Palackalody v St Vincent’s Hospital Sydney Limited

Decision date: 28 November 2025

Jurisdiction: Civil

Before: Acting Judge Levy SC

Decision: See paragraph [628] for orders

Catchwords: TORTS – negligence – work injury damages claim – back injury incurred by nurse in the course of employment in hospital coronary care unit – manual handling to reposition a heavy patient – unsafe system of work – inadequate staffing – inadequate equipment – finding of negligence – rejection of defence of alleged contributory negligence – rejection of defence of alleged unreasonable failure to mitigate damages; DAMAGES – assessment of damages of $1,462,214.30 – judgment in the offset sum of $1,204,839.30

Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 and s 58
Evidence Act 1995 (NSW), Dictionary, Pt 2, cl 4(2), s 60, s 79, s 80
Practice Note DC (Civil) No 1
Uniform Civil Procedure Rules 2005 (NSW) r 31.27(1)(c); Schedule 7 cl 5(c)
Work Health and Safety Act 2011 (NSW), s 17, s 19(3)(f)
Workers Compensation Act 1987 (NSW), s 151D, s 151L
Workplace Injury Management and Workers Compensation Act 1998 (NSW), Chapter 3, s 318

Cases Cited: Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45
Arnott v Choy [2010] NSWCA 259
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20
Bonnington Castings Ltd v Wardlaw [1956] AC 613; [1956] 1 All ER 615
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Bresatz v Przibilla (1962) 108 CLR 541
Brogan v Geary (1995) Aust Torts Reps 81-342
Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14
Dare v Pulham [1982] HCA 70; 148 CLR 658
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
De Sales v Ingrilli (2002) 212 CLR 338; [2002] HCA 52
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; [1982] HCA 3
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187
Graham v Baker (1961) 106 CLR 340; [1961] HCA 48
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; [1956] HCA 42
Helton v Allen (1940) 63 CLR 691; [1940] HCA 20
Jones v The Queen (1997) 191 CLR 439
Kuhl v Zurick Financial Services Australia Ltd [2011] HCA 11
Leighton Contractors Pty Ltd v Fox (2009) 240 CLAR 1; [2009] HCA 35
Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19
Mahony v Watson [2003] NSWCA 259
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12
Mason v Demasi [2009] NSWCA 227
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60
Nadjovski v Crnojlovic [2008] NSWCA 75
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362; [1963] HCA 4
Nominal Defendant v Cordin [2017] NSWCA 6
Palackalody v St Vincent’s Hospital Sydney Limited [2023] NSWDC 324
Paric v John Holland Constructions Pty Ltd [1985] HCA 58
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34
Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42
Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337; [1957] HCA 34
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Vaccaro v MLC Limited [2016] NSWDC 85
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Watson v Foxman (1995) 49 NSWLR 315
Watts v Rake (1960) 108 CLR 158; (1960) 34 ALJR 186; [1960] HCA 58
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

Category: Principal judgment

Parties: Jiji Diji Palackalody (Plaintiff)
St Vincent’s Hospital Sydney Limited (Defendant)

Representation: Counsel:
CT Barry KC and T Meakes (Plaintiff)
DS Stanton and N Hogan (Defendant)
Solicitors:
Allsworth Lawyers (Plaintiff)
Bartier Perry (Defendant)

File Number(s): 2023/00016566

Publication restriction: None

Judgment

Table of Contents

| STRUCTURE OF THESE REASONS | | | PART A – INTRODUCTION | [1] – [60] | | Summary of outcome | [5] | | Reasons for refusal of adjournment applications | [6] – [16] | | Factual background | [17] – [46] | | Injury on 30 August 2014 | [23] – [25] | | Injury on 30 December 2014 | [26] – [27] | | Injury on 15 May 201**5 | [28] – [30] | | Patient repeatedly slipping | [31] – [36] | | Patient repositioning manoeuvre | [37] – [41] | | Injury and consequences | [42] – [46] | | Pleadings review | [47] – [55] | | Issues | [56] – [60] | | PART B – EVID****ENCE OVERVIEW | [61] – [76] | | Clarification of the state of the evidence | [62] | | Documentary evidence | [63] – [74] | | Oral evidence | [75] – [76] | | PART C – REVIEW OF LIABILITY EVIDENCE | [77] – [151] | | (1) P**laintiff’s oral evidence in chief | [81] | | (2*) Cross-examination of* Plaintiff | [82] – [83] | | (3*) Review of evidence of* Ms Curry | [84] – [103] | | (4) Training, personnel and related records | [104] – [131] | | (5*) Statement of* Ms Ghaly | [132] – [134] | | (6*)* Work incapacity certificates | [135] | | (7*) Workers’ compensation* / rehabilitation assessments | [136] – [139] | | (8*) Plaintiff’s record of “learning”* | [140] | | (9) Expert report of Ms Cacciola | [141] – [148] | | (10) Ms Cacciola’s oral evidence | [149] – [151] | | PART D – REVIEW OF MEDICAL EVIDENCE | [152] – [288] | | PART E – SUBMISSIONS OF THE PARTIES | [289] – [315] | | (1) Plaintiff’s primary submissions | [295] – [297] | | (2) Defendant’s primary submissions | [298] – [306] | | (3) Defendant’s supplementary submissions | [307] | | (4) Defendant’s further supplementary submissions | [308] | | (5) Plaintiff’s supplementary submissions | [309] – [312] | | (6) Defendant’s second supplementary submissions | [313] – [315] | | PART F – FINDING ON ISSUES FOR DECISION | [316] – [625] | | Findings on Issue 1 – Reliability of defendant’s records | [317] – [357] | | Findings on Issue 2 – Credibility of testimony | [358] – [381] | | Findings on Issue 3 – Preferred medical opinions | [382] – [399] | | Findings on Issue 4 – Factual circumstances surrounding injury | [400] – [489] | | (1*)* Plaintiff’s prior back strains | [401] – [415] | | (2*)* Short staffing of nurses | [416] – [432] | | (3*)* Inadequate equipment | [433] – [443] | | (4*)* System of work | [444] – [455] | | (5*)* Circumstances of injury | [456] – [476] | | (6*)* Consequences of injury | [477] – [488] | | Findings on Issue 5 – Duty of care | [490] – [501] | | Findings on Issue 6 – Reliability of expert liability evidence | [502] – [514] | | Findings on Issue 7 – Negligence | [515] – [540] | | (1*)* Identification of risk of harm | [516] | | (2*)* Foreseeability or remoteness of risk | [517] – [520] | | (3*)* Magnitude and probability of harm | [521] – [524] | | (4*)* Risk response of reasonable employer | [525] – [531] | | (5*)* Difficulty and inconvenience of avoidance | [532] – [535] | | (6*)* Whether conflicting factors exist | [536] – [538] | | (7*)* Conclusion on negligence | [539] – [540] | | Findings on Issue 8 – Contributory negligence | [541] – [557] | | Findings on Issue 9 – Causation | [558] – [571] | | Findings on Issue 10 – Assessment of damages | [572] – [604] | | Findings on Issue 11 – Mitigation of damages | [605] – [625] | | PART G – DISPOSITIVE ORDERS | [626] – [628] | | Disposition | [626] | | Costs | [627] | | Orders | [628] |

structure of these reasons

1. PART A – INTRODUCTION**:** paragraphs [1] – [60]
2. PART B – EVIDENCE OVERVIEW: paragraphs [61] – [76]
3. PART C – REVIEW OF LIABILITY EVIDENCE**:** paragraphs [77] – [151]
4. PART D – REVIEW OF MEDICAL EVIDENCE**:** paragraphs [152] – [288]
5. PART E – SUBMISSIONS OF THE PARTIES**:** paragraphs [289] – [315]
6. PART F – FINDINGS ON ISSUES**:** paragraphs [316] – [625315]
7. PART G – DISPOSITIVE ORDERS**:** paragraphs [626] – [628]

part a – INTRODUCTION

1. The plaintiff, Mrs Jiji Palackalody, a 54-year-old highly experienced clinical specialist cardiothoracic nurse, brings these proceedings claiming compensatory damages for personal injury in the sum of $1,600,000 plus costs for alleged workplace negligence on the part of the defendant, her former employer, St Vincent’s Hospital Sydney Limited. The defendant contests the claim on all issues and in the alternative, alleges contributory negligence and failure to mitigate damages.

2. The plaintiff claims she sustained an incapacitating back injury at work on 15 May 2017 when aged 47 years. She claims this occurred due to an unsafe system of work in the defendant’s high dependency coronary care unit during a time of significant staff shortages combined with a high workload of patients requiring critical care, and a low nurse-to-patient ratio which needlessly exposed her to a foreseeable risk of back injury. Her injury occurred when she responded to a request to assist another nurse in repositioning a heavy and immobile critical care patient without adequate equipment or assistance.

3. Initially, on 16 January 2023, the plaintiff filed her proceedings outside of the prescribed time and without leave. Following a contest over her entitlement to bring and maintain these proceedings, on 18 August 2023, at a separate hearing she obtained an order granting leave pursuant to s 151D of the Workers Compensation Act 1987 (NSW), which enabled her case to proceed to a hearing: Palackalody v St Vincent’s Hospital Sydney Limited [2023] NSWDC 324.

4. The proceedings are governed by the common law of negligence, as modified by the Workers Compensation Act 1987 (NSW) [“the WC Act”], and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) [“the WIM Act”].

Summary of outcome

5. Following my review of the oral evidence, the voluminous documentary evidence, and the successive submissions of the parties, for the reasons that follow, I have found that the plaintiff has sustained her claim against the defendant on the liability issues. Consequently, I have assessed her compensatory damages in the sum of $1,462,214.30 without discount for alleged contributory negligence and alleged non-mitigation of damages. After applying an offset of $257,375 for the receipt of workers compensation payments, the plaintiff is entitled to a judgment in her favour in the sum of $1,204,839.30.

Reasons for refusal of defendant’s adjournment application

6. At the commencement of the hearing, during opening addresses, the defendant made an application for an adjournment. That application was refused. At that time, as some slippage had occurred in the timetable for the hearing the parties were informed that the reasons for refusal of the adjournment would be included in these reasons: T13.50. Those reasons now follow.

7. The defendant’s application for an adjournment was based on the vaguely expressed perception that “a number of matters have come to light in the past few weeks” where the defendant felt it was “not in a position to fairly meet the case that’s advanced by the plaintiff”: T12.13. The defendant claimed it needed to investigate the circumstances in order to avoid prejudice. That perception was based on an apparent deterioration in the plaintiff’s condition of health in the lead- up to the hearing: T12.25 – T12.43.

8. On a consideration of the balance of convenience between the parties, having due regard to their competing interests, and having regard to the court’s listing arrangements, the assessment was made that a postponement of the hearing following an adjournment, in a potentially long matter such as this, would have resulted in the delayed allocation of a further hearing to a date in late 2026.

9. The assessment was that an adjournment in those circumstances would have resulted in an inordinate delay in finalising the litigation, and such a result would have represented a manifest procedural injustice to the plaintiff, particularly where the plaintiff had complied with the required procedural steps to bring the matter to trial and the defendant had already obtained ample medical evidence that could be called upon if so required: Civil Procedure Act 2005 (NSW), s 56 and s 58.

10. The defendant’s first adjournment application was refused as it had ample notice of the plaintiff’s post-accident condition and the likely trajectory of deterioration in her health which had already been the subject of expert medical examinations undertaken at the request of the defendant.

11. Subsequently, on the third day of the trial, the defendant made a further application for an adjournment. This occurred after the plaintiff had already completed giving her evidence with physical difficulty, and after it became known that following the completion of her evidence, she was taken to Nepean Hospital where she remained at the time of that application.

12. The defendant’s further application was based on the speculative proposition that the emergent circumstances “may well touch upon the future in terms of assessing the nature of the plaintiff’s injury and her ongoing disability and what impact that will have upon the assessment of damages, particularly in relation to matters of economic loss”: T212.35.

13. The circumstances of that hospital admission were considered to be a crystallisation of an anticipated contingency or vicissitude that could have foreseeably operated adversely to either or both parties. This was in circumstances where, before the hearing, the plaintiff’s treating neurosurgeon had been contemplating offering her some further spinal surgery and the expert neurosurgeon retained by the defendant had also opined before the hearing that there was a need for the plaintiff to have further spinal surgery.

14. Notwithstanding those views, as was her right, the plaintiff had expressed her reluctance to have any further surgery to her spine on account of the disappointing outcome from her earlier spinal surgery: T212.45 – T213.25.

15. Against that background, the plaintiff had been medically advised to present herself to the nearest emergency department if she experienced worsening pain or new neurological deficits or other concerning symptoms: Exhibit “C”. In that regard, on the evidence, the hospital admission which based the defendant’s further application for an adjournment appeared to be the crystallisation of an already anticipated vicissitude.

16. In those circumstances, the defendant was invited to provide affidavit evidence that could be assessed if the further application for an adjournment was to be pressed: T215.15. Ultimately, the defendant decided to keep it’s “powder dry” on that issue and the further application for an adjournment was not developed and it did not proceed: T219.47 – T220.13.

Factual background

17. The plaintiff obtained her primary nursing qualifications in India in 1992 when aged 22 years. She is married and has three children. She is an Australian citizen. The preponderance of the medical evidence confirms that post-injury, due to her physical disabilities, she is no longer physically able to work in her profession, and any residual earning capacity that she might otherwise have had is now severely limited by those disabilities, and on one view of the medical evidence, practically non-existent.

18. The uncontradicted evidence shows that before the subject injury the plaintiff was a well-qualified, highly experienced and hard-working clinical nurse with an impressive work history. She holds advanced post-graduate tertiary qualifications obtained in Australia. She has had practical and university teaching experience as an assistant clinical lecturer guiding trainee nurses in their clinical placements. She has successfully worked in her profession in a number of overseas countries where she has cared for patients in acute / critical coronary care units. She has had extensive experience in the nursing management and manual handling of high dependency hospital patients needing critical care.

19. The plaintiff commenced her employment with the defendant on 6 February 2012. In reflecting on the plaintiff’s work, the defendant’s nursing unit manager (NUM) who had supervised the plaintiff’s work over a period of 5 years gave evidence in which she said that she respected the plaintiff’s clinical skills in the workplace: T164.22; T181.35.

20. Before the plaintiff was injured on 15 May 2017, as was foreseeable in the nursing profession, she had experienced two minor back strains in the course of her employment with the defendant whilst caring for patients. The evidence suggests that, in each instance, the effect of those strains was of a temporary nature.

21. The plaintiff claims, with the support of cogent and unchallenged medical evidence, that those earlier back strains had resolved prior to the injury she incurred on 15 May 2017. She claims that she was in good physical and psychological health prior to that injury. She claims she had no difficulty performing the work ordinarily expected of her in her profession.

22. The evidence suggests that the plaintiff’s back straining injuries, three in total, must be considered against a background of pre-existing normal age-related degenerative changes to her lumbar spine, where her two earlier back strains made her more vulnerable to further back injury if she were to perform heavy work involving significant lifting. This was a matter known to the defendant prior to the plaintiff’s third back injury on 15 May 2017. The circumstances of those back strains are considered below in the sequence in which they occurred.

Injury on 30 August 2014

23. The f**irst of the plaintiff’s back strains occurred on 30 August 2014. She sustained this initial back strain at work when it became necessary for her to urgently intervene when called upon to assist a colleague in restraining a heavy patient weighing approximately 150 kgs who had, whilst in an agitated state, initiated an unexpected reaching or lunging movement whilst in his bed, thereby jeopardising his own safety and well-being. That injury was later exacerbated by the plaintiff’s need to manipulate a heavy oxygen cylinder.

24. The plaintiff’s colleague, who was responsible for the nursing care of that patient, needed assistance to physically restrain him in order to ensure that he did not incur self-harm at a time when he was desperately seeking to ingest the contents of a bottle of hand gel that contained a harmful form of alcohol.

25. The plaintiff claims that by October 2014, following the receipt of treatment for that back strain, including with cortisone injections, she had made a full symptomatic recovery from its effects.

Injury on 30 December 2014

26. The s**econd of the plaintiff’s back strains occurred on 30 December 2014. It occurred at a time of a high-volume patient workload in the defendant’s short staffed coronary care unit. The nursing tasks required of the coronary care nurses at that time included the need to move and reposition heavy immobile high dependency patients. In the course of that work the plaintiff sustained a further back strain which she described as being of a temporary duration.

27. The plaintiff claims that her symptoms from that second back strain had “stirred things up” for a short time but this had fully resolved after taking analgesic medication. Thereafter, she returned to full duties which she performed without incident or difficulty until 15 May 2017.

Injury on 15 May 2017

28. The third of the plaintiff’s back strains, the subject injury on 15 May 2017, has led to the present claim. It occurred at a time of longstanding nursing staff shortages that also coincided with an intensely demanding patient workload in the defendant’s coronary care unit. In that context, the plaintiff’s claim is that this injury occurred in the course of her participation in a foreseeably and avoidably unsafe negligent system of work whilst assisting another nurse who needed to reposition a heavy immobile patient on his bed.

29. The prevailing nursing staff shortages in the lead-up to that injury meant that the plaintiff was working onerous, physically demanding, and fatiguing nursing shifts, where the frequency of the nursing staff roster arrangements had been adjusted by the defendant to a greater level of intensity to enable it to provide nursing cover for patient care in the face of those shortages. As a consequence, she was allocated onerous and cumulatively fatiguing shifts which she described without reliable contradiction as involving a series of 8 consecutive 10-hour shifts in the 9 days leading to her injury.

30. In those events, the plaintiff was required to attend to the nursing needs of multiple coronary care patients who were immobilised in bed, many of whom were heavy, where some required frequent repositioning whilst remaining in their beds.

Patient repeatedly slipping from the semi-Fowler position on 15 May 2017

31. On 15 May 2017, in a sequence of about five separate attendances on a heavy and immobile patient (the index patient), she was repeatedly called upon to assist another nurse, Ms Hilary McDermott, who was primarily responsible for the care of that patient, to reposition him in his bed.

32. The index patient was a tall, 93-year-old man weighing about 96 – 98kg. He was being nursed whilst seated in the semi-Fowler position due to the nature of the operative procedure that had been performed on him, namely, the insertion of a temporary cardiac pacing wire. The following diagram, which is copied from the report of the plaintiff’s nursing expert (Exhibit “B”, p 19), provides a pictorial representation of the semi-Fowler position:

33. Because of the index patient’s large physical proportions, whilst he was in the semi-Fowler position, he kept slipping downwards on his bed with the result that his legs were repeatedly found to be awkwardly overhanging at the end of the bed. This was because the configuration of his bed was too short for his unusual height and leg length. The following diagram, which is also copied from the report of the plaintiff’s nursing expert (Exhibit “B”, p 19), shows a redacted photographic representation of a tall patient in a hospital bed with legs overhanging the end of the bed in an unsatisfactory position that required remedial nursing attention:

34. The process by which the index patient slipped downwards on the bed so as to need repositioning was a recurring problem in the management of that patient. This was because when he was admitted to the coronary care unit, his bed had not been fitted with a bed extension device which would have included a footrest that would have prevented him from slipping down. If that device had been fitted it would have otherwise accommodated his unusual out-sized physical proportions. The following set of two diagrams, which are also copied from the report of the plaintiff’s nursing expert (Exhibit “B”, p 24), shows pictorial representations of hospital bed frame extension devices for use with taller patients:

35. The uncontested evidence is that it was not the plaintiff’s responsibility to seek out and fit a bed extension device to the bed of the index patient. Instead, it was the responsibility of the nurse who admitted that patient to the unit on a previous shift, as well as the responsibility of the various rostered on-duty nursing unit managers who had an overall supervisory role in the coronary care unit, including on matters of workplace safety for staff and patients.

36. Those prevailing circumstances required that the nursing staff, including the plaintiff, repeatedly reposition the index patient on his bed each time he had slipped down on the bed in order to address the unsatisfactory situation where his feet would end up overhanging the end of the bed. The plaintiff helped to reposition him on 5 occasions on 15 May 2017.

Patient repositioning manoeuvre

37. The evidence indicates that on 15 May 2017 the required remedial repositioning manoeuvre was in the nature of a lifting, dragging, pulling, and pushing action on the part of each of the two nurses. On the fifth of those repositioning manoeuvres the plaintiff found that she had to stand next to the bed in an awkward posture to carry out the required task. She had carried out a series of 4 such manoeuvres during the course of her shift.

38. The plaintiff incurred her injury on the fifth of such manoeuvres after the end of her shift, at a time when she was fatigued and had already gone off duty. Acting in the spirit of the Good Samaritan, she nevertheless responded to the call from her colleague for assistance.

39. Those repeated repositioning manoeuvres had to be achieved by nurses using manual handling techniques. To achieve this, the plaintiff and her colleague positioned themselves on either side of the patient in relatively awkward postures. They repositioned him on each occasion by using plastic sliding-sheets. The evidence of the defendant’s manual handling co-ordinator indicates that the proper implementation of this procedure required the involvement of 3 or 4 nurses, yet on this occasion only 2 turned out to be available for the task.

40. The use of slide sheets required that the attending nurses had to each apply sufficient physical force to successfully manoeuvre and manipulate them into a position under the patient to reduce bed sheet friction and to facilitate the moving and the repositioning of the patient to a higher position on the bed. That process required the exertion of manual force. This was in circumstances where the immobile patient was inert and unable to exert any useful force to assist the nurses to shift his weight.

41. On the fifth occasion of the plaintiff’s involvement of the patient being repositioned on his bed in the manner described, she was again called upon to assist her colleague in moving and adjusting his position on the bed because of his altered position after he had again slipped down from the required semi-Fowler position. In those circumstances, she found that she had to exert physical force from an awkward posture to pull him using her arms whilst also having to awkwardly bend downwards. The plaintiff acknowledged that she had been involved in such manoeuvres countless times in a working shift as part of teamwork before 15 May 2017, consistent with her training and experience.

Injury and consequences

42. In those events, the plaintiff said that whilst engaged in the manoeuvre described above she felt a strong and painful pulling sensation and a click in her lower back, in which she felt something had broken, and she felt she was unable to move properly.

43. The serial medical investigations which followed over the course of time after the plaintiff’s 15 May 2017 injury revealed that she had several lumbar disc protrusions.

44. Subsequently, despite the plaintiff having undergone L2/3 and L3/4 discectomy surgery to her back to treat those disc protrusions, she continues to experience debilitating physical and psychological disabilities. These problems have had lasting adverse repercussions for her and have ultimately precluded her from continuing in her pre-injury work or effectively engaging in any form of alternative work.

45. For the plaintiff, those adverse consequences include her experiencing ongoing backpain; episodic falls; urinary and faecal incontinence; an inability to work; and other significantly deleterious changes to the quality of her life. Consequently, she claims economic damages as permitted by the legislative scheme for assessing work injury damages claims.

46. Following those events, on 15 August 2019, the defendant ultimately terminated the plaintiff’s employment on the premise that it had no suitable alternative work for her. Since then, apart from some short-lived unsuccessful attempts at mitigatory employment, she claims she has been unable to work, and consequently she claims economic damages.

Pleadings review

47. It is convenient at this point to examine the framework provided by the pleadings which formed the basis for identifying the issues calling for decision: Dare v Pulham [1982] HCA 70; 148 CLR 658, at [6].

Statement of claim

48. In my view, the plaintiff’s statement of claim adequately pleads that the defendant owed the plaintiff a duty of care, namely the obligation to take reasonable care to provide both a safe system of work and a safe place of work. It also sets out in adequate detail, particulars of the nature of the work tasks she was called upon to repeatedly perform whilst positioning herself in awkward, constrained and stressful physical postures that exposed her to the increased risk of incurring an injury to her lower back.

49. The plaintiff’s statement of claim also raises allegations to the effect that the defendant had failed to take adequate steps to safely manage the risks associated with the work tasks required of her and that it failed to conduct adequate and timely investigations into her workplace complaints and safety concerns which had been communicated to the defendant beforehand over the course of time.

50. The plaintiff’s statement of claim extensively particularises a series of adequately framed allegations of negligence, which, broadly summarised, refer to an allegedly deficient system of work, inadequate planning and implementation of workplace policies to address risks, inadequate supervision, inadequate provision of appropriate assistive equipment, inadequate staffing, inadequate staff training, failure to heed nursing staff complaints regarding the physical difficulties inherent in the work she was required to undertake, and an alleged failure to comply with the Work Health and Safety Act 2011 (NSW), including in the regulations made thereunder: Statement of Claim, paragraph 7(i) – (xviii).

Defence

51. The defence filed on 7 February 2023 made no material admissions concerning the facts pleaded in the plaintiff’s statement of claim, and contained blanket denials of each and every factual averment raised by the plaintiff.

52. Furthermore, adding an element of needless confusion, the filed defence invoked what has become known as the illegitimate or bastard conjunction by stating: “In addition, and/or (sic) in the alternative”, the defendant pleaded that if it had engaged in conduct constituting a breach of duty of care owed to the plaintiff, which is denied, then the plaintiff should be found to have been guilty of contributory negligence: Defence, paragraph 23.

53. Previously, in an unrelated matter of Vaccaro v MLC Limited [2016] NSWDC 85, at [10], I referred to what has elsewhere been described as the unacceptable use of the illegitimate conjunction in a pleading, as explained by authority, as follows:

“The use of the loosely ambiguous term “and/or” has been authoritatively described elsewhere as the “bastard conjunction” that is to be regarded as being unacceptable in pleadings due to its vagueness and scope for confusion: St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480, at [11]; following Bonitto v Fuerst Bros & Co Ltd [1944] AC 75, at p 82. The use of that conjunction could wrongfully lead the reader to assume it involves causation when all it achieves is obscurity: Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711, at p 716. … “

54. The defendant also pleaded a defence pursuant to s 151L of the WC Act alleging the plaintiff had, variously, failed to mitigate her damages by failing to undergo appropriate medical treatment, failed to seek suitable employment from the defendant, or other employment, and failed to comply with obligations imposed by Chapter 3 of the WIM Act, including an alleged failure to seek appropriate rehabilitation training.

55. Finally, the defendant pleaded a defence claiming that in the event the plaintiff succeeds in proving the defendant was in breach of the duty of care it owed to her, any such breach was not the relevant cause of her injury.

Issues

56. Practice Note DC (Civil) No 1 required that the respective parties produce documents at the hearing that identified the issues for trial. The parties adopted a somewhat minimalist approach to defining the issues given the breadth and the content of the evidence.

57. The plaintiff’s legal representatives defined the issues somewhat broadly (in Exhibit “A”, p 16) as being:

58. Liability;

59. Past economic loss;

60. Future economic loss.

61. The defendant’s schedule of issues (in MFI “1”) broadly defined the issues as being:

62. Liability according to the plaintiff’s account;

63. Contributory negligence;

64. Causation;

65. Quantum, based on a claim of a residual earning capacity;

66. Mitigation.

67. Plainly, the issues which call for decision involved more extensive detail than those simplified headline points. The emergent issues were more clearly discerned and defined after examining and weighing the entirety of the relevant evidence which in this case was wide-ranging: Whisprun Pty L**td v Dixon [2003] HCA 48; (2003) 200 ALR 447, at [119].

68. On reviewing the evidence and the submissions, the principal issues calling for determination may be conveniently identified as requiring findings concerning:

69. The reliability of the defendant’s injury notification, investigation, and personnel records for the purpose of guiding fact findings on the liability issues. My findings on this issue appear between paragraphs [317] to [357] below;

70. The credibility and the reliability of the oral evidence of the plaintiff and the evidence of the defendant’s NUM, Ms Curry, on factual matters following a review of the array of evidence on those matters. My findings on this issue appear between paragraphs [358] to [381] below;

71. Findings concerning the preferred medical opinions on relevant matters in dispute. My findings on this issue appear between paragraphs [382] to [399] below;

72. The factual circumstances surrounding the plaintiff’s injuries. My findings on this issue appear between paragraphs [400] to [490] below;

73. The nature and the extent of the duty of care the defendant owed to the plaintiff. My findings on this issue appear between paragraphs [491] to [502] below;

74. The reliability and guidance value of the expert liability evidence. My findings on this issue appear between paragraphs [503] to [514] below;

75. Whether the defendant was in negligent breach of the duty of care it owed to the plaintiff. My findings on this issue appear between paragraphs [515] to [540] below;

76. In the event of a finding that the defendant was negligent, whether the plaintiff had been contributorily negligent, and if so to what apportioned extent. My findings on this issue appear between paragraphs [541] to [557] below;

77. Whether the plaintiff’s injuries were relevantly caused by the negligence of the defendant. My findings on this issue appear between paragraphs [558] to [571] below;

78. The assessment of the plaintiff’s entitlement to damages within the limits as provided by legislation. My findings on this issue appear between paragraphs [572] to [604] below;

79. Whether, within the meaning of s 151L of the WC Act, the plaintiff has failed to take reasonable steps to mitigate her damages, as is alleged by the defendant. My findings on this issue appear between paragraphs [605] to [625] below.

PART B – EVIDENCE OVERVIEW

61. Before setting out an overview of the oral and documentary evidence it is relevant to review the circumstances and the process by which some ambiguities and confusion arising from the state of the evidence were identified and clarified.

Clarification as to the state of the evidence

62. The parties tendered a daunting array of voluminous documentary exhibits which required close examination in addition to the oral evidence.

63. Those circumstances presented some challenges for the required analysis, including because of the way in which the defendant mid-trial later sought to limit the ambit of parts of the documentary evidence it had tendered after the plaintiff had given her evidence. Those circumstances led to some ambiguity and confusion which required a series of re-listings to seek clarification.

64. The clarifications concerned the precise extent to which some of the documentary exhibits initially tendered by the parties would no longer be relied upon by the defendant, and whether the evidence disavowed by the defendant had been adopted as evidence to be relied upon by the plaintiff. Those events, the detail involved, and mutual availabilities, have contributed to the delay in the delivery of these reasons.

65. Before setting out an overview of the evidence it is necessary to record some aspects of how the array of evidence evolved into its final shape. The transcript references that follow relate to the combined and the repaginated transcript, which was provided to the parties by email on 23 October 2025.

66. Confusion arose as to aspects of the evidence, as follows:

67. At the commencement of the trial, the plaintiff tendered a court book which was marked Exhibit “A” subject to some emergent objections which had not been previously communicated to the plaintiff. When the objections were taken, the defendant did not have a schedule of objections. Consequently, for efficiency, the determination of the objections was deferred so that the pressing programme of evidence could proceed. The defendant’s specific objections ultimately related to three evidentiary statements by the plaintiff which had been served and reproduced in the plaintiff’s court book. They were respectively dated 12 January 2021, 7 February 2023, and 28 May 2024. The basis of the defendant’s objection to those documents was stated to be that the defendant anticipated that the plaintiff’s evidence would be given orally: T14.10 – T16.47;

68. In response, the plaintiff made an application pursuant to UCPR r 31.4 to have the plaintiff’s evidence in chief given by way of written statements. After discussion, that application was withdrawn: T16.50;

69. Without qualification, the defendant then tendered a court book comprising seven volumes: Exhibit “1”, Tabs 1 – 200, pp 1 – 2798. Those materials were tendered without objection from the plaintiff: T17.16. At that time counsel for the defendant indicated the intention to condense that tender to alleviate the reading burden of some repetition in Exhibit “1”. The plaintiff was then called and commenced giving her oral evidence: T18.10;

70. Paradoxical to the defendant’s objections to the plaintiff’s three evidentiary statements in Exhibit “A”, as referred to in sub-paragraph (1) above, Exhibit “1” contained a copy of the plaintiff’s first evidentiary statement, dated 12 January 2021, which had been objected to by the defendant, but in this context, it was tendered by the defendant;

71. The case then proceeded, during which time the following events occurred:

(a) On the second day of the hearing the defendant’s tender of Exhibit “1”, was reaffirmed without qualification: T118.27; (b) On the third day of the hearing, in the course of tendering some further documents, counsel for the defendant indicated that discussions were on foot to review and possibly condense the court books to alleviate some of the reading burden. It was indicated that a list of the documents no longer relied upon by the defendant would be provided, and it was further indicated that matter would be dealt with at the end of the evidence. That list never eventuated. The background context was said to be the differing views taken in relation to the operation of s 318 of the WIM Act concerning what had and had not been served with the plaintiff’s re-filing statement: T206.21 – T206.32; (c) On the fourth day of the hearing, senior counsel for the plaintiff, without objection from counsel for the defendant, indicated that the plaintiff’s three evidentiary statements would be withdrawn from the plaintiff’s tender bundle and no longer relied upon as part of Exhibit “A”, and that position was duly noted: T216.30 – T216.43; (d) The proceedings then continued on the fifth and sixth days of the hearing to complete the evidence, following which the proceedings were then adjourned to allow for a programme of detailed written submissions; (e) The plaintiff’s primary written submissions were filed on 3 July 2024. The defendant’s primary written submissions were filed on 4 July 2024. The plaintiff’s submissions included an affidavit by the plaintiff’s solicitor relating to the assessment of damages. Oral submissions were made on 11 July 2024. It took some time to review the compendious materials. On 19 July 2024 the defendant filed supplementary submissions on economic loss issues; (f) On 6 March 2025, the parties were requested to return in order to address some matters arising from their written submissions: T262 – T266. At that listing counsel for the defendant confirmed that some of the content of Exhibit “1” was no longer to be taken as forming part of the body of evidence to be considered, namely the conclave report of the liability experts: Exhibit “1”, Volume 4, Tab 172, pp 1320 – 1350: T265.2. At that time it was also noted that the plaintiff’s three evidentiary statements within Exhibit “A” were no longer in evidence in that Exhibit: T265.09; (g) In those events, the parties undertook to provide some further written submissions: T265.23 – T265.44; (h) On 7 March 2025, the defendant provided supplementary written submissions responding to some matters raised for clarification at the listing on 6 March 2025; (i) On 14 August 2025, the parties were requested to return to address some further clarifications as to the state of the evidence: T267 – T270. The proceedings were then adjourned and the decision was again reserved pending the receipt of further elements of the transcript; (j) On 18 October 2025, belatedly, through no fault of the parties, the transcript of the further listing on 14 August 2025 became available;

6. Following a review of the 14 August 2025 transcript alongside the written submissions of the parties, the following matters emerged which required further clarification:

(a) A concern arose as to the effect of the defendant’s indicated withdrawal of certain parts of its tender bundle comprising Exhibit “1”. That concern extended to ensuring the issue had been duly considered by the plaintiff as to the implications of the step of withdrawal of certain evidence: Transcript of 14 August 2025, T1.38 – T2.11 (T267.38 – T268.11 of the repaginated combined transcript); (b) In response to that concern the following exchange occurred with senior counsel for the plaintiff:

“BARRY: The proposition that some material was withdrawn means no more than that the defendant does not wish to rely upon that material. It didn’t affect the way in which the Court dealt with the matter nor does it affect the way in which the Court can deal with material that is otherwise in evidence. The material was otherwise in evidence and no application was made for the record to be corrected.

HIS HONOUR: Let me be clear. Is the effect of what you're saying simply this, that I'm entitled to look at that material--

BARRY: Yes, your Honour.

HIS HONOUR: --and to make inferences and findings of fact from it?

BARRY: Yes, and I have an alternative submission and it is if your Honour is against me and your Honour takes the view that that material was otherwise not available then my application would be for leave to reopen and I will tender that in the plaintiff's case.”

[Transcript of 14 August 2025, T2.22 – T2.39 (T268.22 – T268.39 of the Combined Transcript)]

(c) In response, properly, counsel for the defendant sought an opportunity to consider the implications of that stated position: Transcript of 14 August 2025, T3.15 – T3.32 (T269.15 – T269.32 of the repaginated combined transcript); (d) The parties were given the option of a further re-listing if required in the event of a remaining contest on the issues so raised, and counsel for the defendant indicated that the question may be capable of resolution by an email communication: Transcript of 14 August 2025, T4.1 – T4.20 (T270.1 – T270.20 of the repaginated combined transcript); (e) On 14 August 2025 counsel for the defendant forwarded an email to the Court, copied to senior counsel for the plaintiff, which referred to Tabs 5, 6, 7 – 17, 133 – 170, 173 – 196, 197 – 201 of Exhibit “1”, which stated, incorrectly according to the record, as follows:

“We note the documents were not tendered and it was made clear that we would revise the DCB to tender only a condensed version. This was Exhibit 4. (See T17.14; T243-244). The Plaintiff accepted that position.

...

We have no objection to all of the documents save 1 being before the Judge as evidence.”

The cited statement that “the documents were not tendered”, referring to Exhibit “1”, is factually incorrect and inconsistent with the matters noted in the transcript at T17.16 and T118.27 where it is clearly stated that the exhibit was tendered without qualification;

(f) It therefore appears from the email dated 14 August 2025 that the parties were of the view that the only material excluded from consideration in the defendant’s court book (Exhibit “1”) was the plaintiff’s first evidentiary statement at Tab 155 of that Exhibit, commencing at page 998, and the defendant’s expert evidence on liability; (g) On 14 October 2025 the parties forwarded an email to chambers: MFI “6”. In that email the parties indicated their understanding that the previous request from the Court for their assistance had been complied with; (h) However, following the receipt and a review on 16 October 2025 of the transcript of the listing on 14 August 2025 in conjunction with the matters indicated in MFI “6”, some ambiguities on the state of the evidence nevertheless remained, which required a further listing to deal with such questions on the record;

7. On 20 November 2025, that date being the first mutually convenient date for a listing, an AVL hearing was convened to note the matters outlined above and to seek further clarification of the state of the evidence;
8. Following that listing it was confirmed that the document at Tab 153 of Exhibit “1”, between pages 985 and 993, namely Safe Moves for Nurses – St Vincents Health Australia, 2020, was irrelevant to the consideration in this case in view of its 2020 date where the date of injury was 15 May 2017.

Documentary evidence

67. The plaintiff’s exhibits were tendered in the following sequence:

68. Exhibit “A”, comprising a paginated court book: pp 1 – 423;

69. Exhibit “B”, comprising an expert report by a qualified nurse expert, Ms Alba Cacciola, dated 23 January 2023: pp 1 – 37, plus compendious annexures;

70. Exhibit “C”, comprising a discharge summary from Nepean District Hospital;

71. Exhibit “D”, comprising a bundle of historical medical reports: pp 1 – 72;

72. Exhibit “E”, comprising a medical certificate dated 5 June 2024 in respect of the plaintiff’s intra-trial admission to Nepean District Hospital for treatment of an acute exacerbation of her chronic back pain.

73. As recorded at sub-paragraph (3) of paragraph [66] above, the defendant initially tendered a compendious set of 7 volumes of medical and rehabilitation evidence in the form of return to work plans, assessments by various rehabilitation providers, together with the plaintiff’s taxation documents and details of her workers’ compensation payments, and copies of the plaintiff’s voluminous medical records produced on subpoena comprising hundreds of pages.

74. The defendant’s exhibits were initially tendered in the following series:

75. Exhibit “1”, which was tendered unconditionally on the first day of the hearing without objection from the plaintiff. It comprised an extensive 7-volume court book, Tabs 1 – 201, pp 1 – 2798. Those materials were progressively examined and considered;

76. Exhibit “2”, comprised the plaintiff’s application for employment;

77. Exhibit “3”, comprised the plaintiff’s further application for employment;

78. Exhibit “4”, which was tendered on the last day of the hearing, comprised a further defendant’s court book consisting of Volumes 1 and 2, pp 1 – 628, which in part replicated a cut-down version of Exhibit “1”, Tabs 88 -132, thereby omitting Tabs 1 – 31 and Tabs 89 – 201 of Exhibit “1”. That material, which also included an 83-page chronology, was tendered without any objection from the plaintiff;

79. Exhibit “5”, comprised a revised bundle of the defendant’s medical reports, pp 1 – 116.

80. As earlier indicated, the tender of the defendant’s documentary exhibits ultimately caused some confusion because of a change in the defendant’s position concerning reliance on its exhibits. Following the defendant's changed stance on its own exhibits bundle, with the exception of the plaintiff’s statement of 12 January 2021, the plaintiff relied upon the material in the Tabs of Exhibit “1” that were no longer relied upon by the defendant. This did not include the evidence of the defendant’s liability expert which had been excluded.

