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  4. Cvilikas v Sunshine Coast Hospital and Health Service - [2023] QSC 36

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Cvilikas v Sunshine Coast Hospital and Health Service[2023] QSC 36

Cvilikas v Sunshine Coast Hospital and Health Service[2023] QSC 36

SUPREME COURT OF QUEENSLAND

CITATION:

Cvilikas v Sunshine Coast Hospital and Health Service [2023] QSC 36

PARTIES:

JODY LEE CVILIKAS

(plaintiff)

v

SUNSHINE COAST HOSPITAL AND HEALTH SERVICE

(defendant)

FILE NO:

BS 7447 of 2020

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

20 – 23 June, 18 August 2022

JUDGE:

Hindman J

ORDER:

  1. 1.Judgment for the plaintiff against the defendant in the sum of $196,193.33 clear of the WorkCover refund of $77,712.06.
  2. 2.Each party to the proceedings to bear their own costs.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – EMPLOYER AND EMPLOYEE – where plaintiff suffered personal injury when co-worker placed a mattress on a bed and failed to provide warning to the plaintiff – where plaintiff brings proceedings against her employer – where risk of injury was foreseeable – where risk of injury was not insignificant – where a reasonable person would have taken precautions against the risk of injury – whether the employer breached its duty to take all reasonable steps to avoid exposing plaintiff to a foreseeable risk of injury

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – whether plaintiff’s intervention in a task being carried out by co-worker amounted to an ‘exceptional case’ – whether plaintiff’s injury was the result of a breach of a duty of care by her employer

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where plaintiff suffered personal injury when intervening in a task being carried out by co-worker – whether plaintiff failed to take precautions against the risk of injury – whether there ought to be a finding of contributory negligence

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – GENERAL DAMAGES – SPECIAL DAMAGES – what measure of damages for general damages, special damages and Fox v Wood damages are appropriate in the circumstances 

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where plaintiff has not returned to work since the incident – where pre-incident plaintiff was working on a permanent part-time basis of 0.4FTE – where plaintiff contends that she would have increased her hours but for her injuries – whether plaintiff has proven economic loss to the requisite standard – whether and to what extent plaintiff’s injuries impact her capacity for employment 

Civil Liability Act 2003 (Qld), s 51

Civil Liability Regulation 2003 (Qld)

Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss 270, 305B, 305C, 305D, 305E, 305F, 305H, 306N

Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), regs 129, 130, schs 8, 12

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420

Bankstown Foundry v Braistina [1986] 160 CLR 301

Bell v Mastermyne Pty Ltd [2008] QSC 331

Burns Philip Trustee Co Ltd v Clarke [1996] NSWCA 79

Chappel v Hart (1998) 195 CLR 232

Czatyrko v Edith Cowan University [2005] HCA 14

Fox v Wood (1981) 148 CLR 438

Hoveydai v Mak and Anor [2021] QSC 16

Kennedy v QAL [2016] QCA 159

Lusk & Anor v Sapwell [2011] QCA 59; (2012) 1 Qd R 507

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; 94 ALR 206

McDonald v FAI General Insurance Co Ltd [1995] QCA 436

Negric v Albion Scrap Steel Pty Ltd [1978] Qd R 362

Nichols v Curtis & Anor [2010] QCA 303

Osborne v Downer EDI Mining P/L & Anor [2010] QSC 470

Paff v Speed (1961) 105 CLR 549

Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330

Wyong Shire Council v Shirt (1980) 146 CLR 40

COUNSEL:

T Nielsen for the plaintiff

AS Mellick for the defendant

SOLICITORS:

Travis Schultz and Partners for the plaintiff

McInnes Wilson Lawyers for the defendant

TABLE OF CONTENTS

Introduction5

The plaintiff6

The circumstances in which Ms Cvilikas’s injury was sustained7

The plaintiff’s version7

The defendant’s version8

Other evidence that may impact on which version to be accepted as true10

Credit findings11

AL11

Ms Cvilikas11

Findings as to how the incident occurred12

Matters before and after the incident13

Matters before the incident - the usual work behaviour of AL13

Matters after the incident – relevant reporting of the incident to others14

12 December 2017, incident report14

19 December 2017, GP appointment14

6 February 2018, GP appointment14

12 February 2018, GP appointment, review form15

Further writing by Ms Cvilikas16

Other reporting of the incident to co-workers17

Consulting with other doctors17

Based on the facts as found, is negligence established18

Duty of care, breach of duty18

Evidence of Justin O'Sullivan22

Causation23

Contributory negligence24

The injury suffered and the treatment undertaken26

The plaintiff’s reported ongoing difficulties26

What injury now remains28

Rotator cuff tear?28

Nerve problem?28

No ongoing injury?29

Other evidence relevant to plaintiff’s reported ongoing difficulties30

Television footage30

The plaintiff’s presentation in the witness box30

The lack of evidence from the plaintiff’s partner and children31

The independent medical evidence31

Dr Kilian31

Dr Blenkin33

Other expert evidence37

Relevant findings in respect of the injury suffered and continuing to be suffered37

Relevant findings about return to work39

Prior/other medical history possibly relevant to assessment of damages40

Quantum assessment41

General damages41

Past economic loss42

Interest on past economic loss43

Superannuation43

Future economic loss43

Past special damages44

Future special damages45

Gratuitous or paid care45

Fox v Wood damages45

Quantum before contributory negligence and WorkCover refund46

Effect of finding of contributory negligence46

WorkCover refund47

Total quantum47

Orders47

Introduction

  1. [1]
    Jody Lee Cvilikas (the plaintiff/Ms Cvilikas) claims damages for a shoulder injury suffered on 10 December 2017 in the course of her employment with the defendant, the Sunshine Coast Hospital and Health Service.
  2. [2]
    The defendant was responsible for the conduct of the Nambour General Hospital (NGH).  Ms Cvilikas was employed by the defendant as a patient support assistant[1] (PSA) at NGH.  On 10 December 2017 Ms Cvilikas was employed on a permanent part-time basis.[2]  Adam Lenaghan (AL) was also employed by the defendant as a PSA at NGH. 
  3. [3]
    Ms Cvilikas and AL were both rostered to work the nightshift on 10/11 December 2017 at NGH.  There were usually three PSAs rostered on each nightshift.  Ms Cvilikas was rostered to work from 10pm until 6am.  AL was her supervisor for that shift meaning he had particular duties and provided limited direction to other PSAs, although “everyone knew what they had to do”.[3]
  4. [4]
    At the start of her shift Ms Cvilikas encountered AL on the lower ground floor outside the PSA office; she was standing near him when he received a telephone call and heard him take the call.  He told her that he had to go and get a bed for a ward.  Beds, mattresses and other equipment were stored at NGH in the assets shed, then located on the fourth floor of the building.
  5. [5]
    It is not in issue that at about 10.30pm on 10 December 2017:
    1. (a)
      AL went to the assets shed alone;
    2. (b)
      AL went to the assets shed to retrieve a bed;
    3. (c)
      Ms Cvilikas did not accompany AL to the assets shed;
    4. (d)
      Ms Cvilikas entered the assets shed some short time after AL; 
    5. (e)
      it was necessary for AL to place one standard mattress on the bed he was going to deliver to the ward;
    6. (f)
      AL did not request assistance from Ms Cvilikas;
    7. (g)
      in the course of AL placing a standard mattress on a bed, Ms Cvilikas intervened and her left arm was caught between the mattress and the bed.  Ms Cvilikas immediately felt pain in her left shoulder. 
  6. [6]
    Ms Cvilikas alleges that she has thereafter suffered, and continues to suffer, debilitating pain in her left shoulder.  She says it prevents her working, affects her daily life and requires medication to manage. 
  7. [7]
    Ms Cvilikas claims damages in tort for the alleged negligence of the defendant – both as vicariously responsible for the actions of AL and as responsible for its system of work in accordance with the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA).
  8. [8]
    The defendant denies any liability.  In the alternative, the defendant asserts 30% contributory negligence by Ms Cvilikas. 
  9. [9]
    Ms Cvilikas claims damages of $888,738.21, clear of the WorkCover refund of $77,712.06.  The defendant contends that any assessment of damages is no greater than $91,419.66.
  10. [10]
    I find that:
    1. (a)
      the defendant was negligent;
    2. (b)
      the plaintiff was contributorily negligent to the extent of 25%;
    3. (c)
      the plaintiff is entitled to judgment against the defendant for damages for negligence in the sum of $196,248.29 clear of the WorkCover refund of $77,712.06. 

The plaintiff

  1. [11]
    Ms Cvilikas was born on 5 February 1973 and was educated to year ten. 
  2. [12]
    As a young woman Ms Cvilikas worked in banking for approximately four years, before taking twelve years out of paid work to raise her two children.  Both children are now independent adults.
  3. [13]
    Ms Cvilikas is in a long-term de facto relationship with her partner of approximately fourteen years.  He is in receipt of a disability benefit following unsuccessful spinal surgery in 2012.  Ms Cvilikas has been and is his carer (including on a paid basis by way of Centrelink benefits).  They live in their own three-bedroom home on a large block of land.
  4. [14]
    Ms Cvilikas commenced working as a PSA at NGH in about April 2006.  Her work hours have varied from part-time to full-time, at times only working the equivalent of 0.42 of a full-time role[4] (referred to as 0.42 FTE).
  5. [15]
    The PSA role has a degree of physicality associated with it.  Duties include assisting with patient transfers, manoeuvring wheelchairs and beds (including with patients onboard), cleaning tasks, lifting and carrying bags of waste and linen, attending the mortuary and supervisory tasks.[5] 
  6. [16]
    Ms Cvilikas denies having any previous left shoulder problems.  She did have a left elbow “partial tear” in 2014 in respect of which there was a WorkCover claim, but she fully recovered from that injury.
  7. [17]
    In 2018 she had a gastric sleeve operation to combat obesity and is on medication for an underactive thyroid.  Putting to the side the injury the subject of this proceeding, she reports no other traumatic events or surgeries.  She is a non-smoker, a regular drinker, takes some supplements, and is otherwise in reasonable health.  

The circumstances in which Ms Cvilikas’s injury was sustained 

  1. [18]
    Ms Cvilikas and AL (and the defendant) disagree as to how AL placed the mattress on the bed as part of the incident resulting in Ms Cvilikas’s injury.  Resolution of that disagreement is important to the negligence claim made.
  2. [19]
    It will be seen from the competing versions below that Ms Cvilikas and AL also disagree as to certain matters leading up to the incident including:
    1. (a)
      certain layout features of the assets shed, including where particular beds and mattresses were stored in the assets shed;
    2. (b)
      where in the assets shed the relevant bed was located when AL put a mattress on it;
    3. (c)
      from where AL sourced the relevant mattress that was placed on the bed.   

The plaintiff’s version

  1. [20]
    In [6] of the amended statement of claim (ASOC) Ms Cvilikas alleges:
    1. (a)
      about 10.30pm Ms Cvilikas attended the assets shed to assist AL;
    2. (b)
      AL retrieved a mattress, intending to place that on a bed within the assets shed, and in doing so, raised the mattress above his head;
    3. (c)
      in order to assist AL, Ms Cvilikas reached out, leading with her left arm, to take hold of one end of the mattress;
    4. (d)
      without warning, AL threw the mattress onto the bed, catching Ms Cvilikas’s left arm, forcing it between the mattress and the metal frame of the bed;
    5. (e)
      as a result, Ms Cvilikas sustained an injury to her left shoulder.
  2. [21]
    The ASOC contains no allegations as to from where AL sourced the relevant mattress, where the relevant bed was located at the time the mattress was placed on it, or how, if at all, Ms Cvilikas communicated to AL that she had come to the assets shed to assist him or was in fact going to assist him.
  3. [22]
    In evidence at trial, Ms Cvilikas gave evidence that after she had put her things in her locker she went to the assets shed to assist AL in preparing the bed because she had no other jobs to attend to at that time.  When she arrived at the assets shed she engaged in small talk with AL before asking if he needed assistance.  “Do you want a hand,” she asked.  “No, I’m good,” he replied.  While this conversation was taking place, Ms Cvilikas said AL was standing at the side of an empty bed[6] and she “was a step back from the empty bed.”[7]  Ms Cvilikas identified that AL was making up the empty bed in the back section of the assets shed.
  4. [23]
    At T1.50, L34, Ms Cvilikas went on to explain there were four or five mattresses stacked on a bed that was adjoining (side by side) the empty bed.
  5. [24]
    Ms Cvilikas said that after AL declined her offer of assistance, she asked him if he had any other jobs and he replied, “No, not at the moment.”  He then proceeded to walk around to the top of the adjoining bed on which mattresses were stacked.[8]
  6. [25]
    She described the incident from there as follows:

And then can you tell her Honour what happened then?‑‑‑While Adam was at the top of the bed, I just assumed he was going to pull the stack down.  But, in fact, he picked up the mattress.  And I can’t demonstrate with this one, but I will with this one, because it’s painful for me.  He picked the mattress up from the top of the stack above his head, shuffled it back and I thought, “You bloody idiot, what are you doing?  You’re going to hurt yourself,” and I said to him, “Hang on.  What are you doing,” and he threw – can I keep going? 

Yes, please?‑‑‑And he threw the mattress down before I – I stepped forward to reach out to grip it but before I could grip it the mattress came down on my forearm and the foot of the bed rail and jolted my shoulder forward and the mattress squashed – squashed it down and then I said – can I keep going? 

Yes, please?‑‑‑And then I said, “Bloody hell.”  I grabbed my shoulder.  I slid my arm out from under the mattress and I said, “Bloody” – I said, “Oh, shit, that hurt,” and he came around the side of the bed and he said, “Are you all right?” I said, “No, that bloody hurt.”  That’s what happened. 

