Rudd v Starbucks Coffee Company [2015] QDC 232 | Case summary

Rudd v Starbucks Coffee Company [2015] QDC 232 | Case summary | Zoe

[12]

[4] It is pleaded that the incident referred to in [9] of the statement of claim was caused by the negligence, breach of contract of employment and/or breach of duty of the defendant, the particulars of which are:

(a) failing to provide the plaintiff with a safe place of work;

(b) failing to provide the plaintiff with a safe system of work;

(c) failing to adequately or at all train, warn or instruct the Plaintiff as to the performance of the tasks involved in her employment;

(d) failing to establish a system to enable the work to be done without the need for the Plaintiff to adopt an awkward posture;

(e) failing to adequately illuminate the work area;

(f) allowing the work area to be awkward and cluttered;

(g) failing to organise the plant and equipment so that relevant items were within adequate reach;

(h) failing to instruct the Plaintiff as to the posture she needed to adopt [to] carry out the task;

(i) failing to properly position the socket;

(j) failing to allow appropriate space between the socket and the icebox;

(k) causing or allowing the socket to be partially obscured;

(l) failing to take adequate precautions for the safety of the Plaintiff whilst she was engaged in her work.

[5] It is also pleaded that the defendant breached its duty under s 27A of the Workplace Health and Safety Act 1995, in the respects set out in [12] of the statement of claim. It was not disputed that such a breach (which was denied by the defendant) does not confer on the plaintiff a civil cause of action in respect of loss and damage arising from it,[1] but counsel for the plaintiff maintained that breach of those duties remained relevant as particulars of common law negligence.[2] For the reasons given by McGill SC DCJ in Prasad v Ingham Enterprises [2015] QDC 200 at [42]- [45], I do not accept that as correct. But in any event, no attention was given to these statutory duties in the plaintiff's submissions and I do not propose to address this further.

[6] In [13] of the statement of claim, the plaintiff alleges that as a result of the incident, she suffered the following injuries:

(a) right patella injury and/or right knee injury;

(b) dislocation and or subluxation of the right knee;

(c) aggravation of pre-existing patella instability;

(d) scarring to right knee from surgery;

(e) compensating injury to left knee.

[7] The plaintiff claims amounts for general damages, past economic loss (with interest and lost superannuation), future economic loss (and future superannuation), special damages and an amount for future surgery and future physiotherapy.[3]

[14]

[14] A number of issues were raised by the defendant which were said to reflect poorly on the plaintiff's credibility as a witness. It was submitted that, in various respects, she had shown herself to be a person willing to make statements which are not true in order to advance her own interests; or to deliberately omit relevant facts when they did not suit her position.[8]

[15] One of those matters that I find does reflect poorly on the plaintiff's credibility is her failure to disclose the history of injury to her right and left knees to the orthopaedic surgeons who gave expert evidence at the trial, Dr Ganko and Dr Wallace (as well as in her notice of claim for damages). The evidence is to the effect that she had obtained medical treatment in respect of prior incidents concerning her knees in 2005, 2007 and 2008, as well as a further report of pain in 2010, as follows:

(a) The Telegraph Road Clinic[9] notes,[10] record an attendance on a Dr Bostock-Ling on 29 September 2005, including "Got up from tackle on the ground playing AFL, and heard a loud 'crack' in her knee and has been painful since. No locking or giving way".[11]

(b) The Telegraph Road Clinic notes record an attendance on a Dr Hackey on 25 May 2007, including "hurt right knee when fell on it at netball 2/52 ago; played on; has bruise over tib tuberosity; clicks; nearly gives way; ... tender nearly whole knee - esp peri patella".[12]

(c) The Telegraph Road Clinic notes record an attendance on Dr Daniel John on 4 November 2008, including "she fell off a chair on Saturday evening this is swollen and sore, fell off a bar stool on to her knee; some discomfort limping a bit no external bruising; rule out patella fracture".[13] There are further records in the Telegraph Road Clinic notes relating to that same incident, on 6, 19 and 28 November 2008.[14] The note on 6 November 2008 refers to the fall having occurred at work (McDonalds), and that the knee was "really painful". The note on 19 November records "lateral tracking of patella".

(d) The Aspley physiotherapy notes[15] record, on 20 July 2010, "pain to L knee - history of patella tracking. Told to ice it".[16] In relation to this, the physiotherapist, Ms Sim, confirmed this would have been on the basis of something the plaintiff told her, although said "patella tracking" were her words, interpreting what plaintiff told her, as opposed to words the plaintiff would use herself.[17]

[16] When seen by Dr Wallace, the plaintiff said that prior to 17 August 2011 she had no problems with her right knee;[18] and she did not proffer any history in respect of her left knee.[19] She also failed to tell Dr Ganko about any prior problems with her knees.[20] The plaintiff seemed to explain this on the basis either that she had not recalled the prior incidents until seeing her medical notes in the context of this proceeding, or that they were very different incidents. The plaintiff is a young woman (aged 20 at the time of the subject incident). The prior incidents occurred roughly when she was aged 14, 16 and 17. Although she said she recalled the oldest of the incidents (which occurred when playing Futsal in 2005), and also the netball incident in 2007, she denied any recollection of the more recent injury at work at McDonalds in 2008. Her inability to recall the McDonald's incident is hard to accept as truthful. She attended on doctors on 4 occasions for this incident; had x-rays; was apparently recommended crutches; and had physiotherapy. The medical records suggest she made a WorkCover claim in respect of it. It was plainly a serious incident, which caused her considerable pain, and it was not that long ago, in the context of a young woman. I do not accept the plaintiff's evidence of a failure to recall this incident.

[17] Although to a lesser extent, her non-disclosure on her application for employment[21] of what was clearly a serious back condition, for which she was still receiving treatment[22] at the time she commenced work for the defendant, as well as her explanation for this non-disclosure at trial, also reflect poorly. The plaintiff's evidence at trial revealed a tendency to downplay the significance of her back condition at that time, in the context of justifying why she did not disclose it, in a manner which is not at all consistent with the medical records.[23]

[18] I do not propose here to address in detail each of the other matters highlighted by the defendant in [11] of its submissions. Where they are relevant in the course of considering the issues to be determined, I will address them below in the context of the other evidence at the trial.

[19] It may readily be observed that human beings, perhaps especially young ones, are fallible and can at times make poor choices, including in terms of truthfulness. That does not mean they are generally dishonest; and I did not form that opinion of the plaintiff. Also, a person may be telling the truth as they see it, although their recollection may not be accurate, having been altered by "unconscious bias or wishful thinking or by overmuch discussion of it with others".[24] In court the plaintiff presented as an articulate and earnest witness, albeit someone who was clearly very involved in her legal case, as was evident from her tendency to try to answer questions by reference to what is in the medical notes or other documents, or to be asked to be shown those notes or documents before answering questions directed to her own personal experience.

[20] Although, as will become apparent below, there are aspects of the plaintiff's evidence which have not been accepted, that has been on the basis of objective analysis of all of the evidence, and consideration of where the balance of probability lies on the basis of that analysis,[25] rather than on the basis of general conclusions about the plaintiff's credibility as a witness.

[16]

[22] The plaintiff was aged 20 at the time of the injury, and was 24 at the time of the trial. She is currently studying a Bachelor of nursing. Both whilst she was school, and while she has been studying, she has held various part time jobs.

[23] One of those was working at McDonald's, as a "crew member" and later "crew trainer", which she did for about 4 years, from 2006. She gained experience as a barista in that time, working in the "McCafe" part of McDonalds.