81. On the issue of damages, despite encouraging the parties to attempt to reach contingent agreements on quantum issues, they were unable to agree on the key elements which based the plaintiff’s claim for damages.

82. Consequently, on 19 July 2024, the plaintiff’s solicitor filed an affidavit setting out the basis for the plaintiff’s quantification of her claim. The defendant took issue with the plaintiff’s calculations for future economic loss and filed alternative submissions on the same date. Those differences will be considered in the reasons for assessment of the quantum of the plaintiff’s claim.

83. An index to the accumulated materials in the two volumes comprising Exhibit “4”, which was foreshadowed on 6 March 2025, was ultimately provided by the defendant on 12 June 2025.

84. Whilst the defendant’s objective was to reduce the ultimate volume of documentary material, this caused some further delay, complexity and confusion, as explained at paragraph [66] above.

Oral evidence

75. Oral evidence was given by:

76. The plaintiff, who was extensively cross-examined: T18 – T161;

77. Ms Sharon Curry, a Nursing Unit Manager (NUM) employed by the defendant: T163 – T193;

78. Ms Alba Cacciola, an expert consultant nurse qualified and retained by the plaintiff’s solicitor: T207 – T212;

79. Dr Paul Teychenne, a consultant neurologist, and Dr Neil Cochrane, a consultant neurosurgeon, who were retained by the respective parties. Those experts gave their expert evidence concurrently to clarify and explain the matters upon which they had earlier conferred and agreed shortly before the hearing: T222 – T242.

80. The medical experts did their best to assist by considering the issues within their remit to reach a number of agreements in the course of their evidence. Those agreements will be identified at a later point in these reasons. The entire array of the medical and expert evidence will be assessed for its reliability and its guidance value as a precursor to determining the causation and damages issues at a later point in these reasons.

PART C – REVIEW OF LIABILITY EVIDENCE

77. The plaintiff, and the defendant’s NUM at the time of the events, Ms Sharon Curry, were the only witnesses called to give oral evidence on factual matters concerning the liability issues. The plaintiff also relied on the report and the oral evidence of Ms Alba Cacciola, an expert retained to provide opinions on nursing care in relation to the liability issues: Exhibit “B”.

78. Initially, the plaintiff’s evidence comprised her first statement dated 12 January 2021 (Exhibit “A”, pp 198 – 211), her second statement dated 7 February 2023 (Exhibit “A”, pp 240 – 245), and her third statement dated 28 May 2024 (Exhibit “A”, pp 411 – 423), as supplemented by her oral testimony. Following the exclusion of those statements I have disregarded and ignored them, and I have only considered the content of the plaintiff’s oral evidence.

79. My review of the liability evidence proceeds according to the following sequence:

80. The plaintiff’s oral evidence in chief. This evidence was called in lieu of her first evidentiary statement dated 12 January 2021 and her second and third evidentiary statements were ultimately excluded from the evidence;

81. The cross-examination of the plaintiff;

82. A review of the evidence of Ms Curry, the defendant’s NUM;

83. A chronological review of the defendant’s training, personnel and related records relating to the plaintiff;

84. The evidentiary statement of Ms Fahdy Ghaly, the defendant’s manual handling co-ordinator;

85. Work incapacity certificates relating to the plaintiff;

86. Workers’ Compensation and rehabilitation assessments;

87. The plaintiff’s record of “learning” at the defendant’s hospital;

88. The expert nursing report of Ms Alba Cacciola, Exhibit “B”;

89. Ms Cacciola’s oral evidence.

90. The reason for the above sequence commencing with a summary of the plaintiff’s oral evidence followed by a review of her cross-examination is that the plaintiff’s first evidentiary statements were ultimately excluded from the evidence: T14.32.

(1) The plaintiff’s oral evidence in chief

81. The following points of significance arose from the plaintiff’s oral evidence:

82. She explained the detail of the work that was required of her in the coronary care unit when caring for fully dependent patients, whether acute or sub-acute, who were in the unit for medical assessments for heart and lung transplants, by-pass surgery, and post-surgical care. The unit was described as comprising 34 beds in all, 28 beds on one side of the ward, and 6 beds on the other side, the latter being for acute patients. In that situation, she stated that all nursing tasks were expected to be performed within the remit of the duties allocated to the attending nursing staff. She explained that on after-hours shifts, this was more difficult to achieve as there were no nurses’ aides, and no wardsmen or ward clerks available on-duty who could otherwise have been called upon to assist with carrying out physical tasks: T19.34 – T20.10;

83. Consistent with her skill set, she was mainly assigned to work in the acute area of the coronary care unit where the dependent patients had various acute conditions such as congestive heart failure, respiratory problems, or were recovering from heart lung transplant or coronary artery by-pass surgery: T20.13 – T20.37;

84. She described the circumstances of her first back strain in August 2014 and her recovery from that back strain: T21.1 – T22.33. In summary, according to her recollection, the incident occurred in the following circumstances. A young man, a bariatric patient, aged between 18 and 24 years whom she had estimated to have weighed in the vicinity of 130 to 150 kgs, who had experienced several cardiac arrests and intensive care admissions, and had been assessed as being unfit for a transplant, was on a fluid restricted diet and was exhibiting post-coma aggression and agitation during the night shift when she was caring for him. Part of his challenging behaviours that required monitoring involved his desperate attempts to drink fluids, including in this instance, from a bottle of hand gel which contained denatured alcohol, which if ingested, would have been seriously injurious to him. In those circumstances, a junior nurse caring for that patient had called on the plaintiff for help in restraining him, and when the plaintiff came to assist, whilst trying to take the gel container from him, he suddenly pulled her across the bed. In those events, she said she felt immediate pain in the L2 and L3 area of her spine. The plaintiff said that following treatment, including with cortisone injections, she had recovered from that straining injury;

85. The details of her second back strain, which she thought occurred on 30 December 2014, did not feature much in her oral evidence in chief, and it did not appear to be controversial. It was described in the medical evidence and the details were more elaborately described in the course of her cross-examination;

86. Her third back strain, which she incurred on 15 May 2017, occurred whilst she was working in the defendant’s coronary care unit where 6 patients were being cared for, and where each of them had particular nursing needs. The first was a patient on life support following a failed heart transplant. The second patient was a short statured agitated man in his mid-60’s who was obese, who was on mechanical respiratory support, who needed to be kept in an upright position. He was repeatedly sliding down in his bed and required repeated repositioning into the upright position. The third patient was described as “a bridge to transplant” patient who was attached to assisted ventilation devices. She was being treated with diuretics and needed bedpan assistance every 5 minutes or so on account of the effects of that medication. The fourth patient, a man in his mid to late thirties, who was in a stable condition, but had remained fully dependent post-transplant. The fifth patient was a woman in her early nineties with atrial fibrillation and exhibiting aggressive, demanding and abusive behaviour, including frequent attention seeking behaviour by using her buzzer to gain attention. The sixth patient, the index patient, was a man aged 93 years who had been fitted with a temporary cardiac pacing wire. The plaintiff described that patient as weighing approximately 96 to 98 kgs: T29.30. He required haemodynamic stabilisation, and he needed to be nursed in the seated semi-Fowler position due to that cardiac pacing wire. He was repeatedly slipping down on his bed. He “was pretty tall, his legs were [extending] out [beyond the end] of the bed”. He required a bed extension for that reason, but for some unexplained reason, that device had not been supplied or fitted to his bed: T23.9 – T25.13; T26.45;

87. She described a bed extension, as exemplified at paragraph [34] above, as an item of equipment that could be readily screwed onto the end of a bed to extend its length to cater for taller patients who needed a longer bed length: T24.46. Her initial evidence in chief was that the hospital did not have that piece of equipment available at that time: T26.46. That evidence was later qualified in cross-examination to the effect that a bed extension had not been fitted to that patient’s bed, and it would not have been up to her to have done so: T128.5 – T128.26. The evidence indicates that it would have been a task for the admitting nurse who undertook the risk assessment of the patient at the time of his admission to the ward. It was not suggested that the plaintiff had been the admitting nurse for that patient. The nurse who admitted that patient to the unit was not called to give evidence;

88. She said that due to that patient’s long leg length he was necessarily nursed in an awkward and uncomfortable position in which he recurrently slid down on his bed, and he therefore needed to be repeatedly repositioned in order to maintain him in the required semi-Fowler position: T25.13;

89. She said that the use of stiff plastic slide sheets was an important aide to be used in repositioning that patient on the bed. The process adopted was that two nurses would attend the patient, one on each side. The patient would then be turned to one side and then two red slide sheets would be placed underneath the patient, who would then be rolled over onto the other side and then the slide sheet would be pulled up on both sides equally by the nurses exerting physical force whilst adopting a facilitative posture, and in that way, the patient could be repositioned higher up on the bed by being slid upwards using the slide sheets to reduce friction, the process being that one of those sheets was slid over the other in the course of the patient being moved and repositioned: T28.6 – T28.33. Other evidence from within the defendant’s records and the expert evidence suggested that the presence of at least a third if not a fourth nurse was required to be present to stabilise the patient whilst using slide sheets;

90. At the time her height was about 163 cm and she weighed about 80 kgs: T29.1 – T29.7. Her colleague was about 160 cm tall and weighed between about 50 to 60 kgs. The index patient was estimated to have weighed about 96 to 98 kgs: T29.1 – T29.13.

91. She said she sustained her injury on 15 May 2017 when, after the end of her shift, following the hand-over of the care of that patient, her nursing colleague, whom she described as being comparatively smaller than her in stature, had asked her to assist in repositioning that patient. The implication was that as they were of a different stature, the respective forces they each needed to apply in order to move the patient’s weight were not even or equal. The plaintiff said that in those circumstances she and her colleague pushed or pulled the patient up to a higher position on his bed in a sliding manoeuvre using the slide sheets. There was no third or fourth nurse involved in that process. In those events, whilst assisting to reposition the patient, she felt something adverse had happened to her back: T29.23 – T29.27. She described this as being a clicking sensation in which she sensed she was “breaking her back”: T28.35 – T29.37.

(2) Cross-examination of the plaintiff

82. The defendant’s cross-examination of the plaintiff was directed to the following topics:

83. The defendant repeatedly challenged the plaintiff with the counter-factual proposition that she had not injured her back on 15 May 2017. She repeatedly and consistently rejected those challenges: T64.23; T80.48; T81.17; T83.9; T94.43; T101.23; T105.12; T137.49 – T138.2;

84. The plaintiff described the general process by which, on the occasion of the admission of a patient to the coronary care unit, a risk assessment was required to be carried out as part of the development of the required care plan. This included consideration concerning the safe way in which to move patients, particularly if they were fully dependent on the nurses for their movement whilst in bed: T59.11 – T60.32. It was not suggested to the plaintiff that she had been the nurse responsible for that risk assessment;

85. The plaintiff described how during the risk assessment phase at the commencement of a shift, at times of short staffing, nurses often made requests for the provision of more assistance for the manual handling of patients: T60.48.

86. The effect of the plaintiff’s evidence on that topic was that as a matter of practicality, despite requests for additional staff, additional staff were not always available at those times because someone may have called in sick or something “unexpected happens [so] they won’t get the coverage”, meaning that there was an insufficiency of staff numbers to assist in the demanding physical tasks required for the movement of patients: T61.10 – T61.31. The context of that evidence was that only the off-duty plaintiff and another nurse who was on duty were available to reposition the index patient. There was no evidence called to show that other assistance would have been available if called upon;

87. The plaintiff explained that quite apart from the process of transferring patients during the course of critical care, at times, for certain patients such as fully dependent critical patients, there was a recurrent need to move or reposition them on the bed every 5 or 10 minutes: T62.3 – T62.30;

88. The plaintiff described the work system as involving teamwork, where if another nurse needs help “we all help in the ward”, and this occurred “countless” times during the working day, on every shift (T51.30 – T52.4), depending upon the availability of staff;

89. The plaintiff was questioned about the availability of assistive hoists and sling devices within the hospital for the hoisting up of patients. She acknowledged that such devices were used in the hospital from time to time but not often, and that for patient safety, more than two people were required to be deployed when using those devices: T79.4 – T79.35. Significantly, she also explained, without challenge or contradiction, that those devices were not used for repositioning patients in bed, and that instead, slide sheets were used for that specific task: T79.1 – T79.6; T79.47;

90. Clarification was sought as to the timing of when the plaintiff first hurt her back in August 2014 (T38.43), an injury for which she received injections into the facet joints of the lumbar spine at the levels L2 and L3 and in the neural foramina at L3 and L4: T39.31 – T39.50;

91. The plaintiff conceded that after she had experienced back pain in 2014, “the pain [she] had in her back continued to be aggravated, from time to time”: T97.45 – T97.59. She also acknowledged that in the context of attending the general practice that she was consulting in June 2017, she had told one of her general practitioners, Dr Al Faruque, that she had longstanding back pain since 2014: T98.23 – T99.32. The fact that it was longstanding did not necessarily mean it was constantly symptomatic in that period. That historical injury in 2014 did not appear to have precluded her from continuing to work in her profession after her initial symptoms had settled and up to 15 May 2017;

92. The plaintiff was questioned about the effect of the 30 December 2014 injury to her back. She stated that it just involved muscle pain which did not require any time off work or the taking of special precautions: T58.20. She said that she has never experienced muscle spasm before: T53.40. She said she just took analgesics for that strain: T58.31. She said that the incident had “stirred things up for a short period of time”: T58.47. She said that it had no lasting impact on her: T65.2; T67.11; T67.30; T74.6; T74.50; There was no evidence to the contrary;

93. The plaintiff was questioned as to whether she had been given instructions about caring for the index patient involved in the 15 May 2017 incident and she said that she could not recall having been given any such instructions: T127.45. That evidence was not developed any further in the defendant’s case. Presumably, if such care instructions had been given, it would most likely have been at a shift handover and documented in the patient’s clinical progress notes. It must be assumed that roster records exist from which the defendant could have identified that handover nurse. The defendant could have called evidence from that nurse as a witness if she or he were able to provide relevant evidence contrary to that given by the plaintiff;

94. The plaintiff agreed that in any event, moving a patient of the proportions and of the weight of the index patient whom she had assisted to move on the day she was injured was something she had done a number of times before 15 May 2017. This was described as being “countless times”: T127.50 – T128.2. The fact this had occurred on countless previous occasions does not necessarily mean it was safe to do so utilising only 2 nurses given the variable force vectors involved;

95. The plaintiff also agreed that there were bed extension devices in the hospital and that she had used them in the past, depending upon the needs of the patient. In that regard, she said it was not up to her to make that assessment. It was for the team to make a decision for the use of such devices: T128.5 – T128.26. No evidence was called by the defendant on any such team discussion or any decision regarding this aspect of patient care. It was not suggested this was the plaintiff’s responsibility;

96. The plaintiff was questioned about how many persons were involved in moving the patient with slide sheets on 15 May 2017. Initially, her evidence was a little confused on this point when she said she did not know how many people had been involved, namely 2 or 3 persons. However, on reflection, in further cross-examination this point was clarified. In that evidence she was adamant that only 2 were involved, namely herself and the other nurse, Hillary McDermott: T142.28 – T142.42. Ms McDermott was not called to give evidence to rebut the plaintiff’s account. Her availability to give such evidence was not explored in the evidence. There was no evidence to suggest there was a third nurse rostered on duty on that occasion;

97. The plaintiff explained that although she had previously moved patients in bed on many occasions over many years without injury, she was injured on this particular day because of the heavy load of patients who were dependent on nursing care and because the workload was heavy, repetitive and demanding: T161.25 – T161.32. She also described that work as fatiguing. In that context, as I read the effect of her evidence, she explained that the injuries she had sustained in 2014, which had not prevented her from working beforehand, were aggravated or exacerbated by the incident on 15 May 2017: T161.33;

98. On the issue of whether the plaintiff would be prepared to undergo further surgery to her back, she said she was reluctant, apprehensive, and resistant to the idea. She explained that this was so because that further surgery would involve a multi-level fusion and, based on her past experience of having had unsuccessful back surgery, it had not improved the quality of her life: T43.50 – T44.20. That subjective view was not the subject of persuasive medical challenge to suggest that her view was in any way unreasonable. The defence alleging a failure to mitigate must be assessed in that light.

99. The reliability of the plaintiff’s evidence on those matters will be considered at a later point in these reasons.

(3) Review of the evidence of Ms Curry, the defendant’s NUM

84. Between 2014 and 2019 Ms Curry held the position of NUM in respect of the combined 6 critical care beds in the coronary care unit and the 28 other beds in the adjacent ward at the defendant’s hospital, where the nurse-to-patient ratio in the critical care unit was required to be one nurse for every two patients: T165.7.

85. Ms Curry’s evidentiary statement, dated 11 April 2022, obtained almost 5 years after the event, was prepared by an investigator by telephone at the request of the defendant’s solicitor. As such, it was not reasonably contemporaneous to the plaintiff’s injury. Significant parts of that statement were based on matters she had assumed, especially on matters of in-hospital training. That statement forms part of Exhibit “1”: Exhibit “1”, Volume 4, Tab 161, pp 1022 – 1037.

86. Ms Curry had worked with the plaintiff as her supervising NUM for 5 years between 2014 and 2019: T166.28; T170.20. She said her working relationship with the plaintiff had been non-conflictual. She said that sometimes their rotating shifts coincided and at those times they worked together. They had no social contact outside of work: Exhibit “1”, Volume 4, Tab 161, p 1024.

87. Earlier, in August 2016 Ms Curry had prepared a document entitled “JOB demands checklist & health declaration”: Exhibit “1”, Volume 3, Tab 145, pp 967 – 969.

88. Amongst other things, that document had a section dealing with lifting and carrying tasks required to be undertaken by nurses in the coronary care unit. Salient features of that document regarding the classification of “lifting / carrying” tasks were:

89. Occasional light lifting and carrying of weights between 0 – 5 kgs;

90. Occasional light lifting and carrying of weights between 5 – 10 kgs;

91. Rare heavy lifting and carrying of weights between 10 – 15 kgs;

92. Rare heavy lifting and carrying of weights of 15 kgs and above.

93. That document and its content will be revisited at a later part in these reasons when recording findings on the issue of the alleged breach of the duty of care the defendant owed to the plaintiff in the context of the requirement that heavy patients needed to be moved for frequent repositioning in bed.

94. Ms Curry’s evidentiary statement, which was also duplicated at Exhibit “1”, Volume 4, Tab 162, p 1024, followed the structure outlined below:

95. A description of her own role and background employment with the defendant: Paragraphs 1 – 10;

96. Her working relationship with the plaintiff was described as “not having any conflict”. She also said that she respected the plaintiff’s clinical judgment. She also said that she “had a challenging working relationship” with the plaintiff. That negative comment was in contrast to the NUM assessment document which appears at Exhibit “1”, Volume 3, Tab 134, p 938: Paragraph 9. That contrasting content was not elaborated upon or explored in Ms Curry’s oral evidence in which she said she respected the plaintiff’s skills in the workplace and her caring attitude to patients: T164.22; T181.35;

97. Details of her knowledge of the plaintiff’s personal and family background, and her knowledge of the plaintiff as gained in the workplace, including the plaintiff’s commencement of her work and her orientation in the workplace: Paragraphs 11 – 17;

98. Details of the plaintiff’s employment history with the defendant as a registered nurse: Paragraphs 18 – 25;

99. A full description of the plaintiff’s duties: Paragraphs 26 – 39;

100. Her limited recollection of the background and details of the plaintiff’s injuries at work, first on 31 August 2014, secondly on 30 December 2014, and thirdly, on 15 May 2017, and in relation to subsequent events: Paragraphs 40 – 79.

101. Ms Curry’s statement commented upon and quibbled with a number of aspects of the plaintiff’s pre-filing statement: Exhibit “A”, pp 411 – 423. Relevantly, these were as follows:

102. She described the 28 beds in the ward as being for cardiology patients in a medical ward and said they were not all high dependency patients: Exhibit “1”, Volume 4, Tab 161, p 1027, paragraph 28. This was a distinction based on generality and in my view, it was without significance to the issues in this case as that evidence was not specific to the date of the plaintiff’s injury. Furthermore, Ms Curry was not on duty at the time the plaintiff was injured, and this suggests she had no actual knowledge of the numbers of high dependency patients being care for at the time in question;

103. She could not recall the plaintiff ever having to look after 12 patients on a rostered shift. In her recollection the highest ratio was up to 10, and in the daytime, it was 4 to 5: Exhibit “1”, Volume 4, Tab 161, p 1027, paragraph 29. This evidence, involving estimates, appeared to be based on Ms Curry’s inaccurate recall. I therefore consider that it must be discounted in terms of reliability, also because the needs of the individual patients would most probably have varied according to their particular circumstances on any given date;

104. She disputed the plaintiff’s characterisation of the coronary care unit as being “severely understaffed during 2017”, describing it in vague, imprecise and speculative terms as a “nearly full roster” and “if there was gaps in the roster they would be covered by casual staff or staff from agency if required”: Exhibit “1”, Volume 4, Tab 161, p 1028, paragraph 33. Those contingent, assumed, and imprecise comments, appeared to be based on considerations of non-specific generality, and as such they do not provide a reliably detailed description of the prevailing circumstances of the system of work in which the plaintiff was injured;

105. Her comments on the hospital’s Government imposed no lifting policy and the use of lifting devices appeared to apply to circumstances where a patient was being transferred to or from a bed rather than being repositioned in a bed: Exhibit “1”, Volume 4, Tab 161, p 1028, paragraph 35. Therefore, it appears that evidence was of limited general relevance or application to the factual circumstances in which the plaintiff was injured;

106. Her statement that nurses were “encouraged” to take their “own responsibility to manage their fatigue, their capability and their ability and ask for help when required”, must be considered in the context of the non-delegable duty of care owed by the employer with an assumed knowledge of the employee’s work-related circumstances and the risk of injury: Exhibit “1”, Volume 4, Tab 161, p 1029, paragraph 36. Another relevant context to be considered is the prevailing circumstances of short staffing when the plaintiff was called upon to cover short-staffed shifts and carry out fatiguing work;

107. Her generalised statement that her unit had more staff than any other ward in the hospital was non-specific and uninformative on the issue of the specifically demanding work required of the plaintiff. It contained no particularised comparators for assessment as to the nature and intensity of the duties required of the other staff, and it therefore seems to have little if any probative value with regard to the liability issues that arise for determination in this case: Exhibit “1”, Volume 4, Tab 161, p 1029, paragraph 38;

108. Her generalised statement that “Staff are aware of the correct lifting techniques and we do monitor each other to make sure that we are all using the correct techniques when moving patients”, must be read in the context of what monitoring was available at the time, and by whom, according to what terms of engagement, and whether the other staff were in-house nurses, casual nurses or agency nurses, what manual handling training they had undertaken and what equipment was or was not available at the time the plaintiff was injured, and the urgency of moving the patient in question. It raises a question as to whether there was adequate supervision of the staff who were apparently required to monitor each other: Exhibit “1”, Volume 4, Tab 161, p 1029, paragraph 39. This aspect of Ms Curry’s statement gave the impression of on-site supervision of the tasks when that was plainly not the case. There seems to be a dissonance between the notion of staff of equal status and training and the notion of collegiate supervision in a short-staffed environment, in the context of the non-delegable duty on an employer to exercise reasonable care and to provide a safe system of work;

109. Her statement to the effect that she did not recall the plaintiff ever asking for an increase in the numbers of nursing staff on the ward for the management of heavy patients requiring regular attention and manual handling is in terms that cannot be considered to be probative of the defence proposition that the plaintiff did not ask for such consideration: Exhibit “1”, Volume 4, Tab 161, p 1029, paragraph 40. Significantly, the plaintiff’s evidence was to the contrary. The fact that Ms Curry could not recall such requests does not mean there were no such requests;

110. Her statement that she did not recall the plaintiff ever requesting suitable or less arduous physical work after her first injury in 2014 following completion of her return-to-work plan is significantly qualified, and therefore it cannot be considered to be probative of the defence proposition that the plaintiff had not asked for such consideration: Exhibit “1”, Volume 4, Tab 161, p 1029, paragraph 41. The plaintiff’s uncontradicted medical certificates, which will be referred to in due course at a later point in these reasons, speak for themselves;

111. Her statement that she did not recall the plaintiff reporting that on or around 31 August 2014 she had been injured at around that time must be read in light of her added qualification by which she conceded that she could not rely on her memory to confirm the details: Exhibit “1”, Volume 4, Tab 161, p 1029, paragraph 40. Ms Curry’s deficit of memory on such matters does not provide a satisfactory basis for rejecting the plaintiff’s otherwise credible and not improbable account;

112. She confirmed she had documentation to the effect that on 31 December 2014 the plaintiff reported that she had injured her lower back the day before when repositioning a patient whilst she was in a lunge position: Exhibit “1”, Volume 4, Tab 161, p 1030, paragraph 46;

113. Ms Curry’s concession that there were staffing challenges over the Christmas and new year period and her conceded inability to comment on whether here was a high patient workload during those periods does not form a proper basis for rejection of the plaintiff’s otherwise credible and not improbable account to the contrary as prevailing at the time of her injury on 15 May 2017: Exhibit “1”, Volume 4, Tab 161, p 1031, paragraph 47;

114. Ms Curry acknowledged that there was a history of staff shortages in the coronary care unit before she joined that unit in 2012, and thereafter, although curiously, she described it as being a very stable workforce: Exhibit “1”, Volume 4, Tab 161, p 1032, paragraph 53. The implication of that evidence is that the reduced staffing level was a longstanding issue and that the staff members rostered on in those circumstances were more likely than not to be over-tasked in their duties and were carrying the burden of the short staffing of the unit. Ms Curry’s use of the term stable workforce is difficult to interpret in those circumstances. Her description suggests and raises an inference that short staffing was a chronic issue in the unit;

115. Ms Curry stated that she does not have a roster that recorded the plaintiff as working 8 shifts in a row: Exhibit “1”, Volume 4, Tab 161, p 1032, paragraph 55. Absent evidence as to how those records were created, maintained, kept, or were searched in the lead-up to these proceedings, this aspect of her statement must necessarily be given little persuasive weight. That evidence does not provide satisfactory proof that the plaintiff’s otherwise credible and not improbable evidence as to the level of her rostered shifts of 8 shifts in 9 days was incorrect;

116. Ms Curry’s statement described how, if the plaintiff had concerns over working 8 shifts in a row, she may have escalated that concern to a stream manager, although she herself has no evidence that this in fact occurred: Exhibit “1”, Volume 4, Tab 161, p 1032, paragraph 57. That evidence of her lack of awareness on that issue is not a sound basis for rejecting the plaintiff’s contrary account, particularly where no hospital stream manager was called to give evidence on that issue;

117. She described the system for rostering, which was managed between herself and the defendant’s stream manager to the effect that “we wouldn’t allocate more than 7 days in a row, which met the award” and that it was the subject of multiple checks, adding that if she had concerns she would discuss them with the affected nurse: Exhibit “1”, Volume 4, Tab 161, p 1032, paragraph 58. That evidence appears to be generally descriptive and aspirational, based on assumptions rather than being factual. It also appears to be speculative. It is not a persuasive basis for supporting a contrary finding to the plaintiff’s not otherwise improbable account to the contrary, especially given the fact that there were staff shortages which had to be covered in order for the hospital to carry out and maintain its very important life sustaining work. Evidence of the existence of an assumed practice, without more, is not evidence of actual compliance with that assumed practice – “We wouldn’t allocate” is not the same as “we did not allocate” or “we never allocated”;

118. She was on a rostered day off on 15 May 2017 and she was therefore unable to provide firsthand comments on the facts and circumstances surrounding the plaintiff’s injury on that day: Exhibit “1”, Volume 4, Tab 161, p 1042, paragraph 63;

119. Ms Curry’s recollection of the plaintiff’s report of the injury she incurred on 15 May 2017, and the plaintiff’s reasons for not reporting it earlier than she did, provided some corroborative evidence of the plaintiff’s account of those events, where the plaintiff said she thought she would recover from her injury whilst on a period of rest during her leave at home: Exhibit “1”, Volume 4, Tab 161, p 1034, paragraphs 65 – 66;

120. Ms Curry was unable to comment on records concerning the extent to which the plaintiff had received in-hospital manual training as she did not have access to those records: Exhibit “1”, Volume 4, Tab 161, pp 1036 – 1037, paragraphs 78 – 79;

121. Ms Curry’s oral evidence expanded upon some aspects of her evidentiary statement, as summarised in the paragraphs that now follow.

122. Ms Curry said she has great respect for the plaintiff’s clinical judgment and skills: T164.22. From a clinical perspective she described the plaintiff as having great experience and knowledge and said she was very caring of patients: T181.30 – T181.35.

123. When Ms Curry took over the role of NUM, she was aware that there had been previous representations made to the defendant by its nursing staff to increase the nurse-to-patient ratio for critical care patients to one nurse for every two patients: T165.7. She confirmed that if a patient was unable to move themselves due to their level of incapacity, they would have to be physically moved by nursing staff: T188.29. She was aware that the hospital had hoists, slide sheets and frames available for the mobilisation of non-independent patients, and that slide sheets were used to reposition patients who could not mobilise independently, and patients were not lifted: T168.36 – T169.7.6.

124. Ms Curry confirmed that the hospital had a long standing no lifting policy that had been in place since 2014, if not before, in order to minimise the risk of back injury to nurses: T183.48 – T184.14. The defendant’s records suggest that the recommendation for the use of slide sheets for the manual handling of patients was that there should be a third person present, also a nurse, one to stabilise the patient whilst the other two nurses, standing at the head of the bed holding the top slide sheet and using a front to back lunge to slide and reposition the patient, using their core muscles in that process: T189.45 – T190.2. Those records show that the plaintiff had not yet reached that level or phase of manual handling instruction by a hospital physiotherapist. The records also show that the plaintiff was to attend another manual handling session to be conducted by the manual handling co-coordinator, Ms Fahdy Ghaly. This was booked for 12:00 hours on 23 January 2015: Exhibit “1”, Volume 3, Tab 143, pp 960 – 961. This topic will be revisited in the review of Ms Ghaly’s evidence at a later point in these reasons.

125. Ms Curry confirmed that in her time at the hospital, patient beds were height adjustable, and that whilst she knew that bed extension devices could be used to lengthen the bed for tall patients, she could not recall them being available “at the time”, which I construe from the context to be a reference to the time of the plaintiff’s injury on 15 May 2017: T170.8 – T170.23. This raises the question of whether the defendant hospital had provided adequate equipment to be utilised for safe patient management by nursing staff.

126. Ms Curry’s evidence cited in the previous paragraph did not specifically refer to the equipment referred to by the plaintiff and by the expert witness Ms Cacciola, namely the type of beds that could be adjusted for patient positioning by means of a remote-control device.

127. Ms Curry stated that the system in place for when a patient was admitted to the unit, was that the initial assessment of matters concerning the use of devices for the movement of patients was undertaken by the admitting nurse, and that if thought necessary, the prevailing practice was that such issues were escalated to the attention of a manager or for a physiotherapy review: T187.19 – T187.36.

128. That evidence did not address the plaintiff’s evidence summarised at paragraphs [81] to [82] above, and the content of her pre-filing statement that included criticisms of a failure to heed staff requests for alternative practices, including increased staffing levels to enable the work to be undertaken with safety.

129. Ms Curry confirmed that she had only limited knowledge of the circumstances of the plaintiff’s injury on 15 May 2017. She could not recall the details of the patient involved in the incident in which the plaintiff was injured on that day: T186.16 – T186.26. She had filled out an incident report form on the hospital’s electronic Riskman incident management system (T170.43) based on her understanding of the information that had been provided to her by the plaintiff on 13 June 2017: T178.41; T186.19. That record was created by using the automatically generated drop-down menu within a template form in the Riskman software that had embedded within it a series of pre-set descriptors as an integral part of that system: T171 – T174. The evidence suggests that it is doubtful that the descriptor words used by Ms Curry on the Riskman form represented direct quotes of what the plaintiff had actually reported to her: T172.29 – T172.34; T173.7; T175.13; T179.25. It follows that the reliability of those records as a source of contradiction of the plaintiff’s evidence is doubtful.

130. Ms Curry described the hospital equipment that was used to mobilise and reposition patients as comprising hoists, slide sheets, frames, and bed extensions according to the particular requirements of the situation at hand: T168.36 – T168.47; T186.43; T192.20. She stated that devices were used to lift patients who could not mobilise independently (T169.2; T168.150), and that the hospital had a government imposed no lifting policy to minimise the risk of back injury to nursing staff: T183.48 – T184.14.

131. Ms Curry stated that to her knowledge, the plaintiff’s employment with the defendant ceased because after due consideration, the defendant indicated to her that it was no longer able to provide her with suitable duties: T180.35.

132. Relevant aspects of Ms Curry’s statement, and aspects of her oral evidence, where considered to be reliable, will be identified and incorporated into my factual findings concerning the circumstances of the plaintiff’s injury and on the issues concerning alleged breach of duty of care and alleged contributory negligence.

(4) Training, personnel and related records

104. The defendant tendered an historical list of the training courses the plaintiff had undertaken between 1 January 2000 (sic perhaps for 2012) and 23 July 2019: Exhibit “1”, Volume 3, Tab 160, pp 1018 – 1021. Of the numerous pre-injury listed courses that the plaintiff had completed, the only ones that appeared to have possible relevance to these proceedings are extracted and summarised in the following tabulation:

| Date | Tittle | Mode | Duration | Score | | 22.03.2012 | Clinical handover | Online | 0.42 hrs | Not stated | | 02.04.2012 | Systematic assessment | Online | Not stated | Not stated | | 02.04.2012 | Between the flags: deteriorating patient (Adult) | Online | Not stated | Not stated | | 02.04.2012 | Teamwork and documentation | Online | 0.50 hrs | Not stated | | 14.10.2014 | Human factors | Online | Not stated | Not stated | | 15.10.2014 | Introduction to Riskman | Not stated | 0.50 hrs | Not stated | | 15.10.2014 | Riskman - Reviewing a hazard | Not stated | Not stated | Not stated | | 25.08.2016 | Introduction to Work Health and Safety | Online | 0.33 hrs | Not stated | | 23.04.2016 | Care co-ordination | Online | 0.50 hrs | Not stated | | 18.01.2016 | Hazardous Manual Handling | Online | 0.50 hrs | 100% |

105. Those courses will be considered on the question of whether the defendant had acted reasonably in the discharge of the duty of care it owed to the plaintiff.

106. No oral evidence was called by the defendant to explain the relevance or the instructional content of the listed courses with regard to risk management concerning manual handling tasks. Therefore, it is difficult to reliably discern the extent to which specific inferences should be drawn from the plaintiff’s completion of those courses.

107. On 6 February 2012 the plaintiff underwent probationary induction into the defendant’s coronary care unit and was assessed to have excellent and satisfactory competencies and problem-solving skills. The assessment form completed by the relevant NUM at that time referred to the plaintiff having settled well into the team. That form made no mention of an induction for manual handling issues: Exhibit “1”, Volume 3, Tab 134, p 938.

108. On 5 and 6 May 2014, the defendant convened a two-day nursing orientation programme which included a segment on manual handling between 15:30 and 16:15 on the first day in the clinical teaching rooms. The assessors of that programme were Mr Peter Jones, and Ms Toni Sheridan, both being nurse educators, and Ms Tara Redmond, a work health and safety consultant: Exhibit “1”, Volume 3, Tab 135, p 938. None of those persons were called to give evidence as to the content of that programme. There is no reliable evidence to suggest that the plaintiff had attended at that programme. Her attendance cannot be assumed without specific evidence to that effect because by then, the plaintiff had already been working successfully at the defendant’s hospital for over two years and would not have necessarily needed orientation. That said, this evidence is of little assistance given that there were changes to manual handling instructions in late 2014.

109. On 26 September 2014, a report of injury form was completed by Ms Curry. On that date a record was made of the report of the plaintiff’s injury which was said to have occurred at 2:30 am on 31 August 2014. That entry refers to the plaintiff incurring a straining injury on that date whilst bending in an awkward posture when she leaned over the patient to stop him from drinking handwash gel. That report was made after the plaintiff had returned to work after two weeks leave at which time she reported that injury was of a temporary nature: Exhibit “1”, Volume 3, Tab 136, pp 940 – 943.

110. On 3 November 2014, Ms Curry prepared a minute of a meeting convened at 14:30 hours that day which dealt with 12 agenda items. The seventh item on the agenda concerned staff well-being and a manual handling overview presented by Ms Fahdy Ghaly, the defendant’s manual handling coordinator, concerning the safe movement of patients where the emphasis was on the use of the lower body to move safely using the legs in a lunge action whilst using slide sheets, amongst other things. It was noted that Ms Ghaly was to organise a manual handling session in November at the work health and safety training centre. There was no indication in that document as to whether the plaintiff actually attended that meeting.

111. On 31 December 2014, an employee of the defendant, Ms Priti Sen, completed an injury notification form which gave a conflated account of the reported injury: Exhibit “1”, Volume 3, Tab 137, pp 944 – 947. In that form the plaintiff was reported as having had a soft tissue injury due to trauma at 01:00 hours on the previous day when she injured her lower back whilst leaning forward and exerting force when she pulled a hand gel bottle from the hands of a patient, made worse later by lifting an oxygen cylinder, described as “Lower back soft tissue injury – recurrence of symptoms”. At page 951 of the Exhibit, it appears that an incorrect date of injury was recorded as being 30 January 2015: Exhibit “1”, Volume 3, Tabs 138 and 139, pp 948 – 950; pp 951 – 953. It appears from the content of that form that the person who completed this document incorrectly conflated the facts of the 30 December 2014 injury with the earlier injury on 14 August 2014. In that form it was recorded (at p 949), that the injury was of “unknown mechanisms with insufficient information to code”.

112. Those injury report forms did not indicate whether the reference to the recurrence of the plaintiff’s symptoms was something the plaintiff had actually said or whether that expression was a conclusion reached by the author of the report. The report refers to the contributing factors of the manual handling details concerning that event as comprising the activities of lifting, carrying, holding, pushing, pulling, and repetitive movement involving the plaintiff.

113. On 6 January 2015, Ms Ghaly noted that the plaintiff had last attended a manual handling training session on 20 November 2014. She raised a question as to whether the plaintiff should update her manual handling skills and techniques by attending one of the 5 sessions booked for that month, or alternatively, attend a one-on-one session for that purpose: Exhibit “1”, Volume 3, Tab 140, pp 954 – 957.

114. Ms Ghaly’s “Comprehensive Report” of the 30 December 2014 incident referred to only two registered nurses having performed the manual handling task using slide sheets at the time of the plaintiff’s straining injury on that date. The other nurse was not named. It appears from p 956 of the Exhibit, that Ms Ghaly filled out the form without having had the opportunity of interviewing the plaintiff to check the recorded details.

