners since the incident and the breakup of her then current relationship.
  4. She gave evidence that she consulted a psychologist from the end of 2013 to the present time, seeing her about once a month. 
  5. On 9 October 2013, she consulted Dr Harland, complaining that pain had flared in her right arm.  She said that she had pins and needles, or paraesthesia, from her neck across the back, which was making her nauseous.  He ordered a CT of her cervical spine to make sure that was no nerve pinching in the neck, added more pain medication and some anti-nausea medication.
  6. Dr Harland said her tremor was variable, although he had never seen her without it since it developed.  He asserted that he could see a fine tremor in the surveillance film.  He also said that the tremor had been getting worse over the past 12 to 15 months.  He indicated that they had a close, long-standing, trusting doctor–patient relationship.  There is no reason that she would be anxious in his presence, so I conclude that anxiety cannot be said to account for her tremor.
  7. He said that he would not be willing to take her off her present regime of pain medication because, in his view, she would not survive without it.

2014

  1. Dr Cameron saw Ms Digby for a second time on 15 January 2014.  His report is dated 28 January 2014.  She told him she had developed a coarse tremor two months after the injury.  Dr Cameron said he observed a coarse flapping tremor in her right hand although it was quite variable when she was distracted.  Dr Cameron said that she had no features of any neurological disturbance of an organic nature.  She had no features of vasomotor or trophic disturbance in the right upper limb nor any specific symptoms to suggest that she had an underlying CRPS.  She was on significant medication which, in his opinion, she did not need.
  2. On 29 January 2014, Ms Digby saw Professor Whiteford for a second time.  She told him she was unable to use her right arm, although she admitted in cross-examination that it was not true that she was completely unable to use her arm.
  3. Ms Digby told Professor Whiteford that the area affected by pain had now extended and included her neck, part of the right side of her face, her right upper anterior chest wall and the right side of her back to the mid-thoracic area.  The tremor in her right hand remained prominent.  Professor Whiteford said the pain continued to have very unusual aspects.  For example, she reported that cutting her fingernails caused her pain, even though there are no sensory receptors in the nail so therefore pain from cutting the nail itself is not possible.
  4. She told Professor Whiteford that she was socially isolated, although she had been in a relationship for 12 months with a man who visited her.  She did not report any other psychosocial stressors.
  5. In Professor Whiteford’s opinion, she continued to meet the DSM IV Diagnostic Criteria for a somatoform disorder.  She also had an adjustment disorder.  He thought it likely that she had therapeutic opioid dependence and that if she ceased those drugs, she was likely to experience withdrawal symptoms, one manifestation of which is pain.  This increase in pain could well be interpreted by her as her needing the analgesic medication for an underlying pain condition.  He said that she was presently unemployable.
  6. He was also of the opinion that her presentation was atypical in its severity and chronicity.  A personal of normal fortitude would not have experienced such a profound psychiatric disability as that being identified by Ms Digby.  He thought that she had not had optimal treatment for her somatoform disorder.  She told him that she had only seen a psychologist twice since he had last seen her, which he found surprising given the high degree of suffering and impairment reported by her.
  7. In oral evidence, Professor Whiteford said that Ms Digby did not tell him about the significant psychological stressors in her life which were evidenced by her Facebook postings.  They would have had an effect on her psychological well-being and the mental health problems she was experiencing.  Further, her failure to disclose them affected the reliability of the history she gave, which compromised the extent he could rely on it in forming a diagnosis and determining the level of impairment arising from the diagnosis.
  8. Ms Digby saw Dr Robinson for a second time on 25 February 2014.  His report is dated 11 March 2014.  She told him her arm had worsened since she saw him two years earlier and that her pain had extended into her shoulder, neck and ear.  She still had a coarse tremor in her right hand, wrist and forearm which varied in amplitude during the process of obtaining a history and performing his examination.  There was significant wasting of her right shoulder muscles.
  9. Dr Robinson said that she had an essentially functionless right upper limb.  Under the heading of “Consistency of Injury”, he said that Ms Digby described a traction type injury to her right upper limb.  He was of the opinion that she possibly developed a frozen shoulder and had a traction type injury to her brachial plexus.  However, he said there was no identifiable structural injury to account for her current symptoms and impediment.  He said that she did not demonstrate any of the typical features of a CRPS.  He said that condition usually ran a self-limiting course and he would not expect her to have ongoing symptoms relating to that diagnosis over this period of time.  He reiterated the view that her current presentation was a consequence of an abnormal pain response to a relatively minor structural injury.
  10. Ms Digby saw Dr Gilpin again on 4 March 2014.  His report is dated 18 March 2014.  She reported that she had a tremor as severe as it was when he first saw her in 2012.  She also reported pain from her cervical spine to the mid-thoracic spine extending through the right side of her chest wall and bra level.  She reported that the pain extended up to her jaw and towards her right ear as well as involving her whole arm, but the most painful area was the front of her shoulder.  She reported that the pain was constant.  She reported no improvement in movement, intermittent paraesthesia and changes in colour and temperature of her right hand.
  11. Ms Digby told Dr Gilpin of the grave difficulties she had in daily living, in particular in housework.  She said that she did not pursue any social activities due to the effects of her injury.
  12. On examination, Dr Gilpin said that Ms Digby still displayed a number of gross abnormal illness behaviours.  He reported that there appeared to be a non-physiological tremor involving her upper limb, particularly more prominent distally than proximally.  She reported pain on the most superficial of palpation, withdrew during the examination, and winced and grimaced.  This was another example of abnormal illness behaviour.  He said it was impossible to assess the neurological status around the shoulder, but all muscles appeared to be working.  He said there was moderate wasting consistent with disuse and some element of scapulothoracic winging.  He said there was no evidence of swelling, autonomic dysfunction or dystrophy of the hand.
  13. Dr Gilpin’s diagnosis again was that she had a non-specific soft tissue injury to the right shoulder which was complicated by development of a non-organic psychiatric problem which had manifested itself by somatoform disorder and some elements consistent with a pain syndrome.  In his opinion, the functional disability and loss of use in the wrist and hand and the gross signs of abnormal illness behaviour in the upper limb were not consistent with the nature of her injury but were consistent with a non-organic pathology.