[24] She started working for the defendant at the Chermside store in October 2010. She was employed as a barista, and described her tasks as including making coffee, and other beverages (including cold beverages), food preparation, general café duties, stocking the pastry case/food cabinet, dish washing, mopping floors, and generally keeping the café area tidy.

[25] On 17 August 2011, the plaintiff said she started her shift at 8.45am and was to work until 1pm.[26] She said it was a later start that day because it was the Ekka show holiday. She was rostered to open the store. She said that employees (called "partners" by the defendant) are entitled to have a beverage, so the first thing she did that day was to make herself a drink. She intended to use a blender to do that, which first required her to plug the power cord for the blender into a powerpoint which was located underneath the "cold beverage station". It was as she was doing this, that she alleges she injured her knee.

[26] After the alleged incident, the plaintiff continued to work until her shift finished at about 1pm that day.[27]

[27] Also working on that day with the plaintiff were Dani Stellino and Ryan Ansell, who gave evidence at the trial.

[28] Dani Stellino had worked for the defendant since about 2008, and as at August 2011 was a shift supervisor. She continues to work for the defendant, at its Chermside store. Her "timecard"[28] indicates that she worked on 17 August 2011, starting at 8am on that day (so earlier than the plaintiff),[29] but she could not recall anything about that day. Ms Stellino was friendly with the plaintiff at work, and they socialised outside of work as well. She said the plaintiff did not tell her she had been injured on that day, and could not recall the plaintiff ever reporting the injury to her in any way, even as a friend.

[29] Ryan Ansell had worked as a barista at the Chermside store since 2006. He continues to work for the defendant, but now as a marketing specialist. He was also at work on 17 August 2011, but had no particular recollection of that day.

[30] A third employee who gave evidence, Sebastian Briguglio, was also at work on 17 August 2011, although his timecard indicates he started work at 1pm on that day[30] (around the time the plaintiff finished). He was also a shift supervisor at that time, and continues to work for the defendant as a shift supervisor, now at a different store. He had no particular recollection of 17 August 2011 either.

[31] No one else witnessed the incident, and the plaintiff did not report the incident to anyone at work on 17 August 2011. She said that she "didn't think that at that time it was a serious matter", and that in previous times when she had an injury, she would give it a few days and if it did not settle down, then seek treatment.[31]

[32] She did, however, tell her mother. The plaintiff's mother gave evidence that the plaintiff came home on 17 August 2011, and told her that she had sustained an injury at work during her morning shift. She said she remembered it distinctly because it was Exhibition Wednesday.[32] When it was put to her in cross-examination that she was not so concerned about what the plaintiff told her on that day to drive her to the doctor, she responded "No. We don't normally run off to the doctor after every little incident". She confirmed that she thought it was a little incident at that early stage.[33]

[33] The plaintiff explained that following 17 August 2011, she had a couple of rostered days off work and then proceeded with her duties as normal.[34] Her timecards for this period confirm that she did have the Thursday and Friday off, and then worked 4 hours on 20 August; 4½ hours on 22 August, 6½ hours on 23 August, 4 hours on 24 August and 4 hours on 25 August (the first day she saw her GP, Dr Heyne, about her knee).[35] The "schedule planner" for the period 22 to 28 August 2011 records that the plaintiff was scheduled to work for 29.5 hours in that period, but actually worked 34.7 hours (meaning that she picked up an extra shift).[36]

[34] Going forward from 25 August, the time cards also show that she worked 7½ hours on 27 August, 8 hours on 28 August, 4 hours on 29 August, 8 hours on 30 August, and 6 hours on 31 August. She did not work at all on 1 September (the next time she went to Dr Heyne about her knee).

[35] She went to see her GP, Dr Heyne, on 25 August 2011. The plaintiff said that she worked on the days prior to the 25th, and in working on those days, "noticed the pain again in my knee and that's what made me seek treatment from my doctor".[37] She said her knee was swollen on this occasion. During the time prior to 25 August, the plaintiff said she recalled being in pain, but couldn't recall if she was limping.[38]

[36] Dr Heyne's notes on 25 August 2011 record "Sublixation (sic) right knee at work - had to mechanically 'unlock' knee" and, on examination, "Right knee - mild swelling. Bilateral lax patellar ligaments".[39] Although Dr Heyne recorded that the incident had happened "at work", she did not record a date. Her oral evidence was that she recalled the plaintiff saying it had happened a week before.[40] Although, for reasons which I will return to below, I have some difficulty accepting that Dr Heyne retains an independent recollection of this, the note she made when she next saw the plaintiff on 1 September 2011 (which records "Incident at 17/8") does support this.

[37] The plaintiff did subsequently report the incident, by completing an "incident report form".[41] The plaintiff's evidence was that this was done on 25 August 2011,[42] although the form records both the date of the incident, and the date it was reported, as 17 August 2011. Having regard to the circumstances in which it appears this form was completed (at work), and the evidence that the plaintiff started work at about 5:30 on 25 August,[43] it may be inferred that this was done after the plaintiff saw Dr Heyne on 25 August 2011. The plaintiff said that "it was her [Dr Heyne] who told me what had occurred... She was the one that informed me what had happened".[44] It is not clear what Dr Heyne told the plaintiff, however, since her notes recorded "sublixation", whereas the description the plaintiff wrote on the incident report form was "Twisted/strained knee".

[38] There was contradictory evidence regarding the circumstances in which the incident report form was completed, and it even appeared from some evidence that there may have been another incident form. No such form was located or produced by the defendant, and I proceed on the basis that the document in evidence is the only form.

[39] However, I do not accept some of the plaintiff's evidence about why that form was completed in the way it was.

[40] The plaintiff's evidence was that she told Dani Stellino about the incident, on 25 August 2011, when the incident report was filled out. She also said that Loren Ayres was present at the same time, when Ms Stellino was informed, and that Ms Stellino was also involved in filling out the incident report.[45]

[41] The plaintiff identified all of the handwriting on the form as her own, save for her name next to the words "partner or customer involved" and the words "* spoken with Loren. No further action rqd" on the first page.[46]

[42] As to why she wrote the date "17/08/11" on the second page as the date the incident was reported, the plaintiff said when filling in the form she was told by the shift supervisor, Loren (Ayres), that it had to read the date that it occurred "for some procedural matter, that incidents had to be reported within 24 hours".[47] She later said she could not recall if it was Dani or Loren who suggested this, because they were both present when she was filling in the form, although she believes it was Loren.

[43] She also said that either Dani or Loren instructed her to write the names of people who were working with her on 17 August in the space on the form for "witnesses". The plaintiff's evidence was that one of those 2 people looked at the "partner roster" on the wall, to see who was working at the same time as the plaintiff, and then called Ryan (Ansell) into the office and wrote his name on top of the report form.[48] Although I note that the plaintiff identified that as her handwriting.

[44] Likewise, the plaintiff said Dani Stellino's name was written down as a witness, with her knowledge, and in her presence. She said she was there with Dani, Ryan and Loren.[49] The plaintiff said she had a specific recollection of filling the report out, and of who was present.

[45] Loren Ayres was the assistant manager at the defendant's Chermside store in August 2011. She said that although she cannot recall a specific date, she can recall the circumstances in which she learned that the plaintiff alleged that she sustained a right knee injury at work. This happened sometime in August 2011. She said she and the plaintiff were in the back room of the Chermside store; the plaintiff mentioned that she was going to the physio; Ms Ayres asked her why, and the plaintiff said because she had hurt her knee. Ms Ayres asked where she had hurt her knee, and the plaintiff said "at work the other day". Ms Ayres said that she then assisted the plaintiff to complete an incident report form, and she (Ms Ayres) sent it in that afternoon.[50] Ms Ayres denied that anyone else was present at the time, including Dani Stellino.[51] Although she said it was possible that she told Ms Stellino on that day about the incident.[52] Ms Ayres said she recalled being with the plaintiff (and no one else), and writing on the form. But none of the handwriting on the actual incident report form is Ms Ayres'. Indeed, Ms Ayres said she had never seen that document (in its completed form) before (other than being shown a copy in preparation for the trial).