115. On 23 January 2015, Ms Ghaly met with Ms Curry and the plaintiff to investigate the incident in which the plaintiff was injured on 30 December 2014. In that meeting the plaintiff was requested to demonstrate her lunge movements in connection with the use of slide sheets. Ms Ghaly considered that the plaintiff had displayed a partial lunge with arm movements. Ms Ghaly indicated that the preferred method using slide sheets was a full lunge that transferred the participant’s weight from one leg to another, as well as a locking of the elbows to avoid arm and back movements. She also recommended having a third person to assist with stabilising the patient, especially if agitated, whilst the other two nurses stood at the bed head using the slide sheets to move and reposition the patient. In that meeting the plaintiff was asked if she had engaged or “switched on” her core muscles to prevent re-exacerbation of her back injury. It is noteworthy that some of the components of the regime for the use of slide sheets as recommended by Ms Ghaly were not available to the plaintiff on the day she was injured, where only 2 and not 3 nurses were available for the repositioning task.

116. In the hospital’s record of the conversation with Ms Ghaly, the plaintiff indicated she had not yet reached that level of instruction by the physiotherapist concerning the engagement of the core muscles. A plan was made for her to attend another group training session in manual handling for her to better practice her side lunges whilst using slide sheets. The session was planned for that same afternoon: Exhibit “1”, Volume 3, Tab 143, pp 959 – 965.

117. On 23 January 2015, it was noted that the plaintiff had attended that planned manual handling training session: Exhibit “1”, Volume 3, Tab 141, p 958. The precise content of any instruction given to the plaintiff in that session remains unclear.

118. On 12 May 2015, the plaintiff sent an email to Ms Curry indicating an issue that had arisen for her regarding her early morning and late evening transport issues because she had moved to reside in another area: Exhibit “1”, Volume 3, Tab 144, p 966. The evidence did not contain any other records to indicate whether that issue had been given any particular consideration in arranging the plaintiff’s roster.

119. In August 2016, Ms Curry developed a document described as a job demands checklist for the coronary care unit intended to provide a detailed description of both physical and cognitive job demands, including those demands which were frequent or constant, or which were deemed to be essential to the job.

120. Those factors were assigned the descriptors of Rare, Occasional, Frequent (occurring between 34 and 66 per cent of the day or totalling 20-40 minutes per hour), Constant (occurring between 67 and 100 per cent of the day or totalling 40 – 60 minutes per hour), or not applicable as the case may be. In the accompanying tabulation of those descriptions, problem solving and teamwork were assigned the descriptor of constant and lifting tasks of varying weights between 5 to 15 kgs and above were assigned the descriptors of rare to occasional. There was no specific mention of the task of patient repositioning. Those descriptions will be revisited in the consideration of the liability issues at a later point in these reasons: Exhibit “1”, Volume 3, Tab 145, pp 967 – 969.

121. The next chronologically sequenced entry in the defendant’s materials related to the plaintiff’s injury on Monday 15 May 2017. The entry was timed at 12:00 am, as appears in the following paragraphs.

122. On Tuesday 13 June 2017, an employee of the defendant, Ms Patricia Aran de Jesus, filled out an injury notification form concerning the plaintiff’s injury on 15 May 2017: Exhibit “1”, Volume 3, Tab 146, pp 970 – 971.

123. That report was in a typed summary form. It contained descriptions which had been inserted into a series of fields that had been filled in with typed text. It described the plaintiff’s injury as being low back pain which had developed at work after lifting, resulting in muscular stress, back pain, lumbago, and sciatica. The form referred to the plaintiff’s resultant incapacity as a temporary disability at that time. There is no time stamp on the form.

124. At 3:22 pm on Tuesday 13 June 2017, it appears that Ms Curry, a Ms Vanessa Macarenhas, and Ms de Jesus, together, created an incident report form regarding the plaintiff’s 15 May 2017 injury: Exhibit “1”, Volume 3, Tab 147, pp 972 – 974. The typed fields within that form contained details that were inconsistent with the form completed by Ms de Jesus as referred to in the preceding paragraph. Some of the internal inconsistences were misleading, as follows:

125. In the context of “Manual Tasks” and “Sprains / Strains’, the field in the document which required a description of what happened in the incident, at page 972 of the Exhibit, the entry reads: “N**o specific incident. Back pain noted at work anti-inflammatories taken. Employee noted patient load was physically heavy during this period”. The contributing factors were listed as “Lifting / Carrying / Holding / Pushing / Pulling.”

126. In a field in the document that was obviously prepared by Ms Curry in the context of the reported incident having been “Investigated by*:* N**UM”, after discussion with the plaintiff, at page 973 of the Exhibit, Ms Curry wrote “… N**il specific incident. Pain at work ?15/5/17, anti-inflammatories taken with good effect … While doing exercises at home in PM 6/6/17 back was aggregated [sic for aggravated] – medication taken – GP seen the following morning …”.

127. In the document field concerning general comments, at page 973 of the Exhibit, at 15:17, Ms Macarenhas wrote:

“… Recovery officer Patricia spoke to Jiji on 13/06 around 2:30pm.

Jiji mentioned the pain is work related from manual handling heavy patient on 15/05.

She said the pain is persisting after a two weeks leave. She said she did not want to lodge a Workers Comp before because she thought she would get better.

She agreed to see a doctor at IMMEX Parramata (sic) and an appointment was organised on the same day at 3:30pm.”

4. The content and structure of the form suggests that the document was completed by the input of multiple authors and reviewers. It did not purport to quote the exact words by which the plaintiff had recounted the facts of the incident and the surrounding circumstances to the defendant’s identified employees;

5. Significantly, the descriptions “N**o specific incident” and “Nil specific incident” suggesting a non-sentinel spontaneous onset of low back pain was inconsistent with the reference to the stated descriptors of the contributing factors of lifting, carrying, holding, pushing and pulling as identified at Exhibit “1”, Vol 3, Tab 147, p 972, thereby raising an inconsistency with the factual description recorded at page 973 of the Exhibit where the plaintiff is cited as having said the onset of her back pain followed the manual handling of a heavy patient on 15 May 2017, as quoted in the sub-paragraph (3) of [91] above.

6. On 20 March 2019, the hospital’s workers’ compensation insurers EML and iCare advised the plaintiff that following a vocational capacity assessment carried out on 26 November 2018, at which time it was determined, contentiously, that the plaintiff had a functional capacity to work 38 hours per week in alternative nursing positions such as Nurse Educator, Nurse Practitioner, and Telephone Triage Nurse, as advised by “The N**ursing Unit Manager” (presumably Ms Curry), she had been assessed as having a capacity for suitable employment, and consequently, her workers’ compensation payments would then cease.

7. That decision was said to have been based on the contentious proposition of there being “strong functional and vocational matches as [she possesses] the necessary functional capacity and [has] the relevant transferrable skills to perform the roles”: Exhibit “1”, Volume 3, Tab 150, pp 977 – 981. That assessment must necessarily be read in conjunction with the more authoritative medical evidence to the contrary, including the work incapacity certificates issued by medical practitioners whose opinions were not challenged.

8. The plaintiff’s unsuccessful attempts at alternative job seeking between 27 September 2017 and 1 June 2018, and between 17 May 2019 and 25 May 2019, have been documented by the defendant’s rehabilitation provider Procare: Exhibit “1”, Volume 3, Tab 149, p 976 and Tab 151, p 982. This was in the context that the defendant, a large hospital organisation, had not been able to make alternative employment available to the plaintiff.

9. On 19 August 2019, 4 days after the defendant terminated the plaintiff’s employment, the plaintiff accused the defendant of discrimination and bullying in the workplace, apparently on the basis of the defendant’s demand that she return to work whilst still suffering from ongoing work-related physical disability. That accusation was in a long email from the plaintiff to the defendant’s Human Resources department requesting an inquiry into that matter: Exhibit “1”, Volume 4, Tab 167, pp 1135 – 1139. That email ventilated a wide-ranging series of complaints by the plaintiff as to how she felt she had been treated by the defendant.

10. On 23 September 2020, the defendant required the plaintiff to attend a fitness for duties work assessment which did not serve to enhance her employability. The products of that assessment are not readily capable of being understood because the documentation of that event, as printed in the Exhibit, reproduced only icon images representing numerous PDF documents, readable copies of which were not included in the Exhibit: Exhibit “1”, Volume 4, Tab 167, pp 1123 – 1124, pp 1125 – 1132.

11. On 16 December 2020, the plaintiff’s workers’ compensation benefits were reinstated: Exhibit “1”, Volume 4, Tab 167, p 1133.

12. On 18 May 2021, the plaintiff formally resigned her employment with the defendant: Exhibit “1”, Volume 4, Tab 168, pp 1147. This step was apparently required of her as a result of settlement of her lump sum workers’ compensation entitlements. The need for a resignation letter seemed to be an odd requirement at that point as the defendant had already terminated her employment on 15 August 2019.

(5) Statement of Ms Fahdy Ghaly, manual handling co-ordinator

132. On 13 May 2024, some 7 years after the plaintiff’s injury, Ms Ghaly, one of the defendant’s manual handling coordinators for the period between April 2014 and October 2016, provided an evidentiary statement: Exhibit “1”, Vol 4, Tab 165, pp 1109 – 1118. That statement was prepared without Ms Ghaly having obtained access to the relevant historical training records. Her statement confirmed the following matters:

133. She has not seen or spoken to the plaintiff since 23 January 2015: Paragraph 48;

134. The plaintiff had attended a training session on 20 November 2014: Paragraphs 17 and 23;

135. The plaintiff had attended a manual handling training session on 23 January 2015: Paragraph 40;

136. She believed the training sessions equipped nurses to identify hazards, assess risk and control the risk of manual handling, which included maintaining the natural curve of the spine and to bend the knees and squatting of the hips whilst at the same time engaging the core abdominal muscles, also using the leg muscles in a lunging action to shift the weight of the patient by a rolling motion using three different lunging techniques using slide sheets: Paragraphs 24 – 31. The evidence was silent on how the risk of a back injury could be controlled by those measures. It was also silent on the topic of the correct use of slide sheets for the repositioning of patients, including the number of nurses required for that task;

137. She stated that hospital beds are adjustable and need to be adjusted to “around hip height”: Paragraph 32. That evidence made no reference to the remotely controllable bed position as identified in the expert evidence of Ms Cacciola, which will be summarised at a later point in these reasons. Furthermore, it made no reference to bed extension devices;

138. She stated that in November 2014, the training practice for nurses using their arms and back to provide strength instead of using their legs whilst using slide sheets to move patients up and down the bed with rolling and lunging techniques had changed: Paragraphs 33 – 34. That statement must be read in conjunction with paragraphs 17, 19 and 23, of Ms Ghaly’s statement which stated that the plaintiff “… was i**dentified as not having completed the training for the updated Move Safe program” and her concession that she had no knowledge of the plaintiff’s experience and that it was “difficult for her to remember any particular individual”. Ms Ghaly’s inability to access the training records meant that she was not able to shed light on this particular aspect of whether the plaintiff’s training had been completed. The details of the Move Safe program were not tendered in evidence in these proceedings;

139. She described the plaintiff’s claim of not having attended training in strident terms as being “completely false” because “there are records such as the signed attendance sheet from 23/1/2015 and also [her] own journal entry from 5/1/2015 in the Riskman Incident Report advising she attended the training on 20/11/2014 which was prior to the [15 May 2017] incident”: Paragraph 38;

140. The training sessions lasted for only one hour to ensure that the nurses being trained were not “taken off the ward for too long”: Paragraph 35;

141. Ms Ghaly’s reference to the “changed” practice for using slide sheets from one sheet to two sheets from November 2014 was silent on whether the changed method required 2, 3 or 4 nurses to safely use that method: Paragraph 34;

142. Ms Ghaly’s comments (at paragraph 39) on the availability of wardsmen to help when moving patients appears to have no application to this case as the patient was to be moved within his bed, not either to or from his bed using slide sheets;

143. Ms Ghaly’s belief as to the manual handling training the plaintiff might have received on 23 January 2015 must be given diminished weight in terms of reliability as she qualified her remarks with the caveat that she did not have a copy of the instructional “slides” to confirm this: Paragraph 40;

144. Ms Ghaly’s harsh comment that an element of the plaintiff’s claim was “completely false” (at paragraph 42), in which she interpreted the plaintiff’s claim of not having been trained by the hospital in manual handling is of limited relevance given that the manual handling using slide sheets on 15 May 2017 was undertaken by only 2 nurses, contrary to the requirement that there should be 3 if not 4 nurses participating in that task.

145. Ms Ghaly’s strident statement that the plaintiff’s claim of not having attended training as being “completely false”, as cited at sub-paragraph (7) of paragraph [132] above, should be seen as carrying no determinative weight because the training content of the journal entries she cited as purported refutation of the plaintiff’s claim are not in evidence and those entries cannot be evaluated for reliability.

146. The defendant tendered copies of its records relating to the plaintiff’s inhouse training at St Vincent’s Hospital: Exhibit “1”, Volume 4, Tab 170, pp 1162 – 1270. Whilst those records confirmed the plaintiff’s clinical competency, in the elements of nursing care she was required to provide, including communication skills, and her attendance at professional development sessions, they were largely uninformative with regard to any issue that arose in this case. They were not the subject of submissions.

(6) Work incapacity certificates relating to the plaintiff

135. The defendant tendered a voluminous series of work incapacity certificates and WorkCover certificates covering the period 15 May 2017 to 23 December 2020: Exhibit “1”, Volume 2, Tab 63, pp 220 – 599; Exhibit “1”, Volume 2, Tabs 63 – 68, 18 March 2022 to 15 July 2024, pp 600 – 614. The underlying detail of these certificates were not explored or challenged in the oral evidence and therefore they do not require detailed analysis other than to note that they consistently relate to the plaintiff’s injury-related back pain causing work incapacity.

(7) Workers’ Compensation and rehabilitation assessments

136. Between 26 November 2018 and 14 April 2022, the defendant’s workers’ compensation insurer EML arranged for a series of Procare injury management vocational assessments: Exhibit “1”, Volume 3, Tabs 150 and 151, pp 977 – 982; Tab 154, pp 994 – 997; Volume 4, Tabs 162 – 164, pp 1038 – 1108. Those assessments have no direct bearing on liability issues.

137. In essence the defendant’s Procare rehabilitation assessment reports asserted that on Procare’s assessment, the plaintiff had a residual work capacity notwithstanding her injury. The probative value if any of those assessments stand to be assessed in context according to an analysis of the entire body of the medical and allied evidence which is reviewed and summarised in PART D of these reasons.

138. Procare’s letter dated 17 April 2022 (at p 1038), referred to Ms Curry having disputed elements of the plaintiff’s statement where the plaintiff “depicted her work conditions and responsibilities”. That comment stands to be evaluated on an analysis of relevant aspects of the respective testimonies of the plaintiff and Ms Curry, and the extent to which the defendant sought to challenge the plaintiff’s evidence by cross-examination.

139. On 20 May 2021, after the plaintiff’s employment had already been terminated the defendant issued the plaintiff with a brief statement of her service in its employ between 6 February 2012 and 18 May 2021: Exhibit “1”, Volume 3, Tab 158, p 1014.

(8) The plaintiff’s record of “learning”

140. The defendant tendered the plaintiff’s records entitled “My Learning Transcript”. That tabulation identified the numerous inhouse courses the plaintiff had attended between 12 March 2012 and 23 July 2019. Apart from a course described as “39962652 Hazardous Manual Tasks” completed on 18 July 2016, being an online course which apparently lasted for half an hour, the absence of curricular detail within that document indicates that it is non-contributory to the issues to be decided in this case. That lack of detail necessarily means that useful inferences cannot be drawn from it without engaging in impermissible speculation: Exhibit “1”, Volume 3, Tab 160, pp 1018 – 1021.

(9) The expert report of Ms Alba Cacciola, Exhibit “B”

141. Ms Alba Cacciola’s expert report dated 24 January 2023 was commissioned by the plaintiff’s solicitor on the basis of assumed facts: Exhibit “B”. The report appropriately acknowledged the Expert Witness Code. At the time she prepared her report the defendant had already obtained a liability report dated 10 May 2022 from Ms Margaret Head, an ergonomist. Although Ms Cacciola had the opportunity of commenting upon that report, Ms Head’s report does not form part of the evidence in this case. It is therefore unnecessary to engage with the detail of Ms Cacciola’s commentary on the report of Ms Head.

142. With specific focus on the plaintiff’s injury on 15 May 2017, Ms Cacciola was asked to consider the following assumptions:

“14. On 15 May 2017, she was rostered to work in the highly dependent Coronary Care Unit with about 6 patients during the shifts with 3 of them 2 nurses [sic]. Because of the physical demands, the patients would call her for assistance frequently. When she was called to assist the patient, she had to reposition them on their beds. Most patients were heavy of about 90kg or above and some were over 6 foot tall. Some patients were of age requiring full care and weight bearing. Due to the extent of [the] hours she was rostered she was fatigued.

15. On 15 May 2017 she had to reposition about five (5) times in a row with the same patient, since he kept slipping down the hospital bed. The patient was tall, his legs would stick out of the hospital bed, which made it difficult to lift him properly. She moved his body by pulling him with her arms and her body bending downwards to pull the patient back up into the bed, sliding his while (sic) body weight underneath a sliding-sheet and then pushing him upwards to reposition him. Another nurse assisted but Mrs Palackalody, (sic) took the brunt of the body weight of the patient. It is at this moment, she felt an immediate pull on her back, followed by a strong pain to her lower back. She could not move properly in that instant. Following immediately after the pull on her back she treated it with Voltaren and Tramadol (stronger pain killers), but did not improve her pain. This turned out to be a disc bulge/prolapse at L2/3, L3/4 which had and continues to have major consequences.”

[Annexure to Ms Cacciola’s report: Letter of instruction dated 15 November 2022]

143. Ms Cacciola was asked to address a series of questions posed to her by the plaintiff’s solicitor seeking her opinions on the defendant’s liability with regard to the system of work in which the plaintiff was engaged.

144. Parsing the essence of those questions, they concerned: whether the plaintiff had been provided with a safe system of work; whether there had been any breaches of Occupational Health and Safety Guidelines; whether the plaintiff’s injury was foreseeable; whether the defendant could have employed reasonable precautions for the avoidance of injury, and whether there was employer negligence.

145. On the issue of whether the plaintiff had been provided with a safe system of work, Ms Cacciola was of the opinion that the plaintiff’s assigned manual handling tasks such as the repositioning of high dependent, elderly, bed bound, confused or agitated patients with high demands and needs, was hazardous and more likely to lead to injury because of the requirement for such patients to be repeatedly lifted, lowered, pushed, pulled, slid, moved or restrained using sustained or awkward postures that stressed the body: Exhibit “B”, p 6.

146. On the issue of whether there had been any breaches of Occupational Health and Safety Guidelines, Ms Cacciola considered that “work health and safety guidelines were not provided” by the defendant: Exhibit “B”, pp 26 – 27. She took that view because she considered that safe work practices were not followed. In that regard. She pointed to the absence of adequate or sufficient fit for purpose safety equipment and mechanical assistance, inadequate supervision and staffing numbers to manage tall and heavy patients, including the needs of demanding patients.

147. On the issue of whether the plaintiff’s injury was a foreseeable occurrence, Ms Cacciola considered that the nature and the conditions of the plaintiff’s work posed a foreseeable risk of injury, as is evidenced by the injury the plaintiff received on 30 August 2014: Exhibit “B”, pp 9 & 12 – 14. Ms Cacciola considered that the defendant’s nursing unit manager should have known of the risks posed by the effect of the plaintiff’s ongoing injuries. I interpret that comment to be a reference to the plaintiff’s earlier workplace injuries or strains sustained in 2014: Exhibit “B”, p 30.

148. On the issue of whether precautions for the avoidance of injury could have been taken, Ms Cacciola considered that the defendant should have employed adequate and sufficient safety equipment, it should have had in place adequate policies and procedures for manual handling tasks, and it should have had extra staff numbers allocated for the management of high demand patients such as those who were tall, or heavy, or who exhibited forceful impulsive behaviours having regard to the physical difficulties involved in carrying out the required work: Exhibit “B”, pp 29 – 30.

(10) Ms Cacciola’s oral evidence

149. The defendant required Ms Cacciola to attend the hearing for cross-examination, which was brief: T207 – T212.

150. In that oral evidence, Ms Cacciola confirmed that she had spoken to the plaintiff for the purpose of preparing her report (T209.7), and that the three sources for her opinion were the letter of instruction provided by the plaintiff’s solicitor, the information provided by the plaintiff, and her review of the documentation that was provided to her: T209.22. She confirmed that the patient position known as the semi-Fowler position involved the patient being seated in bed with the legs extended: T209.48. She confirmed that the Trendelenberg position involved the patient being in bed with the knees raised and supported from underneath to alleviate slipping (T210.20), and that the acuteness of the angle of the knees could be varied: T211.9. She also confirmed that the concepts of lifting and sliding a patient involved different things: T211.8. Nothing emerged from the oral evidence of Ms Cacciola that served to undermine the opinions she had expressed in her report.

151. Although Ms Cacciola had participated in a conclave meeting with the defendant’s expert, Ms Head, as Ms Head’s report and that conclave report was ultimately excluded from the evidence, it is not necessary to review the detail of Ms Cacciola’s criticisms of Ms Head’s views as stated in the conclave report.

PART D – review of medical evidence

152. A voluminous array of medical and allied material was tendered by the respective parties. The medical evidence included an accumulation of WorkCover certificates of the employment capacity of the plaintiff, or more properly described, certificates of incapacity, issued between 13 June 2017 and 14 May 2024: Exhibit “1”, Volume 2, Tabs 63 – 70, pp 220 – 616.

153. The earliest of the post-15 May 2017 certificates is dated 13 June 2017 and it recorded the plaintiff’s factual account of how her injury occurred. That record states: “15.5.17 at work low left back pain developed after lifting a pt, which continues, recently 2 – 3 days left thigh pain, , no bowewl (sic) bladder or sensory loss ,, noted ho (sic) back pain 2014 and 2015 with CT guided n [nerve] root injections”: Exhibit “1”, Volume 2, Tab 63, pp 597 – 598.

154. That 13 June 2017 certificate (at p 598) identified 20 June 2017 as a review date for the plaintiff’s condition. That evidence bundle contained sequential certificates from that date to 14 May 2024, identifying various activity restrictions and functional inabilities which impacted or restricted the plaintiff’s ability to carry out her pre-injury work duties.

155. The defendant’s evidence bundle variously included some 80 medical reports, certificates, and clinical letters (Exhibit “1”, Volumes 1 & 2, Tabs 7 – 87, pp 43 – 651), as well as a series of detailed rehabilitation assessments and reports evidencing that numerous attempts were undertaken between 17 July 2017 and 27 October 2023 seeking to implement a number of return to work plans for the plaintiff: Exhibit “1”, Volumes 2 & 3, Tabs 90 – 132, pp 659 – 909.

156. The baseline for those assessments comprised successive return to work plans dated 19 January 2015 and 28 January 2015 relating to the plaintiff’s pre-15 May 2017 back strains at work: Exhibit “1”, Volume 2, Tabs 88 – 89, pp 653 – 658. Those documents show (at p 656), that the plan was for the plaintiff to return to her pre-injury duties by 1 April 2015.

157. There is no dispute that goal was achieved and that on 15 May 2017, the plaintiff had in fact been performing her full nursing duties, albeit ill-advisably it appears, having regard to the content of a medical certificate from Dr Kam dated 18 November 2014.

158. In the paragraphs that follow the historical medical reports and records relating to the plaintiff are extracted and summarised in chronological order in which they were created.

Pre-injury medical records

159. On 7 October 2014, Dr Andrew Kam, a consultant neurosurgeon and spinal surgeon, wrote a certificate addressed to whom it may concern, certifying that he had seen the plaintiff on that date and expressed a series of opinions to the effect that: she was able to return to work on 13 October 2014; that she should avoid patient lifts for the ensuing 3 weeks; and that she could perform office based work with regular 5 minute departures from any stationary sitting or standing position every 45 – 50 minutes: Exhibit “A”, p 20.

160. On 9 October 2014, Dr Kam wrote a clinical letter to the plaintiff’s general practitioner setting out the history of her presenting symptoms on 7 October 2014, the results of imaging investigations, and set out his recommendations for her further management. That letter described the plaintiff as having no real history of prior back or leg symptoms. It described the plaintiff as having undergone “an acute exacerbation of lower back pain and left sided leg pain” and that she had been “struggling with fluctuating pain” since August 2014, resulting in difficulty standing for prolonged periods, but having achieved good relief from physiotherapy.

161. Dr Kam identified the results of imaging as suggesting that there might be evidence of a left sided L3/4 foraminal disc bulge partially impacting on the L3 nerve, with the remainder of the lumbar spine being relatively normal. At that time, Dr Kam advised that a conservative approach be maintained for as long as possible, but he foreshadowed the possible need for a left sided L3/4 foraminal block and a possible further evaluation if her symptoms increased: Exhibit “A”, pp 21 – 22.

162. On 24 October 2014, without complications, the plaintiff underwent a spinal injection of the L3/4 neural foramen under CT guidance at the referral of Dr Kam: Exhibit “A”, p 24.

163. On 17 November 2014, at the request of the defendant’s workers’ compensation insurer, the plaintiff was examined by Dr John Stephen, a spinal surgeon, in connection with her injury on 14 August 2014. His report of that examination, which was aided by unidentified “documentation provided”, is dated 17 November 2014: Exhibit “1”, Volume 1, Tab 7, pp 43 – 48.

164. Dr Stephen recorded a history of the plaintiff’s 2014 injury as having occurred whilst she was having a “type of tug of war” with the patient trying to drink from a hand gel bottle, later aggravated by moving an oxygen cylinder. He noted the mechanical back ache symptoms from that injury had resolved after treatment with rest, anti-inflammatories, epidural injection, physiotherapy and exercise. He concluded she had incurred a low back strain, without radiculopathy, that she was “pretty well symptom free”, and back at full time work without the need for specific restrictions and she did not need a permanently modified duties certificate. No further treatment was suggested apart from maintaining home-based exercises.

165. On 18 November 2014, Dr Kam certified that following the administration of recent cortisone injections, the plaintiff had recovered from her left sided L3 and L4 pain. Significantly, he certified her return to work but with the emphasised qualification that she should minimise any excessive heavy patient lifts which could potentially aggravate her back problems: Exhibit “A”, p 25.

166. On 19 November 2014, Dr Kam wrote to the plaintiff’s then general practitioner, Dr Usmani, and recorded the plaintiff’s “substantial reduction in her symptoms” and her desire to return to work as a coronary nurse. He referred to his earlier recommendation concerning avoidance of heavy patients requiring “a lot of lifting and pulling [as such activity] can potentially re-aggravate her back problems”. In view of her very good response to the previous steroid injections he referred to the potentially useful role of further such injections if her symptoms recurred: Exhibit “A”, p 26.

167. On an unknown date in 2014, presumably towards the end of 2014 as maybe inferred, from the content, Dr Kam issued a signed certificate following his review of the plaintiff. His poorly photocopied certificate stated: “She has recovered from her left L3 and L4 pain, and has responded to the injections really well. I am happy for her to return to work. BUT she sh[ould avoid] any exces**sive heavy patient lifts which can potentially re-aggravate her b[ack].”: Exhibit “1”, Volume 2, Tab 69, p 615.

168. On 31 December 2014, an injury notification form taken from the defendant’s records noted the recurrence of the plaintiff’s lower back symptoms after dealing with a heavy patient and after lifting an oxygen cylinder: Exhibit “A”, p 28. This notification form contained a mistaken conflated reference to the plaintiff’s injury on 14 August 2014.

169. On 28 January 2015, the defendant’s workers’ compensation insurers, the Treasury Managed Fund and Employer’s Mutual, became involved in the plaintiff’s post-injury rehabilitation and graduated return to work at partial capacity. That plan was prepared in conjunction with the nominated treating general practitioner at that time, Dr Prasad Abeydeera: Exhibit “A”, pp 30 – 44. Subsequently, the insurer’s injury file was closed on 9 April 2015, which suggests that subject to the caveats identified by Dr Kam at paragraphs [166] and [167] above, the plaintiff was no longer affected by an incapacity for her work in relation to the back strains she incurred in 2014: Exhibit “A”, p 38.

170. On 24 March 2017, Dr Mohammed Al Faruque, issued an incapacity to work certificate for the period 23 March 2017 to 27 March 2017 for an unspecified medical condition: Exhibit “1”, Volume 1, Tab 12, p 53. The basis for this certificate was not explained in the evidence. This may have related to a sebaceous cyst that had troubled the plaintiff between September 2016 and March 2017: Exhibit “1”, Volume 1, Tabs 8 – 11.

171. On 26 March 2017, the plaintiff was apparently experiencing left upper chest pain and a sweating episode. The result of a CT pulmonary angiogram ordered by her general practitioner revealed no evidence of a pulmonary embolism: Exhibit “1”, Volume 2, Tab 73, p 628. There is no suggestion in the evidence to indicate that this referred to a long-lasting problem.

172. On 1 April 2017, the plaintiff was investigated for mumps and hepatitis but the tests proved negative for current infection: Exhibit “1”, Volume 2, Tabs 74 – 79, pp 629 – 639. Those investigations may explain the medical certificates certifying an inability to work between 24 March 2017 and 17 April 2017 as identified at paragraph [170] above: Exhibit “1”, Volume 1, Tabs 12 – 17, pp 53 – 58; Exhibit “1”, Volume 1, Tabs 12 – 17, pp 53 – 58.

Post-injury medical records

173. In the paragraphs that now follow, the medical reports, assessments and related records that followed from the plaintiff’s 15 May 2017 injury are reviewed and summarised.

174. On both 7 and 9 June 2017, the plaintiff’s general practitioner Dr Amabel Harding noted a history of the plaintiff having experienced ongoing back pain “for about 2 weeks”. She also noted that the plaintiff had experienced an episode whilst doing squatting exercises where she found she was unable to get up. She also noted that the plaintiff’s “work involves heavy lifting, cannot attribute to one particular incident”. Dr Harding noted the reason for the plaintiff’s visit to “2014-work related back injury – L4L5 prolapsed”: Exhibit “A”, p 67.

175. That historical summary was not a definitive opinion on causation, and it must be read subject to the caveat identified in Mason v Demasi [2009] NSWCA 227, at [2], concerning the limitations that apply to the approach to be taken to the interpretation of such records when making findings of fact on matters in contention concerning liability issues.

176. On 8 June 2017, Dr Carlos Robalino, another general practitioner who is now the plaintiff’s current general practitioner, recorded the plaintiff’s history as being one of back pain from a recurrence of an injury in 2014 in which the plaintiff strained her back. That recorded history recounted details of the hand gel incident involving a 130 kg patient. That record of the history made no mention of the 15 May 2017 incident. Dr Robalino recorded a history that on the morning of 8 June 2017 the plaintiff had fainted and had fallen to the floor in the bathroom three times. Those incidents were attributed to the effects of the codeine the plaintiff had been prescribed and was taking for her pain: Exhibit “A”, pp 67 – 68.

177. The general practitioner’s records note further attendances by the plaintiff with various general practitioners on 9 June 2017, 24 July 2017, 31 July 2017, 2 August 2017, 6 August 2017, 14 August 2017, 17 August 2017, 21 August 2017, 28 August 2017 and 3 September 2017, at which times consideration was given to the management of her ongoing complaints of lumbar pain: Exhibit “A”, pp 68 – 73.

178. On 9 and 13 June 2017 respectively, the plaintiff’s several general practitioners, Dr Amabel Harding and Dr Mohammed Al Faruque, referred her to Dr Darweesh Al Khawaja, a neurosurgeon, identifying a past history noted as being “2014 – work related back injury – L4/L5 prolapsed” and a more recent history of back pain on 7 and 8 June 2017 described as moderate acute lumbar back strain: Exhibit “A”, pp 52 – 55. Those dates varied from the plaintiff’s account of the injury she sustained on 15 May 2017.

179. On 13 June 2017, the defendant’s records noted a history that on 15 May 2017, the plaintiff developed low back pain in the context of an episode of “muscular stress” after lifting a patient, and that the pain had continued, including the development of left thigh pain. That report, and that record was not created by the plaintiff, so it has limited utility as a comparative history requiring evaluation on the issue of liability: Exhibit “A”, p 57.

180. On 14 June 2017, the plaintiff was intending to return to work and was on her way to work but she experienced a syncopal event in transit which led to her admission to the emergency department of the defendant’s hospital: Exhibit “A”, p 61 – 65. The defendant’s records contain apparently inaccurate if not conflicting histories compared to other notes. At page 62 of Exhibit “A”, the hospital triage notes record that the plaintiff had suffered a non-injurious syncopal event on a train on her way to work that day, which resulted in her admission to the defendant’s emergency medical unit (EMU). That syncopal event was stated to have been common for her since she had been taking codeine in the context of a history of back pain. At page 63 of Exhibit “A”, in the discharge summary, it is recorded that the plaintiff injured her back when she fell in 2014, and had lumbar pain thereafter, and that she had another fall in 2015, followed by a further injury at work in May 2017, followed by recurrent spasm and pain since then, with sensations of numbness, burning and tingling.

181. On the plaintiff’s 14 June 2017 presentation to the St Vincent’s Hospital Emergency Department, it was noted that she was complaining of lumbar pain, on examination no abnormalities of sensation, bowel or bladder function, or power were noted. The notes were ambiguous as to whether she had pins and needles sensations, numbness, burning or tingling.

182. On 14 June 2017, Professor Gordian Fulde, an emergency department physician at the defendant’s hospital, ordered a lumbar MRI scan. Significantly, this was reported as showing the plaintiff had a L2/L3 disc bulge (described in the discharge summary as a disc displacement), with left foraminal stenosis and showing direct contact with the exiting nerve root and minor additional multilevel disc protrusion(s) with minor canal and exit foraminal stenosis: Exhibit “1”, Volume 2, Tabs 80 – 81, pp 640 – 641; Volume 4, Tab 197, pp 1431 – 1458. The event leading to the fall was described as being possibly related to Codeine intolerance causing dizziness.

183. On 15 June 2017, the notes recorded that she was able to mobilise independently on the ward prior to discharge following an MRI report which showed “Mild left L2/3 nerve root impingement”: Exhibit “1”, Volume 1, Tab 23, pp 65 – 66.

184. On 15 June 2017, Dr Robalino, the plaintiff’s general practitioner, ordered some blood tests, noting a history that the plaintiff had severe low back ache and was taking anti-inflammatory medication: Exhibit “4”, Volume 1, p 86.

185. On 23 and 24 June 2017, the plaintiff consulted Dr Al Khawaja and reported significant lower back pain discomfort when walking but without weakness or paraesthesia in the legs. He certified her as being unfit for work until 8 July 2017: Exhibit “1”, Volume 1, Tabs 23 – 24, pp 67 – 69.

186. On 26 June 2017, Dr Con Kafataris, a corporate medical and injury management consultant undertook a file review of the plaintiff’s workers’ compensation claim aided by some unspecified material from a Dr Simmons and Dr Al Khawaja. He did not have the opportunity of examining the plaintiff. It appears that he had an unspecified discussion with Dr Simmons. Without the benefit of examining the plaintiff, he considered her presentation was consistent with mechanical back pain without evidence of neurocompression. He noted there were no red or yellow flags, whatever that meant. He was of the view that the plaintiff was fit for “suitable duties normal hours of a sedentary nature” but noted, vaguely, that “her current capacity is unclear”: Exhibit “1”, Volume 1, Tab 25, pp 70 – 71.

Dr Neil Cochrane - Neurosurgeon

187. On 3 July 2017, some 6 weeks after the subject injury, at the request of the defendant, the plaintiff was examined by Dr Neil Cochrane, a consultant neurosurgeon, who took a careful history. He assessed the plaintiff as having provided a straightforward account without overt incongruities or inconsistencies, although his interpretation was that she had presented with “some hyper animation of the face and grimacing evident with the examination” which “may be due to her perception of pain, but did seem somewhat embellished”. That said, he negatived the presence of “**any gross abnormal illness behaviour”: Exhibit “1”, Volume 1, Tabs 27, pp 73 – 80. That view was confirmed in the subsequent concurrent evidence of Dr Cochrane and Dr Teychenne given at the hearing: T241.36 – T242.14.

188. Dr Cochrane considered that the plaintiff had some neural irritation on the left side and that her current symptoms of low back pain and left sided sciatica were the only barriers to her resuming her pre-injury work. His understanding of the circumstances of the plaintiff’s injury was that she was lifting a patient in bed when she experienced a recurrence of the back pain she had suffered some years beforehand. He acknowledged that the materials presented to him for his review “provide inconsistent and unclear reporting of the alleged injury”, and on that basis he was not able to provide a clear work-related diagnosis of a work-related injury. That expressed lack of clarity was subsequently resolved by Dr Cochrane at a later date.

189. Against the background of evidence of degenerative disease of the spine, on the assumption that the injury occurred in the manner described by the plaintiff, on the balance of probabilities, Dr Cochrane considered that there had been a work-related aggravation of pre-existing lumbar spondylosis that at the time had not fully resolved, although he expected this to occur: Exhibit “5”, Tab 4, pp 29 – 36.

Fluoroscopy study in the operating theatre

190. On 5 July 2017, Dr Al Khawaja undertook a surgical procedure under fluoroscopy in the operating theatre. The notes of this procedure were sparse. From the chronological context the procedure seems to have been a spinal injection: Exhibit “1”, Volume 1, Tab 26, p 72; Tab 28, p 81; Tab 29, p 82.

Dr Al Khawaja – examination post-cortisone injection

191. On 21 July 2017, the plaintiff saw Dr Al Khawaja who noted that a previous spinal injection had relieved her pain for only a short time, and she was in a lot of pain and not functioning well. He recommended surgery directed to L2/3 and L3/4 noting she “cannot live the way that she is and she is willing to go ahead with surgical intervention”: Exhibit “1”, Volume 1, Tab 29, p 82.

Further referral to Dr Al Khawaja

192. On 21 August 2017, the plaintiff was again referred to Dr Al Khawaja for management of her work-related “severe frequently exacerbated lumbar-sciatic pain” that radiated to the left leg: Exhibit “1”, Volume 1, Tab 32, p 86.

Dr Eddie Price – Occupational physician and injury management consultant

193. On 31 August 2017, at the request of the defendant’s workers’ compensation insurer, the plaintiff was examined by Dr Eddie Price, an occupational physician and injury management consultant: Exhibit “1”, Volume 1, Tab 34, pp 92 – 99.

194. Dr Price recorded that the reason for the referral was: “Several inconsistencies with the reported date” of [the plaintiff’s] injury symptoms and her admission in**to the emergency department of St Vincent’s Hospital”. He recorded her current status at that time as having mid back pain in the region of L4/L5 which radiated to the left buttock and the side of the left leg. He noted painful hyperflexion movement in the spine. He also spoke to the plaintiff’s general practitioner on 4 September 2017, the same day that he issued his report to the insurer. He diagnosed the plaintiff as having had an aggravation of a previous injury to the low back with left sided sciatica consistent with an MRI finding of some pressure but at the level L2/L3, this being a recurrence of an injury that had previously settled. That analysis view stands to be evaluated in light of Dr Cochrane’s changed opinion on 24 October 2017 and the concurrent evidence of Dr Cochrane and Dr Teychenne.