  1. [26]
    At T1.73, L40 in cross-examination, Ms Cvilikas accepted that on her version immediately prior to the incident AL had positioned himself at the head end of the adjoining beds and the brakes were at the foot end of the beds and AL “didn’t move the bed. The beds were already positioned.”[9]  Those matters were confirmed at the end of re-examination.[10]
  2. [27]
    At T2.26-27 Ms Cvilikas would not commit to a precise number of mattresses stacked on the adjoining bed.  She conceded she was 165cm in height, much shorter than AL, however, she said that she and AL “locked eyes”[11] when AL was at the head end of the bed stacked with the mattresses as he was moving, lifting and throwing the relevant mattress.  “I can certainly see his face,” she said.[12]  She denied that the mattress was sagging where not supported by AL.[13]

The defendant’s version

  1. [28]
    The allegations in [6] of the ASOC are denied in [3] of the second amended defence (the Defence) where the defendant alleges:
    1. (a)
      AL went to the assets shed alone;[14]
    2. (b)
      AL went there to prepare a bed that he was then going to deliver to a ward;
    3. (c)
      preparation of a bed is a one-person task;
    4. (d)
      AL intended to prepare the bed alone;
    5. (e)
      Ms Cvilikas did not accompany AL to the assets shed;[15]
    6. (f)
      AL did not need, seek or request any assistance from Ms Cvilikas or anyone else to prepare the bed;
    7. (g)
      preparation of the bed involved placing a standard mattress on the bed;
    8. (h)
      a standard mattress weighs 17kg;
    9. (i)
      Ms Cvilikas entered the assets shed after AL;[16]
    10. (j)
      AL did not request assistance from Ms Cvilikas;[17]
    11. (k)
      AL did not need assistance from Ms Cvilikas;
    12. (l)
      AL reasonably had no reason to expect Ms Cvilikas would assist or attempt to assist him and assumed she had some other task to attend to;
    13. (m)
      AL lifted a mattress to about hip height and slid it onto the bed;
    14. (n)
      as AL was doing so, Ms Cvilikas, without any forewarning to AL, grabbed at the mattress as it was sliding onto the bed and in doing so her left arm became caught between the mattress and the bed frame;
    15. (o)
      AL:
      1. did not raise the mattress above his head;
      2. did not throw the mattress onto the bed;
      3. had no reason to give Ms Cvilikas any warning as he had not sought her assistance and had no reason to anticipate her unsolicited and unnecessary intervention in his preparation of the bed.
  2. [29]
    In evidence at trial, AL said that after receiving a telephone call, he went alone to the assets shed to get a bed, he did not request anyone to go with him, he knew how to perform the task, he was familiar with the task, he had performed it many times and he did not need any assistance.[18]  There was nobody in the assets shed when he arrived there.  He located a bed.   He cannot recall where in the assets shed that bed was located but it had an air mattress on it, so he unplugged all the cords, made sure everything was turned off, disconnected the pump from the cable and deflated the mattress, rolling it up like a sleeping bag. At T3.32, LL41-42 by reference to exhibit 6, AL said that prior to removing the air mattress he moved the bed near the linen skip where he had a little bit of room to work (in the front part of the assets shed, not too far from the vertical rack).  The air mattress was placed by him in a rack in the front section of the assets shed.[19]
  3. [30]
    AL acknowledged that he saw Ms Cvilikas arrive in the assets shed and they engaged in small talk.  He noted that he had not asked her to come there, he did not ask her to assist him and he kept doing what he was doing.[20]
  4. [31]
    AL explained the process by which he sourced and removed a mattress from the vertical rack[21] and placed it on the bed; a process which involved very little physical effort and one he had used many times having been shown how to do it.[22]
  5. [32]
    AL said that he moved the mattress in the way demonstrated in the video that is exhibit 24.  He believed, “Jody’s tried to get involved, out of the blue, with no warning, and I don’t know whether she grabbed a hold of the mattress while I was moving it or whether her arm was just in the way.”[23]  He said that after the incident, Ms Cvilikas said something to the effect of “Ooh.”[24] 
  6. [33]
    In cross-examination at T3.57, LL28-30, AL said:

did you keep an eye on her before you put the mattress onto the bed?---She wasn’t close enough to be involved in the task, so I didn’t think she was part of the task being performed.

Other evidence that may impact on which version to be accepted as true

  1. [34]
    As above, the parties disagree as to how AL placed the mattress on the bed that led to Ms Cvilikas’s injury.
  2. [35]
    To support their version of the incident, both parties adduced evidence from others associated with NGH as to:
    1. (a)
      certain layout features of the assets shed, including where particular beds and mattresses were stored in the assets shed, including what mattresses were stored in the vertical rack (near to the doorway of the assets shed);
    2. (b)
      how they or others (including cleaners) moved mattresses in various circumstances;
    3. (c)
      usual procedures associated with damaged or condemned mattresses.
  3. [36]
    Such evidence came from:
    1. (a)
      a statement by Rachel Lee who was a PSA at NGH at the time of the incident;[25]
    2. (b)
      Steven Pacey who had previously been a PSA at NGH and who at the time of the incident was the clinic resources storeperson[26] (in charge of the assets shed with his office located in the assets shed);
    3. (c)
      Paul Fooks who had previously been a PSA at NGH and who at the time of the incident was a PSA coordinator at NGH;
    4. (d)
      Lindy Holt who was the senior coordinator of operation support services at NGH at the time of the incident. 
  4. [37]
    I have not found any of that evidence particularly helpful in determining which version of the incident is true.  All of that evidence needs to be approached with caution because it is not specific to the date and time of the incident.  Nobody except Ms Cvilikas and AL were present in the assets shed at the time of the incident and can say with any certainty as at approximately 10.30pm on 10 December 2017:
    1. (a)
      the precise layout of various items in the assets shed;
    2. (b)
      from where AL sourced the relevant bed;
    3. (c)
      what mattresses were then contained in the vertical rack;
    4. (d)
      from where exactly AL sourced the relevant mattress;
    5. (e)
      where the bed was located when AL placed the mattress on it;
    6. (f)
      most importantly, how AL placed the mattress on the bed. 
  5. [38]
    Accordingly I consider it is unnecessary for me to set out that evidence because none of that evidence is such that it assists me in determining that either of the parties’ version of how the mattress was placed by AL on the bed is either true or false.
  6. [39]
    Determining how the incident actually occurred turns predominantly on whose evidence about the incident is to be preferred as between Ms Cvilikas and AL.

Credit findings

AL

  1. [40]
    AL impressed me as having a reasonably clear recollection of the incident and of giving his evidence in an unembellished and unbiased manner, directly and without fear or favour.  I find that AL was an honest witness.   

Ms Cvilikas

  1. [41]
    On the other hand, whilst I do not go so far as describe my impression of Ms Cvilikas as dishonest, I do consider that she was prone to exaggeration, particularly where she considered that may be advantageous to her claim.  She was also prone to be disinclined to answer questions directly where she perceived the answer may be disadvantageous to her claim.
  2. [42]
    By way of example, during cross-examination Ms Cvilikas was shown the video that is exhibit 24.  Defence counsel pointed out to Ms Cvilikas that where the mattress is resting on the end of the bed in the video the ends of the mattress sag to a point lower than the middle of the mattress.  Ms Cvilikas was asked if the mattress was sagging when AL had it over his head: the obvious point of defence counsel being that if AL had lifted the mattress over his head as Ms Cvilikas contended, the ends of the mattress would have sagged slightly, obstructing his face such that he and Ms Cvilikas could not have locked eyes (as alleged by Ms Cvilikas).  Ms Cvilikas avoided answering this question before claiming the mattress was fairly stable and was not sagging at the ends.[27]

Findings as to how the incident occurred

  1. [43]
    Influenced by my findings as to the credit of AL and Ms Cvilikas, I prefer the evidence of AL to Ms Cvilikas as to how the incident occurred.
  2. [44]
    On the balance of probabilities, I find that:
    1. (a)
      To move the bed selected (in this case AL says it had an air mattress on it), AL positioned himself at the foot of the bed (to access the brake).  He then moved the bed to an area in the front of the assets shed, near the vertical rack, where there was some space to work, and because he intended to retrieve a standard mattress from the vertical rack to place on the bed.    
    2. (b)
      The incident did not occur in the location described by Ms Cvilikas.  That is because if AL had intended to put a mattress on a bed in that location, there would have been no reason for him to move to the head of the adjoining beds as described by Ms Cvilikas (if there was even room for him to be between the head of those beds and the adjoining racks[28]).  He would have been at the foot of the bed where the brake to the bed was located (which is about where Ms Cvilikas asserts she was located at the time she suffered her injury). 
    3. (c)
      AL did not move the mattress above his head in the manner described by Ms Cvilikas.  There was no reason for him to do so if the (obvious) alternate option was simply to slide a mattress down onto the bed from a stack of mattresses on an adjoining bed.   There was no locking of eyes by Ms Cvilikas with AL as she alleges – if AL had moved the mattress in the way contended for by Ms Cvilikas the mattress would have bent somewhat from the approximately mid-point at which it was held, blocking eye contact.  Further, I do not believe that if AL had locked eyes[29] with Ms Cvilikas at the other end of the bed, he would have thrown a mattress in her direction, at least without giving a warning (and the parties agree that no warning was given).
    4. (d)
      Whatever the usual practice and procedure in respect of damaged or condemned mattresses, the mattress retrieved by AL from the vertical rack was not a damaged or condemned mattress. 
    5. (e)
      AL sourced a standard (not damaged or condemned) mattress from the vertical rack.  AL had the relevant bed positioned nearby in the front of the assets shed, in anticipation of sourcing a mattress for the bed from the vertical rack.  
    6. (f)
      Having sourced and removed a mattress from the vertical rack (by sliding it out of the vertical rack, keeping the mattress upright, short end to the floor), AL manoeuvred the mattress to the nearby end of the bed.  AL then moved the mattress onto the bed in a manner broadly similar to that shown in exhibit 24.  AL did not see Ms Cvilikas at the other end of the bed whilst initially moving the mattress because he was manoeuvring the mattress on its short side over to the end of the bed (which obstructed his view of the other end of the bed where Ms Cvilikas was then positioned). 
    7. (g)
      Ms Cvilikas, apparently not being familiar with this method of placing a mattress on a bed, was likely surprised to see the top end of the mattress tipping towards her (which she has perceived or subsequently interpreted as the mattress being thrown overhead by AL) and she reached out to assist with her left arm leading. 
    8. (h)
      The mattress in being so moved either came down on or slid towards Ms Cvilikas with sufficient momentum to jam Ms Cvilikas’s reached out left arm between the mattress and the end of the bed.  
  3. [45]
    The evidence as to what otherwise occurred either before or after the incident (that I will deal with below) does not persuade me that the incident took place in any other way.  What Ms Cvilikas perceived (and later reported) as an overhead throwing of the mattress by AL, was no more than AL tipping a vertically held mattress over the end of the bed in a manner with which Ms Cvilikas was apparently not familiar and was not expecting.

Matters before and after the incident

Matters before the incident - the usual work behaviour of AL

  1. [46]
    Paul Fooks has worked for the defendant since 2003, commencing as a PSA at NGH and later working at Sunshine Coast University Hospital in early 2017.  He returned to NGH in a PSA coordinator position in early 2018.
  2. [47]
    Mr Fooks gave evidence of a prior incident where he admonished AL for carrying a mattress overhead in the vicinity of the Emergency Department of NGH.  He seemed to think this prior incident occurred in 2015 or 2016 (but definitely prior to 10 December 2017).  He was questioned about whether he reported the prior incident, and said that he did not, because he considered the verbal admonishment he gave AL to be sufficient.  AL denied this prior incident’s occurrence. 
  3. [48]
    The plaintiff suggests that this prior incident, along with AL’s physical size and strength, work ethic and can-do type attitude, make it more likely than not that the incident occurred as alleged by Ms Cvilikas, with AL shuffling a mattress overhead and then throwing it down onto the bed. 
  4. [49]
    I do not accept that.  Whilst AL impressed me as a person who was committed to performing his PSA role in a correct and efficient manner, I do not accept that one alleged incidence of him carrying a mattress overhead (for which he was allegedly admonished) makes it more likely that the incident occurred in the manner Ms Cvilikas alleges.  If the prior incident actually occurred (and I do not consider it necessary to decide that one way or the other) and AL was admonished as Mr Fooks says, I consider it would make AL less likely to raise a mattress above his head again.  As above, that is supported by my impression that AL was committed to performing his PSA role in a correct matter.  That is also supported by Mr Fooks’s evidence that he did not believe AL “would have done anything outside of what he’s supposed to do.”[30]  Nor do I consider that AL’s size, strength, work ethic or attitude that may indicate he is physically capable of raising a mattress above his head, provide any reasonable basis for a conclusion that he did so on 10 December 2017. 

Matters after the incident – relevant reporting of the incident to others

12 December 2017, incident report

  1. [50]
    Ms Cvilikas completed a workplace incident report on 12 December 2017, two days after the incident.[31]  The report is silent as to: (1) the precise location of the incident within the assets shed, (2) the presence/relevance of a stack of mattresses on an adjoining bed or where the mattress was sourced from, (3) AL lifting the mattress above his head, (4) AL then throwing the mattress onto the bed. 
  2. [51]
    The report notes the incident was witnessed by and reported to AL.  In part 5 of the report where Ms Cvilikas was asked to record what happened unexpectedly and how exactly did the injury happen, she wrote:

Adam was putting a mattress onto a bed and I was trying to assist and the mattress came down on my arm. Felt pain instantly. It’s sore in certain positions.

  1. [52]
    Ms Cvilikas said that what she wrote in the report was the “nice version” of the incident.  She did not write that AL threw the mattress onto the bed.  She said that she omitted this detail as she did not want AL to get into trouble.
  2. [53]
    I find that what was written in the report was accurate and is consistent with the findings I have made above.  I reject that AL threw the mattress onto the bed.  As above, what Ms Cvilikas perceived (and later reported) as an overhead throwing of the mattress by AL was no more than AL tipping a vertically held mattress over the end of the bed in a manner with which Ms Cvilikas was apparently not familiar and was not expecting.  Because of that it may be that Ms Cvilikas thought (likely wrongly) that AL would get into trouble if she described in more detail the manner in which AL actually placed the mattress on the bed.

19 December 2017, GP appointment

  1. [54]
    On 19 December 2017 Ms Cvilikas saw Dr Bourke (general practitioner) in respect of problems with breathing, coughing and burping.  It was recorded during the appointment that Ms Cvilikas suffered “shoulder injury at work…lifted mattress.”[32]  Neither party suggested it was the lifting of a mattress by Ms Cvilikas that caused her injury.  I consider it relevant that no “throwing” of a mattress overhead by a co-worker is reported by Dr Bourke as being described by Ms Cvilikas. 

6 February 2018, GP appointment

  1. [55]
    Ms Cvilikas saw Dr Bourke again on 6 February 2018 in respect of “ongoing symptoms – sore all the time.”  A WorkCover certificate was issued.  No further report of how the injury was sustained appears to have been made at this appointment. 