[46] Ms Ayres did say she took advice from a person called Kelly Grawich, who looked after occupational health and safety complaints from the Sydney "support centre" (effectively, the head office in Australia[53]), as to what to do because the form had not been completed within 24 hours of the incident, which is the "general procedure".[54] She did not seem to recall what advice she requested or obtained, and did not recall giving the plaintiff any advice about how to complete the form (for example, in terms of naming witnesses, or the date).

[47] Dani Stellino had never seen the incident report form,[55] prior to the morning she gave evidence. She said it is not her handwriting on the form, where her name appears as a witness, and next to the words "faxed by". She said she did not fax this form anywhere.[56]

[48] As already noted, she could not recall working with the plaintiff on 17 August; nor in the week following, although accepted by reference to her time card that she did, and that she had a number of common shifts with the plaintiff. She could not recall observing anything about the plaintiff in that week, and could not recall the plaintiff telling her she had a sore knee or moving in a way that suggested some kind of injury. She said she first became aware of the plaintiff complaining of a sore knee "when she [the plaintiff] spoke to our assistant manager and we found out that they put through an incident report form and were working on the forms or papers that they needed". She said that was in 2011, but couldn't remember exactly when.[57]

[49] Ryan Ansell also said he had not seen the "incident report form"[58] on which his name appears as a witness, other than a week before the trial, and said he had no knowledge that his name had been written on that form as a witness.[59]

[50] For completeness, I note that Ms Hearn, who was the store manager at the time, was not at the Chermside store on 17 August, as she was working interstate. She did, however, work in the Chermside store on 22 and 23 August 2011.[60] She did not observe anything different about the plaintiff, from the way she had observed her before.[61] She said she became aware of the plaintiff's claim regarding an injury at work on 17 August, when she was telephoned by Loren (Ayres), the assistant manager, on 31 August, who told her that the plaintiff had come in with a WorkCover certificate regarding her injury, and asking about filling in an incident report form. Ms Hearn said she was not sure about what to do (regarding the date) and asked Ms Ayres to call Kelly Grawich in the human resources section.[62]

[51] Dani Stellino and Ryan Ansell impressed as honest and reliable witnesses, who frankly acknowledged what they could not recall. I accept their evidence that they had no knowledge of their names being written on the form as "witnesses". It follows that I do not accept the plaintiff's evidence to the contrary. Although counsel for the plaintiff submitted that writing down the names of persons who were at work on that day as "witnesses", even if you knew they had not witnessed the incident, is something most honest people would do, I do not accept that. The word "witness" has, in my view, a well understood meaning to ordinary members of the community, meaning someone who saw what happened. But in any event, that was not the plaintiff's evidence (that is, that she thought it was ok to write down their names, even though they did not witness the event). Her evidence was that Dani Stellino and Ryan Ansell were there with her when she completed the form, and agreed to their names being written down as witnesses. On their evidence, which I accept, that is not what occurred.

[52] As to Loren Ayres, her evidence was less compelling. She was plainly involved in completing the form in some way. No other form has been located, so either she is mistaken about the incident report form which is in evidence, or she is confused about some other paperwork that she filled out. In any event, it seems to me that the plaintiff's evidence about some discussion occurring about "backdating" the form is supported by both Ms Ayres' evidence and that of Ms Hearn, to some extent. What advice was given from the person in head office is not known, because no such witness was called. But the inference to be drawn from that, even if it is appropriate to do so, goes no further than that witness' evidence would not have helped the defendant's case.[63]

[53] On balance, I find that an incident did occur, while the plaintiff was at work on 17 August 2011. I am particularly persuaded of that by the evidence of the plaintiff's mother, which I have no hesitation in accepting. Although there are some unsatisfactory aspects to the plaintiff's evidence about the incident report form, that too supports the fact that an incident occurred on 17 August.

[25]

[61] Mr O'Sullivan explained in his oral evidence that, where he says "She then proceeded to reach under again...", his understanding of what he was told by the plaintiff was that she resumed the same position earlier described (that is, left knee and right foot on the floor, and lunging forwards) and that the phrase "whilst in the above posture" is a reference to that posture, and that in that posture, the right knee is in a fully flexed position.[68] He later added that in his notes he has recorded that, in that position, the plaintiff was moving the knee side to side to try and get herself lower.[69]

[62] What is apparent, from the plaintiff's description at trial, in her description to Mr O'Sullivan and from the low height of the blender bench in the photographs of the area, is that in reaching up to test if the blender was working, the plaintiff would not have had to rise up from the "crouched down" position she was in (ie with her left knee and right foot on the floor). That position of her legs was maintained, although she would have moved her upper body and arm, between reaching towards the power point under the bench, and then reaching up to test the blender power switch. This is confirmed by the plaintiff's description in the statutory declaration she made on 9 April 2013, which is attached to her notice of claim,[70] in which she refers to having to "maintain the bent/crouched position for an extended period" and that "[i]n this bent/crouched position I felt my right knee go".

[63] That one of the power points was not working was disputed by the defendant. The plaintiff said that she had reported it to her shift supervisor, identifying Dani Stellino in particular,[71] and said "I know that at a later date there was a callout for the plug".[72]

[64] Ms Stellino described the process involved when a piece of equipment is malfunctioning in the store, which included logging a job with the support centre, which then follows it up. She said in her experience, once logged the response was quick, but depended on the priority (for a coffee machine, it would be the same day; but if it was a sink, it might be the next day). She had no recollection about a faulty power point, or being told by Ms Rudd about a faulty power point.[73]

[65] I would infer from Ms Stellino's evidence that, if a problem with the power point had been reported, it would have been dealt with quickly.

[66] However, the defendant's evidence was otherwise unsatisfactory on this issue. Reliance was placed on a document entitled "risk management register".[74] It lists five "hazards", recorded on 3 August 2009, 11 June 2010, 30 March 2011, 25 October 2011 and 27 November 2011. The last of these, on 27 November, is "power socket broken". This was supported by an email dated 27 November 2011, to "Facilities" (addressed to "Steve / Yvonne"), from S35395Chermside (signed off by "Jordan"), with the subject "Tripping Power Point".[75] The email reads:

[27]

[67] That is then the subject of a work order, also dated 27 November 2011, the outcome of which is that the blender was shown to be faulty, and the powerpoint ok.[76]

[68] Counsel for the defendant indicated that this was the only documentation able to be found in relation to a report of a faulty power point, on the basis of which it was argued that there had not been such a problem prior to 17 August 2011.

[69] However, it was apparent that, either the documentation is incomplete; or alternatively that faults and other problems were not reported or recorded with any degree of precision, such that it would not be reasonable to infer, from the documentation that was produced, that there was no other problem with a power point at an earlier time.

[70] For example, Ms Loren Ayres (who was the assistant manager of the Chermside store as at August 2011) said these registers were completed monthly, that "anything small or big was recorded" and she agreed that it would be expected there would be a lot more incidences than are recorded on the sheet which appears at exhibit 4 tab 34. She explained that if a hazard reported in an earlier month had not been resolved, it would remain on the report for the next month, but even taking that into account, of the document at tab 34, she said "it seems like a really unusual version of risk assessment".[77]

[71] Ms Hearn (who was the store manager at August 2011) suggested it is possible the document at tab 34 is accurate, because Chermside was a new store and "we didn't have any issues with things breaking".[78] I do not accept this as reasonable. She said the store opened in 2006,[79] and it seems unlikely in the extreme that over the period from then until the end of 2011 there were only 5 incidents to be recorded. She also suggested there were a number of risk management registers in the OH&S folder, and that sometimes people would print off a new one and write something on it and then just put it in the folder.[80]

[72] A further 2 pages were produced at the end of the trial, after the defendant conducted further enquiries (exhibit 27), which do nothing to overcome the evidentiary deficiency.