195. Dr Price considered the plaintiff was fit for work in her current duties which he identified as being “seven hours three days per week on suitable duties” without defining what those duties were, and he suggested increasing those hours to eight hours three days per week and lifting no more than 5 kgs. He predicted that “with appropriate motivation, self-implemented general exercises … over a three month period .**.. she should be back to her pre-injury duties”

Neurosurgical consultation – Dr Mohammed Al Khawaja

196. On 5 September 2017, the plaintiff consulted Dr Al Khawaja who noted the plaintiff was still suffering from a significant amount of left leg pain in the L3 and L4 distribution in the context of known disc injuries at the L2/3 and L3/4 levels. Dr Al Khawaja’s letter to Dr Al Faruque mentioned that he had spoken to the plaintiff “about surgery last time and she has thought about it and w**ants to go ahead with surgical intervention”. The date of that last consultation was not clearly identified. He noted that he was seeking approval from the workers’ compensation insurer for that procedure to take place: Exhibit “1”, Volume 2, Tab 70, p 622. That approval was not immediately forthcoming.

197. The plaintiff was seen again by Dr Al Khawaja for review of her symptoms and management options pre-surgery, on 26 October 2017, 18 November 2017, 5 May 2018, 15 June 2018: Exhibit “A”, pp 80; 85; 94; 97 – 98; Exhibit “1”, Volume 2, Tab 70, pp 617 – 618.

Physiotherapy commenced on 6 September 2017

198. On 6 September 2017, the plaintiff commenced physiotherapy treatment with The Healthy Body Company: Exhibit “1”, Volume 1, Tabs 36 – 37, pp 101 – 102.

199. Between 6 September 2017 and 1 May 2018, whilst the plaintiff remained under the care of Dr Al Khawaja awaiting approval for surgery to her lumbar spine she received physiotherapy treatment from The Healthy Body Company with fluctuating progress: Exhibit “A”, pp 75 – 79; 81; 86, 90, 92 and 93.

Dr Cochrane – commentary on pre-injury report of Dr John Stephen

200. On 24 October 2017, at the request of the workers’ compensation insurer, Dr Cochrane undertook a paper review of the medical evidence. His primary focus was a commentary on a report from Dr John Stephen dated 17 November 2017.

201. Earlier, on 11 July 2017, Dr Cochrane had concluded the plaintiff had been suffering from recurring episodes of severe back pain with secondary issues of radicular pain, he was unable to reach a clear diagnosis at that time.

202. Significantly, Dr Cochrane changed his earlier view after reviewing more recent imaging and Dr Stephen’s report relating to the plaintiff’s 2014 injury (which had concluded that as the plaintiff was by 17 November 2014 symptom free and was back at work on full time hours after the effects of that injury had ceased). Dr Cochrane changed his analysis and fully conceded that the plaintiff’s injury on 15 May 2017 was not an aggravation of the 2014 injury but was a fresh injury which was compressing the left L2 nerve root. That said, Dr Cochrane was unclear as to the basis for the nerve root injections that were performed by Dr Al Khawaja and he said he could not state that the recommended surgery suggested by Dr Al Khawaja was reasonably necessary in this instance: Exhibit “5”, Tab 5, pp 37 – 40.

203. Those views must be read in conjunction with the concurrent evidence given at the hearing by Dr Cochrane and Dr Teychenne as summarised at the end of this chronological summary.

204. For present purposes, it is sufficient to say that Dr Cochrane’s paper analysis should not be seen to trump Dr Al Khawaja’s clinical reasoning in this instance where Dr Al Khawaja was not required for cross-examination on that reasoning, nor indeed on any of the content of his correspondence to the insurer or to the referring general practitioner.

Review by Dr Al Khawaja on 26 October 2017

205. On 26 October 2017, the plaintiff was reviewed by Dr Al Khawaja who stated surgery would be undertaken as soon as it was approved: Exhibit “1”, Volume 1, Tab 39, p 107.

Physiotherapy review

206. On 26 October 2017, the plaintiff was provided with a back support by her physiotherapist for her back pain and her inability to stand straight without pain. At that time she had an antalgic gait and decreased mobility due to back pain. It was recommended she see Dr Al Khawaja again: Exhibit “1”, Volume 1, Tab 37, p 102.

Commentary by Dr Cochrane

207. On 24 October 2017, Dr Cochrane prepared a letter addressing questions posed to him by the defendant’s workers’ compensation insurer after sending him “information” including reports from Dr Al Khawaja and Dr Stephen. In essence, he again commented that he did not believe the plaintiff’s injury was an aggravation of her 2014 musculo-ligamentous injury. He was unsure as to why Dr Al Khawaja was recommending surgery. He did not think it was necessary as he did not consider the plaintiff had a neurocompressive lesion at L3/L4. He did not see a clear diagnosis at that time and recommended the plaintiff first proceed to diagnostic nerve root blocks at L2/3 and L3/4 on the left side before considering surgery: Exhibit “1”, Volume 1, Tab 38, pp 103 – 106.

Further review by Dr Al Khawaja

208. On 26 October 2017, the plaintiff saw Dr Al Khawaja again as she was unable to walk and because she was in a lot of pain. He referred her for a further MRI scan and again recommended surgery, again noting that he was hoping for the insurer to approve this surgery as soon as possible: Exhibit “1”, Volume 1, Tab 39, p 107.

MRI scan on 27 October 2017

209. On 27 October 2017, at the request of Dr Al Khawaja, the plaintiff underwent an MRI scan of the lumbar spine against a background history of severe low back and left flank pain and a previous imaging study that was undertaken for diagnostic comparison. The report of that MRI scan was as follows:

“Findings: There is generalised lumbar spine canal narrowing noted with congenital shortened pedicle. Mild straightening of the normal lumbar lordosis noted, There is mild to moderate disc desiccation noted involving the L2/L3 disc. Conus medullaris tapers at L1 level. There is straightening of the normal lumbar lordosis.

Tiny annular tear noted at the posterior aspect of the L3/L4 disc.

At L1/L2 there is no significant neural exit foraminal narrowing with disc herniation.

At L2/L3 there is moderate sized broadbased disc bulge with associated left foraminal disc protrusion which is in association with mild facet joint arthrosis resulting in moderate stenosis of the left neural exit foramina where the disc is abutting the exiting left L2 and potentially irritating this nerve root On the right side there is no significant neural exit foraminal narrowing seen,

At L3/L4 there is mild to moderate broadbased disc bulge noted causing minimal indentation of anterior thecal sac.

At this level the combination of shortened pedicle, disc and posterior epidural lipomatosis resulting in moderate central canal stenosis.

Al this level there is mild to moderate facet joint arthrosis noted. There is mild left sided neural exit foraminal narrowing seen. On the right side there is no significant neural exit foraminal narrowing.

At L4/L5 there is mild broadbased disc bulge, minimal indentation of anterior thecal sac, mild central canal stenosis mainly due to short pedicle.

At this level there is mild facet join/ligamentum flavum hypertrophic changes. No significant neural exit foraminal narrowing.

At L5/S1 there is mild broadbased disc bulge with associated posterior annular disc protrusion causing minimal indentation of anterior thecal sac.

At this level there is moderate thecal sac compression noted mainly due to disc. as well as anterior and posterior epidural lipomatosis and shortened pedicle.

Intra-osseous haemangioma noted involving L5 vertebral body.

No significant bone marrow oedema seen.

When compared to the prior CT lumbar spine performed 8/6/2017 there is no significant Interval change in the degree of disc herniations at L2/L3 and L3/L4.

Retroverted uterus is partially visuzlied (sic). There is possible cystic focus arising from the left adnexa - correlation with pelvic ultrasound is suggested.

COMMENT:

· Redemonstration of multilevel lumbar spine spondylotic changes with site of central canal and neural exit foraminal narrowing on a background of generalised lumbar spine canal stenosis due to short pedicles.

[Exhibit “1”, Volume 2, Tab 82, pp 642 – 643]

Review by Dr Al Khawaja on 18 November 2017

210. On 18 November 2017, Dr Al Khawaja re-examined the plaintiff and assessed the repeat MRI scan of the same date. He interpreted it as showing injuries mainly at L2/3 and L3/4 levels with other minor injuries at L4/5 and L5/S1. He reiterated his recommendation for surgical treatment and he confirmed that he was awaiting approval from the insurer for that surgery to take place: Exhibit “1”, Volume 1, Tab 40, pp 108 – 109.

211. On the same date Dr Al Khawaja wrote to the workers’ compensation insurer to respond to a series of 5 questions that the insurer raised with him. Essentially, he advised that the 2017 injury to L2/3 was a new injury not present in 2014 as well as an aggravation of that earlier injury at L3/4. In response to a comment made by Dr Cochrane he noted the plaintiff had MRI evidence of pathology related to her injury and this was why he had suggested surgery which should be undertaken sooner rather than later because the MRI showed a fragment of disc sitting against the L2 nerve root, as well as another fragment pushing against the L3 nerve root and all conservative treatment has failed. He noted this injury was incurred due to her work of managing cardiac patients which required twisting, pulling, pushing and lifting: Exhibit “1”, Volume 1, Tab 40, pp 108 – 109.

Neurosurgical consultation – Dr Andrew Kam

212. On 21 November 2017, the plaintiff saw Dr Andrew Kam, a consultant neurosurgeon, for a second opinion on her medical management: Exhibit “A”, pp 87 – 88. The plaintiff had previously been under the care of Dr Kam in relation to her 2014 injury involving a left sided L3/4 disc protrusion. He suggested postponing the proposed spinal surgery unless further symptoms occurred.

Review by Dr Al Khawaja on 25 November 2017

213. On 25 November 2017, the plaintiff was reviewed by Dr Al Khawaja following the approval of the insurer for the proposed surgery to take place. It was planned for the following week. The stated indication for the surgery was that the plaintiff had a lot of pain in her back and in her left leg: Exhibit “4(1)”, p 233; Exhibit “1”, Volume 1, Tab 41, p110.

Surgery by Dr Al Khawaja on 30 November 2017

214. On 30 November 2017, the plaintiff underwent back surgery. It was guided by intra-operative fluoroscopy to obtain confirmation of the correct procedural level for the surgery to take place: Exhibit “4(1)”, p 234; Exhibit “1”, Volume 1, Tab 42, p 111; Tab 43, p 112.

215. The procedure was described as a left sided L2/3 and L3/4 microdiscectomy with rhizolysis through the Weltsi approach. The L2 nerve root was identified and released completely. A significant bulge was found in the L2/3 disc space pushing on the left L2 nerve root at the entry zone. That disc fragment was removed and proper discectomy then proceeded to remove the loose disc fragment. The nerve root was seen to be free and pulsating. The same procedure was then carried out at L3/4: Exhibit “4(1)”, p 235.

Post-operative review by Dr Al Khawaja on 16 December 2017

216. On 16 December 2017, the plaintiff was reviewed by Dr Al Khawaja 16 days post-surgery. He reported the plaintiff was then symptom free in her back and her legs. He recommended she start exercising 2 weeks hence and he discharged her from his care: Exhibit “4(1)”, p 236; Exhibit “1”, Volume 1, Tab 44, p 113.

Referral for physiotherapy on 22 January 2018

217. On 22 January 2018, the plaintiff’s general practitioner, Dr Robalino referred her for post-operative hydrotherapy, exercise and physiotherapy as a prelude to a consideration of a return-to-work programme: Exhibit “4(1)”, pp 237 – 238; Exhibit “1”, Volume 1, Tab 45, p 114.

Dr Eddie Price – re-examination and second review

218. On 10 April 2018, the plaintiff was examined by Dr Price for a second time. He had been provided with copies of multiple reports from Dr Al Khawaja, including a report of the operative procedure he performed on 30 November 2017 for L2/3 and L3/4 microdiscectomy and rhizolysis, along with email reports from a Rochelle Smith, a Recovery Coordinator at St Vincent’s Hospital, and other documents.

219. It appears that Dr Price had before him some documents that have not been tendered in evidence which makes it difficult to fully understand the basis of his expressed opinion. He stated that there were no non-work-related factors that were preventing her return to work. Those factors were not specified. He noted a history of the plaintiff having reported acute episodes of pain immediately after her spinal surgery, including having collapsed several times. He also noted the plaintiff’s current status as experiencing discomfort on sitting for 30 – 35 minutes, pain radiating to the back of her left side in the gluteal region and the left leg, occasionally to the toes, made worse on prolonged walking, and an inability to bend to put on her shoes, reduced forward flexion, hyperextension and limited left straight leg raising. He considered the plaintiff was still improving post-operatively, and that further improvement was possible. At that stage he considered she was only fit for restricted duties although he noted that the defendant’s preference was for her to return to full duties in the coronary care unit. He suggested the appropriate longer-term goal should be to move her into a less physical nurse educator role and upgrade her hours to pre-injury levels in the coming months: Exhibit “5”, Tab 2, pp 9 – 16; Exhibit “1”, Volume 1, Tab 46, pp 116 – 123.

Dr Al Khawaja – further review on 5 May 2018

220. On 5 May 2018, the plaintiff was again reviewed by Dr Al Khawaja who noted she was having some pains mainly in the back and left side of her spine because of a lot of stair use and prolonged sitting. He ordered a new MRI scan of her lumbar spine: Exhibit “1”, Volume 1, Tab 47, p 124.

Further MRI scan on 16 May 2018

221. On 16 May 2018, the plaintiff underwent a further MRI scan of the lumbar spine at the request of Dr Al Khawaja with a noted history of episodic lower back pain. The report of that scan was as follows:

Findings:

Discussion was made with the patient regarding the injury that was experienced in May last year. Discectomy was performed in November of 2017. Post gadolinium imaging was also performed.

Please note that no previous study was available for comparison at the time of reporting.

The conus medullaris terminates at the level of L1. Distal cord signal intensity appears normal. Normal vertebral body heights are demonstrated throughout. There is mild high signal intensity seen within the LS vertebra seen on T1 WI and T2 WI in keeping with a vertebral haemangioma or fatty deposition. Multilevel disc desiccation is present, Evidence of clumping of the nerve roots below the L3/4 level possibly related to arachnoiditis.

L2/3:

Mild broadbased posterior disc bulge with flattening of the anterior thecal sac. Lateral recesses are patent. There is a far left posterolateral disc protrusion with a small annular tear. Possible impingement of the exiting left L2 nerve root.

L3/4:

Disc desiccation. Mild posterior disc contour abnormality. Mild to moderate bilateral neural exit foraminal narrowing. This is slightly worse on the left with mild loss of perineural fat signal intensity. This may be giving rise to exiting left L3 nerve root impingement. Mild bilateral lateral recess narrowing. Mild to moderate bilateral facet joint arthropathy/hypertrophy.

L4/5:

Minor posterior disc contour abnormality. Mild bilateral neural exit foraminal narrowing: Mild to moderate bilateral facet joint hypertrophy/arthropathy.

L5/S1:

Minor posterior disc contour abnormality. Neural exit foramina are patent.

COMMENT:

At the left L2/3 and L3/4 neural exit foramina, there Is loss of perineural fat plane on the T1 and T2 weighted sequences, There is mild enhancement of tissue in this region. This may represent development of scar tissue. Possible impingement of the exiting left L2 and L3 nerve roots. Evidence of clumping of the nerve roots below the L3/4 level possibly related to arachnoiditis.

[Exhibit “1”, Volume 2, Tab 84, pp 645 – 646]

Further review by Dr Al Khawaja on 15 June 2018

222. On 15 June 2018, the plaintiff was reviewed by Dr Al Khawaja who noted that the recent MRI scan showed pressure on the L2 nerve root by disc bulge and scar tissue. He discussed treatment options with the plaintiff, including surgery. She chose to continue with conservative treatment for the time being. He also recommended she avoid any heavy-duty work such as bedside work entirely, with slow upgrade of activity over time under the care of the rehabilitation team: Exhibit “1”, Volume 1, Tab 48, pp 125 – 126; Volume 2, Tab 70, pp 617 – 618.

Ms Rennie Schmid – Psychologist – October 2018

223. On 3 and 9 October 2018, at the request of her general practitioner, the plaintiff was assessed by Ms Rennie Schmid, a counselling psychologist, who over two in-depth interviews, concluded there was no evidence of any negative psychological symptoms apart from the plaintiff’s observable reaction to her experience of pain and discomfort. She suggested the plaintiff obtain some assistance from a careers assessment to help her transition to a new career and employment: Exhibit “5”, Tab 8, pp 75 – 77.

Assessment by Dr Kathiravel Nadanachandran

224. On 12 October 2018, at the request of the workers’ compensation insurer, the plaintiff was examined by Dr Kathiravel Nadanachandran. He recorded a history of the plaintiff’s 15 May 2017 injury vaguely as being of insidious onset when she started to experience pain after “dealing with quite a large number” of heavy and dependent patients whom she had to “pull, push and adjust” in their positions: Exhibit “1”, Volume 1, Tab 49, pp 127 – 131.

225. He reviewed the pre and post-operative MRI scans and considered the plaintiff’s pain was due to a left sided disc protrusion at L2/3 which had probably irritated the nerve root. He considered the plaintiff’s 15 May 2017 injury to have been a major incident which needed surgery and which has unfortunately been unsuccessful in fully relieving her pain. He considered the plaintiff’s symptoms to be due to that injury and the effects of the surgery that followed. He agreed with the appropriateness of the plaintiff’s attitude of not being keen to have further surgery, noting it was suggested to be done at two levels, although there was an option for further decompression and disc excision at L2/3. He was unclear as to why the plaintiff was experiencing foot drop because that was a symptom relating to nerve root compression at L4/5, and at times, L5/S1. That question was later clarified in the concurrent expert evidence given by Dr Cochrane and Dr Teychenne.

Further Lumbar MRI scan on 2 April 2019

226. On 2 April 2019, at the request of Dr Robalino, the plaintiff underwent a further MRI scan of the lumbar spine. The report of that MRI scan was as follows:

“Findings: Conus medullaris tapers at T12/L1 level. Moderate disc desiccation noted at L2/L3 and L3/L4 level as well as L5/S1.

The uterus is bulky and retroverted. Further evaluation with pelvic ultrasound is suggested.

At L1/L2, there is no significant disc herniation, central canal or neural exit foraminal narrowing.

At L2/L3, redemonstration of the known small residual/recurrent left foraminal disk protrusion approaching the exited left L2 nerve root with mild adjacent scarring-stable. At this level, there is mild left foraminal stenosis, No right sided foraminal stenosis. Mild indentation of anterior thecal sac. Mild to moderate facet joint hypertrophic changes seen.

At L3/L4, there is moderate broadbased disc bulge noted with associated small to moderate size postero-centrat to paracentral disc protrusion. Mild to moderate size postero-central to paracentral disc protrusion. Mild to moderate central canal stenosis. Moderate facet joint hypertrophic changes seen. Mild to moderate attenuation subarticular zone. There is no significant right sided neural exit foraminal narrowing. There is moderate left sided neural exit foraminal narrowing. The disc is abutting the exiting left L3 nerve root, potentially can cause irritation of this nerve on weight bearing.

At L4/L5, there is mild broadbased disc bulge. Moderate facet joint hypertrophic changes. No significant central canal stenosis, The disc is approaching the exiting L4 nerve root bilaterally.

At L5/S1 there is mild broadbased disc bulge. Small posterior disc protrusion. No significant central canal or neural exit foraminal narrowing seen.

COMMENT

Re-demonstration of the multilevel lumbar spine spondylotic changes with sites of central canal and neural exit foraminal narrowing as described.

At L2/L3, redemonstration of the known small residual/recurrent left foraminal disk protrusion approaching the exited left L2 nerve root with mild adjacent scarring-stable. At this level, there is mild left foraminal stenosis. No right sided foraminal stenosis. Mild indentation of anterior thecal sac. Mild to moderate facet joint hypertrophic changes seen.

At L3/L4, there is moderate broadbased disc bulge noted with associated small to moderate size postero-central to paracentral disc protrusion. Mild to moderate size postero-central to paracentral disc protrusion. Mild to moderate central canal stenosis. Moderate facet joint hypertrophic changes seen. Mild to moderate attenuation subarticular zone. There is no significant right sided neural exit foraminal narrowing. There is moderate left sided neural exit foraminal narrowing. The disc is abutting the exiting left L3 nerve root, potentially can cause irritation of this nerve on weight bearing.”

[Exhibit “1”, Volume 2, Tabs 85 – 86, pp 649 – 650]

Review by Dr Al Khawaja on 10 May 2019

227. On 10 May 2019, the plaintiff was reviewed by Dr Al Khawaja who noted she was still having back issues. He recommended a functional assessment by a rehabilitation provider: Exhibit “1”, Volume 1, Tab 52, p 139.

Rehabilitation file review on 4 July 2019

228. On 4 July 2019, a non-diagnostic file review was undertaken by Dr Barbara Schiff, an insurance medical advisor. That review did not appear to have been based on an examination of the plaintiff and it therefore has little probative value: Exhibit “1”, Volume 2, Tab 53, pp 140 – 145.

Dr Tim Anderson – occupational physician

229. On 12 November 2019, at the request of her solicitor, the plaintiff was examined and assessed by Dr Tim Anderson, a consultant occupational physician: Exhibit “A”, pp 113 – 123. He noted the plaintiff had developed low back dysfunction in the context of hospital short staffing where she had been called upon to assist a colleague to perform a task that was normally performed by 4 nurses.

230. He noted those symptoms have continued despite micro-discectomy surgery, with residual radiculopathy features down the left leg. He also noted those problems have continued despite physiotherapy and rehabilitation treatments. He attributed the plaintiff’s problems to be directly caused by her heavy work and not due to any pre-existing features. He noted her well-motivated stoic attitude, her deconditioned muscular state, her physical restrictions, and he opined that her prognosis was reasonable rather than poor, depending on her activities, also noting that the natural history for this type of condition was for further deterioration. He considered that her stance of minimal invasion was reasonable if she could “get away with this” and noted that it was vital she continue with her self-managed regime for stretching, exercise and aquatic regime to work on her core stabilisers. His opinion on fitness for work was guarded, as follows:

“FITNESS

40. Ms Palackalody is not fit to get back to her previous occupation in the High Dependency Post Cardio-thoracic Unit at St Vincent's Hospital or to participate in any similar physically arduous tasking. With the greatest of possible respect to all concerned, I believe that the earlier attempt of returning her to her pre-injury position was not appropriate. She is, however, fit (easily fit) to work in a more administrative or possibly instructional field. A good example of this would be Nurse Education and another good example would be in Administration and possibly even working as a Nurse Unit Manager. Following this assessment, I gained the fairly strong impression that Ms Palackalody has a great deal of knowledge and experience.”

[Exhibit “A”, pp 113 – 122]

231. Subsequently, on 6 April 2023, Dr Anderson assessed the plaintiff again.

Report from Dr Carlos Robalino – general practitioner

232. On 3 December 2019, Dr Robalino prepared a report for the plaintiff’s solicitor. He recounted the history of the plaintiff having been injured “after lifting - or straining assisting a heavy patient [when she] developed severe low back pain radiating to her left buttock and whole left lower limb”.

233. He noted the plaintiff’s presentation as being in severely distressing pain and walking with extreme difficulty and stiffness due to her antalgic gait. After reviewing that history and the subsequent imaging investigations, he related her pain to the injury in question, describing it as chronic left sciatic compromise. He considered these symptoms to be lifelong painful limitations that were associated with a risk prognosis for severe exacerbations and for random falls. He considered that she would not be able to return to the work she was doing before she sustained that injury: Exhibit “A”, pp 109 – 112.

Dr Paul Teychenne – neurologist

234. On 4 December 2019, at the request of her solicitor, the plaintiff was examined and assessed by Dr Paul Teychnne, a consultant neurologist. He took a careful history of the origins, the effects, and the treatment of the plaintiff’s back problems, and in particular, the role of the repositioning incident on 15 May 2017. He noted the mechanism of the plaintiff’s injury (at p 125 of Exhibit “A”), as a sudden pulling pain in her back while she was pulling on the slide sheet to slide the index patient up on his bed. She described that manoeuvre as pulling the patient back up on the slide sheet.

235. Dr Teychenne considered the plaintiff was no longer capable of any form of arduous heavy lifting or pushing, agreeing with Dr Nadanachandran and Dr Price. He added she was not capable of returning to her work as he thought the plaintiff should be investigated for a thoracic lesion: Exhibit “A”, pp 124 – 138.

236. On 22 May 2020, Dr Teychenne considered that statistically, the plaintiff had a combined 43 percent whole person impairment according to the assessment tool that he applied: Exhibit “A”, pp 139 – 141.

237. On 16 June 2020, at the request of the plaintiff’s solicitor, Dr Teychenne provided a commentary on aspects of the opinions of Dr Anderson, Dr Panjratan, Dr Sandgol, Dr Wong, Dr Al Khawaja and Dr Al Faruque: Exhibit “A”, pp 142 – 144.

Dr Vijay Panjratan, orthopaedic surgeon

238. On 4 February 2020, at the request of the defendant’s solicitor, the plaintiff was examined by Dr Vijay Panjratan, an orthopaedic surgeon. His report of that consultation is dated 6 February 2020: Exhibit “1”, Volume 1, Tab 54, pp 146 – 153. Dr Panjratan noted the plaintiff was not working. He reviewed her history of injury and treatment and the mechanism of injury. After examining her he concluded that the plaintiff’s L2/3 and L3/4 disc prolapses were work-related being causally connected to demanding ward work with heavy dependent patients. He stated her condition was stable and would not change. That said, he concluded she was totally unfit for work and suggested sedentary work.

Dr Uthum Dias – Occupational physician

239. On 30 September 2020, at the request of St Vincent’s Hospital, the plaintiff underwent a fitness for work assessment by Dr Uthum Dias, an occupational physician. This was a curious development as this examination took place a year after the defendant had already terminated her employment.

240. Dr Dias’ diagnosis was that the plaintiff was suffering from chronic discogenic lumbar pain with an associated L5 dermatome radiculopathy most likely secondary to disc pathology at L4/5. He assessed her at increased risk of aggravation of her lumbar spine if she attempted to return to nursing duties. He assessed her as being unfit for duties involving prolonged standing, intermittent bending and twisting of the lumbar spine, repetitive heavy pulling and pushing of critically ill patients, intermittent squatting and crouching. He considered the plaintiff to be fit for part time duties for a maximum of 20 hours per week subject to a range of permanent restrictions. He expressed those to be as follows:

“Recommended Restrictions

With respect to Ms Palackalody's fitness for work, in my opinion, Ms Palackalody is fit to work within the following permanent restrictions pertaining to her lumbar spine condition:

In my opinion, Ms Palackalody is fit to work on a part-time basis for up to a maximum of 20 hours per week (four hours per day five days per week or five hours per day four days per week).

Ms Palackalody should avoid lifting any items weighing greater than 5 kg. Ms Palackalody should avoid performing any pulling or pushing duties using force greater than 5 kg.

Ms Palackalody should avoid performing any tasks that involve prolonged walking for greater than 15 minutes at a time or prolonged standing for greater than 20 minutes at a time.

Ms Palackalody should take a break from seated duties every 30 minutes for five minutes to stretch her lower back.

Ms Palackalody should avoid performing any tasks that involve repetitive bending and twisting of the lower back or prolonged squatting, kneeling or crouching.

Ms Palackalody should avoid performing clinical nursing duties, involving direct patient care.

Ms Palackalody should avoid driving for greater than a maximum of 45 minutes at a time (in the context of travel to and from work or catching public transport, for greater than approximately one hour at a time), in the context of travel to and from work.

Within the above-mentioned restrictions, it is possible that Ms Palackalody may be able to continue working, in an administrative or educational capacity. If she were to perform primarily computer-based duties, her workstation would need to be ergonomically optimised in the context of her lower back condition.

Given the chronicity of Ms Palackalody’s symptomatology, and taking into account her poor prognosis for improvement, in my opinion, the above-mentioned restrictions should be made permanent. If her symptoms improve, within the above-mentioned restrictions, it is possible that her hours could increase, eventually to full-time hours, however at the present time, for the short to medium term future (the next three to six months), in my opinion, Ms Palackalody should continue on restricted hours of 20 hours per week.”

[Exhibit “A”, pp 145 – 159]

Rehabilitation file review on 1 October 2020

241. On 1 October 2020, Dr Barbara Schiff undertook a further file review which noted that the plaintiff was not working and “has engaged a legal team”: Exhibit “1”, Volume 1, Tab 55, pp 154 – 161.

Recommencement of physiotherapy

242. On 7 October 2020, the plaintiff recommenced physiotherapy with The Healthy Body Company: Exhibit “1”, Volume 1, Tab 56, p 162.

Review by Dr Robalino on 12 October 2020

243. On 12 October 2020, Dr Robalino reviewed the plaintiff in light of her complaints of limiting pain and he referred her to Dr Al Khawaja for further review: Exhibit “1”, Volume 1, Tab 57, p 163.

Dr Peter Bentivoglio - Neurosurgeon

244. On 29 October 2020, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Peter Bentivoglio, a consultant neurosurgeon. On reviewing the plaintiff’s history, he stated that the injury on 15 May 2017 “was just a significant flareup from lifting heavy patients”, having earlier qualified this by stating this “was secondary to a new injury from a lot of heavy lifting of patients.”

245. On reviewing the plaintiff’s condition, he assessed her as “certainly [not able] to do any heavy home duties”. His diagnosis was that the plaintiff had lower back pain with multi-level degenerative disease in her lumbar spine at L2/3 and L3/4 and disc prolapses at those levels. He was of the opinion that the plaintiff had some pre-existing degenerative disease in her lumbar spine, that there had been disc injuries at the level L2/3 and to a lesser extent at L3/4 from the 2014 injury, and that this condition was significantly exacerbated on 15 May 2017, which he characterised as a significant flareup. He believed the plaintiff’s bowel and bladder symptoms, which appeared to have receded at the time of his examination, were related to the surgery at L2/3 and L3/4.

246. His prognosis was that the degenerative condition in the plaintiff’s lumbar spine will slowly but surely deteriorate with time. He accepted there was a causal connection between the plaintiff’s back and leg pain, her bladder and bowel problems, which were related to the disc problems at L2/3 and L3/4 which had surgical intervention.

247. He identified the plaintiff’s work as a nurse, and no other factors, to have been a substantial contributing factor to the exacerbation of her low back and left leg pain. He considered that following the surgery carried out by Dr Al Khawaja on 30 November 2017, she had achieved maximal medical improvement. He disagreed with and took what appears to have been a vituperative aim at Dr Teychenne’s view that there may be a thoracic problem, saying, without identified evidence, that this “seems to be a very common diagnosis made by Dr Teychenne, even for people with lower back pain with obvious evidence of disc disease in her back…”. Dr Teychenne was not required to comment on that criticism and it has not been sustained by cogent evidence.

248. Based on the plaintiff’s part time work he believed she was not totally unfit for work, and that restricted duties and activities were required in her case. He agreed that her current treatment regime of medication, physiotherapy, exercise and hydrotherapy was appropriate. He recommended psychological counselling as a potential benefit to her. He stated that he did not believe she should increase her working hours beyond 20 hours per week, and she would not benefit from further [surgical] treatment: Exhibit “A”, pp 172 – 182.

Further MRI on 12 November 2020

249. On 12 November 2020, the plaintiff underwent a further MRI scan of the lumbar spine at the request of Dr Robalino because of her experience of exacerbated lumbar spine pain and radiculopathy with a comparison of previous scans taken in May 2018. The report of that scan was as follows:

“Findings:

Normal alignment of lumbar lordosis and five lumbar type vertebrae identified, The marrow signal is normal. Multilevel disc desiccation predominantly seen at L2/3, L3/4 and L5/Sl, No pars defect or spondylolisthesis. Mild to moderate bilateral facet osteoarthritis seen at L3/4 and L4/5.

From T12/L1 to L1/2, there is no significant disc protrusion, central canal or foraminal stenosis.

At L2/3, a broadbased disc osteophyte complex prominent in the left foraminal region abuts the left exiting L2 nerve root at the foraminal/extraforaminal level. The right neural exit foramina and central canal is adequate.

At L3/4, a small annular fissure is seen centrally measuring 2mm. No associated focal disc protrusion or extrusion. Broadbased disc bulge causing bilateral mild to moderate foraminal narrowing. No effacement of perineural fat or distortion of the exiting L3 nerve root to suggest nerve root impingement.

At L4/5, mild bilateral foraminal narrowing due to facet hypertrophy. The central canal is adequate.

At L5/S1, shallow broadbased disc bulge without compromising the central canal or neural exit foramina. The descending S1 nerve roots are adequate.

The conus terminates at L1. The visualised inferior cord and cauda equina nerve roots are normal.

No abnormality of the visualised sacroiliac joints. There is no hydronephrosis or retroperitoneal lymphadenopathy.

CONCLUSION:

L2/3, L3/4 and LS/S1 disc degeneration associated with shallow broadbased disc bulge with a small posterior midline annular fissure at L3/4. No focal disc protrusion or extrusion. Bilateral mild to moderate facet osteoarthritis at L3/4 and L4/5. No pars defect.

There is mild to moderate left L2/3 neural foraminal narrowing and contact of the exiting L2 nerve root by the disc, query nerve root irritation/impingement. The other neural exit foramen in the central canal remain capacious.”

[Exhibit “1”, Volume 2, Tab 87, pp 651 – 652]

Dr Robalino – 15 December 2020

250. On 15 December 2020, Dr Robalino answered a questionnaire posed to him by the workers’ compensation insurers iCare Insurance and EML. He addressed a series of 8 questions. In his responses, he took issue with some of those questions. In essence, his responses highlighted the plaintiff’s ongoing physical symptoms of chronic left sciatic pain causing difficulty walking, with concurrent body stiffness, and emotional distress due to pain: Exhibit “A”, pp 187 – 189.

Dr Al Khawaja – 22 December 2020

251. On 22 December 2020, the plaintiff was re-assessed by Dr Al Khawaja in a telehealth consultation. In his view, the MRI findings did not explain the plaintiff’s episodes of bladder or bowel incontinence. He suggested a thoracic and cervical MRI investigation, but noted that the plaintiff was not keen to have that investigation or further surgery at that stage. He recommended she continue with physiotherapy and hydrotherapy and he discharged her from his care but was prepared to see her again if there were emergent concerns: Exhibit “5”, Tab 11, pp 82 – 83. His reference to a thoracic investigation tends to throw doubt on Dr Bentivoglio’s criticism of Dr Teychenne’s views.

Dr Robalino – 14 February 2021

252. On 14 February 2021, Dr Robalino again responded to the worker’s compensation insurer’s correspondence seeking further information. He did so in a short letter drawing upon his review of his extensive clinical records between June 2017 and January 2021. He explained to the insurer that the plaintiff’s recent work capacity attempt had to be downgraded to total incapacity for work on account of the development of a severe depressive illness which he identified as Major Depression and Anxiety due to injury-related stress, pain, inability to function normally at home and with her activities of daily living, all of which were work-related, and requiring psychological treatment, which he recorded in his notes as comprising post-traumatic stress disorder: Exhibit “A”, pp 212 – 239.

Dr Tom Lieng – 8 October 2021

253. On 8 October 2021, at the request of the workers’ compensation insurer, the plaintiff was assessed for her potential work capacity by Dr Tom Lieng, an approved Workcover injury management consultant.

254. Dr Lieng noted that the plaintiff had not recovered from the aggravation of her condition by returning to work and she has been certified as being unfit for work since 14 December 2020. He recorded her ongoing symptoms as lumbar pain with radicular pain to the left leg to the foot and associated paraesthesia, weakness in the left leg, difficulties with dressing, with stairs, feeling unstable and a proneness to falls, and walking with a limp, with the pain having worsened since a fall in April 2021. On examination he noted that she walked with a slow, cautious, and antalgic gait, reduced flexion and extension and lifting restrictions. He considered her to be fit for suitable duties with restrictions on working hours, travel time, lifting weights, sitting, walking and standing. He recommended a further MRI scan to investigate the plaintiff’s significant left leg weakness. He noted he had consulted with Dr Robalino who considered the plaintiff was unfit for any work at that time: Exhibit “A”, pp 190 – 196: Exhibit “1”, Volume 1, Tab 58, pp 164 – 170.

Ms Rennie Schmid – Psychologist – 2 May 2022

255. On 2 May 2022, Ms Schmid, a counselling psychologist, updated her previous report and noted that her psychological counselling of the plaintiff commenced in 2018 and had continued through until 14 April 2021. She again concluded that she did not find any evidence of enduring negative psychological symptoms other than her reaction to pain and having to adjust to the permanency of the effects of her workplace injury. She identified the stressors which led to her needing to find support in circumstances where her employer had been unable to find appropriate work for her, and there had been a reduction and withdrawal of her payments by the workers’ compensation insurer: Exhibit “5”, Tab 9, pp 78 – 79, Tab 10, pp 80 – 81.

256. Subsequently, on 14 February 2024, Ms Schmid issued a letter to Dr Robalino and to the plaintiff’s solicitors in which she essentially reiterated the opinion she had expressed in the preceding paragraph: Exhibit “5”, Tab 10, pp 80 – 81.

Functional capacity evaluation

257. On 24 May 2022, at the request of the solicitor for the defendant, the plaintiff cooperated with a functional capacity assessment undertaken by Ms Vicki Davey, an occupational therapist employed by WorkHab International in conjunction with Recovre.

258. At that assessment, the plaintiff was tested for her physical capacities or tolerances in a variety of ways over a 2-hour period whilst wearing a heart rate monitor and whilst performing a series of identified tasks involving grip strength, cardiovascular fitness, postural tolerance, dynamic strength, mobility and manual handling abilities.

259. Ms Davey’s approach was informed by the content of medical reports from Dr Vijay Panjratan dated 6 February 2020 and Dr Tom Lieng dated 8 October 2021, and a series of Workcover certificates from Dr Carlos Robalino dated 8 March 2022 and 14 April 2022. Following her testing of the plaintiff Ms Davey concluded that the plaintiff had a physical capacity for sedentary work involving limited physical activities as defined in her report, including occasional lifting of weights limited to 4.5 kgs as a maximum, handling light objects and some walking and standing. Ms Davey noted the plaintiff’s own perception at that time was that she believed she could work in a suitable light duties role for 20 hours per week as defined by Dr Lieng.

260. Ms Davey’s assessment appears to have been limited to the assessment of physical capacities and did not canvass psychological issues that might have an adverse impact upon the plaintiff’s work capacity. The factor of pain in the course of activity was only mentioned in passing at several points in the report, and obliquely, by reference to a scale of 4 out of 10, including using the subjective and apparently incongruent adjectival descriptor of “slight’ when referring to lower back pain and weakness in the left leg, a feeling of unsteadiness, and an apprehension of an imminent fall when tested on a manual handling task. The effects of the plaintiff’s pain medication were not discussed in Ms Davey’s report: Exhibit “5”, Tab 12, pp 84 – 91.

261. On 24 May 2022, Ms Sarah Fuller, a Rehabilitation Consultant with Recovre, prepared an earning capacity assessment report based on the assessment and supporting materials that underpinned Ms Davey’s report including some labour market research she carried out. She concluded that the plaintiff could be suitably employed for 20 hours per week as a Clinical Nurse Facilitator / Educator at a rate of $39.53 per hour or $790.60 per week gross, where the industry average wage was identified as being $2190.00 per week gross, which equates to $54.75 per hour assuming a 40-hour working week. The discrepancy in those rates was not explained in the evidence: Exhibit “5”, Tab 13, pp 92 – 104.

Dr Tim Anderson – review on 6 April 2023

262. On 6 April 2023, at the request of her solicitor, the plaintiff was assessed by Dr Anderson for a second time. The history and findings on Dr Anderson’s previous examination of the plaintiff were stated to have been essentially similar to the findings on this examination. His report of that assessment is dated 9 April 2023: Exhibit “D”. On the basis of his previous findings as confirmed on this occasion, Dr Anderson stated that the plaintiff was not fit to return to work although she was fit to work in a suitable administrative role. He noted that surgical treatment had not been successful and she has been left with lumbar discopathy and radiculopathy, and she has a prognosis for increasing and accelerated degenerative changes in her lumbar spine.

