Irwin v Salvation Army

Irwin v Salvation Army - [2007] NSWDC 266 - NSWDC 2007 case summary — Zoe

[28]

19 Apart from the problems with her back from the 1995 work injury at the Royal Bexley Nursing Home, the plaintiff had a clinical history of other medical conditions pre-dating the subject accident. However, a review of her evidence disclosed either some reluctance to acknowledge such problems or simply to deny them which, of course, has the result of reducing the effectiveness otherwise of the plaintiff's evidence. For instance, this evidence emerged: Q. Immediately before the fall did you have any problem with your left knee? A. No, I didn't, Mr Hall. I had no problem with my legs at all. Q. Did you have any problem immediately before the fall with your shoulders? A. No, I didn't have nay problems with my shoulders. Q. Any problem with your neck? A. Not before the fall. … Q. Mrs Irwin, did you suffer from pain in your neck at any time prior to the incident on 29 June 2002? A. No. … Q. At no time before June 2002? A. I never had that pain in my neck. Q. Mrs Irwin, did you suffer from any problem with your left knee at any time during the 12 months prior to 29 June 2002? A. No. Not to the point, no. … Q. When you were in the witness box on the last occasion I asked you some questions about some prior problems you had? A. Mm-hmm. Q. I'm just going to ask them again to see if you still adhere to the evidence you gave on the last occasion. Do you understand that? A. Okay. Q. I said this to you, "Mrs Irwin, did you suffer from any problem with you left knee at any time during the 12 months prior to 29 June 2002."…And you said, "No, not to the point - no." Now, that answer wasn't correct, was it? A. No. Q. You were suffering from problems with you left knee during the period from January 2002, weren't you? A. I had swelling just below my knee to halfway down my leg, yes. … Q. And are you saying that where you really had pain and swelling, was in the left shin? A. No, I'm saying from below the knee. Q. Below the knee? A. Yes, at the bottom of the knee halfway down my leg I had swelling. The pain was up under the knee; that's where the pain was. Q. Did you have swelling in the left knee? A. A little bit. Yes, I did. … Q. I asked you also this question: "Did you suffer from pain in your neck at any time prior to the incident of 29 June 2002?" and you said, "No." Now, that answer was incorrect as well, wasn't it? A. Yes, it was. Q. You said, "I never had pain in my neck." That answer was incorrect, was it? A. Yes. Q. Similarly - I don't think I asked you this question but I ask you now. You agree, don't you, that you also suffered from pain in your hip prior to the accident? A. I can't remember any pain in the hip prior to my accident. Q. Could I just show you a document which is a copy of a record of the St George Hospital, 22 July 2001. Do you see that that records you were attending and complaining of some sort of problem with your left hip? A. No, it says left groin. Q. Doesn't it also mention left hip? A. No, it states it was painful.

[31]

22 Notwithstanding the plaintiff's medical condition as it had been for some years from prior incidents and ordinary degenerative changes, she maintained her capacity to be able to do the work of a catering assistant at Macquarie Lodge in the kitchen for the 32 weekly hours concerned. That position was affirmed by the evidence of Margaret Spartalis who was employed by the second defendant as assistant chef at Macquarie Lodge and, as such, had supervision of the plaintiff. A statement prepared by Ms Spartalis for the second defendant was tendered into evidence for the plaintiff. As to the plaintiff's work and ability to perform it, the statement read: 7. I first met Kerry Irwin when she started work here. She was a kitchen hand and she started as a casual and became permanent after some time. … 11. Medically I know her leg was always sore. She told me so and as I am concerned, she told me right from the start. She told me her leg was playing up. She did not say what was wrong with it or what caused it. I told her to take it easy and to put it up when possible. 12. Whenever this was, it was definitely prior to the alleged incident which is the subject of this claim. It was the knee that was the problem as far as I recall, possibly the right knee but I am not absolutely certain. (The plaintiff said it was her left knee that was definitely the problem.) 13. Being a solid woman, it was difficult to say if this affected the way she walked. I always told her that if she was tired to sit down. She used to work in the afternoons and I would leave by 2.30 pm. She would start at 12.00 and leave at 8.00 pm so I don't know what she did after I left at 2.30 pm. It was usually busy from 12.30 - 2.30 pm. 14. She used to complain of having migraines and she would take medication for that. She used to get them a lot. 15. I found her to be a lovely person and I never had any problem with her. She was punctual and she was able to do all the work that was required. Nothing adverse occurred at all. … 17. Apart from the knee and the headaches she seemed to be physically fit and well. … 21. She was on her feet all of the time and this is typical of this industry. She would be required to bend down to place plates etc on to lower shelves. You cannot carry one or two plates, you would carry about five at one time.