  14. Dr Gilpin was prepared to assess an impairment of the shoulder only, but not of the hand, wrist or elbow, as those areas were not injured and the manifestation of abnormal use was related to a non-organic problem rather than any specific effect of the injury.
  15. Ms Digby saw Dr Cantor for a second time on 24 March 2014, when he noticed what he called a “gross flapping tremor.”  She told him that her condition had spread and become worse.  She described a typical day’s pain as 8/10.  In commenting on Professor Whiteford’s report, he cautioned that psychiatrists have very limited capacities to reliably assess voluntary amplification of symptoms in litigation contexts.  He pointed out that their training was largely to take histories at face value and interpret them in the light of clinical science and relative investigations.  He recommended treatment by a pain psychiatrist in conjunction with a hand therapist.
  16. On 25 March 2014, Dr Tadros reported on another review and assessment of Ms Digby.  He said that his assessment had essentially not changed.  She had chronic thoracic and cervical pain secondary to facet arthropathy, with secondary thoracic outlet syndrome and adhesive capsulitis.  He believed she had an eight per cent total and permanent impairment according to Chapter 15 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition (AMA 5).
  17. Ms Digby did not fit the AMA 5 criteria for CRPS.  He noted that she had a coarse tremor in her right upper limb, almost best described as myoclonus.  He observed some minor mottling of her right upper limb but with no visible swelling or integumentary disturbance.  He measured the circumference of her right arm to be 26 centimetres, as compared with 24 centimetres for the left.  He gave oral evidence that he was not able to draw any useful conclusions from those measurements.  The difference could easily be explained, for example, by the fact that she was right arm dominant.  According to Dr Tadros’ report, she had no abnormal upper limb neurological signs but was unable to move her right shoulder past 90 degrees.  Manual muscle testing and function grip assessment was unable to be assessed due to the coarse tremor or myoclonus.  His assessment was that she would not be able to return to any physical type duties but would be able to return to administrative duties.
  18. Dr Tadros agreed in cross-examination that it was possible that her tremor was “put on” rather than involuntary, however he said that the fact that she felt anxious and nervous when she saw him could have made her condition worse and that such a tremor could be caused by an underlying pain disorder.  He said her tremor could be due to subconscious anxiety associated with her condition, which would be worse whenever she came to see a doctor.  He agreed there was always a possibility that she was malingering or that it was a factitious disorder.  A factitious disorder is a condition in which a person consciously acts as if they have an illness by deliberately producing, feigning, or exaggerating symptoms.
  19. Dr Tadros was asked questions about whether her symptoms fitted with the criteria for the evaluation of CPRS.  In order to be diagnosed with that, Ms Digby would have had to have a positive finding for eight or more of certain criteria.  The only one for which she was positive was mottled skin colour, which was the first criterion.  None of the other criteria were present: that is, she did not have a cool skin temperature, oedema, dry or overly moist skin, trophic changes to the skin, soft tissue atrophy, joint stiffness and decreased passive motion, nail changes, hair growth changes, osteoporosis or bone scan findings consistent with CRPS.  Nevertheless, he said that he was prepared to diagnose that she suffered from CRPS.
  20. Finally, Dr Tadros said in re-examination that he thought the appropriate treatment for her would be to take her off most of the medication she was on, particularly the opioids.  For a period of two to four weeks in hospital, he would treat her by giving her some type of long-acting agent or injection under the skin with some morphine and slowly withdraw that.  She would also then undergo multidisciplinary rehabilitation and desensitisation of the CRPS in her right hand.  She would be given a range of strategies to help her with the pain so she was less reliant on medication.  She would receive input from the psychologist and education about her condition and its appropriate management.  After that period in hospital, she would then need to complete a pain management course.  If that did not improve the situation, then he would look at giving her a procedure such as a cervical epidural followed by two weeks of rehabilitation.  If that did not cause the pain to cease, then the insertion of a spinal cord stimulator could be trialled with full implantation to follow if that was successful.
  21. The timeframe for the entire programme would be about six to 12 months.  The costs would be in the order of $20,000 to $30,000, with a spinal cord stimulator being another $50,000 to $60,000.  He said that this treatment would alleviate the symptoms but would not give her much functional benefit.
  22. Dr Tadros produced a further report dated 2 March 2015 after watching the surveillance evidence of Ms Digby.  He did not think that it proved that she was manufacturing her symptoms as he said that the conditions with which Ms Digby had been diagnosed fluctuate in their severity and on good days patients can do a lot more.
  23. Ms Digby was examined on 30 April 2014 by Rebecca Hague, an occupational therapist from Therapy Solutions.  Her report is dated 7 May 2014.  In oral evidence, Ms Hague modified some of the opinions she expressed in that report, based on her review of a DVD of surveillance footage of Ms Digby.  Her oral evidence was that Ms Digby’s presentation in the DVD was vastly different to her presentation at her assessment.  On examination, Ms Digby had been unable to be tested for her right hand grip strength with a dynamometer because of the tremor in her upper limb.  Ms Hague observed a visible tremor in the right hand and right upper limb.  Ms Digby had been unable to make a fist or oppose the thumb to her fingers related to the tremor, and had pain and reduced range of movement in the right hand.  Attempting to move the hand and right upper limb was accompanied by an increase in the tremor and a self-report of increased pain.  Ms Digby reported that she was unable to engage in fine motor tasks due to her tremor and ongoing pain experience, and was unable to use her right hand in a functional way.  She also reported hypersensitivity of the right hand.
  24. The DVD of the surveillance footage showed what Ms Hague referred to as a vastly different presentation.  In her report of 7 May 2014, Ms Hague expressed the opinion that Ms Digby would need seven to 10 hours a week of domestic assistance.  Based on the better function in her right hand demonstrated in the surveillance footage, Ms Hague was of the opinion that she would need less domestic assistance.  After reviewing the DVD, she thought three to four hours per week of household assistance would be sufficient.
  25. So far as occupation was concerned, Ms Hague was of the view that Ms Digby was now precluded from working as a carer in any form or from working in the childcare industry because it is physically demanding.  Ms Hague also noted Ms Digby’s self-report that she was unable to type or write with her dominant right upper limb and had memory and concentration difficulties.  Because of her ongoing physical and psychological symptoms Ms Hague was of the view that Ms Digby was currently precluded from any commercial employment in any capacity.  She said:

“The reality is that (aside from her host employment) this lady does not have any education, training or experience in office based occupations.  The commercial reality is that no employer would engage the services of a lady who suffers from an obvious tremor, is unable to use her dominant right upper limb, has no previous work experience, has a history of a compensation claim and who suffers from ongoing psychological symptoms (which would affect her presentation at interview).”

  1. After viewing the DVD, Ms Hague thought that Ms Digby had the physical capacity to do administrative work in some situations but that it would be difficult to find her a job in such a position.
  2. On examination by Ms Hague, Ms Digby had been unable to touch her forefinger and thumb.  When she was cross-examined, Ms Digby said that she did the test with her right hand or at least that she attempted to do the test.  Ms Hague nevertheless observed that Ms Digby was able to demonstrate the capacity to do that on the surveillance footage by holding a cigarette and in court by writing with a pen.  Nevertheless, Ms Hague was of the opinion that she would not be suited to one-on-one child care, even of children of school age in their home. 

2015

  1. Ms Digby’s son, Joe, who was 16 years old at the trial, gave evidence that at present he vacuums, mops, de-cobwebs, cleans the bathroom, makes the beds, does his own clothes washing, scrubs the pots and pans, cooks three nights a week, assists his mother otherwise with cooking, cuts up her food so she can eat it, and occasionally washes the car.  His mother no longer engages in the sporting and other leisure activities she engaged in before the injury.  He said the shaking in her right arm was getting worse.  He denied for the most part having seen her do the activities she is shown doing in the surveillance DVD.  Unfortunately, I did not find his evidence at all reliable.  He appeared to be reciting what he had been told to say rather than giving honest evidence.
  2. Heather Digby, Ms Digby’s mother, gave evidence of the breakdown of her relationship with her daughter after her injury.  She was not aware that Ms Digby smoked until she saw the DVD.
  3. Justin Kittlety is Ms Digby’s current partner.  They do not live together but he stays with her from Thursday to Sunday.  His evidence was that they got together after he saw her on Facebook.  Their relationship commenced towards the end of 2012.  He noticed her tremor from the beginning but it is not something on which he focuses.  I think that it is likely that that is because the tremor is less when she is with Mr Kittlety with whom she is keen to maintain a relationship.  He has never seen her smoke a cigarette.
  4. Ms Digby gave evidence of the medication Dr Harland prescribes for her.  He regards himself as having no other way of dealing with her reported pain.  Ms Digby provided copies of records of the medication prescribed for her by Dr Harland between 1996 and the time of trial.  That shows that she commenced using the Norspan Patch in October 2008.  The first prescription of Endone was in February 2009.  She provided a copy of records of prescriptions filled at the Nambour Plaza Chemmart Pharmacy between December 2008 and January 2015.  The document shows for the whole of that period the use of a Norspan Patch and Endone, as well as other drugs.  Ms Digby also provided a copy of the prescriptions she had had filled at the Woombye Pharmacy from 24 October 2008 to March 2013, Auscare Nambour Heights from January 2009 to the end of January 2015, Pharmacy Xpress Palmwoods from June 2008 to April 2014, The Nambour Pharmacy from May 2014 to January 2015 and The Nambour Day and Night Friendlies from April 2009 to May 2012.
  5. Ms Digby gave evidence as to her daily medication regime.  She said that she takes one 10 mg tablet of OxyNorm at about 6:30am.  At about midmorning, she takes two Panadeine Forte.  Sometimes she takes Diazepam during the day.  At lunch time she takes another 10 mgs of OxyNorm and at about 5:00pm, two more Panadeine Forte.  At night, she takes 60 mgs of Cymbalta, two 5 mg tablets of Diazepam, three 25 mg tablets of Endep, and two tablets each of 75 mgs of Lyrica.  Additionally if her pain is not too bad, she takes two more tablets of Panadeine Forte and if it is bad, she takes one tablet of OxyNorm.  In addition, she wears Norspan Patches.