Dr Peter Bentivoglio – review on 24 August 2023

263. On 24 August 2023, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Bentivoglio. His report of that examination was dated 11 September 2023: Part of Exhibit “D”.

264. As appears from the second page of that report, Dr Bentivoglio was briefed with some materials that are not in evidence in these proceedings: Items he listed as (d), (e) and (f). Essentially, Dr Bentivoglio’s opinion was to the following effect:

265. He considered the plaintiff’s 2017 back injury to be a flare-up of the 2014 injury and that it was brought on “again” by lifting heavy patients;

266. At the time of his examination he considered the plaintiff’s persistent low back pain to be discogenic in origin secondary to disc problems at L2/3 and L3/4 with some neuropathic pain but no evidence of radiculopathy. It is difficult to understand that latter view as to the absence of radiculopathy given that he recorded a history of an antalgic gait and current symptoms of left leg pain made worse by walking and sitting;

267. He considered that the plaintiff’s experience of her left leg giving way was probably related to her left leg pain caused by the previous disc injuries at L2/3 and L3/4 “caused by the sort of work she has done;

268. He considered that the plaintiff needed to have a further MRI scan as no change should be made to the diagnosis without the result of such a scan;

269. He considered that the plaintiff was not fit for either full or part time work at that point, which was a change from his earlier opinion. He reiterated that she was totally unfit for work because she could not mobilise adequately, and because she had chronic leg and back pain and her leg tends to give way, followed by falls;

270. He considered the plaintiff’s prognosis to be very guarded and he believed she “may well need to have the surgery that is recommended by Dr Al Khawaja which she does not wish to have”.

Nepean Hospital – admission 30 December 2023

265. On 30 December 2023, the plaintiff was admitted to the Emergency Department of Nepean Hospital after a syncope event which she experienced whilst gardening in the context of back pain where it was reported that “she was away for [about] 30 seconds”. In the ensuing fall she had hit her head. She presented with headache, neck pain, nausea and blurred vision. Those symptoms were noted to have resolved. Ambulance officers reported that she had a right-sided haematoma. The plaintiff’s history of back pain and related treatment was noted. The diagnostic impression was thought to be either a vaso-vagal event or orthostatic hypotension. After consideration, and the review of cranial and cervical CT scans, which revealed no abnormality, the plaintiff was discharged home: Exhibit “1”, Volume 1, Tab 59, pp 171 – 177.

Dr Robalino – recent certificate of incapacity for work – 14 March 2024

266. On 14 March 2024, Dr Robalino certified that the plaintiff was unfit for any type of employment and had suffered “aggravation – exacerbation of pain”, had stiffness, limited functioning, and had falls. Dr Robalino was not required for cross-examination on those views which were plainly based on the plaintiff’s unchallenged history and his long-term familiarity with that history based on his successive evaluations of her condition: Exhibit “A”, pp 246 – 253.

Dr Eddie Price – Occupational physician

267. On 3 April 2024, apparently at the request of the defendant, the plaintiff was re-examined by Dr Price, whose report was dated 4 April 2024: Exhibit “1”, Volume 1, Tab 60, pp 178 – 189; Exhibit “5”, Tab 3, pp 17 – 28. Uncertainty arises because the first page of the report was not copied as part of the Exhibit. Dr Price responded to a series of 13 questions that were posed to him for consideration. His conclusions on those matters were as follows:

268. In his opinion the 2017 injury had “aggravated” the injury the plaintiff had reported in 2014. His reasoning for that theory was not identified;

269. The plaintiff “has a recurrence of chronic low back pain with same (sic) sciatic like symptoms of the left leg”. He considered that there was “some [unidentified] inconsistencies between the [plaintiff’s] symptoms an**d signs” which he considered to not fit with unstated and unidentified “investigations of her propensity to travel both interstate and overseas”, where the reasoning to support that view was not apparent;

270. He considered the 2014 injury “was aggravated in the incident of 15 May 2017” and that there was a “base of pre-existing disability”. That view did not engage with or take into account the more contemporaneous evidence of the plaintiff’s treating doctor or Dr Stephen to the effect that there had been a recovery from the 2014 injury;

271. He considered, speculatively without identified reasoning, that the plaintiff’s presentation was “i**nconsistent from the minor aggravation that may have occurred” and he felt the plaintiff demonstrated “little acceptance of responsibility to get herself better with her own home exercises”. That criticism should be seen to carry little if any weight where the plaintiff was not challenged with that proposition, and where he did not explain that view with cogent reasoning;

272. He accepted that the plaintiff was prevented from returning to her pre-injury duties as a coronary care nurse, but he “felt with good intension” (sic) and with the assistance of a rehabilitation provider, it would be therapeutic for her to carry out other nursing work;

273. He seemed to think that the plaintiff’s leisure pastime doing her artwork, of painting, and her unidentified extensive travelling ought to have been “a difficult undertaking with her lower back alleged condition”. That view was not explored in any relevant detail in the defendant’s cross-examination of the plaintiff;

274. He seemed to have linked the initial post-operative improvement in the plaintiff’s back condition with the fact that she had regressed since her employment was terminated by the defendant. The underlying implication behind that opinion had not been fairly put to the plaintiff for her comment;

275. He considered that the plaintiff has received reasonable treatment “but has made a little effort to self-implement a rehabilitation program” and suggested that she increase her home walking exercises, gentle back exercises, and “accept responsibility for further recovery”. Without a detailed definition of those suggested further steps that opinion remains somewhat obscure;

276. He emphatically rejected the notion that the plaintiff should have further invasive treatment by saying further surgery was “definitely” contraindicated. Instead he recommended that she attend a pain management programme to try to maximise her recovery;

277. He believed the plaintiff should have a gradual “re-in**duction to the workplace after she has accepted that she should work on with some discomfort” but he added that she “needs to avoid general nursing duties and avoid heavy lifting and frequent bending”;

278. He believed she could perform a Telehealth nurse role and the role of a clinical nurse facilitator for training nurses as well as other nurse administrator roles;

279. He said, without the level of supporting reasoning as required by UCPR Sch 7, cl 3(e), that he “felt there was a gross inconsistency and evasiveness in terms of her response to overseas travel as well as to her general sickness behaviour” and he also felt “that there was a tendency to maximise symptoms and signs rather than minimise” them. That latter view did not coincide with my assessment of the plaintiff’s evidence which was accompanied by an attitude of stoicism;

280. He stated that in his opinion she “is not motivated to seek alternative employment” and said that he “gained the impression that she has decided to retire or semi-retire having been the major bread winner in the family for many years”. That proposition was not put to the plaintiff for her comment.

Emergency admission to Nepean Hospital on 9 April 2024

268. On 9 April 2024, the plaintiff was admitted to the Nepean Hospital emergency department with a background history of chronic acute sciatic back pain, two recent falls, and an inability to mobilise due to pain. After being given analgesia and undergoing CT lumbosacral imaging and an examination she was discharged to be followed up by her general practitioner: Exhibit “A”, pp 249 – 253.

Dr Peter Bentivoglio – file review on 16 April 2024

269. On 16 April 2024, at the request of the solicitor for the defendant, Dr Bentivoglio undertook a file review based on documents, some of them apparently not in evidence, including a “Desktop investigation report dated 23 November 2023” and the plaintiff’s travel history in 2022. He considered the plaintiff was “slowly but surely deteriorating because of multiple falls” and he considered it “inadvisable for her to return to any form of work especially as she requires walking stick to move around”: Part of Exhibit “D”.

Dr Neil Cochrane – report 3 May 2024

270. On 11 April 2024, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Cochrane. At that time Dr Cochrane was located in Queensland and the examination was conducted by means of a Telehealth video connection. This consultation preceded the plaintiff’s most recent hospital admission.

271. Dr Cochrane took a history of the plaintiff’s ongoing low back pain, particularly on the left side through to the flank, left leg and foot, and continuing episodic incontinence, of having a fall the previous week, and limited capacity for a range of activities. The scope for a meaningful physical examination and assessment was stated to have been limited by the video format of the interview. Dr Cochrane reviewed a range of imaging studies carried out between 8 June 2017 and 30 March 2019. He did not have the benefit of the most recent imaging studies from Nepean Hospital. His opinion was set out in a series of responses to some 20 questions and some additional sub-questions: Exhibit “A”, pp 287 – 309; Exhibit “1”, Volume 1, Tab 61, pp 190 – 212; Exhibit “5”, Tab 6, pp 41 - 56. In essence, his opinions were as follows:

272. Having noted that the plaintiff continued to suffer significant pain symptoms, he was unclear and could not make a clear connection as to the cause of her bladder and bowel dysfunction, but conceded it was conceivably possible that arachnoiditis below the L3/4 level may have been a consequence of the previous surgery as a complication, where there was the potential for a dural injury including intra-dural scarring, where arachnoiditis is an accepted cause of distal neurological dysfunction, including sphincteric dysfunction which has led to bladder and bowel dysfunction;

273. He was unable to undertake a full neurological assessment via the video link and was therefore unable to provide definitive answers to some of the questions asked of him by the defendant’s solicitor;

274. He considered that on the balance of probabilities, the plaintiff’s employment was the substantial contributing factor to a foraminal left L2/3 disc protrusion being an aggravation of lumbar spondylosis and the plaintiff’s gait disorder. He was unable to undertake a full neurological assessment via the video link and was therefore unable to provide definitive answers to some of the questions asked of him by the defendant’s solicitor;

275. He considered that the plaintiff’s description of significant back pain and her left leg giving way, and similarly described episodes, were conceivably due to a foraminal disc protrusion compressing the left L2 nerve root;

276. He said that although the plaintiff ought to have recovered from the L2/L3 foraminal compression following the surgery performed by Dr Al Khawaja, one has to accept that a small residual or recurrent disc bulge may provide sufficient irritation to cause ongoing symptoms in the L2 dermatome and myotome distribution;

277. On the basis of the plaintiff’s symptoms of pain, bladder and bowel incontinence and the history of her lower limb giving way, he considered that she had no realistic capacity for work, either on a full or a part time basis and she must be considered to be totally unfit for work in the real world in the foreseeable future;

278. His commentary on the report of Dr Teychenne (at page 300 of the Exhibit), must be read in light of the concurrent expert evidence given by those witnesses*.*

Emergency admission to Nepean Hospital: 2 – 8 May 2024

272. Between 2 and 8 May 2024 the plaintiff was admitted to Nepean Hospital for acute chronic back pain, reduced range of movement and weakness, which was incorrectly described as having commenced on 29 May 2024: Exhibit “A”, pp 310 – 319.

273. An MRI scan of the lumbar spine carried out on 7 May 2024 was reported as showing mild to moderate degenerative changes of the lumbar spine. It was recorded as noteworthy that at L2/3 a posterior disc protrusion and facet joint arthropathy was causing severe left foraminal stenosis with likely compression of the exiting L2 nerve root, causing moderate to severe spinal canal stenosis at this level with bunching of the cauda equina nerve roots. In light of that latter finding, the earlier notation on the same page (p 310) stating “nil concerns of acute cord compression/cauda equina syndrome” remains unexplained as to its significance, particularly as the issue had been discussed with the neurosurgical team with an unknown outcome. According to the discharge summary the plaintiff was treated with strong analgesia and discharged with a plan for her to be followed up by Dr Al Khawaja and her general practitioner for ongoing management.

Dr Andrew Porteous – 9 May 2024

274. On 9 May 2024, at the request of her solicitor, the plaintiff was examined by Dr Andrew Porteous, a consultant occupational physician in a video conference call. His report of that consultation (dated 31 May 2024, pp 1 – 11) is Part of Exhibit “D”.

275. Dr Porteous had been given copies of reports from Dr John Stephen dated 17 November 2014, Dr Con Kafataris dated 27 June 2017, Dr Vijay Panjratan dated 6 February 2020 and Dr Mathew Buxton dated 9 September 2020. The report of Dr Buxton is not in evidence.

276. Dr Porteous stated (at page 6 of his report) that, given the challenges of the examination where he could not test for sensation, he considered the plaintiff should actually be seen in person for a more definitive clarification of the clinical findings.

277. That said, after weighing the findings and the history, and the records provided to him, he considered it was more likely than not on the balance of probabilities that the plaintiff had an aggravation or exacerbation of pre-existing degenerative change in the lumbar spine which resulted in the need for surgical discectomy at L2/3 and L3/4, and which has left her with chronic long term back pain from her work related lumbar injury. He noted the plaintiff also likely had a degree of psychological sequelae and disability, and that she appears to have a significant disability that is increasing.

278. Significantly, Dr Porteous noted that the nursing profession is well known to have a higher risk of lumbar back injury compared to the general population of the same age not undertaking intermittent heavy activity with at times associated bending. His comments on the plaintiff’s work capacity, which he described as reduced due to marked disability, were qualified by reference to her low mood and psychological deterioration which was beyond his area of expertise.

279. Dr Porteous noted the plaintiff held a degree of fear that movement would increase her pain, leading to hesitancy of movement. He said he did not believe there was evidence of exaggeration. He stated that “malingering is a psychiatric diagnosis and a P**sychiatrist would need to comment on that”. That comment was in response to question 15(5) which he was asked to address in his report. There is no evidence to suggest the plaintiff was examined by a psychiatrist at the request of the defendant.

Dr Robalino – most recent certificate of incapacity for work

280. On 14 May 2024, Dr Robalino certified that the plaintiff was permanently unfit for any type of employment and suffered “aggravation – exacerbation of pain*”,* stiffness, more limited functioning, falls, depression, stress, an anxiety disorder and compounding PTSD. He also noted the plaintiff was unable to control her bladder and experienced sporadic faecal incontinence and required a permanent carer as she is unable to cope at home. He identified the need for assessment by a psychologist and an occupational therapist. Dr Robalino was not required for cross-examination on those views: Exhibit “A”, pp 317 – 319.

Dr Robalino – referral to Dr Al Khawaja on 14 May 2024

281. On 14 May 2024, Dr Robalino referred the plaintiff to Dr Al Khawaja for an opinion and ongoing management, citing her need for critical care and her experience of collapsing falls due to pain, a lack of pain control, weakness, and randomly occurring loss of bladder control, faecal incontinence, and a request for urgent consideration to be given for admission to hospital: Exhibit “A”, p 320.

Admission to Nepean Hospital on 15 May 2024

282. On 15 May 2024, the plaintiff was admitted to Nepean Hospital and stayed there for 16 days as an in-patient until she was discharged on 31 May 2024. She had presented there with “acute on chr**onic back pain” with “below baseline mobility”, this being an acute flare-up. An MRI taken on 7 May 2024 against a comparative background CT study taken on 3 May 2024 noted:

“Mild-to-moderate degenerative changes of the lumbar spine as described. Of note, at L2/3, a posterior disc protrusion and facet joint arthropathy cause severe left foraminal stenosis with likely compression of the existing L2 never root and also causes moderate spinal canal stenosis at this level with bunching of the cauda equina nerve roots”

[Exhibit “C”, pp 1 – 5]

283. The plaintiff was discharged home when it was considered safe for her to go home subject to medical follow-up.

284. Dr Cochrane and Dr Teychenne would not have had the opportunity to consider the report cited above when they met in conclave for their joint report dated 27 May 2024. Their views which resulted from that conclave are summarised in the following paragraphs.

Dr Teychenne and Dr Cochrane – Joint conclave report

285. On 27 May 2024, Dr Teychenne and Dr Cochrane participated in a conclave meeting to address a series of 18 questions that were posed for their consideration: Exhibit “5”, Tab 7, pp 57 – 65. In essence, their agreements were as follows:

286. On 15 May 2017 the plaintiff had suffered a spinal injury in the course of her employment;

287. The plaintiff’s 15 May 2017 work injury caused or materially contributed to the plaintiff’s need for neurosurgery;

288. There is MRI evidence of the occurrence of an L2/3 disc protrusion with the clinical suspicion of a more proximal spinal / spinal cord lesion for which MRI imaging of the entire spine was recommended, including to exclude a T2 cord lesion, which if proven to be absent, would not of itself exclude a spinal cord injury;

289. The clinical signs and symptoms and acute onset of those symptoms at the time of the reported event (on 15 May 2017) would be consistent with the plaintiff’s account of being injured when repositioning an incapacitated patient;

290. There was an injury to the plaintiff’s spine at least at the L2/3 level and a possible further lesion at a more proximal level;

291. It is conceivable that the plaintiff had developed arachnoiditis post-surgery, although it is equally likely that it was a more proximal spinal cord lesion. I take the reference to a more proximal lesion to be a reference to a possible thoracic lesion;

292. The presentation of the plaintiff is consistent with an incomplete spinal cord lesion but this has been inadequately investigated;

293. It is highly likely that the plaintiff’s neurological injury resulted in weakness and episodic giving way of the lower limbs;

294. It seems likely that the plaintiff’s neurological injury or possible surgery related arachnoiditis, or both, have contributed to her symptoms of urgency of micturition and urinary incontinence;

295. It seems likely that the plaintiff’s neurological injury or possibly the surgery to manage that injury has contributed to her faecal incontinence;

296. It seems likely the plaintiff’s neurological injury has contributed to her left leg pain or left loin pain;

297. It seems likely the plaintiff’s neurological injury has contributed to her symptoms of stabbing pains in her left loin;

298. It seems likely the plaintiff’s neurological injury has materially contributed to her symptoms of numbness in the left leg;

299. The plaintiff’s prognosis for return to unrestricted work is extremely poor as a result of the subject injury;

300. The plaintiff’s severe level of pain and dysfunction and her need for medications for her motor and sensory deficits render it incompatible that she return to work as a registered nurse;

301. It seems highly unlikely the plaintiff would regain any capacity for nursing work;

302. It seems highly unlikely the plaintiff would have the physical capacity to perform alternative work due to her lower limb dysfunction;

303. On a practical level, the plaintiff does not have the capacity to leave her home to attend the workplace due to intermittent failure of her lower limb, particularly with walking.

Concurrent expert evidence by Dr Teychenne and Dr Cochrane

286. In their concurrent evidence in chief the experts agreed that:

287. It is very likely the plaintiff has arachnoiditis in the lumbar spine, a painful condition comprising post-surgical scarring causing tethering or clumping of fine nerves predominantly on the left side causing bladder and bowel sphincter dysfunction: T222.50 – T223.45;

288. Furthermore, the plaintiff has MRI evidence of bunching of the cauda equina nerve complex in the lumbar spine which causes pain and weakness in the lower limbs and in related nerves, most likely due to post-surgical recurrence of disc protrusion: T223.50 – T224.18;

289. There is MRI evidence of the cauda equina nerve compression as a consequence of disc protrusion which has caused stenosis of the spinal canal: T224.20 – T225.20;

290. Depending on variations in posture and activity, spinal canal stenosis typically causes symptoms in the lower limbs, back pain, and neurological dysfunction in terms of incontinence as a result of mechanical factors due to narrowing of the spinal canal: T225.35 – T236;

291. The plaintiff’s symptoms are highly suggestive of a partial spinal cord lesion which is associated with imbalance, and the MRI evidence revealed a T2 hyper-intensity which identified a definite spinal cord lesion: T226.13 – T226.50. In that context, the reference to a T2 hyper-intensity seems to relate to the weighting or type of imaging that was obtained rather than a reference to a lesion at the severed thoracic vertebra;

292. There is no sound reason to doubt the clinical diagnoses outlined above notwithstanding the absence of pursuit of earlier suggested further clinical investigations or tests: T227.1 – T227.9.

293. During the cross-examination of the experts the above agreements were further explained, as follows:

294. The experts agreed that spinal cord stenosis simply meant that there was a narrowing at a particular point, that narrowing not being of the cord itself because there is no spinal cord structure at L2/3 and L3/4 as the cord is terminated higher up, and the narrowing in question is caused by a severe compression of the cauda equina nerve roots due to the recurrent L2/3 disc bulge as revealed on the most recent MRI scanning: T228.5 – T228.30;

295. The experts agreed that although it is possible there could be a spinal lesion at a level higher than L2/3, absent MRI scanning at that higher level, the most likely cause of the plaintiff’s symptoms is the recurrent disc protrusion at L2/3 which was initiated by the weakening of the disc by injury and by the surgery the plaintiff had undergone: T228.35 – T229.17;

296. Dr Teychenne considered that the plaintiff’s symptoms of occasionally dropping things from her left hand might have been due to some weakness in her left interosseous muscles. He considered that this was not markedly significant, whereas the sensory and weakness problems in the left leg, urinary urgency and incontinence was more so. In giving that explanation, Dr Teychenne considered the left-hand symptoms were just incidental, and not evidence of an incomplete cervical cord lesion. Dr Cochrane offered no disagreement with that explanation: T230.20 – T231.15;

297. When the experts had their attention drawn to the possible interchangeable use of the terms “aggravation” and “exacerbation” they agreed that exacerbation meant an increase in symptoms in a chronic way because the underlying condition has been made worse by an event: T231.17 – T232;

298. Dr Cochrane agreed that between the time of his examination on 3 July 2017 and his reconsideration on 11 April 2024, his impression was that the plaintiff had undergone a deterioration in her condition: T233.5 – T233.11;

299. As I understand the evidence of the experts, they agreed that spinal injection of cortisone into the back has the potential to be done “not well”, and some persons do not get a complete reduction in symptoms: T233.13 – T234.32;

300. The experts agreed that the plaintiff’s underlying condition as aggravated by the incident in question was a permanent aggravation because of the emergence of a new foraminal disc protrusion: T235.35 – T236.8;

301. In effect, the experts agreed that the plaintiff’s underlying condition would have in any event produced lumbar symptoms due to underlying pre-existing multilevel degenerative arthritis, but it is not possible to reasonably predict when a gradual deterioration may lead to the same symptom severity as might be produced by a more rapid onset due to a trauma: T236.10 – T236.40;

302. Dr Cochrane stated that in considering the evidence it would be a somewhat arbitrary exercise to seek to quantify, by a percentage deduction the component of the risk of a deterioration of an underlying spondylosis condition so as to produce symptoms either with or without trauma: T237.40 – T238.35;

303. On the question of the plaintiff’s capacity to carry out duties alternative to the requirements of hands-on nursing, Dr Teychenne pointed out that with spinal lesions, activities such as prolonged sitting, prolonged standing, twisting, lifting, excessive walking, rapid walking, being jolted, are all factors that can exacerbate the experience of pain: T239.41 – T240.29;

304. The experts did not suggest that the plaintiff’s facial expressions and hyperanimated presentation which had been the subject of earlier remarks, indicated malingering, was a matter for psychiatric determination, for which there was a heavy burden of proof: T241.37 – T242.14.

305. The historical trail of medical evidence ends at that historical point.

PART E – Submissions of the parties

289. Following the completion of the evidence, the parties forwarded an extensive series of written submissions and supplementary submissions with annexed schedules in addition to oral submissions. That material included an exchange of emails between counsel seeking to clarify what was and was not included in the ultimate array of Exhibits to be considered after the defendant indicated it would no longer rely on some of the contents of Exhibit “1”, where with identified exceptions, in response the plaintiff indicated that she would then rely on those documents, as explained at paragraph [66] above. The resultant email dated 14 August 2025 from the parties has been marked MFI “6”.

290. In the paragraphs that follow, the written submissions will be reviewed in the following sequence in conjunction with the oral submissions:

291. Plaintiff’s written submissions dated 2 July 2024;

292. Defendant’s written submissions dated 4 July 2024;

293. Defendant’s supplementary submissions dated 19 July 2024;

294. Defendant’s further written submissions dated 7 March 2025;

295. Plaintiff’s further written submissions dated 18 March 2025;

296. Defendant’s further written submissions dated 21 March 2025.

297. The supplementary sequence of submissions followed a relisting of the matter on 6 March 2025 to seek the assistance of the parties and to seek a more helpful chronology to aid the consideration of the extensive documentary materials. In response, the plaintiff forwarded further written submissions on 18 March 2025, the defendant then forwarded further written submissions on 21 March 2025. Those submissions were supplemented by further oral submissions on 11 July 2025: T247 – T262.

298. A further listing took place on 14 August 2025 to clarify aspects of the evidence: T267 – T270.

299. A further listing took place on 20 November 2025 to clarify another aspect of the evidence concerning matters that were excluded from the consideration: T271 – T273.

300. The essence of the respective submissions is summarised as follows.

(1) Plaintiff’s primary submissions dated 2 July 2024

295. The plaintiff’s primary written submissions, which were adopted in the course of oral submissions, claimed damages in the submitted sum of $1,630,000 plus costs: Paragraphs 1 to 92. In essence, after dealing with the evidence on historical matters, the plaintiff submitted that:

296. Prior to the events of 15 May 2017, she was foreseeably vulnerable to incurring back injury by reason of her earlier back injuries at work, and therefore, in addition to the usual duty of care the defendant owed to all of its nursing staff, the standard of care was higher in this instance because of her prior history of back injury, particularly since those earlier injuries occurred in the course of her employment with the defendant;

297. As a result of the earlier history of back injury at work, the subject injury was not only foreseeable but was inevitable because the defendant continued to maintain the system of work that required manual movement of patients in the coronary care unit. In those circumstances “recurrences” of back injury would foreseeably arise particularly in view of the plaintiff’s vulnerability to incur such injuries, which the plaintiff submitted is in fact what ultimately occurred;

298. The defendant failed to institute and maintain a safe system of work for the plaintiff in circumstances where it ought to have known the prevailing system of work could cause foreseeable injury;

299. The defendant was in breach of the duty of care it owed to the plaintiff in the course of her employment when her work required her to move heavy dependent patients;

(a) it failed to provide sufficient personnel to safely enable the safe movement of heavy dependent patients in its coronary care unit; (b) it failed to provide a bed extension device which would have obviated the need to recurrently manually move and reposition the immobile index patient who was repeatedly slipping in his bed; (c) it failed to provide a bed which was ergonomically designed to enable the safe positioning of patients without the need for manual handling; (d) it failed to provide suitable mechanical means by which to enable heavy patients to be moved without unreasonably exposing its employees to the risk of physical injury by having to perform the required tasks manually.

5. The plaintiff’s back injury was relevantly caused by the defendant’s breach of the duty of care owed, and damages should be assessed in the amount claimed.

6. The plaintiff’s liability submissions relied upon the expert opinions of Ms Cacciola and on a commonsense analysis of the underlying facts to argue for a finding of negligence against the defendant as claimed.

7. The plaintiff’s submissions on damages were based on the documentary evidence which will be referred to at a later point in these reasons in relation to the particular heads of damage claimed.

(2) Defendant’s primary submissions dated 4 July 2024

298. The defendant first filed its extensive primary written submissions on 4 July 2024: Paragraphs 1 – 209. Those submissions sought findings for a rejection of the plaintiff’s claims on all liability grounds.

299. In the alternative, the defendant’s submissions annexed three alternative damages scenarios, first, arguing for a $Nil monetary result after applying an offset for past workers’ compensation payments, secondly for an assessment of damages for $212,164, and thirdly, for a damages assessment of $378,781.

300. In making those submissions the defendant placed emphasis on challenges to the plaintiff’s factual account of the events, where those challenges were based on various historical accounts which appeared within medical records and within the defendant’s Riskman software records system.

301. The defendant’s primary submissions reviewed the plaintiff’s factual evidence and traversed the plaintiff’s history of training in the manual handling of dependent patients whilst she was in overseas employment, and referred to that evidence as the basis for submitting that she had been properly trained in manual handling techniques. Those submissions also made extensive criticisms of the expert opinions provided by the plaintiff’s expert witness, Ms Cacciola.

302. The defendant’s factual challenges to the plaintiff included the propositions that: the injury did not occur in the manner she claimed, particularly with regard to the claimed element of lifting the patient; alternatively, if the claimed incident did occur as claimed, it would have been at 11:30am on the morning shift, in which event the plaintiff could have called for assistance from “additional persons” to assist in performing the manual handling task in question. The defendant argued that there was adequate equipment on hand which would have enabled the index patient to be safely nursed in an appropriate physical position and posture.

303. The defendant argued that the plaintiff’s account of events should not be accepted and that there should be no finding of negligence against the defendant, arguing that the plaintiff has not established a sufficient basis in the evidence to justify a finding of a breach of duty of care.

304. In the alternative, the defendant sought findings that any incident on 15 May 2017 was not the relevant cause of her back complaints. The defendant argued that the plaintiff’s history of fitting and falling should be taken into account in relation to the cause of her claim of inability to work. The defendant also argued in the alternative that there should be an apportionment finding of 30 per cent contributory negligence against the plaintiff.

305. On the question of damages, the defendant argued that the plaintiff’s pre-exiting degenerative back condition would have to a material extent ultimately adversely affected her capacity to work as a registered nurse.

306. The defendant’s submissions annexed alternative damages scenarios and calculations which will be identified and addressed in the findings concerning the assessment of the plaintiff’s damages.

(3) Defendant’s supplementary submissions dated 19 July 2024

307. On 19 July 2024 the defendant presented supplementary written submissions on quantum that identified different elements for assessment: Paragraphs 1 – 9. Those submissions will be considered in the context of the reasons for determining the appropriate quantum of the plaintiff’s claim.

(4) Defendant’s further supplementary submissions dated 7 March 2025

308. The defendant’s further supplementary submissions dated 7 March 2025 clarified some aspects of the evidence ultimately relied upon by the defendant and which clarified the periods during which workers’ compensation payments were made.

(5) Plaintiff’s supplementary submissions dated 18 March 2025

309. The plaintiff’s supplementary submissions addressed a revised chronology of events and aspects of the specific evidence of the system of work that involved the use of slide sheets to reposition patients.

310. Those submissions highlighted the foreseeability of injury in the context of the system of work that required the plaintiff “to work with one other person in what would obviously be a hazardous task if the patient was large and not supine”.

311. The plaintiff’s supplementary submissions placed emphasis on the factual circumstances where she had already finished her rostered shift and only one other nurse, Ms McDermott, was on hand to reposition the patient, where it was that nurse who had called upon the plaintiff to assist her because all of the other nursing staff had gone to an “in service” meeting, leaving just Ms McDermott to perform the manual handling task normally carried out by 3 to 4 nurses. It was in those circumstances that the plaintiff, out of professional compassion, lent her assistance to Ms McDermott at a time when the plaintiff was already off duty from her shift.

312. On the basis of that analysis the plaintiff made further factual and legal submissions about the defendant’s inadequate staffing numbers, its inadequate equipment, and its inadequate policies and procedures for managing high demand patients to prevent injuries when caring for such patients.

(6) Defendant’s second supplementary submissions dated 21 March 2025

313. The defendant’s supplementary submissions dated 21 March 2025 argued that the plaintiff’s evidence as to the deployment of 3 or 4 nurses when using slide sheets to reposition patients was not a plausible evidentiary basis for the liability findings sought by the plaintiff.

314. Those supplementary submissions also clarified the portions of the defendant’s court book that were in evidence in light of some earlier identified confusion on that topic.

315. The salient components of those submissions will be addressed in the context of the issues calling for decision.

PART F – FINDINGS ON ISSUES CALLING FOR DECISION

316. I now turn to the consideration of the issues calling for decision identified at paragraph [60] above.

Issue 1 – Reliability of the defendant’s injury notification records

317. The plaintiff was the only witness who gave direct evidence of the events surrounding her injury on 15 May 2017.

318. The defendant placed what I consider to be questionable reliance upon its own Riskman records for proof of factual matters concerning the plaintiff’s claim of injury, and as to the extent of the plaintiff’s prior training in relation to the techniques for the manual handling of patients in the coronary care unit to seek liability findings contrary to the plaintiff’s evidence. The defendant’s reliance on its Riskman records was questionable because aspects of those records were inconsistent with the content of its own clinical records of its treatment of the plaintiff, as will be explained.

319. The defendant’s reliance on its Riskman records as to the factual circumstances of the plaintiff’s claim of injury necessarily arises in light of Ms Curry’s admittedly limited knowledge of the circumstances, as she had not been on duty on the day in question and she had called upon her limited memory of what the plaintiff had told her. The defendant also relied upon some documentary evidence prepared by Ms Ghaly, its manual handling coordinator, in relation to the extent of the plaintiff’s manual handling training where that evidence had inherent limitations.

320. In those circumstances, in cases such as this, it is commonplace to refer to contemporaneous records for proof of factual matters. This is because of the well understood phenomenon of the potential fallibility of human memory: Watson v Foxman [1995] 49 NSWLR 315, at 319, citing Helton v Allen (1940) 63 CLR 691; [1940] HCA 20; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.

321. It is generally accepted that the evidentiary value of contemporaneously created documentation is often high, and at times persuasive, although not necessarily so in every instance, depending on the content and the surrounding circumstances of compilation, particularly where the purpose, the authorship, and the content of the documents, raise doubts as to their reliability.

322. In my assessment, the defendant’s Riskman records concerning notification of the plaintiff’s injury and regarding factual descriptions of the circumstances of her injury, which have been summarised between paragraphs [122] to [124] above, do not provide a reliable basis for the defendant to contradict the plaintiff’s oral evidence.

323. This is because the key entries in the defendant’s Riskman records system were not prepared with sufficient contemporaneity to the plaintiff’s injury. Ms Curry created them on 13 June 2017 without having personal knowledge of the facts. Furthermore, they contain accounts that were in part composed from a pre-set drop-down menu of descriptive options within the Riskman software, where those factual descriptions did not reliably replicate or align with the plaintiff’s actual words.

324. Instead, the descriptions within the Riskman records represent assessments comprising opinions as to what had happened at the time the plaintiff claimed to have been injured, where those opinions were factually doubtful, and had the potential to mislead insofar as it was said that no specific injurious incident had occurred, and where not all of the authors of those documents, namely the defendant’s employees Ms Macarenhas and Ms de Jesus, were called to explain the detail as to how the records were created, and from where the recorded information had been obtained.

325. The defendant submitted, based on those records, that the plaintiff had not suffered a back injury at work on 15 May 2017, and instead, had injured her back whilst exercising in her garden, at home, on 6 June 2017.

326. To sustain that argument, the defendant referred to and relied upon its Riskman record to the effect that there had been no specific incident which led to the plaintiff’s back pain. That version was recorded by Ms Curry on 13 June 2017 following a telephone conversation with the plaintiff whilst the plaintiff was on annual leave. The defendant placed reliance on the evidence of Ms Curry in which she stated, some 5 years after that conversation had taken place, that she had read back to the plaintiff the cited entry she had created in that Riskman record.

327. The plaintiff fairly conceded that she could not recall all of the conversation she had with Ms Curry on 13 June 2017: T101.29. However, she did recall that Ms Curry had read something to her on the telephone: T102.14.

328. In that context, it was put to the plaintiff that the version Ms Curry had read to her was in the following summarised terms: “Describe the incident, no specific incident, back pain noted at work, anti-inflammatories taken, employer noted patient load was physically heavy during this period”: T102.16 – T106.18.

329. The plaintiff emphatically rejected the proposition that the above note had been read out to her: T102.20. What then followed was a series of interrupted questions and answers where the cross-examiner and the plaintiff were at cross-purposes (at T102.22 – T102.33), following which the plaintiff agreed to disagree on the subject of what had been read out to her: T102.37.

330. The apparent basis of those questions that counsel for the defendant put to the plaintiff comprised paragraphs 64 and 65 of Ms Curry’s evidentiary statement dated 11 April 2022, which had been prepared by an investigator for the defendant’s workers’ compensation insurer some 5 years after the events, namely:

“64. I have documented that Jiji notified me by email on 13 June 2017 that she was off on sick leave because she had hurt her back again. I wrote back to her to ask if she hurt her back at work or whilst she was on leave. Then she called me back to discuss it. I filled out the incident report because she was at home. I read it to her whilst I was on the phone with her to make sure I had recorded the correct information. She noted that the patient load was physically heavy during this period. She told me that she was working with 2 nurses and they were using slide sheets. She was getting a medical assessment and she needed minor treatment.

65. During the conversation with Jiji she reported that she had experienced pain at work on 15 May 2017 and had taken anti-inflammatories but she didn't report it at the time. Then she told me that whilst she was on annual leave she was doing exercises at home on 6 June 2017 her back was agitated. She told me about some issues with the medication and that it had caused her to fall unconscious so I asked her to follow up with her GP which she said she would do.”

[Exhibit “1”, Volume 4, Tab 161, p 1034]

331. In my view, that material, and the cross-examination which followed as cited above, does not assist the defendant in seeking to undermine the plaintiff’s oral evidence on the issue raised. Ms Curry’s recollection at the time when her statement was obtained by the defendant’s investigator on 11 April 2022 was doubtful. The entry or note she made on 13 June 2017 was a composite summary. It was possibly based on a clinical note made by Dr Harding which was not made in the context of a liability investigation of the underlying facts. The input from Ms Macarenhas and Ms de Jesus, remains unknown. On its own, that material is not a conclusive analysis of the factual circumstances of the plaintiff’s injury, and it must be evaluated in conjunction with the plaintiff’s oral evidence.

332. Furthermore, and relevant to an assessment of Ms Curry’s account of the events is her concession that she had recorded “no specific incident” in the Riskman record because when she “started having discussions” with the plaintiff it wasn’t clear to her as to what had occurred: T179.50 – T180.1.

333. That evidence causes me to doubt the basis for the proposition that Ms Curry, in a single phone call, had read to the plaintiff the account she had recorded in the form that was put to the plaintiff in cross-examination because she said she had “discussions” with the plaintiff, which suggests that there was more than just one discussion comprising the cited single phone call.

334. Also of significance is the fact that Ms Curry’s account of the conversation as relied upon by the defendant was introduced in the form of a leading question on an issue in contention in which she was asked whether the 15 May 2017 event recorded at page 972 of Exhibit “1” was something the plaintiff had told her: T178.35.

335. Whilst that leading question was not objected to, the affirmative answer and the evidence led on that topic which followed, must nevertheless be evaluated for reliability given Ms Curry’s concession that she did not have a good recollection of the events in which the plaintiff had told her that her injury on 15 May 2017 involved the manual handling of a heavy patient: T181.4; T186.19. Accordingly, I consider that the leading form of that evidence should be given limited weight.

336. Materially, at T178.50, Ms Curry said in relation to the claimed injury on 15 May 2017, where she had recorded “no specific incident”, that “it wasn’t clear” to her at that time: T178.50. She was unable to clarify what the plaintiff had said to her about manual handling as being a contributory factor (T179.11), and ultimately, when there was a further attempt by counsel for the defendant to lead evidence from her as to what the plaintiff had told her, Ms Curry said, somewhat hesitantly: “If I – yeah, if I’ve written it there, yes”: T179.20. That evidence bespeaks a lack of reliable recall on her part.

337. Significantly, in her oral evidence in chief, Ms Curry did not assert that she had read the entry in question to the plaintiff in the phone call conversation she had with her on 13 June 2017. I consider her statement dated 11 April 2022 on this topic, obtained almost 5 years after the event, should be given limited weight in light of her limited recall and her lack of clarity on the matter at the time she spoke to the plaintiff.

338. For the above reasons, I do not accept that the Riskman records to the effect that there was no specific injurious incident involving the plaintiff at work on 15 May 2017 represents a reliable basis for contradicting the plaintiff’s specific evidence to the contrary.

339. I consider that the plaintiff’s evidence, which was tested, should be preferred on this historical aspect. I consider this to be the preferred approach because it is supported by the more careful and considered record of the plaintiff’s history of injury as noted in the defendant’s clinical notes relating to the plaintiff’s admission to the defendant’s emergency department for assessment and treatment on 14 June 2017, which was the day after Ms Curry made her Riskman notation. Significantly, the emergency department admission record, which has been summarised at paragraphs [179] to [182] above, recorded that the plaintiff injured her back at work in May 2017: Exhibit “A”, p 63.