12 February 2018, GP appointment, review form

  1. [56]
    Ms Cvilikas returned to see Dr Bourke on 12 February 2018 to complete paperwork for WorkCover.  Dr Bourke noted Ms Cvilikas had suffered a rotator cuff tear (based on an ultrasound that had been completed).  The diagnosis may not have been accurate but, at that stage, Ms Cvilikas was entitled to assume that was the injury she had suffered.  No further report of how the injury was sustained appears to have been made at this appointment.
  2. [57]
    The same day Ms Cvilikas completed a workplace review form after the GP appointment.[33] 
  3. [58]
    At T2.22, LL28-33, Ms Cvilikas said she did not recall speaking to Mr Fooks about the review form, she did not complete the review form in his presence and she was not sure how Mr Fooks’s involvement in the review form came about.  However it is clear that Mr Fooks was involved in the completion of the review form.  He said that in February 2018 Ms Cvilikas approached him about an incident that had occurred in December 2017 and said that she had pain.  He gave her the review document and asked her to fill out some basic details so he could “sit down and debrief it.”[34]  Ms Cvilikas filled out parts of the form in the next room and then brought it to Mr Fooks, sat down and discussed it with him.  Mr Fooks recalled adding to the form in front of Ms Cvilikas; he wrote the “witness information” in the form that was provided to him by Ms Cvilikas.
  4. [59]
    In the review document in relation to the event causing injury Ms Cvilikas wrote:

Attempted to help Adam put a mattress onto a ward bed and the mattress came down on to my left arm compressing between the mattress and bed rail.

  1. [60]
    In respect of “comments/concerns” Ms Cvilikas wrote:

Please refer to initial workplace incident form for more detail (re dates, times etc.)

  1. [61]
    According to Mr Fooks, when Ms Cvilikas gave him the partially completed review form she told him she did not tell the whole truth in the first workplace incident report because she did not want to get AL into trouble.  Mr Fooks made no record of that being said by Ms Cvilikas or the true allegations made by Ms Cvilikas against AL about how the incident occurred.[35]  In evidence he said that Ms Cvilikas, “was hesitant at saying anything. She said she had reported it in December. She had reported it incorrectly because she didn’t want to get Adam in trouble, is the way she phrased it. She said Adam had the mattress above his head, and as he went to put the mattress down, she considered that that was an exertion on him. She went to help”.[36]
  2. [62]
    I do not accept that Ms Cvilikas said to Mr Fooks at that time that during the incident AL had raised the mattress above his head.  If that had been said to Mr Fooks at the time, it would have been recorded in writing by Mr Fooks, including that such handling of a mattress by AL should not occur.  Instead I find that he told Ms Cvilikas, as he recorded in the review form, that:
    1. (a)
      the manual handling and movement of mattresses procedure was as documented in the review document, and he intended to speak to AL regarding same;
    2. (b)
      “from what Jody had spoken to me about, it was concerning Adam, in the motion of moving a mattress, and Jody coming to help, thinking that she was assisting. And I just pointed out that they needed to coordinate those tasks, as much as also making sure that they’re doing it in a safe manner”;[37]
    3. (c)
      at T3.106, LL26-30, that if Ms Cvilikas was going to assist and join in someone else’s activity, she needed to make sure the other person was aware; there is a danger of joining when the other person is not aware.
  3. [63]
    Again, I make findings in accordance with [53] above.
  4. [64]
    In so far as I have above rejected certain evidence given by Mr Fooks, I do not consider that Mr Fooks was dishonest.  By reference to the written documents and other matters I mention, I consider, with no disrespect to Mr Fooks, that his recollection is not in all respects accurate, and his evidence in parts is inaccurate reconstruction.
  5. [65]
    Mr Fooks never spoke to AL.  He said that he had only spoken to Ms Cvilikas and attempted to ring AL and speak with him in person, but was unable to do so.29  I consider that Mr Fooks would have made more of an effort to speak to AL if he had been told at that time that AL had thrown a mattress overhead onto a bed injuring a co-worker. 
  6. [66]
    There is evidence of Mr Fooks making one attempt to contact AL.  The next day, AL sent a text message to Ms Cvilikas indicating that Mr Fooks had called him and wanted him to make a statement about Ms Cvilikas’s WorkCover claim.[38]  The text reads: 

Hey Jody.  Paul called today and wants me to make a statement about your work cover claim.  What am I telling him

  1. [67]
    No response to that text is in evidence. 
  2. [68]
    Ms Cvilikas said she called AL after receiving the text message but gave no evidence of what was actually said in the conversation.[39]  That is a curious omission in her evidence. 
  3. [69]
    The plaintiff submits that the text from AL is only explicable as AL: (1) being prepared to tailor what he told his employer about the incident, or (2) not recalling the incident, or (3) being concerned about his role in the incident.  I do not accept that.  And even if I was prepared to accept that the text may reveal some intention for AL to “get his story straight” with Ms Cvilikas’s, that would seem to me to be with the intention of possibly benefiting Ms Cvilikas (a co-worker) in respect of her WorkCover claim.

Further writing by Ms Cvilikas

  1. [70]
    Ms Cvilikas conceded that in respect of the two workplace forms she filled out reporting the incident, “any person picking up these two documents would have no idea that what’s happened … that Mr Lenaghan picked up this mattress and thrown it”, but noted that she wrote down further things about the incident and put that under the door of the coordinator’s office.25  She said that Alison Robbie (a co-worker) had reminded her of doing so.26
  2. [71]
    Ms Cvilikas did not take a copy of what she had written and she did not recall what she had written.
  3. [72]
    At T3.70-71, Ms Robbie gave evidence that in the course of performing her cleaning duties she saw an incident form with Ms Cvilikas’s name on it on a keyboard in a supervisor’s office, she picked it up, there were two pieces of paper, the second piece of paper was handwritten only but she did not recognise the handwriting.  Ms Robbie’s evidence does not establish that Ms Cvilikas provided an additional document to the defendant about the incident or what was the content of any such document.
  4. [73]
    I do not consider this evidence useful at all in determining how the incident in fact occurred.  

Other reporting of the incident to co-workers

  1. [74]
    Ms Cvilikas relies on having made prior consistent statements to Mr Fooks and two friends/co-workers, Rae Tallentire and Ms Robbie.  Evidence of prior consistent statements is admissible to rebut recent concoction, but the prior consistent statements do not prove the truth of the allegations contained in them.
  2. [75]
    I have dealt with Mr Fooks above.  I do not accept that on 12 February 2018 Ms Cvilikas told Mr Fooks that the incident involved AL throwing a mattress overhead. 
  3. [76]
    In respect of Ms Tallentire and Ms Robbie, both said there was a one-off conversation in which Ms Cvilikas made allegations against AL and the matter was never mentioned again: T3.12 and T3.78.
  4. [77]
    I have rejected the contention that AL threw the mattress onto the bed.  As above, what Ms Cvilikas perceived (and later reported) as an overhead throwing of the mattress by AL was no more than AL tipping a vertically held mattress over the end of the bed in a manner with which Ms Cvilikas was apparently not familiar and was not expecting.  It is unsurprising that in the circumstances of being injured and discussing the matter later, particularly with friends, that the alleged movement of the mattress has been exaggerated or interpreted by Ms Cvilikas as being a “throwing”. 

Consulting with other doctors

  1. [78]
    The history given by Ms Cvilikas to Dr Casey (treating orthopaedic surgeon) contained in his report of 6 July 2018, was that she was “moving a mattress at work on 19 [sic] December 2017 and had the weight of the mattress push against her forearm, causing immediate pain to her left shoulder.”[40]
  2. [79]
    Ms Cvilikas was referred to Dr Frank (treating anaesthetist and pain physician) whom she saw on 13 May 2019 (some 17 months post-incident).  In a letter to Dr Casey that day, Dr Frank recorded this history from Ms Cvilikas:[41]

She was giving a hand to a supervisor in moving a mattress and unfortunately just as she had decided to give him assistance he had thrown the mattress with certain force and she sustained an injury to her left shoulder.

  1. [80]
    This is the first written record of a “throwing” of the mattress having occurred.  It occurs a significant period of time after the incident.  I consider it an exaggeration or inaccurate interpretation of how the placing of the mattress occurred.

Based on the facts as found, is negligence established

Duty of care, breach of duty

  1. [81]
    The defendant was the employer of Ms Cvilikas, with a duty to take reasonable care not to expose its employees to unnecessary risks of injury in carrying out their work.
  2. [82]
    Further, by reason of s. 305B of the WCRA, the duty owed by the defendant to Ms Cvilikas was a duty to take precautions against a risk of injury to Ms Cvilikas that was foreseeable, was not insignificant and, in the circumstances, a reasonable person in the position of the defendant would have taken the precautions.
  3. [83]
    Sections 305B and 305C of the WCRA provide:

General standard of care

305B General principles

  1. (1)
    A person does not breach a duty to take precautions against a risk of injury to a worker unless - 
  1. (a)
    the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
  2. (b)
    the risk was not insignificant; and
  3. (c)
    in the circumstances, a reasonable person in the position of the person would have taken the precautions.
  1. (2)
    In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things) - 
  1. (a)
    the probability that the injury would occur if care were not taken;
  2. (b)
    the likely seriousness of the injury;
  3. (c)
    the burden of taking precautions to avoid the risk of injury.

305C Other principles

In a proceeding relating to liability for a breach of duty -

  1. (a)
    the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
  2. (b)
    the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
  3. (c)
    the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.
  1. [84]
    Those sections operate against the background of common law principles but modify them to an extent.[42]  Wyong Shire Council v Shirt[43] per Mason J at 47-48 and Roads and Traffic Authority (NSW) v Dederer,[44] set out basic and settled matters of legal principle with regards to negligence that are not necessary to repeat here.
  2. [85]
    Considering the elements of ss. 305B and 305C of the WCRA, I find:
    1. (a)
      The risk that a co-worker in the vicinity of another co-worker may intervene, without notice, to assist in a manual handling task (such as placing a mattress on a bed) is foreseeable.  That is particularly so where the item being manually handled is bulky, weighty or awkward to handle, or is commonly manually handled by two persons (like a mattress).  The risk that the intervening co-worker may be injured as a consequence of such unannounced intervention is also foreseeable.  Again, that is particularly so where the item being manually handled is bulky, weighty or awkward to handle (like a mattress). 
    2. (b)
      The above risk of injury is not insignificant.  A mattress is bulky and weighty; particularly once a mattress is in an unsupported or uncontrolled motion,[45] a person in the path of the moving mattress could be hurt. 
    3. (c)
      A reasonable person moving a mattress would take precautions to ensure that no person or part of a person was, or could readily become, in the path of the moving mattress.  If that could not be achieved visually then the reasonable person would issue a verbal warning to other persons in the vicinity about the proposed movement of the mattress or to stand clear of the moving mattress.
    4. (d)
      If such precautions were not taken it was probable that injury would occur to the person intervening to assist without notice in the manual handling task and that the injury would be serious.  Those matters would be probable because:
      1. of the matters mentioned in (b) above; 
      2. the person intervening to assist would put themselves, or part of themselves, in the path of the moving mattress;
      3. the person intervening to assist may wrongly assume how the person moving the mattress intends to move it or be unprepared for the movement that actually occurs. 
    5. (e)
      It is not burdensome for the person in the position of moving a mattress to visually ensure that no person or part of a person was, or could readily become, in the path of the moving mattress; and if a visual assessment could not achieve that assurance, to issue a verbal warning to other persons in the vicinity about the proposed movement of the mattress or to stand clear of the moving mattress.  Whilst it was submitted for the defendant that if there were any such requirements in a hospital setting that would make hospitals very noisy places indeed, I do not agree.[46]  In most cases the item being manually handled will not cause a visual impediment, or will not at any point in the manual movement not be under the full control of the person moving the item, or will not be of a size or weight likely to cause injury.  The circumstances in which verbal warnings need to be given would be expected to be narrow in practice.   
  3. [86]
    I do not accept that the mere fact of one person manually handling a mattress would be sufficient to establish a breach of duty.  In many instances the moving of a mattress from one place to another involves beds being placed side by side, and two persons (one at each end of the beds) sliding the mattress from one bed to the other (usually sliding them across at waist height by adjusting the height of the beds using the beds’ remote controllers[47] with the bedrails of the beds lowered[48]).  However, it also seems plain enough that that task can be safely undertaken by one person, and that mattresses can be safely moved about in other ways. 
  4. [87]
    The method of a single person moving a mattress in the way demonstrated in exhibit 24, being broadly the way in which I have found the mattress here was in fact placed, seems to carry no obvious risk of injury to the person moving the mattress.  Mr Pacey confirmed at T1.102, LL1-13 that the process of placing the mattress on the bed that AL says he used was quite easy to do and involved very little effort.  Mr Fooks said at T3.106, L43 that mattresses were commonly manually handled by a PSA working alone.  Mr O'Sullivan, at page 18 of his report dated 5 February 2021[49] said “a one person procedure could also be appropriate if carried out in a suitable fashion without undue force or momentum”.  The broad procedure demonstrated exhibit 24 is one carried out without undue force or momentum.
  5. [88]
    In the above circumstances and considering the facts as I have found them, I am satisfied that AL breached a duty to take precautions against a risk of injury to Ms Cvilikas in respect of the incident.  I find that:
    1. (a)
      placing a mattress on a bed does carry with it a foreseeable risk that a person’s body part (being a person not involved in the placing of the mattress) may become caught between the moving mattress and the bed;
    2. (b)
      if that risk eventuates, injury (not being insignificant) to the person is likely, particularly given the weight of the mattress and solid nature of the bed;
    3. (c)
      the risk is properly addressed by the person moving the mattress ensuring that no person is in, or may readily come within, the likely path of the moving mattress;
    4. (d)
      where the positioning of the mattress means that the person moving the mattress cannot ensure or see that no person is in, or may readily come within, the likely path of the moving mattress, the risk is properly addressed by the person moving the mattress issuing a verbal warning to other persons who may be in the vicinity as to the moving of the mattress and to stand clear of the mattress and bed (or words to that effect) prior to executing the mattress movement;
    5. (e)
      in this case, the manner in which AL manoeuvred the mattress to the end of the bed meant that he could not see that Ms Cvilikas had moved into a position near the other end of the bed, close enough to put part of her body (her left arm) in the intended path of the moving mattress;
    6. (f)
      AL knew that Ms Cvilikas was physical proximate to him in the assets shed as she had been speaking to him and he did not see her leave the assets shed;
    7. (g)
      AL gave no verbal warning prior to or at the time of moving the mattress onto the bed to warn Ms Cvilikas of the intended movement of the mattress or to stand clear of the mattress and bed;
    8. (h)
      AL, acting reasonably, ought to have given such a warning;
    9. (i)
      in failing to give such a warning, AL breached the duty of care owed by him to Ms Cvilikas, and the defendant is vicariously responsible for that breach;
    10. (j)
      further the defendant was negligent for not having in place a system of work whereby PSAs were trained to issue warnings about the intended movement of mattresses if it could not be ascertained with certainty that no other person was within, or may readily come within, the path of a moving mattress;[50]
    11. (k)
      the need for such a system of work did not arise as a consequence of cleaners having suffered injuries whilst handling mattresses at NGH.  There is no evidence that such cleaners’ injuries were caused as a consequence of any like movement mechanism as existed here.  The need for such a system of work arose as a consequence of the size, bulk and weight of mattresses and the need for PSAs to move mattresses about when other persons may be present (including when making up a bed). 
  6. [89]
    I do not consider it is an answer to the allegation of breach of duty for the defendant to say that:
    1. (a)
      workers regularly placed a mattress on a bed whilst working alone;
    2. (b)
      AL intended to perform the task on his own and did not require assistance;
    3. (c)
      Ms Cvilikas offered assistance and AL refused that assistance;
    4. (d)
      there is no evidence of another worker ever having intervened unannounced;
    5. (e)
      turning and moving mattresses are tasks that occur in a domestic setting;
    6. (f)
      by December 2017, Ms Cvilikas had been a PSA for more than 10 years and had seen mattresses being moved and been involved in the movement of mattresses on many occasions.
  7. [90]
    The critical allegation of breach on the part of AL in [7] of the ASOC is the alleged failure to warn.  The allegation presupposes AL, not having requested Ms Cvilikas’s assistance and, as she alleges, having expressly rejected her assistance, it then fell to him to give her a warning.  I consider that where AL clearly did not have Ms Cvilikas in sight (away from the bed) as he was moving the mattress, a warning ought to have been given.  Whilst AL said at T3.57, LL29-30, “She wasn’t close enough to be involved in the task, so I didn’t think she was part of the task being performed” she was in fact close enough to be hurt by the moving mattress. 
  8. [91]
    The risk that a mattress may impact a person in the path of the moving mattress who cannot be seen by the person moving the mattress was a risk of which the defendant and AL knew or ought reasonably to have known and it was significant.
  9. [92]
    This case has analogies to the decision in Czatyrko v Edith Cowan University,[51] although I note the facts are very different.
  10. [93]
    I conclude that Ms Cvilikas has established liability on the part of the defendant.