  6. In cross-examination, Dr Tadros expressed his opinion emphatically that these were inappropriate pain medications which were used because her general practitioner was doing the best he could to manage her chronic pain.  He said that there were not enough pain specialists in the public health system to manage her rehabilitation and pain appropriately.
  7. Ms Digby explained that her current symptoms included her hand changing colour to a “horrible pinky, purpley, dead-looking colour”.  She said that her hand swells up and sweats.  She described intense pain in her shoulder and in her arm, and a feeling of pins and needles.  She said that she does not cut her finger nails anymore because she can feel them growing and it is like cutting herself. She said her pain extends from her jawline down through her neck, chest, her armpit and her arm down to her fingernails and at the back over her shoulder blade and halfway down her back.  She said the most painful area is the front part of her shoulder.  Her evidence was that she was prepared to attend a multidisciplinary pain clinic to undertake psychiatric treatment, as recommended by Dr Cantor and Dr Whiteford, and would do so if she could afford it.  However, she conceded in cross-examination that she had not sought psychiatric treatment as a public patient.
  8. When describing her tremor, she says that it seems always to be there.  When asked what she could do with her right arm, she immediately referred to being able to “try to write”.  She said she can wash plates but can’t scrub a pot.  She can put washing into the washing machine but uses her left hand.  She turns her indicator on with her right arm.  She said she was unable to lift her right arm away from her body or above her head.  She agreed when cross-examined that she had a severe constant tremor in every medical examination and told many of the doctors that she had no use of her right arm.
  9. Her counsel asked her about whether an intentional movement made the tremor better or worse, for example, if it reduced or increased the tremor when she wrote.  Unfortunately for the purposes of her credibility, she answered that trying to write increased the tremor.  This was inconsistent with the behaviour that had actually been demonstrated in court.
  10. Her description of her complete loss of use of her right hand and arm and her presentation with a constant violent tremor was inconsistent with what was seen on the DVD of the surveillance of her.

Orthopaedic Injury

  1. As set out in these reasons, Ms Digby was examined by orthopaedic surgeons Dr Mark Robinson and Dr David Gilpin, both of whom specialise in hand and upper limb surgery.  As discussed earlier in these reasons, Dr Robinson produced reports on 5 March 2012 and 11 March 2014, and Dr Gilpin produced reports on 6 January 2012 and 18 March 2014.  In addition, they produced a joint report on 15 July 2014, in which they gave their opinions and the reasons for any difference in opinion between them as follows:

“There is no disagreement regarding the mechanism of injury to Melanie’s shoulder, nor the development of a psychiatric condition.  There is minimal disagreement regarding calculations for impairment based on restricted range of motion of Melanie’s shoulder.

Dr Robinson and Dr Gilpin have both calculated Melanie has 23% Impairment of Upper Extremity Function when calculated for loss of range of motion of the shoulder in the early reports and Dr Gilpin has concluded that Melanie has 20% Impairment of Upper Extremity Function in a later report on 18/3/2014.  These differences are within the ‘margin of error’ for method of calculating impairment.

Dr Gilpin has not included any further impairment calculation for other joints in her right upper limb for the following reasons:

(a)There was no clear evidence of any injury distal to the shoulder in the reported incident by the claimant;

(b)The claimant’s grossly abnormal illness behaviours and behavioural confounders at the time of the examination (by Dr Gilpin) led him to believe that effective assessment of any impairment distal to the shoulder was unreliable; and

(c)Given the non organic and psychiatric component to the presentation he felt that whole person impairment for these other functional losses was better undertaken through a psychiatric assessment rather than any physical measurement here.

Dr Robinson has made additional calculation for functional impairment in the right upper limb including elbow, wrist and hand.

Doctors Gilpin/Robinson both accept there are physical limitations and disabilities relating to the right upper limb function overall but have chosen different pathways to assess impairment related to this.”