[73] Although I would expect in a business like the defendant's a problem such as a faulty power point would be logged and fixed quickly, which is consistent with Ms Stellino's general evidence, in light of the documentation produced, and the unsatisfactory evidence about that, I am not prepared to infer that the fault logged on 27 November 2011 was the only one, and that it is not possible that there was a fault at the time the plaintiff says there was.

[74] On balance, I can see no reason not to accept the plaintiff's evidence, and accordingly find that what happened is what the plaintiff described in her evidence at trial, including by reference to what she told Mr O'Sullivan (which is also consistent with her statutory declaration annexed to the notice of claim).

[32]

[81] The note made by Dr Heyne when she saw the plaintiff on 25 August 2011 was: "Sublixation (sic) right knee at work - had to mechanically 'unlock' knee" and, on examination, "Right knee - mild swelling. Bilateral lax patellar ligaments".

[82] Dr Heyne said, in her oral evidence, that the history given by the plaintiff "suggested that a subluxation had occurred, because there's not much else that causes a knee to lock and mechanically be unable to be straightened".[84] She also referred to the result of the patellar apprehension test being positive, which she said is a clinical sign indicative of subluxation.

[83] Her notes of 25 August do not make any reference to doing a patellar apprehension test on that day (in contrast to the notes of 1 September, which do). It was Dr Heyne's oral evidence, though, that such a test is "a standard part of examination with examining a knee like this" and that she recalled performing the test on 25 August.[85] Whilst I accept Dr Heyne's evidence as to what her standard practice is, it is difficult to accept that she would have an independent recollection of doing this test on 25 August 2011, and what the result of that test was, in the absence of any recorded note. She seemed to accept as much during cross-examination, despite her initial adamance about having a clear independent recollection.[86] In other respects, and perfectly reasonably, it was apparent that Dr Heyne did not have a clear independent recollection, and depended on her notes.[87]

[84] Dr Heyne also added, during her cross-examination, that she had a clear recollection that on 25 August the plaintiff was limping when she came in. That was not recorded in her notes either.[88] The plaintiff herself could not recall if she was limping.[89]

[85] Perhaps understandably, given her role as the treating general practitioner of the plaintiff, who had seen the plaintiff over a number of years, Dr Heyne presented with a degree of advocacy in favour of the plaintiff. In the context of her professional practice, she is not to be criticised for that, as it is plainly a desirable characteristic in a treating general practitioner to develop a positive rapport with their patients and be supportive of them. However, it does mean that in the context of the objective analysis the court is required to undertake, some care needs to be taken in assessing her evidence, because the reliability of her evidence is somewhat affected by that.

[86] I accept that her notes were made contemporaneously, and for that reason are a reliable record of events that happened on the relevant dates. But to the extent that Dr Heyne sought to supplement the notes on the basis that she has an independent recollection of particular consultations in late 2011 or early 2012, I do not accept that evidence as reliable, given the passage of time.

[87] The notes of 25 August are consistent with the plaintiff presenting with mild symptoms on that day. She was given medication for a migraine (an ongoing condition she suffered, according to the notes) but no medication, or further treatment of any kind, was suggested in respect of her knee.

[88] Again, in this context, it is difficult to reconcile the plaintiff's evidence, during cross-examination, of being in "significant pain" at this time.[90] That evidence is also difficult to reconcile with her continuing to work the shifts she did after 25 August, to which reference has been made above.

[33]

[89] Before turning to the expert evidence, it is relevant to refer to events subsequent to 25 August, having regard to Dr Heyne's notes.

[90] On 29 August 2011 the plaintiff saw her physiotherapist, Ms Sim. In Ms Sim's notes on that date[91] the plaintiff is recorded as (subjectively) reporting "2 weeks since dislocation of knee; had bent over at work and felt kneecap pop out, self relocated by straightening; has had instability and pain since then". Objectively, Ms Sim recorded "unable to fully straighten leg in standing; lacking full knee ext; ... apprehension +; pain on tracking medially and laterally".

[91] The plaintiff saw Dr Heyne again a few days after this, on 1 September 2011. On this occasion, Dr Heyne recorded "Knee worse - dislocated again. Swollen ++ by end of day - difficulty in standing at work. Incident at 17/8"[92] and, on examination, "Swollen, spasm of lateral ligaments, patella apprehension test positive". On this occasion, the plaintiff was prescribed pain medication, and also given a Workers Compensation Medical Certificate.[93]

[92] In this certificate, the diagnosis is "dislocation of right patella" and the clinical notes record "Dislocation of right patella when bending over at work ON 17/8. Managed to relocate patella. Immediate pain and swelling ++".

[93] In light of the evidence (both of the plaintiff, in chief, at trial; and of what Dr Heyne recorded on 25 August) this certificate seems to overstate the incident on 17 August. On Dr Heyne's examination, as at 25 August, there was only mild swelling, and no reference to pain (and no prescription for pain medication). The first reference to pain and "swelling ++" was on 1 September, after the knee had "dislocated again".

[94] Dr Heyne confirmed in her oral evidence that, according to her note made on 1 September, the plaintiff's knee had dislocated again, in the period between 25 August and 1 September. She said it happened when the plaintiff was at home,[94] although that does not appear in the notes. The plaintiff accepted that her symptoms were much worse on 1 September than they were on 25 August, but denied that she had dislocated her knee again; and had no recollection of telling Dr Heyne that.[95]

[95] Consistently with what I have said above, I accept that Dr Heyne's contemporaneous notes are reliable, from which it can be concluded that the plaintiff did tell Dr Heyne something more had happened after 25 August, in order for Dr Heyne to record "dislocated again".

[96] Dr Heyne saw the plaintiff again on 14 September and 11 October 2011 in relation to her knee, and on 11 October 2011 referred her to Dr David Hayes, orthopaedic surgeon.

[97] On 1 November 2011, Dr Heyne's notes record "Knee settling - no further collapses - less pain. MRI shows no structural damage has been caused - patella tilted - likely acute patellar dislocation". Dr Heyne explained that the reason for her observation "likely acute patellar dislocation" was that the MRI showed the patella tilted. She said that position was consistent with "dislocation having previously occurred or being vulnerable to that".

[98] The MRI referred to is an MRI scan that was taken of the plaintiff's right knee in October 2011 (two months after the incident).[96] The report found that it was an "[u]nremarkable study with no findings to indicate recent patellar dislocation or its complications".

[99] Although Dr Heyne's alternative conclusion, that the MRI is consistent with the plaintiff being vulnerable to dislocation, is consistent with the views expressed by Dr Wallace and Dr Ganko (as well as Dr Hayes) (that being on the basis of the plaintiff's particular anatomy, which will be discussed below), her view that the MRI, showing the patella tilted, was consistent with dislocation having previously occurred, is not. Whilst all the experts were essentially in agreement that the MRI being normal is not conclusive of whether or not a previous dislocation may have occurred; they certainly were not of the view that the MRI positively showed evidence that there had been a dislocation.