[45]

35 The condition of the kitchen floor and the events of the accident to the plaintiff were stated, without any challenge by the defendants, in this way by Ms Spartalis: 22. At the time of this alleged incident the kitchen flooring consisted of small tiles about 6" long and about 4" wide. I would have to say that they were slippery as I had fallen myself and hurt my back. They were a dark terracotta/tan colour. The surface was smooth. (This paragraph was admitted against the second defendant but not the first defendant.) 23. The existing tile was put down roughly over a year ago. We had complained about the floor from time to time. (This paragraph was admitted against the second defendant but not the first defendant.) 24. I remember that we ordered some mats for the kitchen floor because of the slippery floor. I cannot tell you exactly when they were ordered, however they did come and they were put down. 25. I think that Kerri's alleged incident occurred just before the mats were put down. … 30. I was standing to one side of the kitchen where the stove/microwave area is. I was chopping things on the bench facing the wall, being the wall opposite to the windows. 31. Helen (Touloumtzis) called out, "Margaret." I turned around and I saw Kerri on the floor near the dishwasher, on the back door side. I can't recall her exact position but she was more down than up. I know her legs were on the floor facing diagonally towards the bench. She mentioned something about her neck. She said, "Oh my neck, oh my neck." 32. Helen helped her up and took her into the storeroom which is a little way off the kitchen at the back. Helen assisted her there by holding one arm. I went for help at that point so I cannot comment on Kerri's progress. I went in search of a nurse. I can't recall who I found, but whoever it was called an ambulance. 33. When I got back she was sitting on a chair in the storeroom. I guess that as she said she had a sore neck. I was scared that something had happened. She went all red and I thought it needed attention. 34. When the ambulance arrived they asked her where it was sore. She said it was her knee (I think the right knee) and at the back of her neck. The ambulance then put a brace around her neck, put her on a stretcher and off they went. 35. Kerrie was wearing a pair of black trousers and she had a pair of black shoes on, Doc Martens, I am not sure if they were lace-up or not. She also had a blue uniform top on. That clothing was normal and acceptable. 36. I did not notice anything on the floor, however, I would have to say that I did not look as I was looking at Kerri. She did not draw my attention to there being anything on the floor, or what had caused her to fall. Helen asked her what happened and she said that she slipped. I got the impression that Helen did not see the event, at least that is what she told me. 37. Helen mentioned that the black trolley had hit her slightly in her lower back. I don't know if Kerri was unloading things off the trolley at the time or what she was doing with it; however, it appeared that when she slipped, the trolley went into Helen's back as she apparently was standing at the bench.

[46]