Evidence of Justin O'Sullivan

  1. [94]
    Mr O'Sullivan prepared a report for the plaintiff dated 5 February 2021 addressing certain occupational health and safety issues relating to the incident.  I admitted only part of that report into evidence.[52] 
  2. [95]
    I do not consider the admitted evidence of Mr O'Sullivan is particularly helpful to determining any of the disputed issues.  He opines as to an appropriate method of one person handling a mattress placement on a bed, the focus of which is preventing injury to that person.  His reference to the Hazardous Manual Tasks Code of Practice (2012) makes that sufficiently clear – it being concerned with the muscular effort required to handle a load. 
  3. [96]
    In so far as he opines to an appropriate method of two people handling a mattress, that is not the situation here.  AL was performing the task on his own and specifically turned down assistance offered by Ms Cvilikas.  The task being performed by AL did not involve repetitive or sustained force, high or sudden force repetitive movement, sustained or awkward posture or exposure to vibration.  I do not consider there was anything negligent in AL simply moving the mattress on his own.  

Causation

  1. [97]
    Where a breach is established, the injuries must be a ‘necessary condition’ of the accident, and it must be appropriate to extend the scope of the liability to the accident under s. 305D of the WCRA.  A plaintiff must prove that whether or not other factors also contributed to the injury occurring, but for the accident, the plaintiff would not have sustained the injuries.[53]
  2. [98]
    Sections 305D and 305E of the WCRA provide:

Causation

305D General principles

  1. (1)
    A decision that a breach of duty caused particular injury comprises the following elements - 
  1. (a)
    the breach of duty was a necessary condition of the occurrence of the injury (factual causation);
  2. (b)
    it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).
  1. (2)
    In deciding in an exceptional case, in accordance with established principles, whether a breach of duty - being a breach of duty that is established but which can not be established as satisfying subsection (1)(a) - should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.
  2. (3)
    If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach - 
  1. (a)
    the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
  2. (b)
    any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any)               that the statement is against his or her interest.
  1. (4)
    For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.

305E Onus of proof

In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

  1. [99]
    This is not an “exceptional case” so s. 305D(2) of the WCRA does not apply.
  2. [100]
    In Lusk & Anor v Sapwell,[54] Margaret Wilson AJA said at [76]:

An employer’s duty of care to his or her employee is non-delegable, and a high standard of care is expected.  But the duty is not absolute.  And in order to succeed in an action for damages for breach of that duty the employee must establish both the breach and that the employer’s conduct materially caused the injury. Where the employer’s negligence consists of an omission to provide certain safeguards, the employee must establish that performance of the duty would have averted the harm.

  1. [101]
    The onus is on the plaintiff to establish a warning would have made a difference. 
  2. [102]
    I find that Ms Cvilikas’s intervention was unannounced, unexpected and uninvited by AL. 
  3. [103]
    However, I am satisfied that causation is established here.  If the warning had been given, I consider that Ms Cvilikas would either have not reached forward with her arm towards the mattress or would have pulled her arm away in sufficient time to ensure that it was not caught between the mattress and the bed.  In either case, the injury would not have been suffered by Ms Cvilikas.

Contributory negligence

  1. [104]
    In [8] of the Defence, the defendant alleges that Ms Cvilikas’s injury and any loss and damage resulting therefrom were caused and contributed to by her failure to take precautions against the risk of injury to herself that a reasonable person in her position would have taken.  The standard of care required of Ms Cvilikas is that of a reasonable person in the position of the plaintiff and the matter is to be decided on the basis of what the plaintiff knew or ought reasonably to have known at the time: s. 305F of the WCRA.
  2. [105]
    Section 305H of the WCRA deals with circumstances in which a finding of contributory negligence may be made.  As observed by McMeekin J in Osborne v Downer EDI Mining P/L & Anor,[55] s. 305H did very little to alter the common law position save to say that a court may make a finding of contributory negligence in the circumstances provided for in those provisions.
  3. [106]
    The defendant’s counsel submitted that contributory negligence should be assessed at 30%, while counsel for the plaintiff submitted that there should be no finding of contributory negligence.
  4. [107]
    During oral closing submissions, I was referred to the High Court decision of Bankstown Foundry v Braistina,[56] where the majority, Mason, Wilson and Dawson JJ said:

A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage.

  1. [108]
    It is Ms Cvilikas’s case that she intervened in work being undertaken by AL, in circumstances where she had not been requested to do so and her express offer of assistance had been clearly rejected.  The movement of the mattress onto the bed was being undertaken by AL.  He was a fit, strong and competent PSA.  There was no good reason for her to intervene.  Sticking out her left arm to “catch” a moving, bulky and weighty mattress that was otherwise going to land on an empty bed, hurting nobody, was ill-advised. 
  2. [109]
    I am not satisfied that the plaintiff’s conduct amounted to ‘mere inadvertence, inattention or misjudgement’ which would, by reference to Braistina, absolve her from a finding of contributory negligence. Rather, the plaintiff’s conduct was interventionalist and unnecessary.  In those circumstances, a significant reduction for contributory negligence is warranted.
  3. [110]
    I accept the defendant’s submission that this is not a case of a plaintiff performing a mechanical or repetitious task where ‘inadvertence’ is not regarded as contributory negligence.[57]
  4. [111]
    In submitting a figure of 30% for contributory negligence, the defendant’s counsel made reference to Osborne, as well as Burns Philip Trustee Co Ltd v Clarke.[58]  Those cases are not factually analogous to the case before me.  In Osborne, a reduction of 35% for contributory negligence was considered appropriate in circumstances where the plaintiff fell down a hole in a mine which he had constructed, walking past two barriers warning him of the hole.  In Clarke, a reduction of 40% for contributory negligence was affirmed by the New South Wales Court of Appeal.  In that case, the plaintiff made a conscious decision to continue with the task of lifting and moving a heavy credenza despite realising its weight on the initial lift.
  5. [112]
    I do not consider the actions of the plaintiff in this case to be as negligent as those described in Osborne and Clarke, where contributory negligence was assessed at 35% and 40% respectively.  Nevertheless, I am satisfied that the plaintiff’s intervention in the task being carried out by AL requires a finding of contributory negligence.
  6. [113]
    I assess Ms Cvilikas’s contributory negligence at 25%. 

The injury suffered and the treatment undertaken 

  1. [114]
    The incident caused immediate pain to Ms Cvilikas’s left shoulder.  She finished working her shift despite her left shoulder hurting.  At home after her shift she says could not get her left hand behind her back to undo her bra. 
  2. [115]
    Ms Cvilikas sought medical treatment for her injury on 19 December 2017, over a week later, when she went to see Dr Bourke (general practitioner) (including for unrelated complaints).  Dr Bourke noted that Ms Cvilikas had a shoulder injury from lifting a mattress and was unable to put her left arm behind her back.  Ms Cvilikas was referred for an ultrasound, which revealed a rotator cuff tear (high grade articular surface tear 4 x 5mm anterior supraspinatus).  A later MRI in 2018 refuted that diagnosis, showing an intact cuff.[59] 
  3. [116]
    Ms Cvilikas delayed deciding whether to make a WorkCover claim but on 6 February 2018 Dr Bourke issued a WorkCover medical certificate.  Ms Cvilikas was deemed fit for suitable duties, with restrictions being a lift limit of 5 kilograms, no overhead lifting and only occasional pulling/pushing.  Ms Cvilikas was ruled off work by Dr Bourke entirely from 12 February 2018.  What changed in the intervening period of six days is not clear on the evidence.
  4. [117]
    Ms Cvilikas was referred to Dr Casey (orthopaedic surgeon).
  5. [118]
    By July 2018 Ms Cvilikas was continuing to report:
    1. (a)
      a tender acromioclavicular joint;
    2. (b)
      mild tenderness over the acromion;
    3. (c)
      limitation of range of motion of the left shoulder;
    4. (d)
      her left bra strap causing her pain.[60]
  6. [119]
    The likely diagnosis at that time was uncertain, but possibly acromioclavicular pain or pain from an os acromiale (being a developmental anomaly likely to have been present her whole life).[61]  Doctors continued to report to WorkCover that Ms Cvilikas was unable to return to work.[62]
  7. [120]
    By August 2018, whilst the diagnosis remained uncertain, it was likely the pain was originating from the acromioclavicular joint.  A steroid injection to that joint provided two days of relief but Ms Cvilikas reported that the pain subsequently returned.  Her range of motion had improved.  A test was proposed to rule out the os acromiale as a source of the pain, and if that was ruled out, the surgical treatment for the acromioclavicular joint was to be a distal clavicle excision that it was considered would provide reliable relief.[63]  
  8. [121]
    A decision was made to undertake that surgical treatment.  The recovery from a successful surgery until returning to full duties was estimated to be up to three months.[64]
  9. [122]
    The surgical treatment was undertaken on 22 November 2018 when a left shoulder arthroscopy and acromioclavicular joint excision was performed (9mm distal clavicle excised).  The findings of that surgery were a minor subcromial bursitis only, with a small spur at the acromioclavicular joint.[65] 
  10. [123]
    Seven weeks post-surgery Ms Cvilikas reported that her pain had not settled and she was still experiencing pain on full flexion and on internal rotation of the left shoulder.  A bra strap continued to cause her pain over the area of the scar.[66]  Dr Casey felt that “she still has incapacity for work due to pain” and it was concerning that the pain did not seem to be improving.
  11. [124]
    On 21 February 2019 Dr Casey noted ongoing pain and recommended an ultrasound and x-rays.  Dr Casey highlighted that a pain specialist may need to review her if those scans were normal.97
  12. [125]
    Three months post-surgery Ms Cvilikas continued to report that the surgery had not provided her with any relief from her pain.  Dr Casey opined that whilst prior to the surgery he considered Ms Cvilikas’s injury was acromioclavicular joint pain, given the lack of improvement following the surgery he was now uncertain as to the cause of the pain.  The pain had been expected to settle markedly allowing a return to work.  The possibilities were: (1) that the recovery was slower than usual or (2) the source of the pain was not the acromioclavicular joint.  Dr Casey proposed some tests to rule out post operative complications and otherwise recommended referral to a pain specialist for review.[67]
  13. [126]
    Ms Cvilikas was referred to Dr Frank (anaesthetist and pain management specialist) who first saw her on 13 May 2019.  He sent a report that day to Dr Casey.[68]  Dr Frank said the underlying structural issues had been dealt with however Ms Cvilikas had “persistence of pain likely due to a component of central sensitisation and perhaps a component of neuropathic pain peri scar line.”  The letter contains details of potential “pain interventions.”  He noted that some of the medications that she was using were having adverse effects.  He recommended an analgesic cream with certain painkillers.  He also recommended a diagnostic suprascapular nerve block be undertaken under ultrasound guidance.
  14. [127]
    He noted in the 4th paragraph on the 1st page of that report that Ms Cvilikas “cannot effectively look after her husband nor partake in any type of activity where she cannot rest and support her shoulder.”  Then, in the last paragraph on the 2nd page he noted, “I highly doubt that it would be appropriate for her to return to a Wardsperson duties.”
  15. [128]
    On 29 July 2019 Dr Frank gave WorkCover a handwritten report that noted that Ms Cvilikas’s work-related incapacity would not cease until her pain was under control.[69]  He requested WorkCover’s approval to do diagnostic nerve blocks and radiofrequency ablation.  WorkCover refused his recommendation for treatment as it did not fund such procedures.[70] 
  16. [129]
    The treatment recommended by Dr Frank did not proceed.  There is no evidence that Ms Cvilikas investigated or considered funding the recommended treatment herself.  No further treatment of the plaintiff’s injury was undertaken.  No further diagnostic tests have been undertaken to ascertain the cause of the plaintiff’s reported ongoing difficulties.

The plaintiff’s reported ongoing difficulties

  1. [130]
    Ms Cvilikas says she continues to suffer considerable ongoing pain, localised to the region of her scar.  She reports a constant ache, sometimes a burning pain, including pain present at rest but aggravated with use.  She often cradles her left arm or otherwise supports it, sometimes using a pillow.
  2. [131]
    She says the pain affects her sleep habits as it restricts her from her preferred side sleeping position.  She has disturbed sleep and consequentially is tired and foggy.  She suffers from headaches that she believes are related to a lack of sleep. 
  3. [132]
    She says she has difficulty wearing a bra on her left shoulder because the strap causes pain on the point of the shoulder. 
  4. [133]
    She says she requires help from her partner for domestic duties as she is restricted in the use of her left arm.  She is unable to undertake yard and garden maintenance. 

What injury now remains

  1. [134]
    It is not clear what is the cause of the plaintiff’s reported ongoing difficulties. 

Rotator cuff tear?