340. That injury was recorded as being an episode of “muscular stress”. Those records were prepared in the context where a history of her injuries was carefully obtained by medical practitioners for diagnostic purposes: Exhibit “A”, pp 61 – 65. In my view that process of inquiry was more reliable than Ms Curry’s account of the events where she conceded she was unclear as to what had occurred: T179.50 – T180.1. Significantly, in cross-examination of the plaintiff, the defendant did not suggest to her that the defendant’s emergency department note of the circumstances of her history was in any way untrue or incorrect.

341. Another aspect of the defendant’s records which cast doubt upon their accuracy is the unexplained and factually incorrect account of the plaintiff’s 30 December 2014 injury, which in the record of that event was conflated with the factual circumstances of the plaintiff’s earlier back strain of 14 August 2014 injury. This indicates there is scope for the erroneous composition of those records.

342. Furthermore, and significant to an evaluation of the manual handling issue concerning the events of 15 May 2017, the defendant did not call rebuttal evidence from the plaintiff’s nursing colleague Ms McDermott, the nurse who had requested the plaintiff to assist her to reposition the index patient in the lead-up to her injury. Similarly, the defendant did not call oral evidence from its manual handling co-ordinator, Ms Ghaly, as to the factual or practical details of any manual handling training that the plaintiff might have received from the defendant between 2014 and 15 May 2017.

343. Furthermore, it is also noteworthy that the defendant did not call evidence from any of the other nurses who were rostered on-duty at the time of the plaintiff’s injury on 15 May 2017.

344. In this case, the defendant’s employees, including Ms Ghaly and Ms McDermott, must be seen to have been aligned with the defendant’s interests in the litigation. There was no evidence called to suggest they were unavailable to be called to give evidence: Evidence Act 1995 (NSW); Dictionary; Part 2, clause 4(2).

345. That legislation provides, absent the exclusionary factors referred to in clause 4(1), which do not apply in the present case, that a person is taken to be available to give evidence about a fact. It was open to the defendant to call those witnesses to seek to rebut the plaintiff’s factual evidence, or to call evidence to explain their unavailability to give evidence, if that was the fact.

346. Those named employees and the other unnamed rostered nurses may therefore be taken to have been available to give evidence on relevant factual matters as they were sufficiently aligned with the defendant’s interest in the litigation. They could also have been subpoenaed if that step was considered necessary in order to ensure their attendance: Evidence Act 1995 (NSW); Dictionary; Part 2, clause 4(2).

347. Whilst there is ample evidence within the defendant’s records to show, in addition to the plaintiff’s professional background training and experience as a nurse, including in her work overseas, that the defendant had also provided her with some limited manual handling training, the fact that such training took place, including after changes to the preferred methods in 2014, without more as to the descriptive detail of the content of that training, does not of itself assist the defendant.

348. That matter emerges as a point of significant focus here, particularly where the evidence discloses that salient details of the defendant’s system for manual handling in the coronary care unit had changed in late 2014. That fact indicates that the plaintiff’s previous training whilst she was overseas, a generic matter relied upon by the plaintiff, would seem to be less relevant to the defendant’s system of work when considering the safety dynamics of the prevailing circumstances requiring manual handling of the index patient in the defendant’s coronary care unit on 15 May 2017.

349. In this instance, those prevailing dynamics included the recurring need for the index patient to be moved regularly each time he had slipped down on his bed, the limited staff numbers on-duty to perform the required work at that time, the non-availability of a third or a fourth nurse to assist the repositioning of the patient by stabilising his position using slide sheets, the plaintiff’s state of fatigue and tiredness when her shift had concluded, where she was called upon to assist Ms McDermott, who appears to have been the nurse who was primarily responsible for the care of the index patient. The latter inference arises because it was Ms McDermott who had called for the plaintiff’s assistance as the only qualified person available and in the vicinity at a time when the plaintiff was already off duty.

350. The manual handling technique demonstrated to the plaintiff by Ms Ghaly on 23 January 2015, as summarised at paragraph [115] above, was expressed to be a preferred method comprising a full lunge rather than a partial lunge. That description of a preferred method implies that there were other methods, and of itself, does not bespeak a prescriptive or a mandatory method for the use of slide sheets. Instead, it suggests there was scope for some individual variability in the approach to the use of slide sheets according to the physical strength and physique of the staff involved, their co-ordination, and the prevailing dynamics of the situation.

351. A commonsense analysis suggests that there would be an array of relevant considerations involved in approaching the use of slide sheets, including the urgency of the task, the degree of synchronicity of action in the physical coordination of the participant nurses, their relative strengths, physiques, heights, and other ergonomic factors such as the physics of the vector forces required to manipulate and move the inert weight of the patient in order to place the slide sheets underneath his body so as to then enable the attending nurses to reposition him on the bed by pulling, or dragging or pushing him up into the semi-Fowler position.

352. The documentary evidence tendered by the defendant concerning the factual content of its manual handling training has to be considered in light of the absence of explanatory oral evidence from the defendant’s manual handling co-ordinator Ms Ghaly, who must be presumed to have been able to provide detailed factual evidence of those matters, including the details of the suggested changes to the manual handling techniques as they applied after 2014. There was no definitive evidence of the content and the extent of those relevant changes.

353. In my view, the combination of those factors, and the fact that the completion of the defendant’s report of injury forms involved adopting some pre-set dropdown descriptions from a pre-programmed menu, and contained factual inconsistences to the clinical record as to how the plaintiff’s injury circumstances were recorded, indicate that the Riskman and notification records do not provide a reliable basis for contradicting the plaintiff’s otherwise plausible version of events.

354. Significantly, the defendant’s Riskman records, which were in part completed by Ms Curry, refer to the absence of a specific incident giving rise to the plaintiff’s back symptoms in May 2017. The fundamental inconsistency of that record with the plaintiff’s factual account is not traceable to the direct testimony of any other person with knowledge of the facts. It was inconsistent with the version which the plaintiff had by that time already given to Ms Curry, who was a co-contributor to the “no specific incident” account. This necessarily casts doubt on the reliability of those records.

355. Furthermore, the key purpose of the defendant’s Riskman report of injury record appears to have been to simply record the fact that an injury or an incapacity had occurred, which was at that time thought to be of a minor nature. The form and content, and the method of construction of that record does not suggest that it had the status of a reliable factual investigation to inform the defendant of its legal liability. The purpose for the creation of those records must be considered for context: Mason v Demasi [2009] NSWCA 227, at [2].

356. In that regard, in my view, the more careful historical record in the defendant’s emergency department clinical notes in relation to the plaintiff’s hospital admission on 14 June 2017, which is consistent with the plaintiff’s evidence, represents a more reliable factual source than Ms Curry’s Riskman note which was prepared in circumstances where it was unclear to her what had happened to the plaintiff on the day in question.

357. On the foregoing analysis, I conclude that the documentary evidence relied upon by the defendant does not provide a reliable factual basis for contradicting the plaintiff’s evidence as to the factual circumstances of her injury on 15 May 2017.

Issue 2 – Credibility and reliability of oral evidence on factual matters

358. The resolution of disputed matters of fact in this case largely depends upon an assessment of the credibility and the reliability of the evidence of the plaintiff and the defendant’s former nursing unit manager, Ms Curry.

Assessment of the credibility and reliability of the plaintiff’s evidence

359. In my assessment, the plaintiff’s oral evidence as summarised at paragraphs [81] – [82] above provides an acceptably coherent account of events.

360. In my view, the plaintiff’s account did not raise any concerns over her truthfulness, nor did it raise any concerns over whether there was an inherent improbability as to any part of the content of her evidence.

361. The defendant mounted a repeated attack on the plaintiff’s credit on the question of whether her claimed injury on 15 May 2017 actually occurred. In that regard, it was open to the defendant to sustain that attack by calling counter-factual evidence from the plaintiff’s colleague Ms McDermott if such evidence existed because, as the only other person present as a co-participant when the manual handling in question occurred, she was in a position to throw light on those events.

362. The defendant’s further attack on the credibility of the plaintiff’s evidence on the liability issues was based on some minor variations or apparent tensions between the content of her oral evidence and the content of medical records that were prepared by others in summary form as an aide memoire for clinical purposes over the course of time, but not for the more precise purpose of a liability investigation. Consequently, the defendant’s approach in relying on those variations as a source of contradiction to the plaintiff’s evidence was inherently problematic: Mason v Demasi [2009] NSWCA 227, at [2].

363. That aspect of the defendant’s approach in seeking to undermine the plaintiff’s case was particularly problematic in that some of those documents, notably the defendant’s Riskman records, had multiple authors, they were prepared on the basis of doubtful summarised histories recorded by persons other than the plaintiff to the effect that no specific injurious incident had occurred on 15 May 2017. Accordingly, I consider that avenue of attack on the plaintiff’s credit was unpersuasive and unsustained.

364. The credit attack mounted by the defendant was in the nature of selective cherry-picking of selected points, where the correct approach to assessing the credibility of the plaintiff’s evidence on the liability issues and drawing conclusions on such matters is to consider the whole body of the evidence: Nominal Defendant v Cordin [2017] NSWCA 6, at [166], following Fox v Percy (2003) 214 CLR 22, at [23], citing Jones v The Queen (1997) 191 CLR 439, at 466-467; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, at [64].

365. Whilst at times the plaintiff gave lengthy and garrulous explanatory answers to questions and she was frustrated by the cross-examiner’s interruptions to some of her answers, in my assessment she was careful not to comment on matters that were outwith her direct knowledge: T76. She credibly explained that her prior back strain on 14 August 2014 did not have any lasting adverse impact upon her: T74. She similarly explained that her second back strain incurred on 30 December 2014 had only stirred things up temporarily: T58.47; T65.2; T65.11; T67.30; T74.6; T74.50.

366. That evidence was not contradicted by reliable counter-factual evidence nor was it inherently improbable. In fact it was supported by the cogent pre-injury medical evidence cited at paragraphs [159] to [172] above. The plaintiff respectfully and reasonably expressed her disagreement with the defendant’s counter-factual propositions that were put to her in cross-examination: T96.38; T137.47; T138.2.

367. The plaintiff became a little exasperated at the defendant’s cross-examination which was directed at seeking to draw from her a recollection as to how many times she had fallen due to the aftermath of her back injury where she could not recall precisely how many times this had occurred. The defendant’s cross-examination did not seek to distinguish which of those falls related to the plaintiff’s dizziness after taking Codene for pain relief, or when her leg gave way as a neurological consequence of her back injury. In my assessment the plaintiff’s display of exasperation during that cross-examination did not detract from her credit as a witness: T34.32. There were some instances where she gave vague answers, but I did not see that, or her inability to precisely recall other peripheral matters, as detracting from the overall credibility or the reliability of her evidence on the key points: T98.5 – T98.20.

368. My overall assessment of the plaintiff’s explanatory oral evidence was that whilst at times she was garrulous in some of her responses, allowance must be made for the factor that this may have been influenced by matters related to her speaking accent and the cultural aspects of her use of language. I am satisfied she did her best to recall relevant events as truthfully and as honestly as she could. She readily and appropriately conceded the absence of relevant recollections where such concessions were due. I did not get the impression that she was embellishing her evidence in any respect. Nothing emerged from an overall consideration of her evidence to suggest there was any inherently improbable content.

369. I consider that the plaintiff’s adamant rejections of the contrary liability proposition that the defendant repeatedly put to her in cross-examination to the effect that the injury she claimed to have occurred on 15 May 2017 did not occur, were patient, respectful, and genuinely truthful: T64.23; T80.48; T81.17; T83.9; T94.43; T101.23; T105.12; T137.49 – T138.2.

370. I consider that the plaintiff’s evidence on matters concerning her distressing disabilities was given in relevantly stoic terms, without exaggeration. I consider that her evidence on matters concerning the liability and damages issues within her direct knowledge was not inherently improbable in any respect, and I consider that body of evidence was capable of acceptance on its face without reservation.

371. In reaching those conclusions I have not overlooked the aspects of the medical evidence which referred to the plaintiff’s presentation at medical examinations as displaying hyper-animation and grimacing which seemed “somewhat embellished” possibly due to her perception of pain: Exhibit “1”, Volume 1, Tab 27, pp 73 – 80.

372. The defendant conceded that there was a high bar to be met for proof of allegations of malingering or exaggeration. The defendant did not suggest the plaintiff was malingering or exaggerating in her evidence: T7.4 – T7.7. Furthermore, in the concurrent evidence of the medical experts it was noted that there was legitimate scope for the plaintiff to express her pain by hyper-animation at a medical examination and they did not adopt the characterisation that she had been malingering: T241.47 – T242.24. A matter of such gravity requires clear and cogent proof: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171. That level of proof is not apparent in this case.

373. I now turn to consider the reliability of evidence given by the plaintiff and Ms Curry.

Assessment of the reliability of Ms Curry’s evidence

374. Although there was no direct credit challenge made to the reliability of the evidence of Ms Curry, her evidence must nevertheless be assessed for reliability. Although I am satisfied that Ms Curry did her best to recall relevant matters, it was plain from the content of her evidentiary statement, and from the qualified content of aspects of her oral evidence as previously cited, that she had only a limited recollection of relevant events, and that much of that recollection was based on a composite Riskman summary.

375. Ms Curry’s lack of recollection was understandable given the chronological circumstances that have evolved and given the effluxion of time since the incident in question. Her non-contemporaneous evidentiary statement was taken by telephone on 6 April 2022 and signed by her on 11 April 2022.

376. It is not clear as to what notes or records if any Ms Curry had before her which based her recollections for the preparation of that statement. It was prepared by an investigator following a telephone interview some 5 years after the plaintiff’s injury on 15 May 2017, and this was some three years after 2019, which was the year when Ms Curry ceased working as the defendant’s nursing unit manager in its coronary care unit after she had been seconded to another position, where she had no access to relevant records. Accordingly, the reliability of her evidence on particular issues and factual matters stands to be evaluated and assessed in light of those limiting circumstances.

377. In my assessment, the reliability of Ms Curry’s evidence was significantly limited by the fact that she has not been employed at the defendant’s coronary care unit since 2019, where as a result, she has not had access to relevant records. Furthermore, she was not present at the time of the plaintiff’s injury. Notwithstanding that the plaintiff had told her of the specific circumstances of her injury on 15 May 2017, Ms Curry participated in a process which created a record of the plaintiff’s incapacity for work that incorrectly described the underlying circumstances as not having involved a specific incident.

378. Furthermore, I consider that Ms Curry’s answer to the challenge to her evidence on staff shortages was vague and was based on the opaque assumptions that the unit had a “nearly full roster” and that gaps in staffing “would be covered by casual staff or staff from an agency if required”: Exhibit “1”, Volume 4, Tab 161, p 1028, paragraph 33. The description “n**early full” is short of full. The term “would be” does not equate to an actual occurrence. In my view, those vague expressions indicated her evidence on those matters was of limited reliability.

379. Additionally, I consider that Ms Curry’s opinion that nursing staff in the coronary unit were “aware of the correct lifting techniques”, was also vague and lacking specificity of sufficient detail to form a reliable basis for a fact finding contrary to the evidence of the plaintiff. Furthermore, Ms Curry’s cited evidence about lifting techniques did not engage with the detail of the physical manoeuvres and manner of application of the forces that were required of coronary care nurses when repositioning immobile patients by the use of slide sheets. That process did not involve just lifting, it also involved a combination of lifting, pulling, pushing and dragging the patient into the required position.

380. On reviewing the context and the content of Ms Curry’s evidence as a whole, I conclude that it does not provide a reliable basis for contradicting any material aspect of the evidence given by the plaintiff on critical matters of fact in dispute.

381. I now turn to record my findings on material matters of fact.

Issue 3 – Findings concerning preferred medical opinions

382. A summary of the medical evidence in the order in which it evolved, culminating in the expert opinions of Dr Teychenne and Dr Cochrane, is set out in PART D of these reasons. The opinions of those two experts were expressed in circumstances where they had the opportunity to examine and test each other’s views. The representatives of the parties also had that opportunity at the hearing. The plaintiff relied upon those opinions to support her case.

383. In contrast, the defendant relied upon a series of points derived from its Riskman records and medical reports to support its contention that the plaintiff’s disabilities were not relevantly caused by an incident at work on 15 May 2017, and that despite her claims of incapacity for work, she had a residual earning capacity which should be taken into account when assessing damages for economic loss.

384. In light of those competing perspectives of the evidence it is necessary to wrestle or grapple with the differing aspects of the respective expert opinions in order to identify a reasoned preferred view on disputed aspects of those opinions: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, at [28]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [66]. That step is required before proceeding to make findings on the causation and damages issues calling for decision.

385. The medical evidence the plaintiff relies upon to support her claim of injury and loss of earning capacity has evolved according to the following sequence:

386. In early June 2017, the plaintiff’s general practitioner, Dr Harding, noted the plaintiff had been experiencing ongoing back pain “for about 2 weeks”, as referenced at paragraph [174] above;

387. Between 8 June 2017 and 14 June 2017, the plaintiff’s general practitioners noted her complaints of ongoing back pain and on the latter date, a medication related syncopal event resulting in a hospital admission, as referenced at paragraphs [176] to [180] above;

388. On 14 June 2017, a lumbar CT scan revealed the plaintiff had an L2/L3 disc bulge with left foraminal stenosis and direct contact with the exiting nerve root, as referenced at paragraph [182] above;

389. On 28 June 2017, Dr Kafataris considered the plaintiff was fit for suitable duties of a sedentary nature, that is, not full duties, as referenced at paragraph [186] above;

390. On 3 July 2017, Dr Cochrane considered the plaintiff’s lower back symptoms and left-sided sciatica and an unresolved aggravation of underlying degenerative changes were barriers to her resuming her pre-injury work, as referenced at paragraph [188] to [189] above;

391. On 21 July 2017, Dr Al Khawaja noted the plaintiff was not functioning well because she was in a lot of pain and she was in need of surgery which was delayed by some several months because the workers’ compensation insurer delayed providing approval of that procedure: as referenced at paragraph [196] above;

392. On 26 October 2017, Dr Al Khawaja noted the plaintiff was unable to walk because of her back pain, as referenced at paragraph [208] above;

393. On 30 November 2017, the spinal surgery recommended by Dr Al Khawaja on 21 July 2017 was finally approved by the workers’ compensation insurer and it was carried out, as referenced at paragraphs [214] to [215] above. This involved microdiscectomy and rhizolysis surgery at the levels L2/L3 and L3/L4, at which time a significant disc bulge at L2/3 which had been pressing on the left L2 nerve root was removed;

394. On 5 May 2018, Dr Al Khawaja noted that the plaintiff was continuing to experience left-sided back pain and difficulty with activities involving prolonged sitting and stair use, as referenced at paragraph [220] above;

395. On 15 June 2018, Dr Al Khawaja noted that a lumbar MRI scan taken on 16 May 2018 showed that there was pressure on the plaintiff’s L2 nerve root due to a disc bulge and scar tissue, as referenced at paragraph [222] above;

396. On 12 October 2018, Dr Nadanachandran reviewed the plaintiff’s history and her MRI scans and considered her symptoms had required surgery which had unfortunately been unsuccessful in relieving her pain and he noted she had developed a left-sided foot drop, as referenced at paragraphs [224] to [225] above;

397. On 12 November 2019, Dr Anderson considered the plaintiff’s cited problems were directly related to her work, and not otherwise. He noted that the natural progression of her condition would be for further deterioration to occur, and he considered that she was not fit to return to her previous work although she may be fit for work in a more administrative or educative role, as referenced at paragraph [229] above;

398. On 3 December 2019, Dr Robalino noted the plaintiff had presented in distressing pain and that she was walking with an antalgic gait with extreme difficulty. He described her condition as a lifelong chronic left sciatic compromise with painful limitations and an associated risk for severe exacerbations and for random falls, and that she was not going to be able to resume her pre-accident work, as referenced at paragraph [232] above;

399. On 4 December 2019, Dr Teychenne considered the plaintiff was no longer capable of any form of arduous heavy lifting, pushing, or returning to her pre-injury work, as referenced at paragraph [234] above;

400. On 4 February 2020, Dr Panjratan concluded the plaintiff’s L2/3 and L4/5 disc prolapses were related to her work with heavy dependent patients, and he concluded she was unfit for her previous work and he suggested the possibility of sedentary work, as referenced at paragraph [238] above;

401. On 30 September 2020, Dr Dias assessed the plaintiff to be at risk of aggravation of her lumbar spine if she returned to nursing duties and he assessed her as being unfit for a wide range of duties but he raised the possibility of part-time administrative work subject to the provision of ergonomic support, as referenced at paragraph [239] above;

402. On 29 October 2020, Dr Bentivoglio considered the plaintiff’s work as a nurse was the substantial contributing factor to the exacerbation of her lower back and left leg pain. He believed she was fit for restricted part-time duties limited to 20 hours per week, as referenced at paragraph [244] above;

403. On 15 December 2020, Dr Robalino highlighted the plaintiff’s physical symptoms of chronic left-sided sciatica causing difficulty walking, concurrent body stiffness, and emotional stress due to pain, as referenced at paragraph [250] above;

404. On 14 February 2021, Dr Robalino advised the workers compensation insurer that the plaintiff was totally incapable of working due to the development of major depression and anxiety due to her injury-related pain and her inability to function normally, as referenced at paragraph [252] above;

405. On 8 October 2021, Dr Lieng considered the plaintiff was unfit for work due to her lumbar pain and left leg radicular pain and weakness, limping, difficulty managing stairs, and proneness to falls. He raised the possibility of part-time restricted work, as referenced at paragraph [254] above;

406. On 6 April 2023, Dr Anderson reiterated his earlier view that the plaintiff was not fit to return to work but he considered that she was fit for work in a suitable administrative role, as referenced at paragraph [262] above;

407. On 24 August 2023, Dr Bentivoglio considered the plaintiff was not fit for either full-time or part-time work. He considered that this was because she could not mobilise adequately and had chronic leg and back pain, and that she was liable to fall due to her left leg giving way, as referenced at paragraph [264] above;

408. On 14 March 2024, Dr Robalino certified that the plaintiff was unfit for any type of employment, as referenced at paragraph [266] above;

409. On 3 April 2024, Dr Price advised the workers’ compensation insurer that the pre-existing baseline condition of the plaintiff’s spine had been aggravated in the work incident on 15 May 2017. Whilst Dr Price considered that baseline to be a disability, that opinion was based on an analysis he had undertaken on the papers, without the benefit of a physical examination or a face-to-face exploration of the history with the plaintiff. His comments to the effect that the plaintiff had made little effort to self-implement a rehabilitation programme, as referenced at paragraph [267] above, carry little weight in circumstances where the plaintiff was not specifically cross-examined on that topic. Therefore, the factual basis for that criticism of her conduct remains unclear;

410. On 16 April 2024, Dr Bentivoglio considered it inadvisable for the plaintiff to return to any form of work because she needs a stick to move around, as referenced at paragraph [269] above;

411. On 11 April 2024, Dr Cochrane considered and noted the extensive array of the plaintiff’s symptoms and indicated his view that she had no realistic capacity for either full-time or part-time work and that she should be considered to be totally unfit for work in the foreseeable future, as referenced at paragraphs [270] to [271] above;

412. On 9 May 2024, Dr Porteous examined the plaintiff by means of a video conference. He said that he would have preferred to have seen her in person for a more definitive clarification of the clinical findings. However, on the issue of causation he stated that the aggravation or exacerbation of the pre-existing changes in the plaintiff’s lumbar spine had resulted in the need for discectomy surgery at the levels L2/3 and L3/4, and that surgery had left her with chronic long term pain and a degree of physical disability that was increasing, as referenced at paragraphs [274] to [279] above;

413. On 14 May 2024, Dr Robalino certified the plaintiff to be permanently unfit for any type of employment, as referenced at paragraph [280] above;

414. On 27 May 2024, in a conclave report, Dr Teychenne and Dr Cochrane agreed that it was highly unlikely the plaintiff would have the physical capacity to leave her home to attend a workplace due to intermittent failure of her lower limbs, particularly when walking, as referenced at sub-paragraph (18) of paragraph [285] above;

415. On 27 May 2024, in a conclave meeting, Dr Teychenne and Dr Cochrane agreed that the plaintiff’s presentation was consistent with an incomplete spinal cord lesion which has resulted in neurological weakness, episodic giving way of her lower limb, urinary and faecal incontinence, and an incapacity for work outside her home, as referenced at sub-paragraph (10) of paragraph [287] above;

416. In their concurrent oral evidence Dr Teychenne and Dr Cochcrane were in agreement that it was likely the plaintiff has arachnoiditis and MRI evidence of bunching of the cauda equina nerve complex causing weakness in the lower limbs, which is most likely due to a post-surgical recurrence of a (previously treated) disc protrusion which in turn has caused stenosis of the spinal cord. The experts considered that this was the likely cause of the neurological dysfunction in her lower limbs and the episodes of incontinence. They considered that the plaintiff’s injury had in effect aggravated the underlying spinal condition and that aggravation had in a chronic way worsened that underlying condition by way of a permanent deterioration which was a different process to a gradual deterioration absent an injury, as referenced at paragraph [287] above.

417. Having reviewed that body of evidence against the views of Dr Price summarised at paragraphs [193] to [195], [218] to [219] and [267] above, where he postulated that the plaintiff had a residual capacity for work, in approaching the required grappling exercise I consider that the jointly expressed views of Dr Teychenne and Dr Cochrane should be preferred because unlike Dr Price, they are both practitioners with neurological qualifications and expertise, including neurological surgical expertise in the case of Dr Cochrane.

418. In my view, that neurological expertise is the relevant and preferred discipline from which to examine the plaintiff’s injury and resultant disabilities for the purpose of determining the nature and extent of those disabilities in a causation analysis and with regard to an assessment of her claim for loss of earning capacity.

419. In that regard, on the basis of the preferred evidence of Dr Teychenne and Dr Cochrane, and in particular Dr Cochrane’s opinion that the plaintiff’s injury on 15 May 2017 was a fresh injury occasioned to her spine at the level L2, and not just an aggravation of the 2014 injuries. I accept that the plaintiff’s problems back-related referred to in the medical reports and her need for spinal surgery have arisen as a result of her injury at work on 15 May 2017.

420. Dr Cochrane’s cited view is also supported by the opinion of Dr Bentivoglio, who as referenced at paragraph [245] to [246] above, agreed that the 15 May 2017 injury had significantly exacerbated the prior underlying degenerative condition of the plaintiff’s lumbar spine and that her bladder and bowel problems were related to the surgery to her lumbar spine at L2/3 and L3/4.

421. In that regard, I do not consider as definitive Dr Al Khawaja’s brief and unreasoned assessment on 22 December 2020, which was derived from a telehealth consultation, where he said the MRI findings (which I infer to be the 20 November 2020 MRI findings), did not explain the plaintiff’s episodes of bladder and bowel incontinence. In that regard, I prefer and accept the more reasoned contrary views of Dr Bentivoglio, Dr Cochrane and Dr Teychenne.

422. On the question of the plaintiff’s incapacity for work I consider that significant decisive weight should be placed on the unchallenged evidence of Dr Robalino, who has had the material advantage of overseeing the plaintiff’s medical issues in a series of treatment-related consultations that took place over a considerable period of time. I consider that his unchallenged clinical acumen on the issue of work capacity should be preferred to the medico-legal opinions to the contrary which assert a capacity for restricted work.

423. On the subject of the plaintiff’s claim of incapacity for work, Dr Price’s first report, dated 31 August 2017, which accepted the diagnosis of an aggravation of prior back problems resulting in left-sided sciatica, concluded with the opinion that the plaintiff was fit for work limited to 7 hours per day three days per week, as referenced at paragraphs [194] and [195] above.

424. Dr Price’s second report, dated 10 April 2018, which post-dated the plaintiff’s surgery on 30 November 2017, concluded with the opinion that the plaintiff was only fit for restricted work duties, where the longer term goal should be for her to move into nursing work of a less physical nature, such as in the role of a nurse educator, as referenced at paragraph [219] above.

425. Dr Price’s third report, dated 3 April 2024, reiterated the above views. Whilst he noted the plaintiff’s 2017 injury had aggravated her 2014 injury and produced “a recurrence of chronic low back pain”, he considered that there was “gross inconsistency and evasiveness” in her presentation, and that she tended to maximise her symptoms rather than minimise them, as referenced at paragraph [267] above.

426. Dr Price’s latter comment was curious, given that the plaintiff was being medically assessed as to the extent of her disabilities which was a circumstance where she would ordinarily be expected to be frank and forthcoming on such matters. There was no obligation on her part to withhold, minimise or understate relevant details. Dr Price’s perception of maximisation carries no decisive weight in this context. Dr Price based his views on his “impression she has decided to retire or semi-retire”, his impression she displayed “general sickness behaviour”, and that she had not accepted responsibility for further recovery. Those comments are unreasoned ipse dixit remarks that carry no decisive weight: Makita (Australia) Pty Ltd v Sprowles; Dasreef Pty Ltd v Hawchar*,* supra.

427. Those critical propositions raised by Dr Price were not put to the plaintiff for comment. Accordingly, the lack of specificity of those remarks and the fact that the defendant did not raise those matters in its challenges to the plaintiff’s evidence indicates that they should be given no persuasive weight.

428. Along the timeline of the evolving medical reports identified and summarised in PART D of these reasons, Dr Price’s cited opinions, the opinions of Dr Anderson (referenced at paragraphs [229] to [230] above), Dr Panjratan (referenced at paragraph [238] above), Dr Dias (referenced at paragraphs [239] to [240] above), Dr Bentivoglio (referenced at paragraphs [244] to [248], [263] to [264] and [269] above), and Dr Lieng (referenced at paragraphs [253] to [254] above), which in essence assert that the plaintiff had a residual earning capacity, it is significant to observe that their impressions that an asserted earning capacity became progressively diminished over the course of time during which her disabling symptoms have evolved, persisted, and worsened.

429. Having accepted the plaintiff’s evidence as to the nature and extent of her post-injury complaints and mobility and activity restrictions, which have increased since her 15 May 2017 injury, I consider that the most recently expressed views of Dr Teychenne and Dr Cochrane on the absence of any practical earning capacity, and the evolving views of Dr Robalino to the same effect, should be preferred to the medico-legal opinions which posit that the plaintiff had and has a residual earning capacity.

430. It is difficult to see how the plaintiff could exercise such an asserted residual earning capacity where she is in constant neurological pain, she is restricted in her movements and needs a stick for mobility, she has difficulty with prolonged sitting, standing, walking and negotiating stairs, and she experiences episodic urinary and faecal incontinence, and she suffers resultant depression and anxiety.

Issue 4 – Factual circumstances surrounding plaintiff’s injury

400. My findings on material matters of fact concerning the lead-up to and including the circumstances of the plaintiff’s claim of injury on 15 May 2017, and the aftermath of that claimed injury, relate to the following topics:

401. The plaintiff’s prior back strains;

402. The short staffing of nurses in the defendant’s coronary care unit;

403. The claim of inadequate equipment for the manual handling of patients;

404. The system of work on 15 May 2017;

405. The circumstances of the plaintiff’s claim of injury on 15 May 2017;

406. The consequences of the plaintiff’s claimed injury on 15 May 2017.

(1) Plaintiff’s prior back strains

401. The preponderance of the medical evidence indicates that the plaintiff had pre-existing asymptomatic age-related degenerative changes in her lumbar spine which were considered to be normal for her age and her stage in life. I accept her evidence that prior to her work-related back strains those degenerative changes were largely asymptomatic and not incapacitating for work, where the medical records show there were two back strains in 2014 and a fall in 2015.

402. I accept the plaintiff’s evidence that the first two of her back strains which she incurred in the course of her work in the defendant’s coronary care unit on 30 August and 30 December 2014, whilst symptomatic for a time, did not result in lasting symptoms following appropriate rest and treatment, and they did not result in an inability for her to continue to work in her chosen profession.

403. With regard to the effects of the plaintiff’s back strain on 14 August 2014, the conclusion concerning her fitness to continue to work must be read as being subject to the qualification expressed by her treating spinal specialist at the time, Dr Kam, on 18 November 2014, namely, that a re-aggravation of those earlier back problems could foreseeably occur if she were to be required to perform a lot of lifting and pulling of heavy patients: Exhibit “A”, pp 25 – 26; Exhibit “1”, Volume 2. Tab 69, p 614.

404. The significance of Dr Kam’s assessment of the condition of the plaintiff’s spine prior to his examination on 17 November 2014, is that he identified a left-sided L3/4 disc bulge partially impinging on the L3 nerve with the remainder of the spine appearing relatively normal, that is, there was no sign of a disc bulge at the level L2/3.

405. It is significant and noteworthy that Dr Kam did not place any future time framed limitation on his opinion setting out the identified work restrictions on lifting and pulling heavy patients as cited in the preceding paragraph.

406. On 17 November 2014, or shortly afterwards, and at around the same time that Dr Kam had certified the plaintiff as being fit to return to work following her first back strain, subject to the qualification cited at paragraph [403] above, the defendant had obtained an opinion from another spinal surgeon, Dr Stephen, who certified that the symptoms from her August 2014 back strain which had resulted in a mechanical back ache, had effectively resolved, and he noted that she was already back at work without the need for specific work restrictions or permanently modified duties: Exhibit “1”, Volume 1, Tab 7, pp 43 – 48.

407. It is not clear from Dr Stephen’s report as to whether he was of the opinion that there was no need for the plaintiff to have restrictions placed on her work duties or whether he was simply noting that she was back at work performing unrestricted duties, albeit inadvisedly if regard is had to Dr Kam’s advice.

408. The evidence concerning the plaintiff’s falls in 2014 and 2015 is scant and does not suggest a lasting disability ensued: Exhibit “A”, p 63.

409. At this point it is relevant to identify the details of the plaintiff’s normal duties in the coronary care unit. Ms Curry described those duties in her statement obtained some 5 years after the plaintiff’s injury: Exhibit “1”, Volume 4, Tab 162, p 1045 – 1047, at paragraphs 26 – 39. In essence, insofar as they related to the management of immobile patients, those duties were as follows:

410. In the critical care or high dependency unit which comprised 6 beds, the nurses worked in a roster comprising a ratio of one nurse to two patients;

411. The nurses who were rostered on-duty in the critical care unit were expected to work as a team caring for the patients in that unit as well as covering the other 28 beds in the adjacent medical ward. (The evidence is silent on how many nurses in total were rostered on-duty in the adjacent medical ward at the time the plaintiff was injured on 15 May 2017 where there was a need to cover a total of 34 beds);

412. The hospital had a Government imposed no lift policy in place concerning the movement of patients. In that regard, nurses were required to assess patients and decide whether to use slide sheets, hover mats or lifter devices, and to use those methods when required in accordance with known safe work practices which were on display throughout the department. (The evidence was silent on the content of any safe work practice signs that might have been on display in the unit as at 15 May 2017. The issue of hover mats, which involved the use of inflatable and deflatable mattresses, was not explored in the evidence and it is therefore difficult to envisage how such mats could be used with the patient in the semi-Fowler position);

413. When ambulating immobile patients a nursing assessment was required to assess whether a standby nurse or two persons would be needed to assist with the available equipment. (As the index patient was not being ambulated this point appears to have no relevance);

414. Ms Curry was not able to comment upon the predictability of how many times during a rostered shift the plaintiff would have been required to move a patient;

415. Nurses were encouraged to manage their own fatigue and work capability and to ask for help when required. (This is a matter of relevance to determining whether there were sufficient numbers of nurses present and on-duty and whether the defendant had discharged the duty of care that it owed to the plaintiff);

416. Staff were said to be aware of the correct lifting techniques and they were expected to monitor each other to make sure the correct techniques were being used when moving patients. (This did not fully address matters of detail involved in the required manual handling task)

417. Ms Curry’s explanation of the duties of nurses in the coronary care unit which involved the movement of patients did not make specific reference to the process of repositioning of immobile patients in their beds.

418. Insofar as the plaintiff’s duties involved participating in the teamwork of moving or repositioning immobile patients, this would obviously vary from shift to shift depending upon the particular needs of the patients who were being cared for in the unit at any given time, and also how many nurses were present and available to be called upon to assist in managing the needs of those patients.

419. The plaintiff’s back straining injury at work on 30 December 2014 occurred in circumstances where she was required to move and reposition heavy and immobile patients being nursed in the coronary care unit. The evidence satisfactorily establishes that her symptoms from that second back strain were only of a temporary nature and did not result in a need for significant medical management or treatment.

420. The plaintiff said that before her 15 May 2017 injury she had recovered from her two earlier back strains in 2014. I find that the preponderance of the medical opinions concerning those earlier back strains in August and December 2014 supports the plaintiff’s evidence that she had obtained an effective symptomatic recovery from those strains, and I accept her evidence to that effect. There is no evidence to suggest the plaintiff had any lasting problems from her falls in 2014 and 2015. The issue was not explored in cross-examination. The fact that she continued working indicates the effects, if any were transient in nature.

421. I find that prior to her injury on 15 May 2017, the plaintiff did not have any physical or psychological impediment that prevented her from carrying out her work as a nurse, subject to the caveat identified by Dr Kam, as summarised at paragraph [403] above. The preponderance of the medical opinions is to the effect that those earlier injuries indicated that she had most likely been left with an underlying vulnerability for incurring further back strains that could aggravate or exacerbate that underlying condition if she were to undertake repetitive lifting and repositioning of heavy patients.

422. In conformity with the eggshell skull principle, those earlier back strains establish that it was reasonably foreseeable to the defendant that the plaintiff might incur further instances of work related back injury if she was required to engage in work of the kind identified by Dr Kam. In that regard, the defendant must take the plaintiff as she is found. This includes any pre-existing conditions of vulnerability she might have that could predispose her to further injury in the ordinary course of her employment if she were to be allocated nursing duties which required her to repeatedly move heavy and immobile hospital patients without the provision of adequate equipment and adequate collegiate manual handling assistance: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, at 406; [1970] HCA 60, at [18].

423. That finding of the plaintiff’s underlying vulnerability to further back straining injury gives rise to a consequential need to consider the appropriate level of discount for potential adverse contingencies or vicissitudes when assessing the plaintiff’s entitlement to economic damages at a later point in these reasons.

(2) Short staffing of nurses in defendant’s coronary care unit

417. The evidence of Ms Curry, as cited at sub-paragraph (13) of paragraph [91] above, tends to confirm the plaintiff’s claim that there was a longstanding history of short staffing of coronary care nurses allocated to work in the defendant’s coronary care unit well before she assumed the role of NUM in that unit in 2012, and that from 2014, in her time as the NUM in that unit, the nurse to patient ratio in that unit had been increased to one nurse for every two patients: T165.7.

418. I accept the plaintiff’s evidence that in May 2017, the defendant’s coronary care unit where she was assigned to work was fully occupied with patients who were classed as high dependency as explained at sub-paragraph (5) of paragraph [82] above, and as such, the unit was significantly understaffed with insufficient numbers of nurses relative to the onerous duties that the defendant expected its nurses to repeatedly perform on each of the patients they were assigned to care for in that unit in the course of their respective 10-hour shifts. I accept the plaintiff’s evidence that such understaffing had been a recurring problem for some considerable period of time beforehand.