36 As to the consequences of the dishwasher and water on the kitchen floor, again without any challenge by the defendants, Ms Spartalis said: 42. I have been advised that it has been alleged that Kerri slipped and fell on water that was leaking from the dishwasher. This could well have been the case. The old dishwasher, as soon as you lifted up the handle, the water would drip down in front of you. I don't recall the make or model of it now. There was a bar handle on the door of the dishwasher, with the door being large and you could either raise it or lower it. Up meant that you could put things in and down was for the machine to go. The door was lifted up and down frequently during the day. 43. We used to wipe the floor with a mop. Most of the time Helen would put rags down on the floor. We were all aware of this situation and took it as being part of our everyday working environment. Kerri would also mop up as we all did. It was a known situation. This was reported of course and eventually we received a new dishwasher. (This paragraph was admitted against the second defendant but not against the first defendant.) 44. It was the responsibility of Delaware staff to clean the kitchen floor areas. We are responsible for the entire kitchen. … 48. I was not a witness to Kerri's actual fall though I did see her on the floor and I was there until she was taken away by ambulance. 49. I don't know if there was any water on the floor though the area where she was a spot where it was likely that water from the dishwasher might have reached. However, she did not make any comment to me about that. 50. As far as I know she had not slipped or fallen in the kitchen before or anywhere else. 51. The lighting in the kitchen is the same now as it was then. The lighting is very good in my opinion. 52. As I have said, I slipped on the old floor myself; Helen had slipped as well. 53. The Salvation Army addressed that eventually and put in a new dishwasher. This was beyond the control of Delaware. (This paragraph was admitted against the second defendant but not the first defendant.) 54. The new mats that were put down in the same area as where Kerri fell. I personally did not like them as they created a tiny step from the floor level to the mat surface and it was a trip hazard. We do not need mats now as we have the new tiles which [have] a slightly roughened surface. I am happy with the new tiles and I think it is a safer working environment now.

[49]

39 Mr Hartenstein was tested as to the condition of the dishwasher and water on the kitchen floor, including the presence of water in creating a slip hazard. I have to say his answers were unsatisfactory as being evasive, unnecessarily cautious, overly conditional, pedantic and contrary to ordinary common sense, but where he eventually agreed that water was on the floor very frequently, particularly after every dishwashing cycle. For instance, this evidence was given: Q. You were responsible, may I take it, for the maintenance of equipment in the kitchen? A. Yes. Q. The dishwasher in the kitchen used to leak, didn't it? A. I can't say no to that but I would like to clarify that. Q. Then is your answer yes but you would like to qualify the answer? A. Yes. Q. How would you like to qualify the answer? A. At times there would have been hose leaks, example - for example, around the dishwasher but they would have been corrected by maintenance as soon as they were reported. Q. On occasions that the dishwasher leaked the kitchen floor became wet, did it not? A. Not necessarily. Q. Now, sir, do you really say that? A. Yes I could say that, certainly, sir, because underneath the bench area may have become wet but not the actual floor. … (shown coloured photographs of kitchen area.) Q. They are photographs of the tiled floor in the kitchen? A. Yes, sir. Q. You will agree the floor appears to be wet? A. There is reflection there, yes, sir. Q. Will you agree appears to be wet? A. It's either wet or very clean, sir. Q. Now, sir, won't you agree it's wet? A. I can't agree that it is wet because I cant see the edge of the wet area, sir. Q. Will you agree that the condition of the floor as shown in the photographs is how it usually was? A. No, sir. Q. How do you say it usually was? A. Well, in this one you can see that this one is wet. The photograph you're showing me here I cannot see the edge of the water… … Q. Will you not agree that the floor was usually wet? A. No, sir. Q. Was it ever that wet? A. Yes, sir. Q. In what circumstances? A. When they were using - doing the washing sir. … Q. Is it the fact that when the dishwasher was used - at the conclusion of the use of the dishwasher, the floor would be wet? A. Yes. Q. And when the floor was wet in those circumstances, was it in a similar condition to what is shown in exhibit C2? A. I cannot say that, down further in this area it may be - I can't - this area up here, I cannot say that that would have been that wet. Q. In relation to the answer you've just given is what you're saying that in the vicinity of the dishwasher… A. Yes. Q. …when it was used - at the conclusion of the use of the dishwasher the floor would be wet in the vicinity of the dishwasher as is shown - to the same extent as is shown in exhibit C2, but in you belief in the vicinity of the dishwasher? A. Yes, sir. … Q. Anyhow on every occasion that it was used at the end of the dishwashing cycle the floor, certainly in the vicinity of the dishwasher was wet? A. On a full cycle of washing, yes sir. Q. Of course the tiles shown in exhibit C are non-slip tiles, aren't they? A. Can you describe that more for me please sir? Q. They were not special tiles designed? A. They were special tiles. Q. And they were slippery when wet? A. I'm uncertain of that, sir. I never slipped on them. … Q. Why did you put them (mats) down if it wasn't because the floor was slippery? A. It was requested sir. Q. Was it requested that they'd be provided because the floor was slippery? A. Not on all occasions sir. … Q. The floor that is shown in exhibit C was replaced, wasn't it A. Yes sir.