  1. [135]
    There is a suggestion by Dr Kilian that a rotator cuff tear may be a cause.  In that respect, I note as recorded at [115] above, that a 2017 ultrasound revealed a rotator cuff tear (high grade articular surface tear 4 x 5mm anterior supraspinatus).  Dr Kilian reviewed the image and noted the tear.
  2. [136]
    A later MRI in 2018 refuted that diagnosis as it showed an intact cuff.  Dr Casey having gone through the images at the time and with the benefit of examining the plaintiff’s shoulder, agreed with the MRI findings.[71]  Dr Kilian has described the available images he reviewed of not great quality.  No such comment was made by Dr Casey.  Dr Casey’s operation report noted the rotator cuff as “intact”.[72]
  3. [137]
    An MRI report of 21 January 2020 identifies a “low grade articular surface tearing critical zone anterior supraspinatus less than 25% thickness, 5 x 6mm.”  Dr Kilian reviewed the image and noted the tear, although he noted that he had viewed the images online and the court might be better assisted by a radiologist’s report.  No radiologist’s report was produced.  He further noted this type of tear can be difficult to find at the time of surgery and is often not repaired in any event.  Moreover, such tears can also be asymptomatic.[73]
  4. [138]
    The evidence does not satisfy me on the balance of probabilities that a rotator cuff tear exists, was caused by the incident, or is the cause of the plaintiff’s ongoing reported difficulties.

Nerve problem?

  1. [139]
    The matters dealt with in Dr Frank’s letter[74] are enlarged on in a memo signed by Dr Frank on 27 May 2022.[75]  Dr Frank proposed diagnostic blocks of the suprascapular nerve and possibly the supraclavicular nerve or the superficial cervical plexus.  Dr Frank expressed concern that the recommended treatment may not now be as likely to be successful, due to the delay.[76]
  2. [140]
    Dr Frank gave oral evidence about a further consultation on 21 June 2022 in which he noted that Ms Cvilikas’s symptoms were similar to the symptoms that she was exhibiting when the injury first occurred, namely a burning sensation in the distal tip of her left shoulder and radiation of pain.  He noted that Ms Cvilikas’s pain at rest was not “too bad, and on movement, it exacerbated the pain significantly.”[77]  He described that in this examination, despite the burning pain she was experiencing, she had a temperature decrease of 2.7 degrees over the affected area which appeared to be evidence of an ongoing neuroplastic process[78] - a difference of up to 1.5 degrees is considered normal.  She had impairment in her movement and distribution of pain of the suprascapular nerve, but minimal reduced sensation or hypersensitivity of her skin.[79]
  3. [141]
    He felt that the treatment recommended by him in 2019 should still be carried out.  In terms of the treatment facilitating Ms Cvilikas’s return to work he said that it “may” be done.  He explained that the treatment “puts someone back on the trajectory of what most people are expected to do” in terms of the rehabilitation process.  “You know, a lot of people will…improve enough in that time to get back to work. Some people won’t.”[80]  He noted that Ms Cvilikas had “got significant side effects…from opioid and non-opioid analgesics…the next step is to try a procedural option. It’s not always the first thing we go to.  Jody seemed to have a reasonably positive attitude.”[81]  He noted that it appeared that Ms Cvilikas was experiencing a “neuropathic-neuroplastic pain induced muscle dysfunction.”[82]  He noted that “pain is subjective to everyone, except” in the case of Ms Cvilikas “there’s objective evidence of temperature difference, which indicates a neuroplastic process.”[83]
  4. [142]
    He now regards the lateral pectoral nerve as a “nerve of interest.”[84]  Dr Frank says on re-examination of the plaintiff, it is no longer a superficial nerve over the scar line causing the plaintiff’s reported ongoing difficulties, instead he suspects it is a deep nerve, but he is still making an assessment without knowing for sure.[85]
  5. [143]
    At T2.81, LL11-12 in cross-examination Dr Frank noted that small fibre tears and a neuropathic component may be a cause of the plaintiff’s reported ongoing difficulties. 
  6. [144]
    Dr Frank confirmed at T2.80, L30 that the plaintiff no longer has allodynia.  There was no allodynia over the superficial skin.[86]
  7. [145]
    The evidence does not satisfy me on the balance of probabilities that any particular identified nerve problem exists, was caused by the incident, or is the cause of the plaintiff’s reported ongoing difficulties.  There may be some ongoing nerve problem, but it is not yet properly diagnosed.  

No ongoing injury?

  1. [146]
    Dr Blenkin could not identify any substantiated pathological process giving rise to the plaintiff’s reported ongoing difficulties.  He found she had good structural condition of the left shoulder, adequate to support her in her usual physical roles.  He said that the claim of substantial pain cannot be reconciled from a clinical perspective.[87]

Other evidence relevant to plaintiff’s reported ongoing difficulties

Television footage

  1. [147]
    There exists television footage of the plaintiff[88] that was taken during a meal setting and an interview for the purpose of a reality television show.  The plaintiff is not seen undertaking any above shoulder movements in the footage with either arm and that is unsurprising in those settings.  In the footage the plaintiff can be seen to gesture more with her left arm than her right arm, cut with a knife in the left hand and hold a bottle in her dominant right hand and unscrew with the left hand.  She regularly flicks her long hair back behind her shoulders with both hands (something she also did from time to time in the witness box whilst giving evidence).  Her movements appear fluid and there is no evidence in the footage of discomfort, pain or restricted movement relating to her left shoulder.

The plaintiff’s presentation in the witness box

  1. [148]
    In the early parts of the giving of her evidence I observed Ms Cvilikas carefully cradling her left arm and moving it very little, only with great care.  Reference to that can be seen in the extract at [25] above when Ms Cvilikas picked up a tissue box to demonstrate how she said AL had moved the mattress before throwing same.  Her left shoulder was apparently too weak or painful to demonstrate the alleged movement with her left arm and hand. 
  2. [149]
    After the television footage was played showing fluid movement and use of her left arm (albeit in a situation that did not require any particular effort or strain on the left shoulder) and it being put to her effectively that she was “faking” her presentation in court, I observed that Ms Cvilikas’s movements in the courtroom became far more fluid.  She began gesturing and flicking her hair back with her left hand (albeit again in a situation that did not require any particular effort or strain on the left shoulder).

The lack of evidence from the plaintiff’s partner and children

  1. [150]
    The defendant has been critical in its submissions of the failure of the plaintiff to have either her partner or adult children give evidence in respect of her reported ongoing difficulties.  Both of her adult children were in court at various times during the trial.
  2. [151]
    I expect that I would have been assisted in hearing evidence from the plaintiff’s partner and adult children as to what they have witnessed in respect of any ongoing difficulties experienced by the plaintiff.  Why those persons were not called by the plaintiff to give evidence is unclear to me.  It may have been decided by the plaintiff that the evidence of the plaintiff alone as to her ongoing difficulties would be sufficient (in terms of non-expert evidence).
  3. [152]
    However, I am not prepared to draw any adverse inference against the plaintiff in consequence of neither her partner nor adult children giving evidence; her partner does have a permanent back injury (which may have made attending court more difficult) and her adult children may not have felt comfortable giving evidence for any number of reasons.  I do not consider it reasonable to infer that any evidence the plaintiff’s partner and adult children could have given would not have assisted the plaintiff’s case.  I will make my findings on the evidence I do have before me and my assessment of it.

The independent medical evidence

Dr Kilian

  1. [153]
    Dr Kilian is an orthopaedic surgeon specialising in hips, shoulders and knees.  His evidence-in-chief was largely his report of 25 April 2022[89] and a file note.[90]
  2. [154]
    Relevantly in those documents:
    1. (a)
      he assessed Ms Cvilikas’s work-related shoulder injury as causing a 12% whole person impairment;
    2. (b)
      he noted that she complained of pain in the left shoulder at a level of 4 – 6 out of 10 on a Visual Analogue Pain Scale, which aggravates up to 7 – 9 out of 10.  She can use her left arm, but usually protects and supports the hand, and often sits with a pillow underneath it.  She finds it difficult to wear a bra on the left shoulder because the strap of the bra causes pain on the point of the shoulder. She reported burning pain on the top of her shoulder;
    3. (c)
      he noted that she “is unable to do any work now with her left arm and has been unable to return to her previous job. In addition to the sore shoulder, she also reports that she has issues with memory loss and concentration, and she suspects this might be due to the fact that she is not sleeping because of pain and difficulty lying in her preferred sleeping position, on her side.”[91]
    4. (d)
      he concluded that, “she is no longer suited to manual duties such as she undertook as a Wardsperson, due to the ongoing and extensive symptomatology. She could perhaps from a physical perspective, be considered for a sedentary role in the future, however, there are many impeding factors to this and I defer to the occupational report by Mr Stephen Hoey in this regard.”[92]
    5. (e)
      he said that, “I note that some of my surgical colleagues consider Ms Cvilikas is safe to return to normal duties but at present, I believe given her shoulder problem and the pain related impairment it is unlikely that she will be returning to manual duties requiring use of her left hand and on this basis there is obviously a degree of income loss, but I also note that she is on a total permanent and disability pathway”;[93]
    6. (f)
      he identified not just the burning sensation but also allodynia around the scar which he concluded can be associated with pain conditions, such as chronic regional pain syndrome but acknowledged that he did not diagnose that here;[94]
    7. (g)
      he noted that specific examination was difficult to undertake because of pain;[95]
    8. (h)
      he felt that a pain specialist had a role to play in further treatment.
  3. [155]
    In his oral evidence, Dr Kilian expanded on there being a structural injury to the shoulder. He noted that the radiological evidence showed “a partial thickness tear of the supraspinatus which Dr Blenkin does refer to but he dismisses it” and in the initial imaging there was reference to the os acromiale which was present on recent imaging.[96]  He noted that in terms of Dr Casey’s surgical findings the supraspinatus muscle was intact, however that partial thickness tears are difficult to diagnose intraoperatively.[97]
  4. [156]
    Dr Kilian believed that Ms Cvilikas’s combined allodynia and reports of a burning pain on occasion raised that there was potentially some local nerve-based pain and pointed to one of the physiotherapists making similar conclusions in their report (noted at [49] of his report).[98]
  5. [157]
    Dr Kilian noted that Ms Cvilikas had pain during the range of motion measurements and referenced that Ms Cvilikas had a degree of avoidance/psychological overlay in which she was self-restricting due to fear of aggravating her pain.[99]  He said that he focused on the active ranges of motion (in accordance with the directions of the AMA Guidelines).[100]  He noted that different measurements between the examinations can be dependent on the degree of pain felt by the patient.[101]
  6. [158]
    Dr Kilian acknowledged that Dr Blenkin’s approach of assessing range of motion was one way to approach the matter[102] but decided to use another legitimate method to assess impairment given the variability of results produced by the plaintiff.[103]  He explained that such variability does occur in practice.[104]
  7. [159]
    He identified the signs of nerve issues including a burning pain and allodynia.[105]  He pointed out that allodynia had also been detected by the treating physiotherapist.[106]
  8. [160]
    In cross examination at T3.43-46 Dr Kilian accepted: (1) he found no muscle wastage about Ms Cvilikas’s left shoulder, (2) there was a marked difference between Ms Cvilikas’s presentation to Dr Blenkin in March 2020 and to him (Dr Kilian) in April 2022, (3) he cannot by reference to radiology explain the symptoms complained of by Ms Cvilikas and (4) no reliance can be placed on the plaintiff’s range of left shoulder motion given the inconsistencies produced by the plaintiff.[107] 
  9. [161]
    Dr Kilian’s impairment assessment is reliant on the plaintiff’s reporting of symptoms, with range of motion disregarded because of inconsistency.[108]
  10. [162]
    Dr Kilian was cross-examined about his allodynia finding from T3.47, L47 and on to T3.48.  His finding of allodynia puts him at odds with both Dr Blenkin and Dr Frank however Dr Kilian conceded his reliance on the plaintiff’s reporting of symptoms in order to say she has allodynia.
  11. [163]
    Importantly, when it comes to consider Dr Frank’s opinions, Dr Kilian agreed at T3.50, LL5-13 consistently with Dr Blenkin’s evidence, that the nerves in the area where the surgery was performed are very fine, the area is distant from the pectoral nerve and he could not find a specific nerve injury.