  1. Dr Gilpin also prepared a report dated 26 February 2015 after reviewing the DVD of the video surveillance.  In that report, he said that the use of the upper limb demonstrated by the plaintiff in the video was inconsistent with the presentation to and examination by him on the two occasions that he reviewed her in 2012 and 2014.  Specifically, there was said to be no evidence of tremor in the right upper limb or of loss of use of the hand or elbow in the activities witnessed on the surveillance footage.  However, he also stated that there was no full use of the shoulder shown.  He said there was no evidence that he could see of the applicant raising her shoulder or moving her shoulder away from the body to any significant degree.
  2. Dr Gilpin said the effect of this footage was that he was even more firmly of the belief that there could be no impairment allowed for the loss of function in her elbow, wrist or hand.  The inconsistency in the examination implied that the assessment of impairment in the right upper limb on account of the shoulder might well significantly overstate the actual impairment suffered by the plaintiff, although there was no objective evidence to support that based upon the review of the information and the video he had seen.
  3. Finally, Dr Gilpin said that the evidence from the DVD suggested that the presentation might not be one of a somatoform disorder and as such, it implied that there might be a more sinister element to the plaintiff’s presentation with respect to her injury.  He said that a fuller assessment of this, however, needed to be undertaken by a psychiatrist with an interest in forensic psychiatry.
  4. During the trial, Dr Robinson gave evidence as to his conclusions after he saw the DVD of the surveillance.  He said that the surveillance evidence did not demonstrate her using her right shoulder normally but certainly demonstrated a range of motion greater than when he examined her in February 2014.  He said that her right shoulder was still not moving normally but was moving better than the two occasions when he examined her so he would adjust the impairment rating down to probably 15 to 18 per cent for the shoulder.  He said the lack of tremor shown in her hand meant that the function of that hand was obviously better than it had been when he last saw her.  He agreed there was a significant variation between what he observed in his examination and what he saw in the DVD of the surveillance, both in respect of the right hand and the tremor.  He was not aware of any orthopaedic explanation as to why it might vary so significantly.
  5. As a result, his assessment was that she had an impairment percentage of 15 to 18 per cent for the shoulder and four to five for the wrist, giving a total of about 20 per cent upper extremity impairment.  The DVD demonstrated that her hand was functional and did not have any impairment.  A 20 per cent impairment of the upper extremity would give a 12 per cent whole person impairment.
  6. The way in which she presented on the surveillance DVD was different in that she had told Dr Robinson that her tremor was a constant condition.  He agreed on cross-examination that there was no explanation of an orthopaedic nature for her tremor.
  7. I conclude from all of the evidence that Ms Digby suffered from a relatively minor shoulder injury, the physical effect of which she has exaggerated.  It may have caused adhesive capsulitis for a period but that is now resolved.  I accept Dr Gilpin’s assessment of 20 per cent Impairment of Upper Extremity Function leading to 12 per cent whole person impairment.

Neurological injury

  1. Dr Cameron observed the DVD of the surveillance of Ms Digby and reported on that on 26 February 2015.  He said that the features present in his interview with her of a coarse tremor and inability to use her right hand or upper limb were not evident in the video surveillance.  He said there were no features of any neurological impairment when he saw her; nor were there any on the surveillance video.

Psychiatric injury

  1. As previously set out, Ms Digby was examined by the psychiatrists Professor Harvey Whiteford and Dr Chris Cantor.  Each of them provided several reports.  Professor Harvey Whiteford reported on 26 August 2011, 17 February 2012, 16 May 2012, and 3 February 2014.  Dr Cantor reported on 29 August 2011, 16 March 2012, 8 August 2012 and 17 April 2014.  In addition, a joint report was prepared by Dr Cantor and Professor Whiteford on 15 August 2014.  Their joint report refers to the following six conclusions:

“1.Both psychiatrists agree that, using the American Psychiatric Association’s Diagnostic and Statistical Manual, Fifth Edition (DSM5) diagnostic criteria, Ms Digby would meet the criteria for a somatic symptom disorder and an adjustment disorder with depressed mood.

Professor Whiteford is of the opinion that there is also a diagnosis of substance dependence (opioid and benzodiazepine).  Dr Cantor agrees that this diagnosis is likely.

  1. Both psychiatrists agree that the level of psychiatric impairment present when they examined Ms Digby in 2014 would have been in the order of 22% as identified in Dr Cantor’s report of 17 April 2014.

Professor Whiteford had not provided an estimate of psychiatric impairment in his reports as he considered Ms Digby’s impairment not permanent as she had not had optimal treatment.

  1. Both Professor Whiteford and Dr Cantor agree that Ms Digby has not had optimal treatment for her somatic symptom disorder, or her adjustment disorder.  The treatments that Professor Whiteford and Dr Cantor have recommended are outlined in their reports.
  1. Professor Whiteford and Dr Cantor agree that there would be some permanent impairment even if Ms Digby received optimal treatment.
  1. The area of disagreement between Professor Whiteford and Dr Cantor is the extent to which the impairment would be reduced by optimal treatment.  Dr Cantor believes there would be a minimum to modest reduction of her symptoms and improvement in her psychiatric impairment.  Professor Whiteford believes that there would be at least a moderate improvement.

Both psychiatrists agreed the chronicity of Ms Digby’s symptoms, since the injury to her right arm in June 2008, and the failure to respond to treatment is not a good prognostic sign.