[100] Dr Wallace, for example, said the MRI may well be normal if there was not a lot of soft tissue damage associated with the dislocation - so the fact that nothing showed up on the MRI did not suggest to him that no dislocation had occurred.[97] Although, of course, he did say that the MRI is consistent with not particularly much damage being done by the event on 17 August 2011.

[101] Dr Hayes likewise said the MRI being normal would be consistent with a person with "anatomical abnormalities which predispose them to instability of the patella", because it "wouldn't take very much to cause the patella to slip out". This is to be compared to a person with normal anatomy, for whom an episode of instability of their kneecap would involve significant trauma to dislocate the kneecap (eg tearing of ligaments, possibly fracture of the cartilage and bone of the kneecap or femur, bleeding within the bone, fluid and blood within the joint).[98]

[102] Dr Ganko said "[w]hilst it is impossible to state absolutely, it is in my opinion unlikely that [the plaintiff] sustained a patella dislocation 2 months prior to this MRI, although the patella may have subluxed".[99]

[103] Dr Hayes reported back to Dr Heyne on 26 October 2011.[100] In this letter, he referred to the incident in the following terms:

[38]

[105] Although the plaintiff was off work for a period of time after September, she commenced a graduated return to work in about October/November, and was given full clearance to return to normal duties and normal hours by 19 November 2011.[101]

[106] She had been planning a trip to the United States with her two best friends for quite some time, and they took that trip from December 2011 to February 2012. Apart from choosing aisle seats, and being "very guarded with activities I did",[102] she said she was "quite happy with my trip overall".

[107] She returned to work at the Chermside store after her holiday, and said her knee was fine up until the end of March, when she "noticed some changes". The plaintiff said that on 30 March 2012 "the incident occurred again". She could not say exactly how it occurred, but described "a sudden onset of pain around lunchtime".[103] In a letter dated 11 April 2012 which the plaintiff wrote to WorkCover, she describes being in a great deal of discomfort on 30 March, and that at about lunch time it got worse and "I felt something change in my knee".[104] In cross-examination she said it was a different feeling from what she says she felt on 17 August 2011.[105]

[108] There was conflicting evidence about when, in 2012, the plaintiff first began to feel pain or instability again; as well as conflicting evidence about what occurred on 30 March 2012. It is unnecessary to deal with that in any detail, however, as it does not impact on the plaintiff's pleaded claim.

[109] What is clear, however, is that the plaintiff presented at the Prince Charles Hospital on the evening of 30 March 2012, having been seen by her physiotherapist, Ms Sim, to appear to be in considerable pain sometime that afternoon. Although the hospital's discharge letter refers to a diagnosis of "patella dislocation"[106] being made, both Dr Wallace and Dr Ganko considered this unlikely, having regard to the x-rays which were done on that occasion.[107] In any event, following that, the plaintiff continued to see Dr Heyne in April and May 2012, with pain in her knee for which she was prescribed pain medication, including Norspan patches.

[110] She had patella realignment surgery performed by Dr Hayes on 30 May 2012. There was quite a lengthy recovery period after this surgery, with the plaintiff in a brace and on crutches for 8 weeks, and requiring considerable assistance with everyday tasks and activities.[108]

[111] About three months later, she underwent "manipulation under anaesthesia" because Dr Hayes was not satisfied that her range of movement was progressing as quickly as it should, which then resulted in her "then joining the normal recovery pathway and ultimately experiencing" what Dr Hayes said he considered to be a satisfactory outcome.[109]

[112] It was the plaintiff's case that, having experienced a dislocation, or subluxation, of her right knee on 17 August 2011, that incident precipitated the subsequent episodes of instability and pain, ultimately necessitating the stabilisation surgery. The medical evidence supported the proposition that, once a knee has dislocated, or seriously subluxed the first time, it is more likely to happen again.

[113] But of course it remains to determine what injury was sustained on 17 August 2011. For that purpose, I turn now to address the expert evidence.

[43]

[117] In his oral evidence in chief, as to why he concluded there was a dislocation notwithstanding the MRI showed nothing to indicate that, Dr Wallace said: "The history is quite clear. She was in a position where she was weight bearing on a slightly flexed[112] knee, and twisting. Then her knee locked, and she had to physically unlock it. And that is a classic description of a patellar dislocation".[113]

[118] Dr Wallace said he understood the plaintiff was close to extension[114] of her knee when it happened.[115] He described the "classic move"[116] leading to dislocation, involving the knee being "just short of full extension. So up to about 30 degrees of - of flexion with the knee, load bearing, with the quadriceps tight - the thigh muscle tight and twisting".[117]

[119] There are some significant differences between the mechanism described by Dr Wallace here, and the plaintiff's evidence at trial (including by reference to what she told Mr O'Sullivan). This was drawn to Dr Wallace's attention during cross-examination. Dr Wallace agreed, based on the mechanism of injury described in Mr O'Sullivan's report, that this has the knee in almost a fully flexed position (indeed, that was Mr O'Sullivan's understanding, as appears from p 10 of his report). Dr Wallace confirmed that was not the history the plaintiff gave him.[118]

[120] Dr Wallace said with that mechanism, and the onset of pain at that moment, with the knee in full flexion, it would be unlikely to sublux or dislocate the patellar. He said it may cause pain, but it would be unlikely to dislocate in that position.[119] He said "deep flexion is the most stable position of the patella", and agreed that even in a person with the morphological features the plaintiff has, it would require major trauma to dislocate in that position.[120]

[121] Further, he agreed that, if she (only) had patellofemoral pain, she would almost certainly be able to keep working that day,[121] which is what she did. Although, he had also said in his oral evidence in chief that, unlike Dr Ganko, he did not find it extraordinary for a person to be able to continue working or driving home, where they had experienced a dislocation, without a lot of soft tissue reaction.[122]

[122] Dr Wallace said that the shape of the plaintiff's kneecap (what he elsewhere described as patellofemoral dysplasia) does predispose her to having anterior knee pain, and that is due to "chondromalacia patellae... [which] just means softening of the cartilage, and that is associated with anterior knee pain". He said she certainly could have had episodic anterior knee pain without trauma. And she may have episodic subluxations - subluxations; not complete dislocations - without trauma".[123]

[68]

[134] The difference between the factual context upon which Dr Wallace's written opinion was based, and the facts as found above in terms of what occurred on 17 August, presents a serious issue for the acceptance of Dr Wallace's written opinion, because that opinion does not have a "rational relationship with the facts proved".[134] On the basis of the finding above as to what happened on 17 August, I do not accept Dr Wallace's opinion that the plaintiff suffered a dislocation or subluxation of her patella on that day.

[135] Dr Wallace's oral evidence, in relation to the facts as proved, is consistent with that of Dr Ganko. Although Dr Ganko posits subluxation as a possibility at certain points in his written evidence, it is apparent that was on the basis of his candid acknowledgment that nothing is absolutely certain. However, his description of subluxation, with the knee in a fully flexed position, as "extremely unlikely", together with Dr Wallace's opinion that it would be unlikely to sublux or dislocate the patellar in that position, which he described as the most stable position of the patella, supports the conclusion that it is more probable that the plaintiff had an episode of patello-femoral pain on 17 August 2011, than that she experienced a subluxation (and, to an even greater degree of improbability, dislocation).

[136] On the evidence of Dr Ganko, which is supported by the oral evidence of Dr Wallace, by reference to the mechanism of injury as proved, on the balance of probabilities, I find that the plaintiff did not dislocate or sublux her right knee on 17 August, but that she did experience patello-femoral pain.