Dr Blenkin

  1. [164]
    Dr Blenkin is an orthopaedic surgeon with subspecialties in surgery to the hand, shoulder and upper limb, and microsurgery.  He has seen “lots of nerve injuries” and understands neuropathic pain.[109]  His evidence-in-chief was largely his reports of 8 March 2020 and 15 May 2021.[110]
  2. [165]
    He saw Ms Cvilikas on two occasions, on 5 March 2020 and 11 May 2021 and following the second occasion concluded that she had an 8% whole person impairment related to the accident-related injuries.[111]
  3. [166]
    At the assessment on 5 March 2020, per Dr Blenkin’s report dated 8 March 2020,[112] Ms Cvilikas had “localised (the pain) to the region of her left AC joint excision arthroplasty.”  However, on examination, Dr Blenkin was able to “compress the excision arthroplasty substantially and there (was) no withdrawal or pain response.”  Further, Dr Blenkin could not detect any muscular wastage of deltoid or spinatii.  Further, the equal forearm measurements were “consistent with right hand dominance and show no differential disuse muscular wastage, affecting the non-dominant left upper limb.”  Dr Blenkin said Ms Cvilikas sat with her left arm pressed against her body and then rested the forearm on a pillow, stretching from time to time.  I note the presentation described by Dr Blenkin is at odds with the appearance in the television footage.
  4. [167]
    In the opinion section of his report dated 8 March 2020 Dr Blenkin said:
    1. (a)
      given the mechanism of injury he expected any damage to have been minor;
    2. (b)
      there is a relative poverty of pathology demonstrated radiologically;
    3. (c)
      the left shoulder in fact examined very well;
    4. (d)
      Ms Cvilikas made a relatively poor demonstration of active range of motion but with encouragement the range picked up rapidly; in this respect the movements are quite functional;
    5. (e)
      the restriction of movement alleged by Ms Cvilikas was “hard to fathom” and the alleged disability difficult to understand;
    6. (f)
      the condition of the left shoulder would not prevent Ms Cvilikas from returning to work as a wardsperson, if she wished to do so;
    7. (g)
      the claim of substantial pain cannot be reconciled from a clinical perspective.
  5. [168]
    He concluded following the second consultation that, “Ms Cvilikas retains adequate capacity to perform light manual duties or fulfill a sedentary role full-time until normal retirement age. She could continue to work as a Wardsperson if she wished. I feel that there are overriding non-organic factors at play.”[113]
  6. [169]
    It was his view, as expressed in his first report, that the equivalency of the measurements of the forearms 10 centimetres down from the elbow was crucial to his assessment that there was no evidence of disuse in the shoulder.  When it was pointed out to him that, proportionately, there had been a decrease in the measurement of the left forearm in the intervening 14 months between the date of his first examination and his second, he cited the fact that, constitutionally, there is often a variance.  He saw no difficulty with such a constitutional variance arising over the short period of time between the first and second assessments.[114]
  7. [170]
    It is convenient to mention at this point the schedule of recorded post-surgery ranges of motion in Mr Hoey’s report dated 2 May 2022.[115]  The recorded range of motion was consistent on three occasions from 19 July 2019 to 5 March 2020 yet three weeks later on 26 March 2020, the range of motion was significantly reduced and there is no explanation in the evidence as to how and why that occurred (except perhaps that the measurement can be different day to day depending on the plaintiff’s pain).
  8. [171]
    On 11 May 2021 Ms Cvilikas underwent a further examination by Dr Blenkin who furnished a report dated 15 May 2021.[116]  Ms Cvilikas indicated her clinical circumstance had not altered since the previous assessment by Dr Blenkin and “the pain is the same” and located around the left acromioclavicular joint.  Dr Blenkin recorded he palpated the excision arthroplasty area quite deeply; there was no evidence of cutaneous neuroma and only minor tenderness.  During examination of Ms Cvilikas “a collapsing pattern of resistance (was) noted.”  Dr Blenkin also recorded Ms Cvilikas “actively resisted demonstration of greater passive ranges of motion.”  There was no muscular wastage about the left shoulder girdle and the forearm measurements were consistent with righthand dominance and showed no evidence of differential disuse muscular wastage of the non-dominant left upper limb.
  9. [172]
    In the opinion section of the report dated 15 May 2021, Dr Blenkin said:
    1. (a)
      in the usual course of events, he would have expected Ms Cvilikas to recover over a six month period following surgery to the extent she should have been able to return to her former job of wardsperson in the hospital;
    2. (b)
      the symptoms and marked disability were considerably greater than he would have anticipated and he is not able to explain the disparity on the basis of the organic condition of Ms Cvilikas’s left shoulder;
    3. (c)
      he strongly suspects non-organic factors are present;
    4. (d)
      this is a case where there is a claim of marked dysfunction with very little objective evidence detectable;
    5. (e)
      the quite dramatic variation in Ms Cvilikas’s active ranges of motion detected on two occasions represent marked inconsistency and is indicative of overstatement and exaggeration; 
    6. (f)
      the functionality of Ms Cvilikas’s left shoulder is quite good; 
    7. (g)
      Ms Cvilikas could continue to work as a wardsperson if she wished.
  10. [173]
    After viewing the television footage Dr Blenkin provided a supplementary report dated 16 June 2021[117] in which he noted that the film depicts Ms Cvilikas in a social setting.  Dr Blenkin observed that all of Ms Cvilikas’s movements in that setting were fluid and there was no evidence of any restriction due to pain.  He detected no left shoulder inhibition or dysfunction.
  11. [174]
    At page 5 of the report Dr Blenkin said the best indicator of wastage, which reflects disuse, is the circumference of the forearms measured 10cm below the elbows.  At Dr Blenkin’s most recent examination of Ms Cvilikas, the right was 28.5cm and the left 28cm: “this is the normal differential that exists between dominant and non-dominant limbs.”  This issue is also dealt with in the file note dated 27 May 2022[118] and was dealt with at length in Dr Blenkin’s oral evidence.
  12. [175]
    In a supplementary report dated 21 September 2021[119] Dr Blenkin said:
    1. (a)
      the biomechanics of Ms Cvilikas’s left shoulder should be improved as a consequence of the surgery, which dealt with damaged tissue;
    2. (b)
      AC joint excision arthroplasty is a relatively minimalist procedure and the acromioplasty performed by Dr Casey was in response to only minor bursitis;
    3. (c)
      the underlying rotator cuff has not been intrinsically damaged;
    4. (d)
      the shoulder joint’s longevity was improved by the operation which was performed, due to the fact that pressure on the rotator cuff has potentially been relieved;
    5. (e)
      the shoulder should support Ms Cvilikas in a manual role such as wardsperson;
    6. (f)
      the injury suffered by Ms Cvilikas was at the lower end of the scale and appropriate corrective surgery has been performed.
  13. [176]
    The plaintiff criticises Dr Blenkin as being inflexible, unprepared to make appropriate concessions and not appearing very compassionate.  Dr Blenkin described the injury variously as “very minor”, even in light of the fact that Ms Cvilikas had undergone invasive procedures in terms of injections and then surgery.[120]  He commented upon there being “minor tenderness” upon palpating the shoulder: whereas Ms Cvilikas’s evidence was that when she saw Dr Blenkin he examined along her collarbone, shoulder, scapula and back,[121] she noted that it was painful when he pressed down on a pressure point near her surgical scar, and she expressed her discomfort when he did so.[122]  He conducted tests of her left shoulder’s range of movement.  She reported that he encouraged her to “go a bit higher.”  She said that she was unable to, due to the pain.  He said, “Well, what about if I take – if I support your arm.”  Ms Cvilikas said that if he did support it as she lifted her arm it will go higher but she was unable to do that on her own without such assistance.[123]
  14. [177]
    The AMA Guidelines, which are the preferred method of assessment (Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), schedule 8, section 12) note that the active range of movement (those movements unassisted by the examiner) is the most important observation and not passive (where the examiner assists).[124]  Dr Blenkin accepted that he assisted her with movement in getting to his range of motion assessments.[125]
  15. [178]
    Dr Blenkin disagreed with the opinions of Dr Frank as he does not believe “the location and clinical features” of Ms Cvilikas’s injury “support a neutrally mediated pain problem relating to a peripheral nerve injury.”[126] 
  16. [179]
    He said he would not be prepared to defer to Dr Frank about the significance of the skin temperature measurements at the same area he noted that there was a burning pain as he did not think it is significant and believed it was highly subjective.[127]

Other expert evidence

  1. [180]
    Stephen Hoey is an occupational therapist.  His evidence-in-chief largely consisted of reports of 3 April 2020 and 2 May 2022.[128]
  2. [181]
    It was consistently noted in both reports that Ms Cvilikas was precluded from returning to her pre-accident work.  Indeed, it was concluded in the first report that she was “precluded from employment in any occupation for which she was reasonably qualified, be it education, training or experience.”[129]  In his second report, Mr Hoey concluded that, “I have formed the view that it is probable that Ms Cvilikas will not work again.”[130]
  3. [182]
    Mr Hoey’s second report concluded at [21] that, “Dr Blenkin felt it reasonable that Ms Cvilikas could manage in a light manual or sedentary role; the specialist felt she could return to work as a wards person. I do not share these views; the two sentences are contradictory. The dictionary of occupational titles details the strength requirement to work as a wards person (orderly) as HEAVY; this falls beyond the prescription of a light manual or sedentary role, and certainly beyond the results of my testing at examination.”
  4. [183]
    Mr Hoey recommended that Ms Cvilikas attend a multi-disciplinary, cognitively, behaviourally-based clinic.  He confirmed that this would involve the intervention of a pain management physician. 

Relevant findings in respect of the injury suffered and continuing to be suffered

  1. [184]
    In Bell v Mastermyne Pty Ltd[131] McMeekin J said at [19]:

….The assessment of damages for personal injury depends to a very large extent on a plaintiff’s honest reporting - of his or her symptoms; of their impact on the plaintiff’s life; of pre-existing problems; of the genuineness of effort to regain employment after injury; and of their capacity to maintain employment. These are all difficult issues for a defendant to thoroughly investigate and test. In truth no-one knows what level of pain an individual experiences and what impact that pain has on any particular plaintiff’s capacity to maintain their activities.

  1. [185]
    This is one of those cases.  There is very little concrete evidence of some underlying pathology that would give rise to the plaintiff’s claims of ongoing difficulties.  The independent medical and other expert evidence (particularly that adduced by the plaintiff) relies very heavily on the reports made by the plaintiff to express opinions as to the ongoing effects of the plaintiff’s injury and what injury might in fact now remain.  The differences between the experts seem to rest heavily on their different impressions of the plaintiff, and the authenticity of her presentation to them.
  2. [186]
    Even allowing for the different contexts, the difference in Ms Cvilikas’s presentation in the television footage versus her presentation in court was remarkable.  As with earlier findings I have made about the credit of Ms Cvilikas, my impression of her evidence about the injury and the ongoing effects of the injury is that Ms Cvilikas is prone to exaggerate both. 
  3. [187]
    My impressions in that respect are reinforced by what can only be described as a startling, but unsatisfactorily explained, decrease in the range of movement between 5 March 2020 and 26 March 2021 (continuing to May 2021).  Below is a table of Ms Cvilikas’ range of active movement in her left shoulder in her two appointments with Dr Blenkin and her appointment with Mr Hoey: 

5 March 2020 (Blenkin)

26 March 2020

(Hoey)

11 May 2021

(Blenkin)

Flexion

180°

110°

90°

Extension

60°

50°

Abduction

180°

90°

90°

Adduction

40°

20°

External Rotation

90°

90°

Internal Rotation

70°

50°

  1. [188]
    Between her first appointment with Dr Blenkin and the appointment with Dr Hoey (only some three weeks later) the ranges of motion were substantially reduced by the order of 40 to 50% with respect to flexion and abduction.  There was no intervening incident or change that could explain this. 
  2. [189]
    That reduction continued over a year later in a subsequent appointment with Dr Blenkin.  Dr Blenkin assessed this decrease in function as “quite unexpected” and suggested “it doesn’t have a basis in any organic process that could have gone on.”  Dr Blenkin also did not believe this change was due to non-use of the arm as he observed no muscular wastage at the shoulder or forearm which are indicators of disuse.
  3. [190]
    It appears to me that as a result of the injury and the pain suffered in the immediate aftermath of same and the subsequent surgery, that Ms Cvilikas has developed an aversion to any conscious use of her left shoulder for fear of pain, rather than actual, substantial pain. 
  4. [191]
    There is no clearly identifiable organic reason evident in the evidence for the ongoing pain she claims. 
  5. [192]
    Insofar as there was recorded a temperature difference between Ms Cvilikas’s shoulders, I do not consider that to be conclusive proof of the suffering of any ongoing difficulties.  There was disagreement between the experts as to the clinical value of temperature difference.  I consider that the more reliable objective evidence is the measurement of forearm circumferences that would show a difference if one arm was actually being used less (which would occur if the arm could not be used due to pain).  As set out above, there is no such difference.  That strongly suggests that the left shoulder is actually performing about the same work as the right shoulder which would not be the case if the ongoing pain was actually as described by Ms Cvilikas. 
  6. [193]
    For those reasons I am inclined, as amongst the medical experts, to give greater weight to the evidence of Dr Blenkin. 
  7. [194]
    I accept that Ms Cvilikas has some ongoing sensitivity on the site of the scar that means that some bras may be uncomfortable to wear.  But I find it difficult to accept that there is no garment available to Ms Cvilikas to comfortably provide the support she requires.  I do not think that is a proper basis for not returning to work.
  8. [195]
    I accept that Ms Cvilikas’s recovery from her surgery has been slow and there is a small permanent reduction in Ms Cvilikas’s ability to use her left shoulder without some discomfort.  Ms Cvilikas, in her role as a PSA, needs to be careful to ensure she works within her capabilities – both in terms of total hours to be worked each week and how activities at work are undertaken. 
  9. [196]
    I find that Ms Cvilikas was fit to return to a PSA 0.4 FTE position by 5 March 2020 (the first appointment date with Dr Blenkin).  That date is approximately 15 months post-surgery that occurred on 22 October 2018.  I find that Ms Cvilikas remains fit to perform that role at that amount of hours.    

Relevant findings about return to work

  1. [197]
    The plaintiff’s case is that she is commercially unemployable and, had injury not intervened, she would have increased her hours from 0.4 FTE to 0.8 FTE.[132]  Pre‑incident, Ms Cvilikas was working 0.4 FTE, she says due to her partner’s condition.  Her evidence was that she had discussed an increase in hours with her partner in about 2016.  She had a mortgage to pay and her partner was disabled.  She said she was never going to go full-time but planned to go back to 0.8 FTE.
  2. [198]
    I note that her partner’s condition has been stable since 2014.[133]  Only for two very short periods since October 2012 has Ms Cvilikas worked over 0.63 FTE; she worked 0.84 FTE for two weeks from 1 October 2012 and 1.0 FTE for approximately two weeks from 22 December 2014.  She has spent the large majority of the time from 2012 to 2017 working 0.53 FTE or less. 
  3. [199]
    The plaintiff’s quantum calculation proceeds on the basis that the plaintiff would have returned to 0.8 FTE by 1 January 2020.
  4. [200]
    I am not prepared to accept that the plaintiff intended to return on any long term basis to 0.8 FTE.  I am prepared to accept that the plaintiff would have continued to adjust her hours up and down as suited her from time to time, but would have averaged no more than 0.6 FTE (more consistent with her historical working hours). 
  5. [201]
    As above, I have found that Ms Cvilikas was fit to return to a 0.4 FTE position by 5 March 2020 and has chosen not to do so.   
  6. [202]
    For the reasons set out in [195] above, I find that Ms Cvilikas will not be able to perform any more hours as a PSA than 0.4 FTE at any future time.  She is not suitably qualified to undertake most other roles.  
  7. [203]
    The defendant submitted that the plaintiff called no evidence to establish the defendant would have permitted her to increase her shifts even if she had wanted to do so.  Reference was made by the defendant to Nichols v Curtis & Anor[134] per Fraser JA, with whom McMurdo P and Chesterman JA agreed, where at [30] it was cited with approval what was said by Thomas J in McDonald v FAI General Insurance Co Ltd:[135]

In a case where damage is capable of precise proof, and a plaintiff fails to produce such proof, no assessment (or a nil assessment) will be made (Sunley and Co. v. Cunard [1940] 1 K.B. 740, 747; Woodham v. Rasmussen (1953) St.R.Qd. 202, 215; Holmes v. Jones (1907) 4 C.L.R. 1692, 1703, 1717; Ted Brown Quarries v. General Quarries (1977) 16 A.L.R. 23 37). In cases where some loss has apparently been suffered but the plaintiff has failed to take the trouble to produce evidence that would reasonably be expected to be available, no more than a very conservative estimate of damages will be made (Minchin v. Public Curator (1965) A.L.R. 91, 93; Ashcroft v. Curtin [1971] 3 All E.R. 1208; Aerial Advertising Co. v. Batchelors Peas [1938] 2 All E.R. 788, 796). This may be contrasted with the familiar exercise of assessing damages upon issues which of their very nature are incapable of precise proof, such as future economic loss, and, quite frequently, past economic loss, where the Courts do the best they can on necessarily imprecise matter. (Malec (above); Chaplin v. Hicks [1911] 2 K.B. 786, 795; Wheeler v. Riverside Coal Transport [1964] Qd.R. 113, 124; Biggen and Co. v. Permanite Ltd [1951] 1 K.B. 422, 438; Dessent v. The Commonwealth (1977) 13 A.L.R. 437, 447). Even in cases of that kind a plaintiff is expected to place before the Court the essential facts upon which the necessary inferences and projections are to be made. There is no difference in the approach of the Courts according to whether the case is based on contract or tort. In all cases the extent of proof required depends upon the nature of the issue to be proved.