419. That evidence was not effectively contradicted by Ms Curry, who in my view sought to qualify and to vaguely understate the prevailing understaffing problem in that unit by describing it in general non-specific terms to the effect that the roster was “nearly full” and that the understaffing was not severe and that if there were gaps in the roster they “would be” covered by casual staff and agency nurses if required: Exhibit “1”, Volume 4, Tab 161, p 1028, paragraph 33. The generality and lack of factual specificity of those qualifying descriptions is self-evident.

420. I do not accept Ms Curry’s evidence in which she sought to cast doubt upon the plaintiff’s evidence of having been rostered on-duty for 8 shifts in a row where she said, in general and non-specific terms, that: “we wouldn’t allocate more than 7 days in a row, which met the award” Exhibit “1”, Volume 4, Tab 161, p 1032, paragraphs 57 – 58. That evidence was speculative and it was based on assumptions. The proffered explanation that “we wouldn’t” does not equate to “we didn’t”. Ms Curry’s evidence on those matters was not supported by contemporaneous rostering records prepared either by herself or by the hospital’s rostering stream manager to whom she made reference.

421. I found Ms Curry’s cited evidence regarding the prevailing rostering arrangements at the time of the events to be vague, and non-specific, and unconvincing, particularly as she conceded that she had not been on-duty on that day and she had no access to the rostering documentation when she gave her evidence. Accordingly, it must be recognised that her evidence on those matters was not reliably grounded upon an actual knowledge of the factual circumstances which prevailed in the coronary care unit on 15 May 2017 at the time in question.

422. In that context, the plaintiff, as a nursing professional allocated to caring for high dependency patients, was expected to carry out all the required and at times recurrently onerous nursing tasks to ensure that the defendant properly and safely discharged the duty of care that it owed to its wholly dependent patients in its coronary care unit where the there was one nurse rostered for every two dependent patients, and where the rostered nurses were expected to engage in ad hoc teamwork in attending to and repositioning specific patients at frequent intervals during their shifts of duty.

423. To fulfill those duties, as was commonplace in the coronary care unit, when called upon by colleagues, the plaintiff and the other nurses rostered on-duty were expected to respond to those ad hoc patient needs with teamwork to assist other nurses requiring assistance to manoeuvre or otherwise attend to the emergent needs of dependent patients: T51.30 – T52.4. The plaintiff’s response to the call to assist Ms McDermott to reposition the index patient was consistent with Ms Curry’s assessment that the plaintiff was a caring nurse: T181.35.

424. The defendant did not call evidence to rebut the plaintiff’s evidence (at T60.48 and T61.31) that nurses often made unheeded requests for the provision of more staff to assist with the manual handling of patients in the coronary care unit and in relation to inadequate coverage of patients’ needs due to insufficient staff numbers. Ms Curry’s inability to recall such requests does not mean there were no such requests. I accept the plaintiff’s evidence on that matter.

425. The inherently inadequate nature of the roster of nurses in the coronary care unit emerged from the following extract of the plaintiff’s evidence as to the effect of the prevailing rostering system:

“Q. What happens in that situation if there is one nurse to two patients in a high dependency ward where one or two patients crash at the same time?

A. Exactly. You got it, your Honour. We face that every day and we challenge and we feel for the patient.

[The plaintiff then went on to cite an example from her own experience as a patient]

….

Q. I think I've got the picture. You don't have to explain further--

A. Yeah, the same thing every day we are happening.”

[T129.4 – T129.24]

426. It was in those prevailing circumstances of understaffing that the plaintiff was expected to respond to ad hoc requests from colleagues for assistance in moving and repositioning immobile and dependent patients including with the use of plastic slide sheets as required.

427. In that context, Ms Curry confirmed the content of the document prepared by the defendant’s manual handling co-ordinator on 9 April 2015 (at Exhibit “1”, Volume 3, Tab 143, pp 961 – 962), recommending that 3 nurses should be involved in the manual handling of patients using slide sheets: T189.46 – T190.2.

428. If evidence other than from the plaintiff was required to demonstrate the short-staffing of the coronary care unit on the occasion of her injury, that evidence comes from a document prepared by Ms Ghaly (at Exhibit “1”, Volume 3, Tab 143, pp 961 – 962), where she stated that the use of slide sheets to manoeuvre heavy and dependent immobile patients requires at least 3 if not 4 nurses for that technique to be properly deployed. According to the evidence, at no time during the events in question were there 4 nurses on roster in the coronary care unit while the index patient was there.

429. In reviewing the requirements expected of the nursing staff in the coronary care unit it is difficult to envisage how the 3 rostered nurses in that unit could be available to repeatedly and appropriately manage an ad hoc slide sheet repositioning manoeuvre for an immobile patient where another five high dependency and at times demanding patients in that unit also needed monitoring and focussed nursing attention.

430. The defendant’s answer to the claim of staffing deficiency was to assert that the plaintiff or her nursing colleague Ms McDermott could have called upon a ward clerk, a wardsman, or an assistant in nursing to help with the task of repositioning the index patient, assuming that those persons were in fact present at the time.

431. In my view, that submission should not be accepted because even if such persons were available, and that claimed fact has not been demonstrated, there is no evidence that the hospital employees in those nominated categories had the requisite level of manual handling training to permit them to safely participate in the skilled nursing task of repositioning a patient, as is apparent from the documents created by Ms Ghaly, the defendant’s manual handling co-ordinator, where she identified the need for particular physical postures to be variously adopted by participating nurses, and for particular muscle groups to be engaged in the manual handling process when using slide sheets.

432. It is difficult to envisage how the identified categories of untrained non-nursing personnel, if available, could be reliably called upon to augment the rostered nursing team to safely manage the range of specific needs of high dependency patients in the coronary care unit.

433. In my view, the irresistible conclusion from the evidence is that at the time of the events in question, the defendant did not have a sufficient number of skilled nursing staff rostered on-duty in its coronary care unit to enable its nursing staff to safely carry out the recurring need to repeatedly reposition heavy immobile dependent patients on their beds, notably the index patient. That conclusion is demonstrated by the fact that when the plaintiff was called upon to assist Ms McDermott there were no other rostered staff present on-duty and the plaintiff was already off-duty.

(3) Claim of inadequate equipment for manual handling of patients

434. The two principal methods identified in the evidence for moving heavy immobile dependent patients in the defendant’s coronary care unit involved either the use of overhead mechanical hoists or lifters using slings, or deploying plastic slide sheets, as earlier described at paragraph [37] to [40] above.

435. Ms Cacciola’s report (at Exhibit “B”, p 23), identified a further piece of hospital equipment that could be deployed for safely adjusting the nursing position of patients, namely a fit for purpose ergonomic remotely operated electric patient bed, as represented below:

436. Whilst there was evidence that the defendant had such beds in the hospital there was no reliable evidence as to whether they were situated in the coronary care unit at the time in question and that they were of a size or configuration that could have been adjusted to accommodate the large physical proportions of the index patient.

437. Returning then to the other two identified methods, the evidence discloses that the use of hoists and slings was reserved for moving patients in and out of their beds rather than repositioning them on their beds. Therefore the sling and hoist method does not seem to be relevant in this case, particularly as more than 2 nurses were required for that method, and the patient, who in this instance was heavy, would have to be lifted as a first step in order for a sling to be placed underneath him prior to lifting him in readiness for repositioning: T79.27 – T79.44.

438. Accordingly, in the prevailing circumstances on 15 May 2017, the only relevant equipment to be deployed to facilitate the manual handling of heavy immobile dependent patients in order to reposition them on their beds, comprised sturdy plastic slide sheets which first had to be manipulated into position under the patient to enable a sliding movement involving a reduction in what must be assumed to be the otherwise greater sliding friction that would have been involved if slide sheets were not used. On the evidence from within the defendant’s records, that method required the participation of at least 3 if not 4 nurses.

439. That process required a series of manoeuvres to shift the inert weight of the patient, starting with the patient having to be rolled or manipulated from side to side by a combination of lifting, pushing and pulling actions, during which the slide sheets would be moved into position under the patient followed by the further application of moving forces, including by sliding or dragging, to reposition the patient to a satisfactory position further up on the bed.

440. That description suggests that when performed repeatedly and frequently in the course of a shift in relation to a 96 kg patient, this involved duties that were inconsistent, with and in excess of the description of “rarely lifting weights of 15kgs and above”, as described in the August 2016 “Job demands checklist” prepared by Ms Curry, being the job requirements in the coronary care unit: Exhibit “1”, Volume 3, Tab 145, pp 967 – 969.

441. The uncontroverted evidence discloses that on 15 May 2017 the need for the index patient to be repeatedly repositioned on his bed was due to the fact that a bed extension device (as portrayed in the examples shown at paragraph [34] above and as explained by Ms Cacciola), had not been fitted to his bed.

442. I find the unavailability of that bed extension device was the root cause for that patient recurrently slipping down on his bed on account of his large proportions whereby his feet would necessarily overhang the end of his bed, thus giving rise to the need for him to be repeatedly repositioned in the semi-Fowler position.

443. Those circumstances must have been plainly foreseeable to nursing staff at the time the index patient was admitted to the coronary care unit when it was evident his physical proportions would be problematic for him to be maintained in the semi-Fowler position without a bed extension device.

444. Those circumstances required that a risk assessment be undertaken at the outset of the admission of that patient to the unit, including to determine what equipment was needed to safely manage the medical and nursing needs of that patient. There is no evidence to suggest this was the responsibility of the plaintiff, but rather in combination, such assessments were within the remit and the responsibility of the admitting nurse and the successive nursing unit managers who were rostered to be in charge of the unit during particular shifts. The evidence was silent on whether such a risk assessment had in fact been carried out in respect of the index patient, and if so, by whom.

(4) System of work which prevailed on 15 May 2017

445. On 15 May 2017, the defendant’s high dependency coronary care unit was occupied to full patient capacity with 6 critical care patients whose needs have been described at sub-paragraph (5) of paragraph [81] above.

446. At that time there was a prevailing nurse-to-patient ratio of 1 nurse for every 2 such patients. This meant that 3 nurses including the plaintiff were rostered on-duty to care for those critical care patients. Those circumstances provide insight into the onerousness of the work required of the nurses who constituted the team that could be called upon to assist each other with repositioning patients as and when such a manoeuvre was required.

447. There was no evidence as to whether other nurses or assistants in nursing were in fact available in the adjacent ward or wards and could have been called upon to leave their other duties in order to assist any of the 3 nurses on roster in the high dependency coronary care unit at any given moment. The evidence suggests otherwise, where a group of nurses had left the precincts of the unit in order to go to an education session with the result that Ms McDermott was alone on duty and needed to call upon the plaintiff who was already off duty.

448. The defendant’s response to the chronicity of the short-staffing issue in the coronary care unit was to roster the available nurses in such a way as to ensure the nurse-to-patient ratio in the high dependency coronary care unit was continuously maintained at 1 nurse for every 2 patients.

449. This appeared to have been achieved by increasing the frequency of the shifts of the available nurses. In the case of the plaintiff, this meant that in the lead-up to her injury on 15 May 2017, she had been working a more onerous than usual regime comprising a series of 8 shifts of 10 hours each over the course of 9 days during which she carried out physically demanding and fatiguing work in those shifts. This was in circumstances where the relevant industrial award limited the regime to 7 consecutive shifts: Exhibit “1”, Volume 4, Tab 161, p 1032, paragraph 58.

450. According to the evidence of Ms Curry, the defendant expected nurses to “manage” their own fatigue and ask for help when required: Exhibit “1”, Volume 4, Tab 161, p 1029, paragraph 36. She said she could not recall the plaintiff ever having asked her to increase the numbers for nursing support when there were multiple heavy patients in the ward requiring regular attention and manual handling: Tab 161, p 1029, paragraph 40.

451. That evidence must be read as being qualified by Ms Curry’s limited recollection of the events generally, the absence of access to relevant contemporaneous records, and in acknowledgement of the generally accepted phenomenon of the real potential for degradation of reliability of memory over time due to its fallible nature: Watson v Foxman (1995) 49 NSWLR 315, at 319, citing Helton v Allen (1940) 63 CLR 691; [1940] HCA 20; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, at [31].

452. There was no evidence to suggest that the defendant took any steps to either identify or monitor the effect of fatigue on its nurses or to provide workplace assistance to manage that fatigue.

453. Ms Curry’s evidence on this topic was that the management task of monitoring nursing staff to ensure the use of correct techniques for lifting patients was left to nursing colleagues rather than by specifically tasked supervisory staff in the hospital hierarchy, such as a nursing unit manager or a stream manager: Exhibit “1”, Volume 4, Tab 161, p 1029.

454. In summary, the defendant’s system of work which prevailed on the shifts in the high dependency coronary care unit on 15 May 2017 comprised a team of only 3 coronary care nurses who each had onerously demanding tasks, and who would be frequently called upon to attend to patients requiring their attention, including the heavy index patient who needed to be frequently physically manipulated and repositioned on his bed by using plastic slide sheets accompanied by pulling, pushing and lifting forces, because his bed was inadequately configured for his height and leg length.

455. It is apparent from the evidence that at or shortly after the handover of shifts on 15 May 2017, the high dependency unit was left short staffed as the full complement of 3 nurses were not present on-duty in the unit. This required Ms McDermott to call upon the plaintiff who was already off duty to help her reposition the index patient absent the availability of other nurses who were on roster and who should have been there to care for the ad hoc needs of the high dependency patients at that time.

456. That evidence will be reviewed in the reasons for considering Issue 7 concerning whether the defendant had discharged the duty of care that it owed to the plaintiff.

(5) Circumstances of plaintiff’s injury on 15 May 2017

457. On 15 May 2017 the defendant’s coronary care unit was caring for an immobile 93-year-old male patient who weighed approximately 96 to 98 kgs, who had been admitted into the unit and who was required to be nursed in the seated semi-Fowler position.

458. Because that patient was tall and his legs were long, if he was not appropriately positioned, his legs would have overhung the end of his bed in an unsuitable position. In those circumstances, because of his size, his body was repeatedly slipping down towards the end of his bed which was inimical with the need for him to be constantly maintained in the seated semi-Fowler position. Those circumstances required that whenever he slipped down on the bed he needed to be repeatedly repositioned on the bed to maintain him in the required position.

459. The patient required such repositioning not only because his legs, when outstretched, were longer than the bed on which he had been placed, but also because it appears that the person or persons responsible for admitting him to the critical care unit had not arranged for a bed extension device to be fitted to his bed with a foot stop or footrest so that he could be maintained in the required semi-Fowler position. It appears that omission had escaped the attention of the supervisory NUM or NUMs. The evidence is unclear as to how many shifts had passed without that omission being either noticed or addressed.

460. Although Ms Curry described how a risk assessment was required to be undertaken when patients were admitted to the coronary care unit, there was no evidence to suggest that a risk assessment for that patient had been undertaken at the time of his admission to the unit, or thereafter. If the required risk assessment had been undertaken, if acted upon, it would most likely have led to a bed extension device being fitted to the bed in which the index patient was being nursed.

461. If the required risk assessment had been undertaken it would most likely have been recorded in the defendant’s D**e Lacy computer programme: T167.42. There was no evidence to reliably suggest that either of those events had in fact occurred.

462. There was no evidence as to what if any particular or special nursing instructions were to be observed during the care of the index patient other than to ensure that he was to be maintained in the semi-Fowler position. Common sense suggests that for handover and continuity of care purposes, any such instructions would have been recorded in the patient’s clinical notes or in other ward records which could have been retrieved and tendered in a redacted de-identified form as is sometimes seen in appropriate cases quite apart from any De Lacy records.

463. It was the responsibility of the admitting nurse and the nurse allocated to care for that patient, and for the NUM on duty, to consider matters such as sourcing a bed extension device incorporating a footrest to prevent the patient from slipping down on his bed. On the evidence, it is not suggested that those tasks were the plaintiff’s responsibility.

464. Notably, Ms Curry could not recall whether “those beds” were available in the hospital at that time: T170.17. That evidence was contrary to the plaintiff’s evidence as to the availability of bed extension boards, albeit not fitted to the index patient’s bed on this occasion.

465. On 15 May 2017, the plaintiff had been called upon to assist with the repositioning of that patient on about 4 occasions during her shift of duty. The fifth call for such assistance came from her nursing colleague, Ms McDermott. At that time Ms McDermott was the only nurse available to undertake the repositioning of the patient, hence her request for the plaintiff’s assistance at a time when she was already off duty. The evidence is silent on whether Ms McDermott had beforehand called upon any other nurses to assist in repositioning the index patient, and if so, with what measure of success.

466. At the time when the plaintiff was called upon to assist Ms McDermott she was physically exhausted after having worked a shift which involved a repetitive and demanding workload. At that time she was scheduled to attend an education session, which she ultimately missed because she responded to Ms McDermott’s call for assistance.

467. It appears from the evidence that Ms McDermott had been rostered on the shift which followed the plaintiff’s shift. It appears that she was one of the handover nurses who commenced that next shift. Given that the plaintiff’s injury occurred when she responded to the call for assistance after her shift had concluded, it remains unclear as to the level of staffing of the unit at the moment of handover, and as to whether there were 3 nurses already present on actual duty attending to patients or whether Ms McDermott was the only one on duty at that moment in time when the plaintiff was approached for assistance.

468. Whatever the prevailing circumstances were, the fact remains that only two nurses (including the plaintiff) were available to reposition the index patient. They were of unequal weight and stature. They were required to position themselves in relatively awkward positions on either side of the patient’s bed without a third nurse present to safely maintain the patient in a stable position whilst they applied moving forces from different directions to change his position in a sequence of movements that required his inert weight of about 96 kgs to be shifted.

469. Ms Curry’s statement dated 11 April 2022, at paragraph 64, which is cited in detail at paragraphs [85] to [91] above, records that on 13 June 2017 the plaintiff told her she “was working with 2 nurses and they were using slide sheets” in that period of patient load that was physically heavy. The defendant sought to obtain liability comfort from that evidence by arguing that 3 nurses had been involved in the repositioning manoeuvre.

470. Whilst it is possible but not the subject of evidence that there may have been two other nurses in the coronary care unit on that shift, that cited statement does not specifically record that there were a total of three nurses carrying out the slide sheet manoeuvre on the index patient.

471. I do not take Ms Curry’s cited account to mean that there were two nurses in addition to the plaintiff performing the slide sheet manoeuvre on the index patient at the time she was injured. I accept the plaintiff’s account to the contrary, namely that there were a total of two nurses, including herself, as explained in the emphasised portion of the following extract of her evidence:

“Q. Tell us about the bed extension device in relation to this man?

A. We didn't have a bed extension and after that I place my patient in a resting place. He passed away after two or three days because I was off that day, but he passed away unfortunately. But we were keep frequently positioning him with the slide sheet. Mostly we were doing with three or four or whether it is acute and sub-acute thought each reminds the patients, gone to get any changes and critical situation anyway, but that's how we were doing it all the time. But at the time, after the handover the next shift nurse come and the morning shift were, nurses were supposed to go for the in-service in home, in service to a different room. So we were going to the conference room, then the nurse was to cover from us in the afternoon shift. She saw that patient was sliding down again, so before all of us going to the conference room she wanted us to reposition again. But most of the nurses left. I was the last one to go, washing the hands, and then she asked again "You help me", I said, "I'm so tired. I already hand over" but she said, "Please", that's how we work, because it's my colleague, it's like me or my colleague is same for me, and that is the patient who needs something, so we don't object for any reason. That is our service humanitarian, compassionate service. So I helped her. We both were using the sliding sheet and—"

[T26.44 – T27.12]

[Emphasis added]

472. I interpret the plaintiff’s reference to “we both” in that cited passage of evidence to mean 2 nurses in total, and not 3 nurses.

473. As described at paragraphs [37] to [41] above, when the plaintiff was in the course of shifting the weight of the index patient whilst she was applying a moving force from an awkward posture which required her to bend downwards, she felt a painful pulling and click sensation in her back. She then realised she had sustained a back strain.

474. The plaintiff’s experience of a click in her back is consistent with Dr Cochrane’s view that the 15 May 2017 incident was not an aggravation of the 2014 injuries (which involved L3/4), but was a fresh injury that was compressing on the L2 nerve root, as summarised at paragraph [202] above. I prefer Dr Cochrane’s expert analysis, which pointed out those differences, compared to the unreasoned analysis of the plaintiff’s post-2017 back problems being an insidious onset as proposed by Dr Nandanchandran, as referenced at paragraph [224] above.

475. It is noteworthy that Ms Curry’s evidence was to the effect that the work regime for nurses to lift or carry weights of 15 kgs or more was considered to be a rare event as referenced at paragraph [88] above: Exhibit “1”, Volume 3, Tab 145, pp 967 – 969. From the description of what was involved in repositioning the index patient weighing in the order of 96 kgs, it is likely that during her shift the plaintiff was repeatedly manipulating weights greater than 15 kgs whilst in an awkward posture, which exposed her to the risk of incurring a back injury.

476. The plaintiff would not have had to bend down and work from that awkward posture if there had been a bed extension device fitted to the patient’s bed. Furthermore, the plaintiff would not have been required to adopt that awkward posture and apply physical force from that posture in order to move the inert weight of the patient if the recommended complement of 3, if not 4 nurses, had been available to work with concerted effort to safely reposition the patient.

477. Those circumstances starkly illustrate the extent of the defendant’s short staffing of its coronary care unit.

(6) Consequences of plaintiff’s injury on 15 May 2017

478. Immediately after straining her back on 15 May 2017, when she felt a painful pulling sensation in which she felt something had broken, the plaintiff took some over the counter analgesic medication and then went home to commence a period of annual leave. In those events she held the expectation that, like with her previous back strains, this latest injury would settle down and resolve.

479. That expectation was not met, and instead, the plaintiff ultimately sought out medical assistance which has been documented within the chain of events in the chronological summary of the medical evidence as set out in PART D above, between paragraphs [152] to [288] above.

480. On 7 June 2017, the plaintiff first consulted her general practitioner after enduring back pain for 2 weeks, which, from the context, seemed an approximation. This suggests, consistent with her claim, that she was injured before 6 June 2017 contrary to what was submitted by the defendant.

481. On 14 June 2017, following the plaintiff experiencing a syncopal event whilst on her way to work, due to having taken Codeine for pain relief, leading to a hospital admission, following MRI scan imaging, lumbar disc bulges at L2/L3 with nerve root contact and exit foraminal stenosis were recognised, as referenced at paragraph [182] above: Exhibit “1”, Volume 2, Tabs 80 – 81, pp 640 – 641; Volume 4, Tab 197, pp 1431 – 1458.

482. Thereafter, she was referred to a spinal surgeon, Dr Al Khawaja who ultimately operated on her spine at the levels L2/3 and L3/4 on 30 November 2017, as referenced at paragraphs [214] – [215] above.

483. The preponderance of medical opinions which then followed over the course of time has been to the effect that the plaintiff has been unable to return to her pre-injury work, and because of her ongoing residual disabilities, she is now effectively unemployable. Those disabilities are reliably described in the recorded medical histories: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995 (NSW).

484. Apart from the surgical scarring from the surgery to her lumbar spine, the plaintiff has been left with significant ongoing permanent physical disabilities which have been documented in the medical evidence as summarised below.

485. The plaintiff experiences ongoing neural irritation associated with chronic low back pain due to aggravated disc pathology, left-sided residual radicular sciatica and foot drop. She has difficulty with walking, prolonged sitting and negotiating stairs. She is liable to fall as a result of those problems.

486. As a result of spinal surgery, the plaintiff has suffered the complications comprising partial spinal cord lesion or stenosis compressing the cauda equina nerve roots, arachnoiditis or nerve scarring, ongoing pain, episodic bladder and faecal incontinence, weakness and instability in her left leg, and an antalgic gait. Her reduced mobility and inability to exercise have led to general muscular unfitness and limited capacity for a range of the ordinary physical activities of daily living.

487. In their concurrent expert evidence, Dr Cochrane and Dr Teychenne stated that with spinal lesions of the kind that affect the plaintiff, activities such as prolonged sitting, prolonged standing, and movements such as twisting, lifting, excessive walking, and jolting actions, are liable to cause exacerbation and pain.

488. As a consequence of those problems which have become increasingly worse, the plaintiff has developed significant psychological sequelae including depression, anxiety, and a compounding post-traumatic stress disorder.

489. The preponderance of the medical evidence, as demonstrated by the concurrent expert evidence of Dr Teychenne and Dr Cochrane, is that the effect of that array of problems, from a practical perspective, has rendered the plaintiff permanently unfit for any form of employment, despite sequential attempts at rehabilitation.

490. I now turn to identify and consider the duty of care owed by the defendant.

Issue 5 – Duty of care owed by the defendant

491. In addition to the duty of care the defendant hospital owed to its patients to take appropriate care of their medical and nursing needs, it also had a non-delegable duty to take reasonable care to avoid exposing its nursing staff to unnecessary risks of injury whilst carrying out their required work tasks when caring for those patients.

492. The degree of care and foresight required of an employer must naturally vary with the circumstances of the case: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; [1956] HCA 42, at p 25.

493. In Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362, at [7]; [1963] HCA 4, it was held, following Hamilton (supra), that in many cases, Hamilton being an example, that no more than common knowledge or commonsense is necessary to enable one to perceive the existence of a real risk of injury so as to permit one to say what reasonable and appropriate precautions might be appropriately taken to avoid that risk of injury. An approach that draws upon a commonsense analysis is consistent with what was said in Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45, at pp 563 – 564, at p 569.

494. For some considerable time it has been recognised that employers have been expected to acquire and have an increased appreciation of the likely causes of injury to employees engaged in manual work systems. In that context the obligation on the employer was to take reasonable care for the safety of its employees in keeping with increasing concerns in the community about safety in the workplace: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20, at [6], at [12]. That proposition was recognised by the defendant’s longstanding adoption of a no lifting policy because that activity was a foreseeable source of back injury.

495. In Kuhl v Zurick Financial Services Australia Ltd [2011] HCA 11, at [53], the formulation in Hamilton (supra), was approved on the question of the duty of care of an employer, where it was also held that it may be unnecessary for a plaintiff to show exactly how an injury occurred if there was a defect in the system of work and the injury arose from that defective system.

496. In this case, the defendant was duty bound to take reasonable care to avoid foreseeable risks by devising a safe method of performing the required tasks by either eliminating the risk or providing adequate safeguards. That was particularly so where a risk results from the fact that the performance of the allotted work tasks has been left to a fallible human agent. In such circumstances, the employer’s duty is not fully discharged unless the safeguards implemented by the employer have taken into account not only the particular risks necessarily involved in the work, but also the possibility of employee inadvertence and inattention to the task at hand, short of positive employee negligence: Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337; [1957] HCA 34, at p 342.

497. In approaching the task of discharging its duty by taking adequate safeguards, when devising and implementing a safe system of work, the defendant was obliged to take into account and consider the possibility that there might be transient episodes of employee thoughtlessness, inadvertence or divergence from self-care when concentrating on and carrying out the required tasks: Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14, at [12] – [13], following a line of well settled authorities there cited to the same effect. That principle should also apply where repetitive or fatiguing work was involved.

498. The legal principles applicable to determining the outcome of the common law claim of negligence in this case centre around the calculus or the sequential analysis formulated in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, at pp 47 – 48, as follows.

499. On the premise that the plaintiff had taken reasonable care for her own safety, her claim of employer negligence stands to be determined according to a contextually balanced prospective assessment of what would have constituted a reasonable employer response to a foreseeable risk, where reasonableness is the criterion, and not the more stringent requirement of actual prevention of the harm that was encountered: Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330, at [69], applying Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, at pp 47 – 48; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, at p 462, at [128].

500. In applying those principles to the facts of this case, in deciding whether there were relevant breaches of the duty of care owed, an essential question to be addressed is whether a reasonable person in the employer’s position would have foreseen that the work tasks that were required of the plaintiff would have exposed her to a risk of injury, and if so, what would a reasonable person in the position of the employer have done in response to the risk.

501. Those questions must be decided by reference to a series of factors including the nature of the risk, the perceived magnitude of the risk, the probability of the risk eventuating, and the degree of difficulty and inconvenience involved in taking action to avoid the risk eventuating, also having due regard to any conflicting responsibilities of the employer: Wyong Shire Council v Shirt (Ibid), at pp 47 – 48.

502. Those matters will be taken up in the consideration of Issue 7 concerning whether the defendant was negligent as claimed by the plaintiff.

Issue 6 – Reliability of expert evidence on liability issues

503. As a precursor to determining the liability issues it is necessary to review and determine the reliability and the guidance value of the expert evidence of Ms Cacciola in circumstances where expert opinions are admissible on the ultimate issues calling for decision: Evidence Act 1995 (NSW), s 79, s 80.

504. At the first level of analysis, the admissibility and guidance value of the expert opinions of Ms Cacciola in this case is determined by whether the matters assumed by her are sufficiently similar or like the factual evidence adduced in the proceedings: Paric v John Holland Constructions Pty Ltd [1985] HCA 58, at [9].

505. The evolution of Ms Cacciola’s opinions must be seen in context. Initially, the expert evidence was to be examined in the logical sequence in which it emerged, first, Ms Head’s 10 May 2022 ergonomics report which was commissioned by the defendant’s solicitor, secondly, Ms Cacciola’s report dated 24 January 2023 commissioned by the plaintiff’s solicitor, thirdly, the content of the joint conclave report of the meeting between Ms Cacciola and Ms Head, and fourthly, the content of Ms Cacciola’s oral evidence, followed by the identification of relevant findings concerning that evidence.

506. The plaintiff’s solicitor’s letter of instruction to Ms Cacciola (located in the evidence at Exhibit “B”, pp 30 – 32), requested that she make some comments on the report that the defendant had obtained from Ms Head.

507. In response to that request, Ms Cacciola expressed the view that Ms Head’s report could not be relied upon because, as an ergonomist, she had purported to express opinions on standards of practice of nurses and nursing unit managers without having the requisite training, experience and qualifications in either nursing, nursing unit management, or medical practice: Exhibit “B”, pp 30 – 32. That criticism was further developed, as follows:

508. As an ergonomist, Ms Head was not qualified to comment on the clinical status of and the nursing needs of the patients in the coronary care unit and whether such patients required frequent handling for repositioning;

509. The nursing decisions relating to the handling and the nursing care of such patients requires the exercise of clinical judgment informed by nursing training and practice, which were matters that were outwith Ms Head’s expertise;

510. Details such as the rostering of nursing shifts are covered by relevant industrial awards, and an understanding of the nursing use of specialised equipment in the coronary care unit and the application of standards of nursing care, which are covered by prevailing protocols, policies and procedures. The implementation of these considerations requires a degree of medical expertise gained from nursing training;

511. Commentaries on matters of supervision in the clinical setting of a coronary care unit assume and are informed by the requisite nursing knowledge, training and experience;

512. Opinions on the manner of handling of confused, demented or agitated patients, necessarily assume that the opinion giver has the requisite qualifications and education, including as gained from professional development and training courses that nurses are required to undertake.

513. Ultimately, Ms Cacciola’s commentary on Ms Head’s report became unnecessary following the exclusion of Ms Head’s evidence. This was because, since Ms Head’s report was no longer in evidence, it was not necessary to review those arguments. They are simply recorded to identify the context and the chronological circumstances in which Ms Cacciola provided her opinion. Accordingly, the only expert evidence on the liability issues in this case comes from Ms Cacciola.

Ms Cacciola’s evidence

509. The evidence comprising the expert report and opinions of Ms Cacciola, including her oral evidence, is summarised at paragraphs [141] to [151] above.

510. In essence, Ms Cacciola’s evidence may be distilled into the following propositions:

511. In paragraphs 14 and 15 of her report, as replicated at paragraph [142] above, she has identified an array of assumptions that are sufficiently like the factual circumstances disclosed in the plaintiff’s evidence and this makes her resultant analysis both relevant and admissible: Paric v John Holland Constructions Pty Ltd (supra), at [9];

512. The required manual handling tasks in the defendant’s coronary care unit were hazardous and were foreseeably likely to lead to injury;

513. There was an absence of suitable equipment, in this case a bed extension device if not an ergonomic remotely adjustable bed;

514. There was an inadequate level of nursing staff on duty to manage the range of needs of the patients in the coronary care unit;

515. The plaintiff’s earlier back strains in August 2014 and December 2014 ought to have created an awareness on the part of the defendant’s NUM that the plaintiff was foreseeably vulnerable to the risk of a further back straining injury if required to manually handle heavy dependent patients;

516. The argued breaches of occupational health and safety guidelines, s 17 and s 19(3)(f) of the Work Health and Safety Act 2011 (NSW), whilst informative do not of themselves establish a more onerous obligation of employer liability: Leighton Contractors Pty Ltd v Fox (2009) 240 CLAR 1; [2009] HCA 35, at [49], following Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [70].

517. On the issue of whether the defendant was negligent in the circumstances in which the plaintiff was injured on 15 May 2017, Ms Cacciola considered that the defendant was in breach of the duty of care that it owed to the plaintiff: Exhibit “B”, pp 36 – 37.

518. In her oral evidence, Ms Cacciola did not resile from the above opinions.

519. Ms Cacciola’s opinions were admissible because they are relevant and adequately reasoned: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21; Uniform Civil Procedure Rules 2005 (NSW) r 31.27(1)(c); Schedule 7 cl 5(c); Evidence Act 1995 (NSW), s 79, s 80. That said, expert opinions are not necessarily determinative.

Reliability of Ms Cacciola’s opinions

514. On the above analysis I conclude that the evidence of Ms Cacciola provides a reliable guide to assist in determining the liability issues calling for decision in this case.

Issue 7 – Negligence

515. A convenient framework for the consideration of whether the plaintiff has discharged the onus of establishing that the defendant breached the duty of care owed to her, and was therefore negligent, proceeds according to the sequential prospective analysis identified in Wyong Shire Council v Shirt (supra), at pp 47 – 48, as follows:

516. Identification of the nature of risk of harm;

517. Foreseeability or remoteness of the risk;

518. Magnitude and probability of risk eventuating in injury;

519. Risk response expected of a reasonable employer;

520. Degree of difficulty and inconvenience of risk avoidance;

521. Whether any conflicting or other factors existed;

522. Conclusion on negligence.

(1) Identification of the nature of the risk of harm

516. In this case, at the required level of generality, the relevant risk of harm in the working circumstances which prevailed at the defendant’s hospital on 15 May 2017, was the risk of a nurse incurring a back injury whilst engaging in the manual handling of heavy immobile patients who were dependent on nurses for their medical needs and care in the hospital setting.

(2) Foreseeability or remoteness of risk

517. I find, based on the evidence in this case, and on a commonsense analysis, that the risk of a nurse incurring a back injury in the course of the hazardous task of manual handling heavy immobile patients, was a reasonably foreseeable possibility: T183.50 – T184.14; Exhibit “B”, pp 9 and 12; 12 – 14 (Ms Cacciola); Exhibit “1”, Volume 2, Tab 69, p 615 (Dr Kam); Exhibit “D”, pp 1 – 11 (Dr Porteous); and other parts of the medical evidence where the onerous nature of the duties of nurses looking after dependent patients has been noted.

518. Dr Kam’s last pre-accident medical certificate dated 17 November 2014 placed lifting restrictions on the plaintiff engaging in work requiring manual handling of heavy patients in circumstances where it was common knowledge within hospitals and medical circles that nurses may be required to assist to move or reposition dependent heavy immobile patients.

519. Specifically, in this case, the defendant should be taken to have known of the foreseeability of the risk of back injury occasioned to nurses engaged in hazardous manual handling tasks along those lines.

520. The evidence supporting that view is that the defendant had a no lifting policy. It employed a manual handling co-ordinator to educate and train nurses in manual handling techniques: T183.48 – T184.14. It had arranged for Ms Curry to prepare a job task description analysis which assessed and rated weightlifting tasks in the coronary care unit, and she identified the lifting of weights of 15 kgs and above as rare events, as observed at paragraph [88] above. It had a range of assistive devices to aid the process of manual handling patients, and it knew, at least from the reported historical facts of the plaintiff’s 2014 back strains at work, that the risk of a nurse incurring a back injury in the coronary care unit was plainly foreseeable.

(3) Magnitude and probability of risk eventuating in injury

521. I find that at the time the plaintiff incurred the subject back injury on 15 May 2017, the magnitude of the risk of her incurring that injury in the course of her work in the defendant’s coronary care unit was real and was neither fanciful nor remote: Wyong Shire Council v Shirt (supra), at p 48.

522. That much is evident from the defendant’s own recommended standard for the use of slide sheets which anticipated the deployment of 3 to 4 nurses to safely use that technique to reposition dependent patients, where neither 3 nor 4 nurses were available on duty at the time the technique needed to be deployed to address the recurring needs of the index patient which were not postponable.

523. In those circumstances, I consider that the risk of a back injury occurring, whilst shifting and manipulating the weight of a heavy patient by using manual force became heightened to a high level of probability of injury occurring due to the awkwardness of the task and the degree of force that needed to be applied in order to move and reposition the patient where only 2 and not 3 or 4 nurses were engaged in executing that task.

524. I find that the defendant ought to have foreseen and been aware of the risk in those circumstances. I therefore find that the risk of the plaintiff incurring a back injury whilst repositioning a heavy patient in the defendant’s coronary care unit was real and not remote. In those circumstances the defendant was required to take reasonable measures to address its obligation and seek to avoid the risk of injury to the plaintiff eventuating.

(4) Risk response expected of a reasonable employer

525. On taking a prospective view of the circumstances in which the plaintiff was injured, I find that a reasonable employer in the position of the defendant, acting reasonably in the face of the known and foreseeable risk of nurses incurring back injuries in the work place whilst performing duties within their commonplace remit, such as manual handling to reposition a dependent and immobile patient, would have taken a number of simple steps aimed at avoiding the occurrence of such an injury, as follows.

526. First, where it was known to the defendant that during the plaintiff’s shift of duty in the coronary care unit on the day in question that the index patient was of unusually large or tall proportions and needed to maintained in the semi-Fowler position, the simple measure of the admitting nurse assessing and realising that fact ought to have resulted in that nurse, who was primarily responsible for caring for that patient, if not the unit manager on-duty, arranging for a simple bed extension device of the kind identified by Ms Cacciola to be fitted to the patient’s bed in order to obviate the foreseeably and recognised recurrent phenomenon of him slipping down on the bed. If that simple measure of risk avoidance had been implemented shortly after the patient was admitted and assessed in the coronary care unit, I consider that it was more probable than not that the plaintiff would not have incurred the injury which she in fact sustained.

527. Secondly, as was identified in Ms Cacciola’s report, Exhibit “B”, without challenge, a similar result would have arisen if a suitable adjustable bed had been made available to cater for the particular nursing needs of the index patient given his large and outsized proportions, where he did not properly or safely fit the bed which was provided to him.

528. Thirdly, if a sufficient number of nurses had been rostered on duty and had actually been present on duty and ready to carry out their duties as needed in the coronary care unit to respond to the onerous demands of the patient workload at the time of shift handover, either of two possible situations would most likely have arisen.

529. One likely scenario would have been that the goodwill of the off-duty plaintiff would not have been called upon to assist Ms McDermott to perform the task that was within the remit of the other nurses who had been rostered on duty for that shift. The other likely scenario would have been that the level of onerousness of the task of repositioning the index patient would have been substantially and materially lessened if there had been 3 nurses present rather than just 2 nurses (including the plaintiff) to position themselves in such a way as to be able to exert the force required to safely manoeuvre the slide sheets to adjust the position of the index patient according to his medical needs.

530. The plaintiff argued that the defendant’s training of the plaintiff was deficient. As observed at paragraph [104] above, where the defendant’s records concerning manual handling are identified, the details of that training are opaque to analysis, especially so without explanatory evidence from Ms Ghaly, the defendant’s manual handling coordinator. In those circumstances it is difficult to discern what level or detail of training would have addressed the risk of injury where short staffing was the prevailing problem and the manual handling tasks had to be performed as best could be done in the emergent but deficient circumstances.