  1. Professor Whiteford and Dr Cantor also discussed the issue regarding whether a person of normal fortitude would have experienced the current level of psychiatric impairment reported by Ms Digby.  Both agreed that Ms Digby had a relatively sound personality development with no pre-existing mental disorder.  Both agreed that her outcome has been much more severe than would have been expected from the injury sustained on 18 June 2008.”
  1. Professor Whiteford produced a further report on 26 February 2015 after viewing the video surveillance taken in 2013.  He said that the video surveillance was at odds with what Ms Digby had told him when he examined her on 29 January 2014 and how she appeared in the consulting room.  She had told him that she was unable to use her right arm and, during his assessment of her, held the arm immobile with intermittent tremor noticed.  His observations of the video surveillance have led him to conclude that she does tend to favour using her left arm, however she can and does use her right arm and hand for many activities. 
  2. Further, when he examined Ms Digby on 29 January 2014 she told him that she remained socially isolated at Palmwoods, whereas the video surveillance suggested that she was able to travel alone and in company, and did not appear to be exhibiting any observable signs of panic anxiety on the surveillance. 
  3. He therefore formed the opinion that the level of impairment reported to him by Ms Digby was exaggerated.  Whilst this did not exclude a diagnosis of somatic symptom disorder contributing to her pain and disability, it reduced the likelihood that this was a significant contribution.  It also made it much more likely that there would be an improvement in her symptomology once the litigation was resolved.
  4. Finally Professor Whiteford produced a report on 28 February 2015 with regard to the diagnosis of somatoform disorder.  He said that he had considered her to have a somatoform disorder, such disorders being characterised by symptoms suggesting physical injury or illness, but which are not explained by a physical condition.  In DSM 5 the term “somatic symptom disorder” has replaced the DSM IV term “somatoform disorder” and has somewhat different diagnostic criteria.
  5. The DSM 5 Diagnostic Criteria for somatic symptom disorder are:

“A.One or more somatic symptoms that are distressing or result in significant disruption of daily life.

B.Excessive thoughts, feelings, or behaviours related to the somatic symptoms or associated health concerns as manifested by at least one of the following:

  1. Disproportionate and persistent thoughts about the seriousness of one’s symptoms
  1. Persistently high level of anxiety about health or symptoms
  1. Excessive time and energy devoted to these symptoms or health concerns.

C.Although any one somatic symptom may not be continuously present, the state of being symptomatic is persistent. (typically more than 6 months)

Specify if:

With predominant pain (previously pain disorder): This specifier is for individuals whose somatic symptoms predominantly involve pain.

Specify if:

Persistent: A persistent course is characterized by severe symptoms, marked impairment, and long duration (more than 6 months).

Specify current severity:

Mild: Only one of the symptoms specified in Criterion B is fulfilled.

Moderate: Two or more of the symptoms specified in Criterion B are fulfilled.

Severe: Two or more of the symptoms specified in Criterion B are fulfilled, plus there are multiple somatic complaints (or one very severe somatic symptom).”

  1. Professor Whiteford said that Ms Digby met all three of the criteria.  However, he also said that the diagnosis of somatic symptom disorder is challenging generally, as it places so much reliance on an individual’s report of their experience of somatic symptoms, something which varies considerably in the general population.  He also said that the diagnosis is considered less reliable in medico-legal settings.  This is for two reasons.  First, the litigation itself is a stressor; and secondly, there is a potential for the patient to exaggerate their symptoms for secondary gain.
  2. Dr Cantor agreed that her behaviour as shown on the surveillance footage was considerably more normal than he observed in the consulting room.  He said this could be explained by the fact that people with psychological disorders make an effort to hide their distress when they go out in public.  He said that the footage did not fundamentally alter his opinion.  He said that it did, however, make him wonder about the extent of her disability, particularly given the absence of the tremor, which had been very marked in his consulting room.  On the other hand, he observed her closing the driver’s door with her left hand which is something an ordinary person would never do.
  3. Dr Cantor said that the information about her having been in an abusive relationship with the father of her two sons was potentially relevant to his opinion, but he did not think it fundamentally altered his opinion.  He did not think the level of abuse encountered was such as would cause post-traumatic stress disorder.  He also said it would have been relevant for him to have been told by Ms Digby about her son’s suicide attempt.  He said he could not be sure whether this would have impacted on his opinion.  It represented an additional source of stress for her, but he would also have wanted to explore how her own psychological state might have affected her son.  He agreed that family stress will increase pain perception and that, in turn, can increase family stress.
  4. Dr Cantor said that the fact that she spent several hours a day perhaps two days a week socialising on Facebook was not consistent with the information she gave him about her social isolation.
  5. Dr Cantor said that she should be weaned off all the medications apart from Cymbalta, Lyrica and Endep, because with those drugs there is no real risk of dependency or tolerance developing.
  6. Dr Cantor agreed that it was reasonable to say that Ms Digby’s very different presentation in the DVD surveillance as compared with examination by him; the differences in her description of social isolation as opposed to having an active Facebook life; and the other things he was not told about her personal stressors all led to the conclusion that, for his report to be more accurate, he would need an investigation of those matters with Ms Digby.
  7. Dr Cantor also agreed that, if her presentation on the surveillance was accurate, it would lead to a conclusion that she exaggerated the extent of her disability to him.  While he agreed her presentation on the DVD suggested she was exaggerating, that did not mean there was not substantial pain present which she had learnt to put up with to some degree.  Dr Cantor agreed, however, that a person can mislead a psychiatrist as to whether they in fact meet any of the three diagnostic criteria for somatic symptom disorder because they are matters that depend on an individual’s truthfulness in reporting that they have those symptoms.
  8. I have formed the view that Ms Digby deliberately exaggerated her somatic symptoms probably for the financial gain which she hoped to obtain from the litigation.  The contrast between her behaviour in the surveillance video and when asked by her own counsel to mark an exhibit, and her reported and observed symptoms when she saw medical practitioners and otherwise in court, is so stark that no other explanation appears reasonable.
  9. The plaintiff bears the onus of proof of the extent of her injury and she has failed to persuade me on the balance of probabilities that she has suffered from more than a mild shoulder injury complicated by a minor somatic symptom disorder in the immediate aftermath of her injury and a consequent addiction to painkillers which she continues to use.