  1. [204]
    I consider the FTE overview at exhibit 19 is a sufficient evidentiary basis for me to conclude that the plaintiff would have been able to change her PSA hours from time to time, to an average of 0.6 FTE, had she wished to do so.  Based on the plaintiff’s submission recorded at [199] above, I find that if not for the injury the plaintiff would have increased her average hours to 0.6 FTE by 1 January 2020.  

Prior/other medical history possibly relevant to assessment of damages

  1. [205]
    Ms Cvilikas gave evidence about obesity and having undertaken gastric sleeve surgery, which initially reduced her weight by 36 kilograms.  The surgery took place in July 2018.  The plaintiff has also consulted with doctors about other medical issues from time to time since. 
  2. [206]
    Dr Bourke confirmed that the combination of Ms Cvilikas’s long-term hypertension and morbid obesity means that Ms Cvilikas is at risk of health complications that could at any time impact on her ability to work.  Age is also a factor.  But at 49 years of age, I consider it is too speculative to conclude that any medical issues (existing or otherwise) might adversely affect Ms Cvilikas before the normal retirement age of 67 years. I do not accept that any particular reduction for future economic loss should be made on account of obesity or hypertension suffered by Ms Cvilikas.  Many persons with like inflictions work physical jobs until normal retirement age.
  3. [207]
    I consider these are matters that fall within the usual discount for contingencies on future losses, which I consider should be 15% on future economic loss.

Quantum assessment

General damages

  1. [208]
    The process of assessing general damages is governed by the Civil Liability Act 2003 (Qld) (CL Act) and the Civil Liability Regulation 2003 (Qld) (CL Reg).  General damages are defined by s. 51 of the CL Act.
  2. [209]
    The WCRA and its Regulations apply to the calculation of general damages in this case.  It is necessary to establish the Injury Scale Value (ISV) for the injuries.  Regulation 129 provides that reference must be had to Schedule 9 for the ISV ranges.  Schedule 8 sets out the rules to apply.  Regulation 130 requires that once the ISV is assessed, the calculation in Schedule 12 is completed to arrive at the monetary figure.
  3. [210]
    Schedule 8 provides the matters to which the court may or must have regard to in assessing the ISV score of an injury.  One, but not the only consideration, is the degree of permanent injury (DPI) suffered by the injured person.  A DPI value is represented as a percentage.  This may also be expressed as a “whole person impairment” or “WPI”.
  4. [211]
    The competing assessments for the plaintiff’s left shoulder are as follows:
    1. (a)
      Dr Kilian – 12% whole person impairment;
    2. (b)
      Dr Blenkin – 8% whole person impairment.
  5. [212]
    I consider that the injury falls within Item 96 – Moderate Shoulder Injury that has an ISV range of 6 to 15.  The commentary in Schedule 9 of the Regulations suggests that an ISV at the bottom of the range is appropriate for a 6% degree of permanent impairment, whereas an ISV at the top of the range is appropriate for a 12% degree of permanent impairment to the upper dominant limb.  It is not the dominant limb here.
  6. [213]
    The plaintiff submits that an ISV of 14 is appropriate. The defendant submits that an ISV of 8 is appropriate.
  7. [214]
    Having regard to the matters mentioned above, I consider that the assessment of Dr Blenkin is to be preferred as between the two assessments, although I allow for my findings at [199] above.  I consider that an ISV of 10 is appropriate. 
  8. [215]
    Using Schedule 12, for the date of this injury (table 7), the equation is:
    1. (a)
      base amount $7,050.00
    2. (b)
      plus (ISV 10 - 5) x $1,710.00 = $8,550.00
    3. (c)
      total - $15,600.00.
  9. [216]
    No interest is allowable – s. 306N(1) of the WCRA.

Past economic loss

  1. [217]
    The plaintiff was off work but paid by the defendant from 6 February 2018 to 18 October 2019.  As can be seen from her income schedule[136] no payments were made to her by WorkCover; WorkCover made payments to the defendant.[137]  The defendant continued to pay the plaintiff and make superannuation contributions during that period.[138]
  2. [218]
    I have found that the plaintiff was capable of returning to work on a 0.4 FTE basis as a PSA from 5 March 2020 (approximately 15 months post-surgery that occurred on 22 November 2018).
  3. [219]
    The parties have not provided me with figures that allow me to calculate with accuracy the various net weekly rates for various FTE hours. 
  4. [220]
    Doing the best I can:
    1. (a)
      from 11 September 2017 the plaintiff was working 0.4 FTE;[139]
    2. (b)
      I assume that after the accident the plaintiff continued to be paid based on 0.4 FTE (albeit likely not with penalties);
    3. (c)
      in the financial year ended 30 June 2018, the plaintiff had net earnings of $39,651.00[140] (equivalent to $762.52 net per week);
    4. (d)
      I assume the net pay per week for 0.4 FTE to be $762.52;
    5. (e)
      I estimate the gross pay per week for 0.4 FTE to be in the order of $881.00;
    6. (f)
      I estimate the gross pay per week for 0.6 FTE to be in the order of $1,321.50; 
    7. (g)
      I estimate the net pay per week for 0.6 FTE to be $1,048.00 (the difference to 0.4 FTE is calculated as $285.48 net per week). 
  5. [221]
    In respect of the period to 18 October 2019 the defendant submits that an award of $48,373.98 (being the amount refundable to WorkCover[141]) would be generous.  I do not agree.  That amount was paid for the period 11 February 2018 to 18 October 2019, 614 days, approximately 88 weeks, at $549.70 net per week, which is significantly less than the $762.52 net per week I have calculated for 0.4 FTE. 
  6. [222]
    Accordingly I assess past lost income to 5 March 2023 as:
    1. (a)
      $762.52 net per week (based on 0.4 FTE) from the date of the accident[142] (10 December 2017) until 31 December 2019 (having decided the plaintiff would have increased her average hours to 0.6 FTE on 1 January 2020 if not injured):
      1. 751 days = 107.3 weeks 
      2. $81,818.40,
    2. (b)
      $1,048.00 net per week (based on 0.6 FTE) from 1 January 2020 to 4 March 2020 (having decided the plaintiff was capable of returning to 0.4 FTE from 5 March 2020):
      1. 63 days = 9 weeks
      2. $9,432.00,
    3. (c)
      $285.48 net per week (based on 0.2 FTE) from 5 March 2020 to 6 March 2023:[143]
      1. 1,092 days = 156 weeks
      2. $44,534.88, 
    4. (d)
      Total: $135,785.28. 

Interest on past economic loss

  1. [223]
    Interest is calculated at a rate equal to half the 10 Year Treasury Bond Rate as at the beginning of the quarter in which the award of interest is made in accordance with Section 306N WCRA.  As at 1 March 2023, the 10 year Treasury bond rate was 3.832%.  Half of that is 1.916%.
  2. [224]
    Interest is allowed after deducting the compensation payments of $48,373.98 (net figure of $87,411.30) over 5.24 years[144] at 1.916%, being $8,775.95.

Superannuation

  1. [225]
    The defendant continued to pay Ms Cvilikas’s superannuation whilst she was on workers’ compensation.  Accordingly, no claim is made by the plaintiff for lost superannuation up until the last date upon which workers’ compensation was paid. 
  2. [226]
    The agreed rate of 10% is allowed on the net figure of $87,411.30, being $8,741.13.

Future economic loss

  1. [227]
    The principles which apply to the assessment of future economic loss at common law are set out in Malec v J C Hutton Pty Ltd,[145] namely that once a plaintiff demonstrates that he or she has suffered loss, irrespective of how small that loss might be, the court is entitled to award damages based upon an adjustment to reflect the degree of probability that an event might have occurred or not occurred.  It is appropriate to allow an award unless, as the majority, Deane, Gaudron and McHugh JJ said at [7]:

The future may be predicted and the hypothetical may be conjectured. The questions as to the future or hypothetical effect of a physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9% - or very low - 0.01%. But unless the chance is so low as to be regarded as speculative - say less than 1% - or so high as to be practically certain - say over 99% - the court will take that chance into account in assessing the damages.

  1. [228]
    It is also relevant to note that as was set out by Bond J in Hoveydai v Mak and Anor[146] that:
  1. [114]
    The loss to be assess is the loss or diminution of earning capacity, not the loss of earnings: see Qantas Airways Limited v               Fisher [2014] QCA 329 per Henry J (with whom Muir JA and Mullins J agreed) at [19]-[20], following Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 per Barwick CJ at 658.

…

  1. [116]
    Reference to loss of earnings is in practice often an appropriate method               of reaching an assessment of loss of earning capacity: Qantas Airways Limited v Fisher at [22], [28]. 
  1. [229]
    The plaintiff’s future economic loss therefore is to be calculated as a loss of 0.2 FTE from 6 March 2023 ($285.48 net per week[147]) over the next 17 years of her working life, discounted on the 5% tables (multiplier 603) and further discounted by 15% for contingencies, being $146,322.77.
  2. [230]
    Lost future superannuation is allowed at the agreed rate of 11.33%, being $16,578.37.

Past special damages

  1. [231]
    Special damages are those damages that are “capable of precise arithmetical calculation or at least of being estimated with a close approximation to accuracy.”[148]  The plaintiff has proven the expenses incurred by WorkCover ($29,338.08).[149]  She has also proven the expenses covered by Medicare ($1,527.60).  These expenses were not personally incurred by the plaintiff and will be refunded to WorkCover and Medicare respectively, no interest is allowed on those expenses.  These are not controversial.
  2. [232]
    The parties disagree about the out-of-pocket expenses claimed in the statement of claim, being:

Pharmaceutical expenses - $300.00

Medical expenses - $995.95

Travelling expenses - $600.00

Miscellaneous expenses - $100.00. 

  1. [233]
    The plaintiff has not produced receipts, invoices or other documentation to prove these expenses.  However, Dr Kilian notes the ongoing use of pain killers (4 – 6 Panadol per day), heat packs and gels. 
  2. [234]
    Ms Cvilikas in her evidence did note that she had to take Panadol, use heat packs and travel to the doctor and visit medical appointments.  This suggests some of the out-of-pocket expenses claimed under special damages were incurred.  However, no evidence was led as to the quantum of specific expenses.  The amounts set out in the statement of claim seem to be vague estimations.  Without such evidence, these expenses are incapable of being estimated with “a close approximation to accuracy.”
  3. [235]
    I am however satisfied that the plaintiff needed some treatment and medication from time to time that can be fairly attributed to her shoulder injury.  There is no precise way of computing this amount.  I grant a global sum for past special damages for the out-of-pocket expenses claimed in [14(f)] of the ASOC (up to the date of judgment and inclusive of any interest) in the amount of $750. 
  4. [236]
    The award for past special damages is $29,338.08 (WorkCover) + $1,527.60 (Medicare) + $750.00 (other) = $31,615.68.  

Future special damages

  1. [237]
    I do not accept Mr Hoey’s recommendations as to attendance at a rehabilitation clinic or vocational retraining in the circumstances where I consider that Ms Cvilikas should have already returned to work as a PSA. 
  2. [238]
    Dr Kilian recommends over the counter medication at a cost of $20 - $30 per month.  The plaintiff also claims the cost of heat packs and gels.  Based on the findings I have made I consider the need for all items overstated.  I allow over these items at a cost of $8 per month ($2 a week).  Allowing for Ms Cvilikas’s life expectancy of 37 years (Vincents Accountants Litigation Tables) with a discount on the 5% tables (multiplier 894) that amounts to $1,788.00.
  3. [239]
    I do not accept Dr Frank’s recommended pain management treatment costs.  I note he did not give an estimate of those costs in any event and there is no proper basis upon which I could estimate those costs, conservatively or otherwise. 

Gratuitous or paid care

  1. [240]
    Not claimed.

Fox v Wood damages

  1. [241]
    The plaintiff submitted for Fox v Wood damages in the amount of $12,093.50.  It was submitted that was the amount paid by WorkCover to the ATO on the workers compensation paid.[150]  I note that amount is precisely 25% of the $48,373.98 weekly benefits and lump sums total paid as compensation by WorkCover.[151]  Under that heading in the WorkCover report there is an ATO transaction recorded (for $1,463), but it is subsequently reversed.   
  2. [242]
    I have been unable to identify an evidentiary basis for the plaintiff’s submission that $12,093.50 was the amount paid by WorkCover to the ATO on the workers compensation paid. 
  3. [243]
    The defendant submitted that the plaintiff has received the benefit of a gross amount of $48,373.98 refundable to WorkCover and it would therefore not be necessary to separately consider and make any allowance for Fox v Wood damages.[152] 
  4. [244]
    I am unable to conclude on the evidence before me whether any amount, and what amount, is properly allowable under this head of damage and I make no such allowance.  
  5. [245]
    I note that whilst all the calculations I have made above appear to have a degree of precision about them, there is not in truth that level of precision that can be achieved in these types of assessments of damages – particularly in respect of calculations of past and future economic loss (which courts commonly calculate and then round down to an appropriate amount).  So even if I am wrong in not including an amount of $12,093.50 as a head of damage for Fox v Wood damages, I am satisfied that my overall assessment of damages does reflect a proper and fair assessment of damages even if Fox v Wood damages are properly included. 

Quantum before contributory negligence and WorkCover refund

  1. [246]
    The heads of damage awarded are as follows:

General damages

15,600.00

Interest on general damages

0

Past economic loss

135,785.28

Interest on past economic loss

8,775.95

Lost past superannuation

8,741.13

Future economic loss

146,322.77

Lost future superannuation

16,578.37

Past special damages

31,615.68

Future special damages

1,788.00

Gratuitous and paid care

0

Fox v Wood damages

0

Total

$365,207.18

Effect of finding of contributory negligence

  1. [247]
    Based on my finding of 25% contributory negligence on the part of the plaintiff, the damages reduce to $273,905.39. 