[137] Notwithstanding Dr Wallace's oral evidence, to support the contrary finding, that the plaintiff did suffer a dislocation or subluxation on 17 August, the plaintiff referred to five things:

(a) Dr Heyne's diagnosis on 25 August 2011;

(b) the plaintiff's report that the knee "locked";

(c) the evidence that the knee swelled;

(d) the evidence that the plaintiff had not had any problems with her knee(s) for about 3 years prior to this, but immediately after she started to have problems; and

(e) the history after August 2011, leading to her needing to have stabilisation surgery.

[138] In terms of Dr Heyne's diagnosis, I accept Dr Ganko's opinion that a general practitioner seeing the plaintiff at the time of - or shortly after - the incident would not be in a position to say whether there had been a subluxation or not. He said:

[70]

[139] I prefer the evidence of both Dr Ganko and Dr Wallace, in relation to the mechanism of injury proven at trial, to the apparent diagnosis of Dr Heyne made on 25 August 2011.

[140] In terms of the plaintiff's report of the knee "locking", it is to be noted that the language used by the plaintiff at various times was different[136] and as Dr Hayes said, the language a person may use to describe an event will vary, is subjective, and does not necessarily bear only one meaning.[137] The significant part of the plaintiff's description of the mechanism of injury, which leads to the finding above, is that she was crouched down, with her right knee in a fully flexed position.

[141] As to the evidence of mild swelling, recorded by Dr Heyne on 25 August, Dr Ganko said "swelling suggests there is some pathology occurring within the knee joint", and agreed that if it was "immediately after" it would be more likely in the case of subluxation.[138] But of course this was not immediately after, it was a week later. Dr Wallace said there could be many reasons for a knee to swell, injury being one of them; but said anterior knee pain is generally not associated with swelling.[139] In my view, the evidence of mild swelling a week later does not alter the clear effect of the experts' opinions, in the context of the proven mechanism of injury

[142] The absence of any evidence of problems with the plaintiff's right knee in the 3 year period prior to August 2011 does not alter it either. On the contrary, if this was the first dislocation or serious subluxation of the plaintiff's knee, I accept the evidence of Dr Ganko that it is to be expected that she would be in severe pain, which would be apparent to her co-workers, and it is surprising that she did not say anything even to Dani Stellino. In addition, the evidence indicates that something else happened after 25 August and before 29 August, or at least before 1 September - which could well have been the precipitating event to the subsequent history (as opposed to anything that occurred on 17 August).

[143] In this regard, Dr Wallace accepted, having regard to Dr Heyne's notes, and also the physiotherapist's notes, that it is logical to conclude there was another event in between 17 and 29 August;[140] and Dr Ganko, as noted above, considered that it was reasonable to assume from what the physiotherapist recorded on 29 August that the plaintiff may have suffered an acute subluxation at that point.

[144] In this context, it was submitted that it ought to be inferred from the plaintiff's mother's evidence that nothing else happened, because she did not mention anything else. I am not prepared to draw that inference. When she was asked if she recalled another event in the days that followed 17 August, she said she did not; but she confirmed there had been other specific events since then. She was not otherwise asked about any other incidents, by either the plaintiff's counsel, or the defendant's counsel. The latter cannot be criticised for that, when the only evidence the plaintiff's mother gave was about 17 August. She was there to support her daughter, whose claim is based on an incident said to have occurred on 17 August. That is what she spoke about when asked.

[145] In addition, the subsequent history is consistent with the plaintiff's anatomical predisposition to both patellofemoral pain and instability, and also with something else occurring in February or March in 2012.

[89]

[149] Each of the elements of s 305B(1)(a) to (c) are to be judged from the viewpoint of the defendant, in the circumstances that were known, or ought to have been known, to the defendant at the time of the alleged injury. The analysis must be undertaken prospectively; not retrospectively with the wisdom of hindsight.[145]

[150] The risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred. However, it is not confined to the precise set of circumstances in which the plaintiff was injured. Rather, what must be reasonably foreseeable is "the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred".[146]

[151] The task has already been described. It involved accessing the power points located underneath the ice bin in the cold beverage station, in order to plug in the power cords for the blenders.

[152] There was conflicting evidence about how often this task had to be done. The plaintiff's evidence was that unplugging the blenders to clean the bases was a weekly task (although cleaning the blender jug was a daily task).[147] The plaintiff said the weekly task of cleaning the bases was usually done on a Sunday afternoon because that was when the store was a bit quieter.[148] She said she had plugged the socket into the plug many times before, although said "If there was someone else there that was shorter than me, I would ask them to do it".[149] When pressed, n cross-examination she said she could not say how many times she had done it, but said maybe 5 or 6 times. This seems a surprisingly low number, given that she had been working there for 10 months. But in fairness to the plaintiff, it is clear she was trying to give an estimate when asked, and her evidence in chief of having done this task "many times" is probably more accurate.

[153] In contrast, the other evidence, of co-workers and supervisors, was to the effect that the task of cleaning the bases of the blenders, and for that purpose unplugging the power cords, was a daily task.[150] The effect of their evidence was that accessing the power points was actually a twice daily task: unplugging the power cords at night, and plugging them back in the next morning.

[154] I accept the evidence of Ms Ayres, Ms Hearn and Mr Ansell in this respect. The plaintiff's evidence is perhaps consistent with the fact that, as she explained, she avoided the task, because of her height, and perhaps that explains why she was not aware of it being done daily. Her own evidence, though is inconsistent, since she referred to the unplugging of the power points, for cleaning, occurring on a Sunday afternoon usually; whereas 17 August 2011, when she says she was injured in the course of doing this task, was a Wednesday.

[155] In any event, it is not apparent that this (whether it was a daily or weekly task) affects the determination of the issues in any way. Neither party submitted that it did.

[97]

[167] Dr Wallace agreed with Dr Ganko's opinion in this regard.[158]

[168] It is not disputed that the defendant had no knowledge of any such anatomical predisposition on the part of the plaintiff.

[169] But the plaintiff's anatomy, being described by Dr Ganko as a "reasonably common" anatomical variation and by Dr Wallace as "common", does not, in my view, take the plaintiff outside the "normal worker".

[170] Although for the plaintiff it was submitted that Ms Hearn, the store manager at the time, gave evidence of being aware the task of accessing the power points under the bench was "potentially dangerous", I do not accept that as correct. Ms Hearn gave evidence that there was an "accepted practice", prior to August 2011, for accessing the power points beneath the cold beverage station, which was to get down on your hands and knees and to reach under the ice bin.[159] She said that this was the same method as was subsequently described in the written "Safe Work Method Statement", prepared in May 2013[160] (in response to the plaintiff's claim in this proceeding). She said the accepted practice did not change once it was documented "because it worked".[161] Her evidence was that the method was the same both before the "Safe Work Method Statement" was drawn up and afterwards, because it is not possible to do the task any other way,[162] "it's the only way to get to the power point".[163] Although it was certainly put to Ms Hearn that it was recognised the task of getting to the power point was a potentially dangerous activity, Ms Hearn did not accept that proposition.

[171] It seems to me that it would be correct to say that the only way to get to the power point is to crouch down in some way. Common sense would suggest that what the "accepted practice" recognised was that it would not be possible to bend and reach down from a standing position in order to try and reach the power points. You would have to squat or crouch down in some way. But as the evidence of some of the plaintiff's co-workers, and indeed the plaintiff's own evidence, demonstrates, there was not necessarily only one way of doing that.