Quantum of damages

  1. The quantum of damages falls to be assessed on the basis of common law principles as modified by the Workers’ Compensation and Rehabilitation Act 2003 (Qld).  The first defendant has conceded that the plaintiff is entitled to some damages for the injury she suffered at work.
  2. For the reasons given by me in discussing her post-injury treatment and behaviour, and because I find myself generally in agreement with the submissions made by the first defendant as to the amount to be allowed under the various heads of damage, my assessment of quantum will be limited to the amount which the first defendant accepts should be awarded to the plaintiff.

General damages

  1. In my view, the plaintiff is entitled to no more than the $35,000 submitted as appropriate by the first defendant for general damages for pain, suffering and loss of amenities.  I would allow interest on general damages at the rate of two per cent on half of the $35,000 for the 7.4 years between the date of her injury and the date of judgment, $2,590.

Past economic loss

  1. I am not satisfied that her past economic loss was as was submitted by the plaintiff.
  2. The assessment of this head of damages has, as was submitted by the first defendant, been rendered problematic by reason of the plaintiff’s exaggeration of her tremor and upper limb dysfunction and non-disclosure of other significant psychological stressors.  The reasons given by the experts who provided reports as to her incapacity for employment before the disclosure of the surveillance evidence were ongoing pain and the severe tremor in her right arm.  The surveillance evidence disclosed no obvious pain responses to the activities engaged in by her and, as previously noted, it disclosed no tremor.  Without any cogent medical explanation for such a tremor – and there is none – it is doubtful whether the tremor ever existed in any involuntary form except for a brief period initially. None of the experts who reported considered Ms Digby unfit for past employment by reason of her shoulder condition alone.  The first defendant submitted that without any sensible way of testing the plaintiff’s true functional state retrospectively, the appropriate approach is to assess the past economic loss at the level of the WorkCover weekly benefits which ceased on 3 September 2010, to enable the refund to be met.  This is an amount of $50,924.19. 
  3. Thereafter Ms Digby appeared from the surveillance, combined with the assessments of Ms Hague and Dr Tadros, to be fit for employment in an administrative role.  Evidence was led that such wages at the Institute were approximately $4 per hour less than the hourly rate for carers, but carers’ hours were limited. 
  4. It appears likely that because of her shoulder injury, Ms Digby remains unfit for her pre-injury role as a carer.  The difference in income between the role of a carer and an administrative role of $4 an hour over 30 hours per week would have produced a loss of $120 gross per week.  From 3 September 2010 until the date of judgment the total loss would have been $32,280 (gross) ($120 per week x 269 weeks).  Notwithstanding this assessment is gross rather than net, its addition to the weekly benefits results in a total award of $83,204 for this head of damage.  The prospect that her hours would have increased is too speculative to be added to this head of damage. 
  5. Interest is only available on the balance of past economic loss after subtracting the weekly benefits paid to her.  Using the figure of $32,280 at five per cent per annum from the date benefits ceased (5.2 years) produces a sum of $8,393.
  6. Past superannuation contributions at nine per cent of past economic loss would be a further $7,488 ($83,204 x nine per cent).

Future economic loss

  1. As the first defendant submitted, the leading expert in relation to residual capacity for employment, Ms Hague, considered the plaintiff fit for administrative employment.  In such a case, the plaintiff has failed to show on the balance of probabilities that her mild physical disability or her mild somatic symptom disorder would prevent her from working, at least in an administrative role, were she motivated to do so.  In those circumstances it is impossible to use the weekly multiplicand methodology of assessing future economic loss.  The first defendant submitted, and I agree, that a figure of $40,000 as a global award is appropriate.  Employer superannuation contributions of 11.33 per cent of the amount of $40,000 would be a further $4,532.

Past special damages

  1. It is agreed that the amount expended by WorkCover for medical treatment, pharmaceutical expenses, travel expenses, rehabilitation expenses and domestic services was $93,133.52.  The refund owed to Medicare is $4,899.20.  As the first defendant submits, the latter is problematic as to the extent to which ongoing attendances related to a valid condition and a condition that is attributable to the incident on 18 June 2008.  However, the first defendant also conceded that there is no sensible means by which this can be disentangled and thus the appropriate approach would be to allow this as an item of special damages. 
  2. The first defendant also submitted that expenses for pharmacological purchases after the cessation of WorkCover payments is problematic because of the difficulty in accepting that the medication regime was required because of her physical and psychiatric ailments and the fact that the medication regime has had little remedial effect and is, in fact, contrary to her health interests.  It is therefore not an expense that it is either reasonable or necessary for the first defendant wholly to bear as a result of its liability for her injury.  The first defendant submitted that there should be a discount of 50 per cent applied to the figure that she claimed for her medication regime which would result in a sum of $2,529.74.
  3. Thus the first defendant submits, and I accept, that the allowance for past special damages should be the combined statutory refunds of $98,032.72 and an additional $2,529.74 for pharmaceuticals, producing a total of $100,562.46.
  4. Interest should only be allowed on the $2,529.74 actually expended by the plaintiff.  Interest on that amount at five per cent per annum for 7.4 years would be $936.