WorkCover refund

  1. [248]
    By reason s. 270(1) of the WCRA, “the amount of damages that an employer is legally liable to pay to a claimant for an injury must be reduced by the total amount paid or payable by an insurer by way of compensation for the injury”.
  2. [249]
    The refund is $77,712.06.[153]
  3. [250]
    The WorkCover refund is deducted after reduction for contributory negligence: see Negric v Albion Scrap Steel Pty Ltd.[154] 
  4. [251]
    The damages further reduce to $196,193.33. 

Total quantum

  1. [252]
    I allow the plaintiff’s claim at $196,193.33, clear of the WorkCover refund of $77,712.06.

Orders

  1. Judgment for the plaintiff against the defendant in the sum of $196,193.33 clear of the WorkCover refund of $77,712.06. 
  2. The parties provide written submissions on costs within 14 days. 

Footnotes

[1] Also known as a wardsperson.

[2] Working 32 hours per fortnight.

[3] T1.46, L30.

[4] Exhibit 19 provides a FTE (full time equivalent) overview of Ms Cvilikas’s employment from 1 October 2012 to 11 September 2017.

[5] PSA role description at exhibit 11.

[6] The position is marked on exhibit 6 (being a sketch of the assets shed prepared by the plaintiff setting out her recollection of the layout of the assets shed at the time of the incident).  See T1.50.

[7] T1.50, L21.

[8] T1.51.

[9] T1.73, LL44-45.

[10] T3.8.

[11] T2.26, L44.

[12] T2.27, L2.

[13] T2.27, L10.

[14] Admitted by the plaintiff in the reply.

[15] Admitted by the plaintiff in the reply.

[16] Admitted by the plaintiff in the reply.

[17] Admitted by the plaintiff in the reply.

[18] T3.31-32.

[19] Parts of that rack can be seen in photos 12 and 13 of exhibit 5 identified by AL at T3.33-34.

[20] At T3.34.

[21] That can be seen in photo 15 of exhibit 5.

[22] At T3.34-35.

[23] T3.35, LL31-32.

[24] T3.36, L19.

[25] Exhibit 21.

[26] A day shift role.

[27] T2.29-30.

[28] At T3.29, L8, AL explained beds stored in front of the pillow storage rack would be “hard up against the rack.” A person could not walk between the head of the beds and the rack, T3.29, L10.

[29] T2.26, L44.

[30] At T3.107, LL2-3.

[31] Exhibit 8.

[32] Exhibit 22, pp. 188-189.

[33] Exhibit 9.

[34] At T3.103-105.

[35] At T3.106.

[36] T3.84, L39-43.

[37] T3.84, L11-13.

[38] Exhibit 10.

[39] At T1.62, L6. See also at T2.31, LL31-35.

[40] Exhibit 2 at p. 84.

[41] Exhibit 23 at p. 138.

[42] Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [11], [15], [27], [39] and [41].

[43] (1980) 146 CLR 40.

[44] (2007) 234 CLR 330 at 337-338 [18]-[19] and at 345 [43]-[44] per Gummow J, with whom Callinan J (at [270]) and Heydon J (at [283]) agreed.

[45] Like under the operation of gravity rather than being physically placed by a person in a controlled way.

[46] The defendant says that [7] of the ASOC might be taken as alleging the risk of injury is a risk to a worker from the unannounced action of another worker. It is submitted for the defendant that “(d)oubtless hospitals will become noisy workplaces if each and every worker must announce their every action.” I agree that would be to state the risk too broadly.

[47] T1.43, LL30-31.

[48] T1.44, LL35-36.

[49] Exhibit 15.

[50] Confirmed by Mr Fooks and Ms Holt that there was no policy; there were some online training modules about handling, but no document was produced.

[51] [2005] HCA 14.

[52] Exhibit 15.

[53] Chappel v Hart (1998) 195 CLR 232.

[54] [2011] QCA 59; (2012) 1 Qd R 507.

[55] [2010] QSC 470 at [74].

[56] [1986] 160 CLR 301.

[57] Kennedy v QAL [2016] QCA 159 at [40].

[58] [1996] NSWCA 79.

[59] Dr Casey agreed with the MRI findings and noted it was likely the ultrasound report was in error, especially since Ms Cvilikas reported difficulty obtaining the ultrasound images due to positioning during the scan – letter from Dr Casey to Dr Bourke of 4 July 2018 (exhibit 2, pp. 83).

[60] Dr Casey report to WorkCover of 6 July 2018 (exhibit 2, pp. 84-85).

[61] Dr Casey report to Dr Bourke of 4 July 2018 and report to WorkCover of 6 July 2018 (exhibit 2, pp. 83-85).

[62] Dr Casey report to WorkCover of 6 July 2018 (exhibit 2, pp. 84-85).

[63] Dr Casey report to WorkCover of 23 August 2018 (exhibit 2, p. 86).

[64] Dr Casey report to WorkCover of 23 August 2018 (exhibit 2, p. 86).

[65] Operation report of Dr Casey of 22 November 2018 (exhibit 2, pp. 87-88).

[66] Dr Casey report to WorkCover of 28 January 2019 (exhibit 2, p. 89).

[67] Dr Casey report to WorkCover of 21 February 2019 (exhibit 2, p. 90).

[68] Exhibit 23, p. 138.

[69] Exhibit 23, pp. 144-145.

[70] Exhibit 23, p. 143.

[71] Exhibit 2, p. 83.

[72] Exhibit 2, p. 88.

[73] Exhibit 25, report of 25 April 2022.

[74] Set out at [126] above.

[75] Exhibit 23, p. 146.

[76] Exhibit 23, p. 146.

[77] T2.73, LL40-45.

[78] T2.73, L45 to T2.74, L5.

[79] T2.74, LL5-10.

[80] T2.77, LL35-40.

[81] T2.77, LL40-45.

[82] T2.78, LL5-10.

[83] T2.82, LL5-10.

[84] T2.73, L40 to T2.74, L12 and also at T2.75, L43.

[85] T2.81, LL43-46.

[86] T2.74, L24.

[87] Exhibit 16, report of 8 March 2020.

[88] Exhibit 14.

[89] Exhibit 25.

[90] Exhibit 25 at pp. 482-504.

[91] Exhibit 25 at p. 488.

[92] Exhibit 25 at p. 498.

[93] Exhibit 25 at p. 499.

[94] Exhibit 25 at p. 497.

[95] Exhibit 25 at p. 489.

[96] T3.45, LL15-25.

[97] T3.46, LL5-10.

[98] T3.43, LL10-25.

[99] T3.46, LL20-25.

[100] T3.46, LL25-30.

[101] T3.45, LL25-30.

[102] T3.43, L40 to T3.44, L20.

[103] T3.47, LL40-45.

[104] T3.45, LL25-30.

[105] T3.43, LL10-25.

[106] T3.43, LL15-20.

[107] See also at T3.47, L43.

[108] T3.47, LL35-47 and from T3.48, L40 to and including T3.49.

[109] T2.93, LL13-14.

[110] Exhibit 16.

[111] Exhibit 16 at p. 260.

[112] Exhibit 16 at pp. 505-522.

[113] Exhibit 16 at p. 533.

[114] T2.105, LL30-40; T2.106, LL5-10.

[115] Exhibit 26 at pp. 103-104 (put into evidence by the plaintiff).

[116] Exhibit 16 at pp. 524-536.

[117] Exhibit 16, pp. 537-533.

[118] Exhibit 16, pp. 554-557.

[119] Exhibit 16 at pp. 544-546.

[120] T2.97, LL20-45; T2.109, LL5-15.

[121] T1.67, LL25-30.

[122] T1.67, LL35-40; T1.68, L5.

[123] T1.68, LL15-20.

[124] Exhibit 17, p. 593, last para.

[125] T1.68, LL15-20.

[126] T2.107, LL35-45.

[127] T2.108, LL10-20.

[128] Exhibit 26.

[129] Exhibit 26, first report at paras 16 and 24.

[130] Exhibit 26, second report at para 32.

[131] [2008] QSC 331.

[132] T1.42.

[133] T1.42, L8.

[134] [2010] QCA 303.

[135] [1995] QCA 436 at pp. 5-6.

[136] Exhibit 20.

[137] Exhibit 3, pp. 558-567.

[138] T4.42, L45.

[139] Exhibit 19 says 0.42 FTE, but the plaintiff puts submissions on the basis of 0.4 FTE and I will do the same.

[140] Exhibit 20, from NGH.

[141] Exhibit 3, pp. 563-566 (weekly benefits and lumps sums).

[142] It is not clear on the evidence whether the plaintiff worked the period from after 10 December 2019 to 19 December 2019 when she first consulted with a doctor about the injury, or up until being entirely ruled off work in February 2018. I will assume she did not work from the date of the incident and therefore that it is appropriate to calculate past economic loss from the date of the incident.

[143] I have decided to calculate past losses until the date of judgment, rather than the date of hearing.

[144] 10 December 2017 (date of accident) to 5 March 2023, 1,911 days, 5.24 years.

[145] (1990) 169 CLR 638 at 642; 94 ALR 206.

[146] [2021] QSC 16.

[147] Estimated net earnings for 0.2 FTE.

[148] Paff v Speed (1961) 105 CLR 549 per Fullagar J at pp. 558-559.

[149] Exhibit 3, pp. 558-563.

[150] T5.32, LL3-8.

[151] See exhibit 3 at p. 566.

[152] Fox v Wood (1981) 148 CLR 438.

[153] Exhibit 3 at p. 566.

[154] [1978] Qd R 362.

Close

Editorial Notes

  • Published Case Name:

    Cvilikas v Sunshine Coast Hospital and Health Service

  • Shortened Case Name:

    Cvilikas v Sunshine Coast Hospital and Health Service

  • MNC:

    [2023] QSC 36

  • Court:

    QSC

  • Judge(s):

    Hindman J

  • Date:

    06 Mar 2023

  • White Star Case:

    Yes

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
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
2 citations
Jump To
Cite 1 - (2009) 239 CLR 420
Cite 2 - (2009) 239 CLR 420
Aerial Advertising Co v Batchelors Peas (1938) 2 All E.R. 788
1 citation
Jump To
Cite 1 - (1938) 2 All E.R. 788
Arthur Robinson (Grafton) Pty Ltd (1968) 122 CLR 649
1 citation
Jump To
Cite 1 - (1968) 122 CLR 649
Ashcroft v Curtin (1971) 3 All E.R. 1208
1 citation
Jump To
Cite 1 - (1971) 3 All E.R. 1208
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
2 citations
Jump To
Cite 1 - (1986) 160 CLR 301
Cite 2 - (1986) 160 CLR 301
Bell v Mastermyne Pty Ltd [2008] QSC 331
2 citations
Jump To
Cite 1 - [2008] QSC 331
Cite 2 - [2008] QSC 331
Biggin & Co Ltd v Permanite Ltd (1951) 1 KB 422
1 citation
Jump To
Cite 1 - (1951) 1 KB 422
Burns Philip Trustee Co Ltd v Clarke [1996] NSWCA 79
2 citations
Jump To
Cite 1 - [1996] NSWCA 79
Cite 2 - [1996] NSWCA 79
Chaplin v Hicks (1911) 2 KB 786
1 citation
Jump To
Cite 1 - (1911) 2 KB 786
Chappel v Hart (1998) 195 CLR 232
2 citations
Jump To
Cite 1 - (1998) 195 CLR 232
Cite 2 - (1998) 195 CLR 232
Czatyrko v Edith Cowan University [2005] HCA 14
2 citations
Jump To
Cite 1 - [2005] HCA 14
Cite 2 - [2005] HCA 14
Dessent v Commonwealth of Australia (1977) 13 ALR 437
1 citation
Jump To
Cite 1 - (1977) 13 ALR 437
Fox v Wood (1981) 148 CLR 438
2 citations
Jump To
Cite 1 - (1981) 148 CLR 438
Cite 2 - (1981) 148 CLR 438
Holmes v Jones (1907) 4 CLR 1692
1 citation
Jump To
Cite 1 - (1907) 4 CLR 1692
Hoveydai v Mak [2021] QSC 16
2 citations
Jump To
Cite 1 - [2021] QSC 16
Cite 2 - [2021] QSC 16
Kennedy v Queensland Alumina Limited [2016] QCA 159
2 citations
Jump To
Cite 1 - [2016] QCA 159
Cite 2 - [2016] QCA 159
Lusk v Sapwell[2012] 1 Qd R 507; [2011] QCA 59
4 citations
Jump To
Cite 1 - [2011] QCA 59
Cite 2 - [2011] QCA 59
Cite 3 - [2012] 1 Qd R 507
Cite 4 - [2012] 1 Qd R 507
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
2 citations
Jump To
Cite 1 - (1990) 169 CLR 638
Cite 2 - (1990) 169 CLR 638
McDonald v FAI General Insurance Company Limited [1995] QCA 436
2 citations
Jump To
Cite 1 - [1995] QCA 436
Cite 2 - [1995] QCA 436
Minchin v Public Curator of Queensland (1965) ALR 91
1 citation
Jump To
Cite 1 - (1965) ALR 91
Negric v Albion Scrap Steel Pty Ltd [1978] Qd R 362
2 citations
Jump To
Cite 1 - [1978] Qd R 362
Cite 2 - [1978] Qd R 362
Nichols v Curtis [2010] QCA 303
2 citations
Jump To
Cite 1 - [2010] QCA 303
Cite 2 - [2010] QCA 303
Osborne v Downer EDI Mining Pty Ltd [2010] QSC 470
2 citations
Jump To
Cite 1 - [2010] QSC 470
Cite 2 - [2010] QSC 470
Paff v Speed (1961) 105 CLR 549
2 citations
Jump To
Cite 1 - (1961) 105 CLR 549
Cite 2 - (1961) 105 CLR 549
Qantas Airways Ltd v Fisher [2014] QCA 329
1 citation
Jump To
Cite 1 - [2014] QCA 329
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330
2 citations
Jump To
Cite 1 - (2007) 234 CLR 330
Cite 2 - (2007) 234 CLR 330
Sunley (B) and Company Limited v Cunard White Star Limited (1940) 1 KB 740
1 citation
Jump To
Cite 1 - (1940) 1 KB 740
Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 16 ALR 23
1 citation
Jump To
Cite 1 - (1977) 16 ALR 23
Wheeler v Riverside Coal Transport Co Pty Ltd [1964] Qd R 113
1 citation
Jump To
Cite 1 - [1964] Qd R 113
Woodman v Rasmussen [1953] St R Qd 202
1 citation
Jump To
Cite 1 - [1953] St R Qd 202
Wyong Shire Council v Shirt (1980) 146 C.L. R. 40
2 citations
Jump To
Cite 1 - (1980) 146 C.L. R. 40
Cite 2 - (1980) 146 C.L. R. 40

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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