[172] Ms Hearn had a fairly dogmatic view about what the "accepted practice" was, and that it was always followed. She said she had only ever seen anybody do this task on their hands and knees.[164] But the evidence of other co-workers tended to suggest that whilst this was probably right, there was the possibility that people may have done this task by crouching down on one knee only. For example, Mr Briguglio's evidence was that you could do the task on either one knee or two knees, although he said "I suppose I would personally go both knees, but it just depends on the person, I guess, but I could do it on either".[165] Ms Stellino described the process she followed at that time (in the context of training others), as "I get on my hands and knees and I crawl under".[166] As to what she had observed the plaintiff do, she said "The same way everyone did: hands and knees, crawling under".[167] Mr Ansell described kneeling down, usually with both knees on the ground, one hand on the ground to stabilise himself, using the other arm to reach the power point.[168] Although he had no recollection of doing the task himself on only one knee, he agreed that it is possible that he sometimes did.[169]

[173] From a common sense point of view, whether a person crouches on one knee (that is, the position adopted by the plaintiff), or two knees, probably does not affect the assessment of the risk of injury, in the circumstances of this case. In either case, the person is getting down low to the ground, in order to enable them to reach under the bench to reach the power point. In either case, both of the person's knees are flexed (possibly to a greater degree in the case of crouching on one knee and one foot, and leaning forward; than in the case of the person "on all fours"). As I have said, that is to be contrasted, with the situation where a person tries to bend down and reach the power points from a standing position.

[174] Ms Hearn said that prior to the incident in August 2011 complained of by the plaintiff, there had never been any complaints made to her by the plaintiff, or any member of staff, in terms of concerns about injury in carrying out the particular task of accessing the power points. She also said the plaintiff had not previously mentioned it was an uncomfortable or difficult task for her. The only feedback she said she had received was frustration from the "openers" who felt that the people who closed the night before should have plugged the blenders back in.[170]

[175] To Ms Hearn's knowledge, none of the store's risk assessment processes had highlighted this particular task of unplugging the blenders as one likely to produce risk of injury, and no staff member had suffered any injury in completing the task, prior to the plaintiff in August 2011. The evidence of Yvonne Katavich, who was the store development manager for the defendant in August 2011, corroborated this evidence.[171]

[176] It is apparent from the plaintiff's evidence that she had not previously identified this task as posing any form of risk; and neither had any of the co-workers who gave evidence at the trial.

[177] The fact that there had been no previous incidents in any of the defendant's stores arising from this task, that it had not been highlighted in any risk assessment, and that no one had complained of any difficulties associated with the task, is not determinative, but it is relevant.[172]

[178] I do not consider it can be said the defendant had actual knowledge that there was a risk of knee injury to an employee in carrying out this task. Further, there do not appear to be facts, matters or circumstances from which the defendant ought to have known of such a risk.

[179] The fact that there was an "accepted position" of some kind, even if not reaching the level of perfection outlined by Ms Hearn, might suggest that it was recognised that it would be preferable to crouch down low to reach the power-points, as opposed to bending down from a standing position. From that it could be inferred that in a general sense the risk of injury of some kind from doing this task was foreseeable, at least in the "undemanding" way that concept is explained in Shirt.

[180] But that inference involves consideration of a broader risk, than the risk of harm identified in paragraph [158] above. In any event, it is not the formula in Shirt that must be applied here; but rather the three elements now identifie[173]n s 305B.173 In addition to the risk being foreseeable (s 305B(1)(a)), the risk must also be "not insignificant"; and it is in respect of this second element that the authorities suggest the statute has, to some extent, modified the common law.

[122]

[190] She denied saying to the plaintiff, at her interview, that she would not require much training, given the level of her previous skill from working at McDonalds.[182] She reiterated that everyone was trained in the same way.[183]

[191] Ms Hearn did not have any direct personal knowledge of the plaintiff's actual training, but could identify, from timetabling records, the barista trainers who did the first "open" and the second "open" with her,[184] namely Ryan Ansell and Kaylah Hearn.[185] Although Ryan Ansell could not recall the training given to the plaintiff, he did describe the process he adopts as a trainer, which is consistent with what Ms Hearn described.[186]

[192] Whilst Ms Hearn's evidence suggested a level of perfection and attention to detail in the way in which new employees were trained in various aspects of the operation of the defendant's coffee shop businesses,[187] it is reasonable to assume that in reality this process was more informal and perhaps the manner in which it was carried out depended on the barista trainers, and employees, concerned. The evidence of the witnesses Dani Stellino,[188] Ryan Ansell[189] and, to a lesser extent, Sebastian Briguglio,[190] does, however, support Ms Hearn's description of on the job training, including a demonstration being given of how to go about unplugging the blenders before cleaning them.

[193] Similarly, in so far as the plaintiff's training is concerned, it may well have been the case, as the plaintiff says,[191] that it was considered she would not need as much training as someone who had not worked as a barista before, for example. But I do not accept the plaintiff's evidence that she received no training, because the explanation given by Ms Hearn, as to why everyone was trained in (generally) the same way stands to reason in the context of a global business such as the defendant's.

[194] In so far as the training had a documentary element to it, it is apparent that did not deal with the particular task of cleaning the blenders or plugging and unplugging the power cords. There is in evidence a "training completion confirmation" signed by the plaintiff, and dated 19 May 2011.[192] Much was made, in cross-examination of Ms Hearn in particular, of the fact that the part of the form indicting to "Please tick below next to each of the modules that you have completed" (with 3 options to tick below that), is not ticked, from which counsel for the plaintiff suggested it could be inferred it could not be known what modules the plaintiff had actually completed. But Ms Hearn explained that the "default module" that everybody studies is the barista OH&S module, and so if there is no "tick" on the form, but the form is signed, it can be assumed that that is the module they have completed. If they are promoted, to shift supervisor, or retail management trainee, there is another sign off sheet to confirm the training modules completed for people in those roles.[193] I accept that explanation, and proceed on the basis the plaintiff did complete the "Barista OH&S module", which is confirmed by her signing this form. But as I have said, that does not seem to be of much moment, in the context of the issues in this proceeding.

[195] There were no signs or notices displayed on the walls about this particular task (although there were signs about what happens if you are injured at work; the defendant's occupational health and safety policy; proper lifting technique; and warning of ice on the floor being slippery).[194]

[196] What seems likely is that the practical "on the job" training, especially in relation to this task, took on little or no significance for the plaintiff, because it was such a simple, mundane and "everyday" task. The plaintiff said she could not recall being specifically shown how to do things like clean the blenders, saying it was "more of a monkey-see, monkey-do thing"[195] (which is consistent with the evidence otherwise of barista trainers showing new employees how to do certain things). However, she specifically denied being shown how to do the task of plugging or unplugging the power points for the blenders.[196] As to whether she had seen anyone else do it, she said she couldn't recall, explaining that it was not something she paid attention to, and only became a thing she would consider to be of importance after she hurt herself doing it.[197]

[197] But the other employees who gave evidence were consistent in describing a process whereby new employees were shown, by demonstration, how to do all the various tasks involved in opening and closing the store, including the unplugging of the blenders. On that basis, I find that the plaintiff would likewise have been shown that. She herself became one of the barista trainers, and having regard to the evidence of Ms Stellino and Mr Ansell in particular, it seems likely, in that role, that she would have been required to demonstrate the various tasks to the new employees she was training. The fact that she crouched down to do this job is consistent with that.

[198] The ergonomist, Mr O'Sullivan, who gave evidence for the plaintiff, did suggest a number of countermeasures which he said would have avoided the need to adopt an awkward posture to access the power points. They included:

(a) Moving the power points to a place above the bench.