[51]

Q. When you say it was in poor condition, first of all it was slippery when wet? A. Is that a question? Q. Yes. A. I can't say that sir, don't know because the tiles were lifting because of the age of them. … Q. Water was on the floor very frequently wasn't it? A. Yes sir. … (shown photograph C3.) Q. Sir, I suggest to you that those tiles are showing a water stain? A. Sir, I suggest that they're showing that the tiles are dirty. Q. Can you offer an explanation as to why, if that was the case, why only the tiles in the vicinity of the dishwasher would be dirty? A. Because it possibly hasn't been cleaned properly there sir. … Q. You were aware, I suggest in June 2002 that water and particularly on 29 June 2002 that water on a tiled floor created a hazard? A. Can you tell me why I would know on that particular day? Q. I suggest to you that at any time water lying on a tiled floor created a slippery hazard? A. Not necessarily sir. Q. When you say "not necessarily" are you saying that in certain circumstances it could? A. Yes sir. Q. That was your stated knowledge in June 2002? A. No sir. Q. Do you say that you didn't realise in June 2002 that water on the floor might, in certain circumstances on a tiled floor create a slippery hazard, you didn't know that? A. I can't say when I knew these things. I can't remember the exact date sir. You're asking me for an exact date, I can't remember what happened on that date. Q. You're missing my point. I'm suggesting to you that as a person and the property maintenance manager at this establishment in June 2002 were aware that water on a tiled floor could create a slipping hazard? A. I guess I'm aware of it today but I don't know the situation back then, I can't remember. Q. Of course if the water contained a detergent that would increase the likelihood of a slip, would it not? A. Not necessarily sir. Q. You seriously say that? A. Yes sir all a lot of these chemicals - different chemicals are designed so that we don't have these problems sir. Q. You don't suggest, do you, for even one minute that the detergent the Salvation Army was using in this dishwasher was detergent which had a special non-slipping quality? A. I'm not suggesting that sir.

[77]

65 Dr Thomas Nash, a consultant vascular and general surgeon, examined the plaintiff on three occasions for a medico-legal opinion and provided reports dated 27 August 2003, 4 December 2006 and 9 October 2007. He also gave oral evidence. From the first consultation, Dr Nash found the condition of the plaintiff's back, knees and neck would remain permanently vulnerable and she would have ongoing symptoms of pain. Even so, he considered the restricted work she was then doing in August 2003 of four and a half hours a day for three days a week could be continued. By December 2006, Dr Nash accepted there had been a significant change in the plaintiff's circumstances and condition. He said in his second report: In my opinion Ms Irwin has persistent pain in her back following laminectomy. She continues to have pain and restriction in her left knee following arthroscopy as a result of the work related injury on 29 June 2003 (sic 2002). She has pain and restriction in the left hip which I believe is due to degenerative changes and aggravation of these changes. She has restriction of movement in the right knee and pain, the result I believe of degenerative changes and gait derangement as a result of the left knee and left hip disability. Her back symptoms may have been aggravated as a result of gait derangement. … In my opinion Mrs Irwin will remain permanently unfit to return to her previous nursing activities. She has been unable to continue with work as a kitchen hand and I believe this is also permanent. Her back, left hip and both knees preclude her from work that requires standing for long periods. She is unfit to perform frequent bending, twisting of her back or working in confined spaces. She is unfit to squat, kneel or crouch on a repetitive basis as a result of bilateral knee changes. She was sitting making sandwiches but the left hip pain would restrict her in this activity now. I believe she is unlikely to ever engage in her regular occupation and she is unlikely to be fit or capable of engaging in any gainful occupation for which she has experienced in, taking into account the level of her education, training, qualifications and experience. …The prognosis is poor and she continues to be dependent on Ms Contin…Her back, knees and left hip will continue to limit her significantly long term. She has indicated that she has been told she may require hip replacement in the future.

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