Future special damages

  1. The plaintiff claimed that she will require ongoing medication in the short term.  That has a weekly cost of $137.25.  According to medical evidence, she needs to be weaned from that medication over the ensuing 12 months, over which time the total cost of medication would be $6,999.75.  Dr Cantor was of the opinion that she needed further psychiatric treatment and mental health consultations with a general practitioner over the next one to two years at a total cost of $7,795.  The first defendant submits, and I accept, that those figures require discount by 50 per cent to reflect the significant prospect that exaggeration for material gain and serious stressors unrelated to the incident of 18 June 2008 have caused or contributed to the need for this treatment.  The resulting sum is $7,397.40.  With regard to attendance at a pain clinic, the cost estimate by Dr Cantor was $4,579 for a day programme and $20,000 for an in-patient programme.  The plaintiff did not say which option she would prefer and the first defendant submitted, and I accept, that a midpoint cost of $12,000 would be appropriate.  Thus I accept that the total for this head of damage should be $19,397.40.

Gratuitous care and assistance

  1. The plaintiff claims total past care of $27,400 based on services provided for two hours per week at $25 per hour from the cessation of her WorkCover benefits to 1 July 2011 and thereafter at four hours per week to the date of trial.  She claimed $97,100 for the future.  There is insufficient evidence for me to be satisfied that the Court can or should award anything for gratuitous services.  The evidence given by Ms Digby’s son Joe was so unreliable as not to form a basis on which an award of damages could be made.  In view of the unreliability of the plaintiff and the lack of credit that could be given to the evidence from Joe in support of her claim for gratuitous care, I am not satisfied on the balance of probabilities that I should make any award under this head.

Future care

  1. The same applies to future care.  No sensible assessment can be made and I am not prepared to make any award under this heading.

Taxation instalments

  1. The amount allowance pursuant to Fox v Wood is $3,876. 

Summary of quantum

General damages

$35,000.00

Interest (50 per cent past)

$2,590.00

Past economic loss

$83,204.00

Interest

$8,393.00

Past superannuation

$7,488.00

Future economic loss

$40,000.00

Future superannuation

$4,532.00

Past special damages

$100,562.46

Interest on special damages

$936.00

Future special damages

$19,397.40

Fox v Wood

$3,876.00

Sub-total

$305,978.86

Less WorkCover refund

$147,933.71

TOTAL

$158,045.15

Conclusion

  1. The plaintiff has been successful in showing that her employer is liable at common law for her injury.  However the quantum of damages that should be awarded to her as caused by the first defendant’s negligence is limited to $158,045.  I will hear submissions as to costs.  I am also prepared to hear any submissions as to arithmetical or other machinery adjustments that should be made to the assessment of the quantum of damages.

 

Footnotes

[1] See ACT v Crowley (2012) 273 FLR 370 at 413, [273].

[2] [2005] HCA 14 at [12], (2005) 79 ALJR 839 at 842-843.

[3] Paragraph 6.9 was in the following terms: “The plaintiff moved to save Ryan Thrupp from striking the concrete stairs and took his full weight in an attempt to break the fall”.

[4] It is also consistent with the second defendant’s defence with which the first defendant joined issue.

[5] (1976) 50 ALJR 666 at 668.

[6] Approved recently by the Court of Appeal in Petchell v Du Pradal; Pia Du Pradal Pty Ltd v Petchell [2015] QCA 132 at [39].

[7] Report of Professor Whiteford dated 26 August 2011.

[8] In his report Dr Cameron says that it was two or three months before his consultation with her that the shake developed but corrected that in oral evidence after checking his notes.

Close

Editorial Notes

  • Published Case Name:

    Digby v The Compass Institute Inc and Anor

  • Shortened Case Name:

    Digby v The Compass Institute Inc

  • MNC:

    [2015] QSC 308

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    30 Oct 2015

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
Czatyrko v Edith Cowan University [2005] HCA 14
2 citations
Jump To
Cite 1 - [2005] HCA 14
Cite 2 - [2005] HCA 14
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
2 citations
Jump To
Cite 1 - (2005) 79 ALJR 839
Cite 2 - (2005) 79 ALJR 839
Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666
2 citations
Jump To
Cite 1 - (1976) 50 ALJR 666
Cite 2 - (1976) 50 ALJR 666
Petchell v Du Pradal [2015] QCA 132
2 citations
Jump To
Cite 1 - [2015] QCA 132
Cite 2 - [2015] QCA 132
Workers' Compensation and Rehabilitation Act 2003 (Qld) Australian Capital Territory v Crowley (2012) 273 FLR 370
2 citations
Jump To
Cite 1 - (2012) 273 FLR 370
Cite 2 - (2012) 273 FLR 370

Cases Citing

Case NameFull CitationFrequency
Digby v The Compass Institute Inc (No 2) [2015] QSC 3611 citation
RACQ Insurance Ltd v Foster[2019] 2 Qd R 475; [2018] QCA 2521 citation
1

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