(b) Alternatively, affixing a panel under the front of the bench, inset a little so the power points do not project out;

(c) Installing an isolator switch for the bench;

(d) Instructing employees to kneel and lean on one arm, place a torch on the floor facing the power points, and plug or unplug. In this regard, he said kneeling on one knee can be less stressful than all fours if the inside knee is on the floor, leaving clear access over that leg for reaching to the power points.[198]

[199] Repositioning the power points above the bench was not a sensible option, as Ms Ketevich explained, because that is "one of the wettest ... parts of the store".[199] Moving the power points from the wall to a panel under the front of the bench, as described by Mr O'Sullivan, would not alleviate the need to kneel down or squat down in some way.[200] The final suggestion is very similar to what in fact I have found does occur, save for the reference to use of a torch. Although Mr O'Sullivan made reference to the poor lighting under the bench, none of the co-workers made any reference to this as an issue.

[200] In terms of an isolator switch, as it turns out, in stores subsequently fitted out, and also now in the Chermside store, the blenders are different, and there is now no longer a need to unplug them from the power point for cleaning. In so far as the Chermside store is concerned, Ms Stellino explained that the power points are still in the same location, but they have new blenders that have a power switch on the base itself and also have a different design within themselves, in terms of seals etc, such that it is not necessary to switch off the power completely in order to clean them. Her understanding of why the blenders were changed was "just because they're a lot quieter and a lot easier to handle".[201] She said that happened about 2 years ago. Mr Briguglio described a similar set up in the Garden City store where he works.[202]

[201] But as s 305C(c) makes clear, the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk. In that regard, there was no evidence of that change being made in response to any assessment of risk.

[202] In this case, on the evidence, the probability of the risk of injury occurring when accessing the power points by crouching down in some manner was very low. Similarly, on the evidence, the risk that any injury which may be so inflicted would be serious was also very low: s 305B(2)(a) and (b) WCRA.

[203] In so far as s 305B(2)(c) is concerned, I note for completeness that the evidence of Ms Ketevich was that if a risk was identified, depending on the corrective measure, it would be rolled out across all the stores (she gave an example of a new oven being installed, and that "partners" kept burning themselves on the oven door, as a result of which longer tongs and rubber gloves were provided to all the stores to eliminate the issue).[203] Although counsel for the defendant acknowledged that for an organisation as significant as the defendant's, the cost of that would not have been prohibitive, there would nonetheless be significant logistical issues associated with this.

[204] In this context, the following observations made by the New South Wales Court of Appeal in Seage v State of New South Wales [2008] NSWCA 328[204] at [30] and [32] (per Macfarlan JA, Tobias JA and James J agreeing) are relevant:

[133]

[216] On the assumption that the injury sustained was a dislocation or serious subluxation, there was not a great deal of difference between Dr Wallace and Dr Ganko in terms of their assessment of impairment ratings under the AMA Guides, 5th edition. They were both of the view that, using table 17.33, the plaintiff would have a 3% whole person impairment. As Dr Ganko noted, AMA 5 does not dictate a reduction in this impairment for underlying anatomical risk factors, such as the plaintiff has.

[217] In addition, both doctors allowed for an additional impairment rating for the surgical scarring on the plaintiff's right knee. Using table 8.2, Dr Wallace assessed this at an addition 3%; whereas Dr Ganko assessed this at 2%.

[218] It was agreed that it was appropriate to take both of these assessments together, in considering the applicable ISV (as there is not a separate item for scarring). Proceeding on the basis of 6% overall, the injury may be said to fall within item 138 (moderate knee injury) in schedule 9 to Regulation. The range of injury scale values (ISV) provided for is 6 to 10. The comment in item 138 is that an ISV at or near the top of the range will be appropriate if there is a whole person impairment for the injury of 8%. In the circumstances, where the 6% is reached by combining the actual impairment in respect of the knee (3%) and additional impairment in respect of scarring (2-3%), I would assess the appropriate ISV as 6. General damages would therefore be assessed at $7,500.[212]

[219] I would not accept the plaintiff's submission that an ISV of 13 is appropriate[213] because this involves:

(a) incorporating an injury to the left knee, which I have found has simply not been established on the evidence;

(b) arguing for an "uplift" above the range provided for in item 138 in circumstances where the Regulation only provides for this in the case of multiple injuries (see ss 3 and 4); and

(c) item 138 itself provides that an ISV at or near the top of the range (which is 6 to 10) will be appropriate if there is a whole person impairment for the injury of 8% (which is not the case here).

[137]

[224] As already noted, the plaintiff is a full time student, studying a Bachelor of nursing. She hopes to work as a nurse in the future.

[225] The evidence was to the effect that the stabilisation surgery carried out in May 2012 was successful,[218] and the plaintiff will not require further surgery in the future.[219] The plaintiff no longer experiences instability in her right knee, although she said she still experiences pain.[220]

[226] Dr Wallace's evidence, in his report, was that the plaintiff "should be able to continue with her studies as a registered nurse and work in this capacity and also work in reception as she is doing now providing she is able to get up from the seated position and regularly stretch" and that she should also "be able to undertake the clinical duties of a registered nurse providing she is not required to any kneeling, squatting or heavy lifting".

[227] In his oral evidence at the trial, Dr Wallace agreed that the only thing that might cause the plaintiff difficulty with work as a nurse is pain, since the other issues (instability) have been resolved by the surgery,[221] saying, "her pain is due to chondromalacia patellae, which she could have developed, probably, in any case".[222] Dr Wallace also agreed that, having regard to the plaintiff's long standing history of lower back concern, and the records indicating she had a "reasonably significant back condition", "she would be likely to have chronic back pain or at least intermittent episodic back pain"[223] which would also be a "pretty significant barrier to work as a nurse".[224]

[228] Dr Hayes' evidence was that in terms of future employment the plaintiff should avoid occupations which involve repetitive bending and kneeling or squatting. He said she should concentrate on sedentary and light active work. In terms of nursing, he said that working as an emergency nurse or a nurse in high care, which involves lifting and transferring of heavy patients would be advised against, but other areas of nursing would be suitable.[225]

[229] In terms of occupation restrictions, Dr Ganko's opinion was that the plaintiff:

[141]

[233] What is not yet known is whether the plaintiff will actually suffer any loss of earnings in the future. But what is established, on the evidence before the court, is that if that does happen, because of an inability to carry out the "heavier" aspects of nursing, that cannot be said to be solely on the basis of an injury to her knee sustained on 17 August 2011. Any ongoing issues associated with that injury would be, at most, as the defendant submitted, just one potential contributor amongst a range of other imponderables.[230]

[234] On balance, on this basis, I would accept the submission for the defendant that a modest global award of $25,000 would be appropriate.[231]

[235] I would also accept the defendant's submissions regarding past special damages,[232] with the addition of the WorkCover expenses paid in 2012 of $3,063.08.

[236] In so far as future special damages are concerned, the claim for future surgery is not established on the evidence. Nor is the plaintiff's claim for physiotherapy costs supported on the evidence. None of the orthopaedic surgeons referred to any need for ongoing physiotherapy. The plaintiff's GP, Dr Heyne, had recommended ongoing physiotherapy "to help keep the muscles strong, to support the knee, and also to manage the pain that is persisting".[233] However, as already noted, the evidence is that stability is no longer an issue, and the pain that is persisting is, as explained by Dr Wallace, something the plaintiff would probably have experienced in any event. The claims otherwise for amounts for equipment and medication are not particularised. I would therefore also accept the defendant's submission that a nominal amount for future expenses be allowed, reflecting that portion of the plaintiff's future pain which may be found to be connected with the work event[234] (having regard to Dr Wallace's evidence that the plaintiff would probably have experienced that pain in any event). I would however consider an amount of $4,000 to be appropriate (combining an amount for possible future pain medication, and possible future physiotherapy, but factoring in the low probability of this being related to the work event).

Rudd v Starbucks Coffee Company

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Judgment (211 paragraphs)

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Cases Cited (17)