531. The plaintiff argued that assistive devices such as hoists could have been deployed. I do not consider that was a feasible response for two reasons. First, the evidence discloses that hoists were not used for repositioning patients. Secondly, it would still have been necessary to manually manipulate the weight of the patient to place the sling of the hoist underneath him to bear his weight. A hoist was not a practical solution without 3 nurses to manage the task.

(5) Degree of difficulty and inconvenience in implementing risk avoidance

532. On reviewing the liability evidence as a whole, I consider that common sense indicates none of the practical remedial measures outlined in the preceding paragraphs were unduly difficult, burdensome, inconvenient or too complex to contraindicate their implementation.

533. In that regard, as to the availability of suitable equipment, the evidence indicates that bed extension devices were available in the hospital if required. The admitting nurse and the NUM on-duty in the shift prior to the plaintiff’s shift ought to have recognised this and acted appropriately. Similarly, the evidence also indicates that adjustable beds were also available.

534. As to the availability of sufficient nursing staff to perform such skilled manoeuvres, in the context of the plaintiff being rostered on-duty for 8 consecutive and fatiguing shifts due to the short staffing of nurses, the evidence of Ms Curry indicates that where short staffing occurred, the hospital had the ability to make good such shortfalls by engaging casual or agency nurses to provide an appropriate complement of staff on-duty to enable the range of nursing work tasks to be performed as and when needed, with the safety of both patients and nurses in mind.

535. There was no evidence to suggest that any of those options for implementation involved unreasonable or undue expense, especially where the defendant hospital undertook to provide care in complex medical cases which in turn required focussed skilled nursing attention in circumstances where the lives and the wellbeing of patients depended upon the system of work functioning to the benefit of patients in need of that level of skilled and sophisticated medical and nursing care.

(6) Whether any conflicting or other factors existed

536. In my view, the evidence in this case does not identify or reveal any emergent conflicting responsibilities or other factors that would materially detract from the successful planning and implementation of the responsive measures of appropriate and safe nursing care outlined above.

537. That is so especially where the defendant operated a hospital which involved the use of extensive public resources funded by the community in the expectation that it would use those funds to provide appropriately safe care for patients and appropriately safe working conditions in compliance with, and in the reasonable discharge of, the duty of care it owed in each instance.

538. In those circumstances, I find that there were no identifiable conflicting responsibilities or other factors of relevance that detracted from the obligation of the defendant as an employer, to ensure that it acted in a reasonable and practical manner in the discharge of the respective duties of care that it owed to the patients and to its nursing staff deployed to provide appropriate care to those patients.

(7) Conclusion on negligence

539. On the foregoing analysis, I accept the submissions of the plaintiff that the defendant was negligent. Accordingly, I find that:

540. The defendant must accept and take the plaintiff as she was found, including her vulnerability to sustain back injury by reason of the underlying age and work-related conditions of her lumbar spine that existed prior to 15 May 2017;

541. The defendant failed in its duty to ensure its coronary care unit was appropriately and adequately staffed at all times when patients such as the index patient foreseeably required manual handling for repositioning in order to be maintained in the required physical position for identified medical reasons;

542. The defendant failed to take reasonable measures to ensure that at the end of the plaintiff's rostered shift there were sufficient nursing staff physically present in the unit and available to be called upon to meet the ad hoc nursing needs of the index patient where those needs were regularly recurrent and required predictable and appropriately reactive manual handling responses by nurses;

543. The defendant failed to provide the rostered on-duty nurse, Ms McDermott, with adequate assistance for the required manual handling of the index patient. This was in circumstances where its staffing standard was for 3 nurses to be on-duty to cover 6 beds in the high dependency coronary care unit, yet only Ms McDermott was available to meet the patient’s needs, where the evidence is silent as to the availability of an on-duty NUM to provide assistance. As a result, Ms McDermott had to request the goodwilled and compassionate assistance of the plaintiff, an off-duty nurse who was tired at the end of her shift, in circumstances of unexplained short staffing in a nursing unit providing critical care to at risk patients;

544. The plaintiff’s compassionate response to assist Ms McDermott and the index patient with the manual handling task in question was executed in accordance with the ethical duties of her profession in the course of her employment with the defendant;

545. The manual handling task of repositioning the index patient which caused the plaintiff to incur her back injury was foreseeably injurious because there was an insufficient number of on-duty nursing staff, where the awkward nursing postures and the forces to be applied using slide sheets with an insufficient number of nurses, that is less than 3 nurses, involved a material departure from the expected standard in the work system devised by the defendant, where those circumstances necessarily increased the hazardous nature of tasks, as was identified by Ms Cacciola’s evidence;

546. The deleterious impact of the defendant’s respective failures as outlined above would most likely have been materially reduced if not eliminated if earlier, the admitting nurse or the defendant’s supervising NUM had recognised the inadequacy or the unfit-for-purpose nature of the index patient’s bed in relation to his medical need to be maintained in the semi-Fowler position, where a bed extension device or a suitable ergonomic adjustable bed would have avoided the need for recurrent and risk laden manual handling. This was so especially in circumstances of the known and chronic short staffing problem, where the defendant had both knowledge of the fact, and the means by which those circumstances could be remedially addressed by arranging for casual or agency nurses to be deployed.

547. Consequently, on 15 May 207, the plaintiff’s compassionate professional response to the index patient’s needs, which resulted in her sustaining her back injury, arose in the circumstances of a deficient and unsafe system of work, which was in breach of the duty of care that was owed to her. In those circumstances I find that the defendant negligently failed to discharge that duty of care.

Issue 8 – Alleged contributory negligence

541. The defendant submitted that in the event of a finding in favour of the plaintiff on the issue of breach of duty of care, there should be a finding of a 30 per cent contributory negligence to be apportioned against the plaintiff, based on an alleged failure on her part to take reasonable care for her own safety. The defendant pleaded the following particulars of alleged contributory negligence as the basis for its claim for an apportionment:

i. Failure to take any or any proper care for her own safety.

ii. Failed to adhere to the manual handling training she received.

iii. Failed to adhere to and apply the safety protocols and training she was provided.

iv. Failed to utilise the information on using safe manual handling provided during handovers and staff ward meetings, patient notes, safe work practices where equipment was stored and on the nursing care plans and displayed throughout the department.

v. Failed to ask for assistance when required.

vi. Failed to use the correct lifting techniques for which she received training.

542. In the event of a finding of contributory negligence, the required evaluative exercise of determining the appropriate apportionment involves a comparative consideration which balances the respective actions or inactions of the plaintiff and the defendant, to determine the extent to which it is just and reasonable to reduce the plaintiff's damages on account of her own contributory negligence in the context of the primary negligence of the tortfeasor: Podrebersek v Australian Iron & Steel Pty Ltd [1885] HCA 34; (1985) 59 ALJR 529, at [8] and [10].

543. The defendant bears the onus of proof of its claim of contributory negligence. It also carries the evidentiary burden of proof for that claim. The argued evidentiary basis for that claim was advanced in a rolled-up series of propositions to the effect that the plaintiff had considerable experience in moving heavy patients “countless times”, she had received training in manual handling prior to 15 May 2017, she ought to have been aware of “any risk of injury associated with moving a patient within a hospital bed”, and she allegedly did not seek to obtain “the advantage of numerous support staff, systems and mechanisms (such as an adjustable bed or hoist) to assist in moving patients who required it due to their immobility or size”.

544. In my view, there are problematic elements embedded within those propositions which preclude a contributory negligence finding, as follows.

545. First, the “countless times” of previous instances of manual handling have not been reliably shown to be equivalent to the circumstances which prevailed in the coronary care unit on 15 May 2017. Secondly, the index circumstances did not involve the action of simply “moving a patient” within a hospital bed, and instead, involved repositioning a patient who became mal-positioned, and had to specifically be maintained in the semi-Fowler position which raises the question of why the repositioning of the patient became a recurring need. Thirdly, there was no reliable factual evidence of the availability of the suggested “numerous support staff” with suitable qualifications or training who could have provided assistance, including numbers that were sufficient to safely facilitate the required manoeuvres.

546. For supportive evidence, such as exists on those matters, the defendant relies on the oral evidence of the plaintiff and Ms Curry, as well as the defendant’s records and documents that have been tendered. In that regard:

547. Particular of contributory negligence (i), which concerns the allegation of a failure of proper self-care, involves an evaluation of the factual circumstances as a whole; and

548. Particulars of contributory negligence (ii) to (vi), which concern the application of manual handling training and safety protocols, and the argued call for assistance from other support staff, involves an examination of the state of the evidence concerning the availability of such staff to assist on such matters.

549. I am not persuaded that the defendant has discharged the onus it carries for proof of the allegation that the plaintiff was contributorily negligent or that such contributory negligence was a material cause of her injury.

550. For a series of reasons, I do not accept the underlying premise of the defendant’s contributory negligence argument which seems to rely on the implication that since the plaintiff had in the past moved heavy patients “countless times”, therefore her injury had occurred because she had not paid proper attention to her own safety on this occasion.

551. First, that argument is based on the proposition that there is, without evidence, an assumed equivalence between the “countless” earlier occasions and the specific factual circumstances in which the plaintiff was called upon to assist her colleague Ms McDermott in repositioning the index patient. That proposition has no application to the factual circumstances of this case because:

552. The plaintiff was not in charge of the process of repositioning the index patient. The manoeuvre was not initiated by her. She had no determinative say over the choices of equipment or the system by which the index patient was to be repositioned;

553. There is a significant difference between the distinctly separate tasks of moving a patient and the repositioning of a mal-positioned patient. On the evidence, moving heavy patients in and out of bed was to be achieved by using a sling and hoist arrangement, whereas the repositioning of an immobile dependent patient required the use of slide sheets and teamwork involving fallible human agents where the latter manoeuvre was not a standard or a simple mechanical procedure. Instead, it involved a series of situational variables: Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337, at p 342; [1957] HCA 34;

554. The defendant has not discharged its evidentiary onus of establishing the factual equivalence between the circumstances of the underlying “countless” previous times the plaintiff had moved heavy patients in the past and the presenting situation whereby the index patient required regular repositioning due to him recurrently slipping down on his bed into mal position because of the inadequate bed configuration on which he had been placed. The defendant’s argument involved a level of non-specific generality which, on the evidence, does not rise above speculation: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, at [8], [10].

555. Secondly, the defendant’s argument does not achieve traction because it pays no regard to the inherent deficiency within its own system of work, namely:

556. The plaintiff was called upon to assist her colleague Ms McDermott at a time when she was already off-duty in circumstances of a known and chronic staff-shortage in the coronary care unit. The evidence, suggests that at the time the plaintiff was called upon to assist Ms McDermott, they were the only 2 nurses present and qualified to attend to the needs of the index patient;

557. The plaintiff had no control over the inherent deficiency in the design of the system of work in that she was not in a position to refuse or to defer immediate compliance with Ms McDermott’s request to manually assist in repositioning the mal-positioned index patient because of his medical needs. As a compassionate health care professional, ethically she was not in a position to refuse or to refrain from obliging the request for assistance given the critical care needs of the index patient even though she had already gone off shift. The fact that the plaintiff was the only person available in the vicinity to be called upon to assist Ms McDermott in the repositioning task simply bespeaks a lack of sufficient staff present and on duty at the critical time surrounding the handover of patient care at the end of a shift without any reserve or overlap capacity in place to allow for emergent ad hoc patient needs at that crucial time where all the patients were there for critical care;

558. The proper inference to be drawn is that if there was another nurse on duty at the time, Ms McDermott would not have needed to call upon the plaintiff who was off duty;

559. There was no evidence that a third or a fourth nurse was present on-duty in the coronary care unit or present in the vicinity, who could have been called upon to assist to manipulate the slide sheets and move and reposition the index patient in the manner described by the defendant’s manual handling co-ordinator Ms Ghaly. Her evidence on that issue is supported by the unchallenged expert evidence of Ms Cacciola. The defendant has not discharged its evidentiary onus of showing that a third or fourth nurse or other suitably trained persons were available to be called upon to assist in the safe repositioning of the index patient;

560. The recurring need for the index patient to be repositioned was an important, immediately pressing and undeferrable aspect of his nursing management. In those circumstances it was not ethically open to the plaintiff as a registered health care professional to withhold her assistance in the face of that need even though her shift of duty had ended.

561. The plaintiff had not been tasked with the obligation of sourcing and fitting a bed extension device to the bed of the index patient. On the evidence, that was the task of the nurse who had admitted that patient to the coronary care unit. That nurse had the duty to make an assessment of the patient’s nursing needs. It was also the task of the unit’s NUM or the successive NUMs on duty who had a supervisory role concerning appropriate patient care. On that evidence, the defendant did not call evidence from any of those persons.

562. In my assessment, contrary to the defendant’s contributory negligence arguments, at best, the plaintiff’s actions amounted to no more than a transient episode of inadvertent divergence from self-care whilst she was being required to respond to the pressing needs of a dependent patient in a foreseeably deficient system of work that was foreseeably liable to cause a back injury. This was in circumstances where she had to attend to the unpostponable needs of that patient. This occurred at a time when she was tired, and her shift of duty had already concluded. In my assessment, that combination of circumstances does not support or justify a finding of contributory negligence: Czatyrko v Edith Cowan University (supra), at [12] – [13].

563. If, contrary to my findings, there was a departure from self-care by the plaintiff, which I do not accept, I consider that it should be seen to have been no more than an instance of transient inadvertence on her part in a dynamic situation not of her making and not within her control. Those considerations preclude a finding of contributory negligence.

564. To allow for the possibility that I may be found to be in error in the above assessment and findings on the issue of contributory negligence, it is necessary that I address the alternative possibility that was argued.

565. In that regard, in undertaking the required evaluative exercise, I consider that any default in self-care on the plaintiff’s part was wholly due to her compassionate response in attending to the pressing needs of the index patient in the Good Samaritan sense.

566. I consider that her response in that regard was as a fallible human agent at a time when she was affected by work-related fatigue at the end of a series of demanding shifts, where she placed the patient’s needs ahead of considering her own safety. This occurred in the context of a fundamentally deficient system of work devised by her employer, where the root causes of the deficiency were the defendant’s failure to provide and fit an appropriate bed extension device and a concomitant failure to roster adequate nursing staff on duty for the tasks required in circumstances where, according to Ms Curry, the defendant had access to and could have called upon a range of permanent, casual, or agency nurses to fill its rostering needs in the event of short staffing.

567. In those circumstances, in the required comparative evaluation, I consider the defendant’s systemic negligence was an overwhelming factor such that wholly eclipsed any contributory role the plaintiff may have had (which I have not accepted), which was fleeting, as a momentary inadvertent departure from self-care. Any default of self-care on the plaintiff’s part was driven by the emergent call to assist with the pressing medical needs of the index patient. In those circumstances, I would assess the defendant’s comparative negligence apportioned at 100 per cent.

568. Accordingly, on both of those bases, I therefore reject the defendant’s claim for a reductionist apportionment of the plaintiff’s damages.

Issue 9 – Causation

558. The plaintiff bears the onus of proof that, in the legal sense, the accident caused or has at least materially contributed to the harm she suffered: Bonnington Castings Ltd v Wardlaw [1956] AC 613; [1956] 1 All ER 615. Unlike the prospective inquiry required for determining whether the defendant was negligent, the determination of the question of causation of harm involves a hindsight analysis: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124].

559. The defendant’s primary submission on causation was that the plaintiff has not established a causal connection between her back complaints and any work-related incident on 15 May 2017, arguing that her back complaints were not related to any occurrence at work on that date. Those arguments were founded upon the respective notations of Dr Harding in the plaintiff’s medical records and the Riskman entry made by Ms Curry to the effect that there had been no specific injurious incident on 15 May 2017. For the reasons outlined at paragraphs [318] to [380] above, I have found those notations to be unreliable with respect to the evaluation and determination of a liability and causation analysis.

560. In the alternative, the defendant submitted that in the event there is a finding of a breach of duty of care, the plaintiff has nevertheless failed to establish a relevant causal connection between her injury and the incident on 15 May 2017.

561. Essentially, the defendant’s further causation submissions were based on the following propositions:

562. The defendant submitted that the plaintiff’s prior back strains resulted in short-lived symptoms. That was not the case with her 15 May 2017 injury;

563. The defendant referred to the evidence of the plaintiff having performed manual handling tasks “countless times” between early 2015 and May 2017. As explained at sub-paragraph [12] of paragraph [82], paragraph [544] and paragraph [548] above. That concession by the plaintiff is not determinative;

564. The defendant referred to the clinical notes of Dr Abeydeera dated 5 January 2015 in the defendant’s tender bundle at pages 28 – 29 where it was recorded that the plaintiff had incurred low back pain on 31 December 2014 sic) when repositioning a 90 kg patient with 2 other staff members during a night shift. That note has to be viewed in the context of the plaintiff’s evidence that she recovered from that incident, as is evidenced by her successful return to work without difficulty after the symptoms from that incident had settled;

565. The defendant’s submissions relied upon the accuracy of the Riskman records as reliable “contemporaneous records” which contradict the plaintiff’s account of an injury on 15 May 2015. For the reasons outlined in the consideration of Issue 1, I do not accept that submission;

566. The defendant relied upon a record made on 5 January 2015 by the plaintiff’s physiotherapist, Mr Notley (defendant’s tender bundle, p 28), to suggest the plaintiff had incurred a back injury in a further incident. I do not accept that submission. Read in proper context, that evidence relates to the plaintiff’s back injury incurred on 30 December 2014, from which she recovered and returned to work after her symptoms had settled;

567. The defendant submitted that none of the medical experts attribute the plaintiff’s back disability to the injury. In my view, that submission is contrary to the effect of the preponderance of the medical evidence summarised in PART D of these reasons;

568. The defendant submitted that there is insufficient evidence to establish the injury involving the use of slide sheets on 15 May 2017 caused the plaintiff’s back disabilities. As already explained, I have not accepted that proposition. Instead, I have accepted the plaintiff’s evidence as to the fact she was injured on 15 May 2017 in the manner she described, resulting in the disabilities which she described. I have also accepted the evidence of Dr Cochrane (as referenced at paragraphs [202], [388] and [473] above, citing Exhibit “5”, Tab 5, pp 37 – 4), that the injury on 15 May 2017 was a fresh injury which compressed the plaintiff’s L2 nerve root, thereby requiring surgery;

569. The defendant argued that the plaintiff’s history of fainting and fitting was unrelated to her injury and this in effect broke the chain of causation. I do not accept that argument as to the plaintiff’s episodes of fainting, or syncopal events, which were secondary to her intake of Codeine for pain relief. There is no reliable evidence for proof of the defendant’s proposition that the plaintiff has been fitting.

570. In my view, for the reasons identified at paragraphs [400] to [490] above, and for the reasons that shortly follow, those submissions should not be accepted as my findings of fact as to the circumstances of the plaintiff’s injury on 15 May 2017 and with respect to the medical evidence do not support the defendant’s submissions.

571. Furthermore, I consider that those submissions should not be accepted in light of the defendant’s 13 June 2017 record comprising an on-line Comprehensive Incident Notification Report prepared by the defendant’s recovery officer following an internal investigation of the circumstances of the plaintiff’s injury, where the defendant’s recovery officer noted the plaintiff’s initial account as: “pain is related from manual handling a heavy patient on 15/5”. In my view that description is more accurate, consistent with, and confirmatory of the plaintiff’s factual account of experiencing an immediate sensation of back pain whilst repositioning the index patient on 15 May 2017. It was not put to the plaintiff that she had provided an untruthful account to the defendant’s recovery officer in that investigation when that record was made.

572. Furthermore, in my assessment, the preponderance of the medical evidence, which I have accepted, as summarised at paragraphs [382] to [399] above, satisfactorily establishes that the plaintiff’s injury, her treatment, and her resultant physical disabilities were materially caused by the accident which was due to the negligence of her employer without other contributing causes: Bonnington Castings Ltd v Wardlaw [1956] AC 613; [1956] 1 All ER 615.

573. In that regard, I accept the considered views of Dr Teychenne and Dr Cochrane.

574. I find that the plaintiff would not have encountered any of those problems but for that negligence: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12, at [28]; Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5.

575. I find that but for the negligence of the defendant, on 15 May 2017, the plaintiff would not have had to engage in the process of repeatedly repositioning the index patient in the circumstances of short staffing which ultimately culminated in her being called to assist Ms McDermott in that process at a time when she was already off duty.

576. In that regard, I find that if a bed extension device had been fitted to the bed of the index patient following his admission to the coronary care unit, the need to repeatedly reposition that patient would most probably not have arisen as he would have been maintained in the required semi-Fowler position. Furthermore, if there had been sufficient numbers in nursing staff on duty in the unit and available at the time the plaintiff was injured she would not have been called upon to assist in repositioning the index patient at a time when she had already gone off-duty, and where she was only present in the unit by coincidence when she was washing her hands at the end of her working shift.

577. Consistent with those findings I also find that but for the negligence of the defendant, the plaintiff would not have experienced a straining back injury to the extent that caused a fresh injury to her lumbar spine as opined by Dr Cochrane, which aggravated and changed the nature of her underlying degenerative condition such that it required surgery and has subsequently prevented her from working thereby resulting in her loss of earning capacity as claimed.

578. There is no persuasive evidence to suggest that there were any other competing causes for the plaintiff’s injury and resultant lost earning capacity. I find that the chain of causation has not been broken by occurrence of other events. In those circumstances, it is not necessary to undertake a process of “disentanglement” of other potentially contributing factors as that analysis does not arise because the pre-injury underlying degenerative changes in the plaintiff’s spine have been permanently aggravated beyond ordinary deterioration, as was explained by Dr Teychenne and Dr Cochrane and summarised at paragraphs [286] to [287] above: Watts v Rake (1960) 108 CLR 158; (1960) 34 ALJR 186; [1960] HCA 58; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34.

579. Accordingly, I find that the plaintiff has satisfactorily discharged the onus of proof she bears for establishing that her injury on 15 May 2017, and the resultant disabilities which followed that injury, were relevantly caused by the negligence of the defendant. I find that but for those events, the plaintiff’s injury on that date, and the disabilities which have flowed from that injury, would not have occurred: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5.

Issue 10 – Assessment of damages

572. The plaintiff claims the following heads of damage:

573. Past economic loss;

574. Past loss of employer funded superannuation benefits;

575. Future loss of earning capacity;

576. Future loss of employer funded superannuation benefits;

577. Fox v Wood damages.

(1) Past economic loss

573. The parties acknowledged with regret that they were unable to agree upon quantum for the assessment of the plaintiff’s claim for past economic loss.

574. On the basis of the medical evidence that I have accepted as explained at paragraphs [382] to [399] above, I find that the plaintiff’s earning capacity has been grossly impaired as a result of the defendant’s negligence and this has caused the plaintiff to suffer past and future financial loss: Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5.

575. I am satisfied that but for that negligence, the plaintiff would have continued to be able to pursue her career as a nurse, subject to the potentially adverse vicissitudes that would ordinarily require the assessment of a discount for that factor.

576. Absent the subject injury, based on the opinions of Dr Teychenne and Dr Cochrane, it is likely that the impact of adverse vicissitudes on the plaintiff’s underlying circumstances would have involved a gradual deterioration in the degenerating condition of her lumbar spine, especially if she continued to carry out nursing duties that placed stress on her lumbar spine. The gradual nature of that process would most likely have enabled her over time to transition into less arduous and less hands-on nursing roles consistent with her accumulated skills and training. This would have enabled her to continue to derive an income in her chosen profession. In that way, according to the views of Dr Teychenne and Dr Cochrane, as expressed in their conclave and concurrent evidence, the impact of vicissitudes on the plaintiff’s earning capacity would most likely have been far less adverse than has occurred due to the subject injury.

577. The plaintiff’s submission on past loss of earning capacity was based on a calculated net earnings loss of $589,851.82 less mitigatory net earnings of $56,208.00, and less past workers’ compensation payments of $257,375. Calculated that way, the net difference and claimed loss is $276,268.72.

578. In contrast, the defendant’s primary submission was that no damages should be awarded for this head of damage. In the alternative the defendant argued that this head of damage should be assessed on the basis of alternative schedules which respectively totalled either $224,810 or $267,200. In the context of those alternatives, the defendant argued that at best, any such damages should be limited to a small buffer sum of the order of $25,000.

579. The calculations submitted by the defendant were based on different causation assumptions to those which I have accepted as explained at paragraphs [558] to [571] above.

580. The plaintiff’s calculations were based on an array of financial materials comprising payslips and tax returns and an explanatory letter from an accountant: Exhibit “A”, pp 328 – 410.

581. Those calculations were updated to the time of the hearing by an analysis provided in an affidavit by the plaintiff’s solicitor, sworn on 2 July 2024. That affidavit annexed up-to-date wages calculations and award information, a relevant enterprise agreement for nurses, an updated accountant’s letter dated 26 June 2024 which interpreted that financial information, and a schedule that calculated the plaintiff’s net past economic loss claim at $589,851.42, and the claim for past loss of employer funded superannuation of 11 per cent on past net economic loss, namely $64,883.70.

582. In response, without conceding the applicability of the plaintiff’s argued approach to quantifications, the defendant agreed with the substance of the plaintiff’s method for calculating past economic loss but argued that an incorrect basal rate had been applied using 2019 rates for the 2018 year, with the result that the plaintiff’s calculation of past economic loss after correction for that error should be instead calculated at $572,669.60 net, and that past employer funded superannuation should instead be calculated at $62,993.66.

583. I accept that the defendant has demonstrated the mathematical soundness of that submitted correction.

584. I have accepted that the plaintiff’s injury on 15 May 2017 was incapacitating for her work as a nurse. The preponderance of the medical evidence summarised in PART D of these reasons demonstrates the inadvisability of her resuming full nursing duties. I accept her evidence as to her work incapacity pre and post her 30 November 2017 surgery.

585. For the reasons outlined at paragraphs [382] to [399] above, I have not accepted the defendant’s medical and allied evidence to the effect the plaintiff had a practical residual earning capacity.

586. I accept that the plaintiff’s attempts at mitigatory employment (in which she derived some earnings which must be offset from her claim), could not be sustained due to her experience of injury-related pain and disability.

587. I find that the defendant’s alternative approach to assessing past economic loss as identified at paragraph [582] above, is the preferred and accurate method.

588. I therefore assess past economic loss in the amount of **$572,669.**60.

(2) Past loss of employer funded superannuation benefits

589. In accordance with the conventional approach of 11 per cent of past economic loss identified in Nadjovski v Crnojlovic [2008] NSWCA 75, I assess past loss of employer funded superannuation benefits in the amount of **$62,**993.66.

(3) Future loss of earning capacity

590. The plaintiff submitted that her claim for future economic loss should be assessed in the sum of $1,023,983.91 on the basis of the projection of a net weekly loss of $2023.96 over 13 years using the 5 per cent multiplier (x 503.2), less 15 per cent for vicissitudes, thereby identifying her future economic loss claim in the sum of $869,537.59.

591. The defendant’s alternative submissions were first, there should be no allowance for future economic loss because of the plaintiff’s argued unrelated episodes of “fainting and fitting”; secondly, there should be an alternative allowance of a buffer sum of $200,000 for future economic loss assuming a 50 per cent residual earning capacity; and thirdly, in the event of a need for a full projection of a weekly loss, there should be a 40 per cent discount for adverse vicissitudes.

592. The defendant’s argument of the plaintiff’s fainting and fitting may be swiftly dismissed. First, the allegation of fitting is a misnomer. The plaintiff’s fainting or syncope episodes were related to her experiences of pain and her reaction to Codeine, which she took for pain relief.

593. The defendant submitted that in the event of a projection of a weekly loss, the base rate for projection should be $1973.74 net per week instead of $2023.96 net per week as submitted by the plaintiff, consistent with the approach taken for the calculation of past economic loss. I accept that the defendant’s approach is reasonable and correct, namely, the net weekly figure for projection should be $1973.74.

594. In assessing damages for future loss of earning capacity an allowance must be made for favourable as well as unfavourable contingencies: Bresatz v Przibilla (1962) 108 CLR 541, at 544, per Windeyer J.

595. The parties took different approaches to the appropriate discount for adverse contingencies to be applied to the calculation of future economic loss. The defendant submitted that if a net weekly sum was to be projected, the discount should be 40 per cent which I consider to be excessive. In contrast the plaintiff submitted that the conventional discount of 15 per cent for potential adverse vicissitudes should apply.

596. In Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53, at [11], the conventional discount for the projected calculation of future economic loss was identified at 15 per cent. In De Sales v Ingrilli (2002) 212 CLR 338; [2002] HCA 52 at [99], the approach for a discount of 15 per cent was confirmed as correct in relation to low to middle income earners.

597. Balanced against those considerations is the need to have regard to the medical opinions of Dr Teychenne and Dr Cochrane as cited at paragraphs [286] to [287] above, to the effect that absent injury, the plaintiff’s underlying age-related degenerative changes in her lumbar spine would most likely have deteriorated gradually to a point where they would most likely have become symptomatic at an uncertain but seemingly inevitable time.

598. That consideration applies especially so given that the plaintiff would most probably have continued to carry out the onerous work of nursing which would most likely have had an adverse effect on her underlying condition. Furthermore, the medical evidence acknowledges that nurses may be vulnerable to back injury in their work from time to time.

599. As a consequence, I consider that a discount of significantly more than 15 per cent should be applied on account of the potential adverse vicissitude that, absent the subject injury, where, in the longer term, a gradual process of deterioration of degenerative changes in the plaintiff’s lumbar spine could have resulted in an incapacity to continue in her work as a nurse to the otherwise normal retirement age of 67 years.

600. However, balanced against the factor of gradual deterioration is the prospect that with a gradual onset of deterioration, the plaintiff may well have sought more sedentary and non-injurious nursing duties commensurate with her wide experience, as was suggested by Dr Kam.

601. In applying that balance I consider that the appropriate discount for vicissitudes to be applied to this head of damage is 30 per cent. The projection of a weekly net loss of $1973.74 at 5 per cent (x 502.3) less 30 per cent for vicissitudes yields the sum of $693,986.72. I therefore assess future loss of earning capacity in the amount of **$**693,986.72.

(4) Loss of future employer funded superannuation benefits

602. Applying the conventional calculation of 14.23 per cent for the loss of employer funded superannuation benefits, less an allowance of a discount of 30 per cent for vicissitudes, the calculation ($1973.74 x 502.3 x 14.23% - 30%), yields $98,754.32. I therefore assess the plaintiff’s damages for past loss of employer funded superannuation benefits in the amount of **$**98,754.32.

(5) Fox v Wood damages

603. The plaintiff’s submissions identified the tax paid by the plaintiff on her workers’ compensation benefits in the amount of $33,810. The defendant agreed to this assessment. I therefore assess the plaintiff’s Fox v Wood damages in the agreed amount of $33,810.

Summary of damages assessment

604. My assessment of the plaintiff’s damages is summarised as follows:

| (1) Past economic loss | $572,669.60 | | (2) Past loss of employer funded superannuation benefits | $62,993.66 | | (3) Future loss of earning capacity | $693,986.72 | | (4) Future loss of employer funded superannuation benefits | $98,754.32 | | (5) Fox v Wood damages | $33,810.00 | | Total | $1,462,214.30 |

Issue 11 – Mitigation of damages

605. The defendant pleaded the following particulars alleging the plaintiff had failed to mitigate her damages:

i. Failure to undergo appropriate medical treatment;

ii. Failure to promptly seek suitable employment from the defendant or if necessary suitable alternative employment.

iii. Failure to comply with the plaintiff’s obligations under chapter 3 of the 1998 Act (Workplace Injury Management).

iv. Failure to seek appropriate rehabilitation training.

606. Section 151L of the Workers Compensation Act 1987 provides:

151L Mitigation of damages

(1) In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages.

(2) In particular, the court must consider the following matters—

(a) whether the injured worker has undergone appropriate medical treatment,

(b) whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment,

(c) whether the injured worker has duly complied with the worker’s obligations under Chapter 3 of the 1998 Act (Workplace injury management),

(d) whether the injured worker has sought appropriate rehabilitation training.

(3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraphs (b)–(d) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in those paragraphs into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that the worker was required to take those steps.

(4) In any proceedings for damages, a written report by a person who provided medical or rehabilitation services to the injured worker is admissible as evidence of any such steps taken by that worker.

607. In considering whether or not the plaintiff has taken reasonable steps to mitigate her losses, subjective factors are necessarily relevant and must also be taken into account: Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; [1982] HCA 3. A prospective analysis of the circumstances is required, not an analysis of what a theoretical hindsight analysis might suggest: Arnott v Choy [2010] NSWCA 259, at [161]; Mahony v Watson [2003] NSWCA 259, at [52] – [53], Brogan v Geary (1995) Aust Torts Reps 81-342, at 62,421.

Alleged failure to undergo appropriate medical treatment

608. The evidence satisfactorily shows that following her injury on 15 May 2017, the plaintiff promptly sought appropriate medical assistance after a period of conservative rest and analgesic medication had failed to alleviate her symptoms. Thereafter, she continued to follow medical advice and she ultimately agreed to have spinal surgery in the expectation that it would alleviate her symptoms.

609. That surgery was initially delayed when for a time, because despite repeated clinical requests from the treating neurosurgeon, the workers’ compensation insurer withheld approval for the payment of that surgery. Unfortunately, that delayed surgery did not have the anticipated result. Instead, it has left the plaintiff with a greater level of disabling symptoms, including a more debilitating level of spinal symptoms, including episodic urinary and faecal incontinence, and an inability to work.

610. In those circumstances, the plaintiff cannot reasonably be criticised for declining the offer of further spinal surgery particularly where she has a realistic apprehension that it would not improve her quality of life or mitigate her impaired earning capacity.

611. It is relevant to observe that whilst the plaintiff was waiting for her surgery to be approved by the workers’ compensation insurer she was unable to exercise her pre-injury earning capacity based on medical advice. This is evidenced by the many unchallenged work incapacity certificates to that effect. In those circumstances this aspect of the defendant’s argument that she failed to mitigate her losses rings hollow and cannot be accepted.

Alleged failure to seek suitable employment

612. The plaintiff’s claim for loss of earning capacity arises from the baseline consideration where the defendant could not offer her suitable alternative employment which resulted in the defendant withdrawing an alternative suitable work plan and terminating her employment on 12 August 2019, thereby resulting in her incurring an ongoing loss of earnings.

613. The plaintiff’s claim for loss of earnings was triggered by the defendant's decision, to withdraw suitable duties work to her on the basis that she had a travel restriction of 45 minutes, and as a result, the defendant, in consultation with its rehabilitation provider, Procare, informed the plaintiff that it had been determined that she should seek suitable work with a different employer: Exhibit “1”, Tab 152, pp 983 – 984. That decision placed the plaintiff in the invidious position of seeking employment in a necessarily limited labour market in light of her disabilities.

614. The preponderance of the medical evidence as summarised at paragraphs [382] to [389] above, indicates that it was unlikely that the plaintiff would have been able to obtain and sustain mitigatory employment due to her particular disabilities, especially her travel restrictions.

615. The plaintiff attempted to pursue alternative mitigatory employment with an agency, as is reflected in her income tax returns. However, as was observed by the defendant’s rehabilitation assessor (at Exhibit “5”, Tab 13, p 897), she was not able to continue to travel to and from work as this triggered her pain.

616. Although the plaintiff pursued and obtained a Master’s nursing degree from the University of Tasmania by remote studies in 2019, this has not led to a practicable ability for her to exercise an emergent residual earning capacity.

617. Whilst a functional capacity assessment undertaken by a rehabilitation counsellor on 24 May 2022 on behalf of the defendant (at Exhibit “5”, Tab 13, p 898), suggested that the plaintiff would theoretically be able to work in a sedentary role with limitations on lifting weights of 6 kgs above knee height, given the cited medical opinions of Dr Teychenne and Dr Cochrane, in my assessment, that theoretical capacity does not translate to a realistic or practical earning capacity.

618. That is especially so since the plaintiff can’t readily leave her house on account of her disabilities, despite her cited “excellent verbal communication skills”. As a result, in light of her disabilities, the suggested capacity for working as a casual Nurse Clinical Facilitator / Educator for 20 hours per week based on her experience and on her skills should be seen to be an impractical theoretical notion.

619. Ultimately, the joint opinion of the consultant neurologist and neurosurgeon (Dr Teychenne and Dr Cochrane) who provided the last and the most authoritative word on the question of the plaintiff’s employability, considered that by reason of the injury-related permanent aggravation of her underlying spinal condition, it is unlikely that she has the capacity to leave her home to pursue alternative work.

Alleged failure to comply with Chapter 3 of the WIM Act

620. It is difficult to identify the basis for the defendant’s claim that the plaintiff has not complied with her obligations under Chapter 3 of the WIM Act because that claim is unparticularised.

621. Contrary to that claim, the evidence in this case, particularly the preponderance of the medical evidence reviewed in PART D of these reasons, demonstrates that the plaintiff:

622. made a reasonably prompt and early notification of her injury once she realised that rest and analgesics were ineffective in ameliorating her pain: s 44(1);

623. attended all of the defendant’s appointed medical examinations and rehabilitation assessments where none of those assessments has led to practical and achievable alternative mitigatory employment: s 47;

624. requested suitable duties which could not be provided by the defendant: s 48, s 49;

625. could not return to her work because she remained certified as unfit for her pre-accident duties: s 49;

626. has not been able to resume alternative mitigatory work by reason of her significant injury-related disabilities: s 49, s 53.

627. In those circumstances I do not accept the defendant’s claim that the plaintiff has failed to comply with her obligations under Chapter 3 of the WIM Act. The evidence discloses that she has attended to and complied with all reasonable requests for rehabilitation assessments. None of those assessments have identified a realistic or an achievable residual earning capacity.

Alleged failure to seek appropriate rehabilitation treatment

623. The evidence shows that the plaintiff sought medical treatment within a reasonable time following her injury. Thereafter, as is apparent from the medical evidence summarised in PART D of these reasons, her medical condition and related needs were regularly assessed and monitored.

624. At the referral of the defendant, the plaintiff cooperated with all appointments for rehabilitation assessments. None of those assessments has identified a practical means by which she could mitigate her damages by pursuing an asserted residual earning capacity.

Conclusion concerning alleged failure to mitigate

625. For the foregoing reasons I do not accept the defendant’s claim that the plaintiff has failed to mitigate her damages. Accordingly, there will be no reduction in the plaintiff’s damages award on account of that claim.

PART G – DISPOSITIVE ORDERS

Disposition

626. The plaintiff has established her claim for damages which are assessed at $1,462,214.30. Against that assessment the defendant is entitled to a credit for payments of workers’ compensation already made to the plaintiff in the sum of $257,375. After applying that offset credit, the plaintiff is therefore entitled to a judgment in the net amount of $1,204,839.30.

Costs

627. Costs should follow the event, and the defendant should pay the plaintiff’s costs as agreed or assessed: UCPR r 42.10.

Orders

628. I make the following orders:

629. Verdict for the plaintiff on her liability claim against the defendant;

630. The plaintiff’s damages are assessed at $1,462,214.30;

631. After applying a credit offset of $257,375 for the workers’ compensation payments made by the defendant, judgment in favour of the plaintiff against the defendant in the net sum of $1,204,839.30;

632. The defendant is to pay the plaintiff’s costs as agreed or assessed;

633. The exhibits may be returned;

634. Liberty to apply on 7 days’ notice if further or other orders are required.

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