DISTRICT COURT OF QUEENSLAND
CITATION:
Knight v CPSM Pty Ltd [2021] QDC 3
PARTIES:
MEGAN HAZEL KNIGHT
(plaintiff)
v
CPSM PTY LTD
(defendant)
FILE NO: 4874 of 2017
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
5 February 2021
DELIVERED AT:
Brisbane
HEARING DATE:
21, 22, 25, 26, 27, 29 March 2019 and 2, 4 April 2019
JUDGE:
Sheridan DCJ
ORDER:
1. The claim by the plaintiff is dismissed.
2. If the parties are able to reach agreement as to costs, a consent order signed by the parties be filed by 4:00pm, Friday, 19 February, 2021.
3. If the parties cannot reach agreement as to costs:
(i) the plaintiff file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Friday, 26 February, 2021;
(ii) the defendant file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Friday, 5 March, 2021; and
(iii) the plaintiff file any submissions in reply, of no more than 2 pages in length, by 4:00pm, Wednesday, 10 March, 2021.
CATCHWORDS:
TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – where plaintiff employed by defendant as personal care assistant at aged care facility – where plaintiff alleges defendant exposed her to a liquid chemical causing her to develop a chemical sensitivity and other associated conditions – where allegations by plaintiff included failure by defendant to protect plaintiff from injury, to provide suitable protective clothing and to prevent other employees using the chemical in plaintiff’s presence – where plaintiff alleges that injuries sustained had caused ongoing impairment and rendered her unable to work – where quantum in issue – whether defendant breached its duty of care – whether plaintiff has an ongoing impairment
LEGISLATION:
Workers Compensation and Rehabilitation Act 2003 (Qld)
Workers Compensation and Rehabilitation Regulation 2003 (Qld), sch 9
CASES:
Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931, cited
Bankstown Foundry Pty Ltd v Braisina (1986) 160 CLR 301, cited
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, cited
Road & Traffic Authority of NSW v Dederer [2007] HCA 42, cited
Vairy v Wyong Shire Council (2005) 223 CLR 422, citedWyong Shire Council v Shirt (1980) 146 CLR 40, cited
COUNSEL:
Self-representation by the plaintiff
O Perkiss for the defendant
SOLICITORS: BT Lawyers for the defendant
Introduction
The plaintiff, Megan Knight, was employed by the defendant, CPSM Pty Ltd (CPSM), as a personal care assistant on a casual basis working at a facility owned by CPSM known as “CPSM Mt Coolum Aged Care” (the Facility).
Ms Knight alleges that in the course of her employment she was exposed to a liquid chemical product, known as “D4”, in the workplace and developed a chemical hypersensitivity and other associated conditions, rendering her unable to work.
The relevant legislative regime is the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCRA).
The Plaintiff’s Pleaded Case
Ms Knight bases her claim on breach of the contract of employment between herself and CPSM and breach of the duty of care owed by CPSM to her.
The breaches of duty are particularised in the Amended Statement of Claim as CPSM having failed to:
(a)Keep the Facility safe for the conduct of the plaintiff’s work;
(b)Ensure that the chemical D4 was safe for use at the Facility and not harmful to the plaintiff;
(c)Make reasonable enquiry by reference to the SDS (Safety Data Sheet) or otherwise as to the safety and properties of the chemical D4;
(d)Protect the plaintiff from injury at the Facility;
(e)Ensure that the plaintiff and other employees were instructed in the safe use of the chemical D4;
(f)Make satisfactory arrangements to prevent the exposure or continuing exposure of the plaintiff to the chemical D4;
(g)Prevent the other employees from using chemical D4 in the plaintiff’s presence;
(h)Provide suitable protective clothing, gloves and masks for the plaintiff’s use;
(i)Ensure that any or any reasonable warning was given to the plaintiff of the risks of exposure to the chemical D4; and
(j)Warn the plaintiff of the risks of her suffering skin and respiratory sensitization to D4 and other chemicals as a result of her exposure to the chemical D4.
The pleading draws no distinction between the duties alleged to be imposed under negligence, contract or statute and no submissions otherwise are made about the contractual claim.
The defendant admits it owed duties imposed on it by law as the plaintiff’s employer but denies the matters alleged were express or implied terms of the contract of employment. The duty is admitted to be to take reasonable care to avoid the risk of foreseeable injury to the plaintiff. The defendant denies it was negligent and says it took adequate precautions for the safety of the plaintiff and the workplace was as safe as the defendant could possibly make it.
The quantum of damages claimed is disputed, including whether Ms Knight sustained personal injury, as alleged or at all.
LIABILITY
The Witnesses
Ms Knight gave evidence and called Ms Emily Thomas, a registered nurse and care co-ordinator for the hostel section of the Facility at the relevant time. Whilst Ms Thomas was in the care-coordinator role, in the period from November 2012 until May 2014 when working shifts in the hostels, Ms Thomas would be the registered nurse (RN) to whom Ms Knight would report.
Ms Knight had indicated in the trial plan and in her opening that she would be calling additional employees who worked at the Facility but those additional witnesses did not ultimately make themselves available, despite the court indicating a willingness to take their evidence by telephone.
CPSM called Mr Shane Winterton (a director of CPSM), Ms Lorraine Wright (clinical nurse manager and subsequently Director of Nursing employed by CPSM and working at the Facility at the relevant time), Ms Glenys Parsons (the head cleaner at the Facility at the relevant time) and Mr Brendan Turner and Mr Michael Howell (employees of Diversey, formerly Johnson Diversey, the suppliers of the chemicals used in cleaning at the Facility).
Ms Knight called medical evidence from Dr Joseph Matthew (psychiatrist) and Dr Christine Oliver (Professor in Public Health at the University of Toronto). CPSM called medical evidence from Dr Hasim Shaikh (psychiatrist) and Dr Matthew Brandt (physician).
The Evidence
Factual Context
Ms Knight commenced working as a personal care assistant (also known as an assistant-in-nursing) (carer) at the Facility in about 2010. She had worked a number of shifts at the Facility whilst an agency worker in the early part of 2010 and then commenced as an employee of the previous owner of the Facility, Peninsula Care Pty Ltd, on a casual basis in August 2010. Ms Knight’s pre-employment medical certificate obtained in relation to her employment with Peninsula Care is dated December 2010. There appears to have been a delay between her commencing employment and the provision of the certificate.
CPSM purchased the Facility in late 2010 and Ms Knight was transferred and became an employee of CPSM. In transferring employees to CPSM, as part of the sale process, CPSM did not require any employees to undergo a further medical assessment.
Ms Knight usually worked morning or afternoon shifts, and not the night shifts. On average in the period up to September 2014, Ms Knight said she worked seven shifts a fortnight at the Facility.
During this period, Ms Knight was also running her own business, Natural Surrender. The business involved a directory for living naturally, and retail of health products, both online and in the period from April 2014 to October 2014, also the sale of products from a stall at the Eumundi Markets.
CPSM commenced operations in 2010 and acquired Mt Coolum as its first aged care asset. The company subsequently went on to own and operate a number of aged care facilities. By September 2014, the company owned and operated three aged care facilities.
There were three directors of CPSM, all of whom were owners of the business. Two of the directors, Shane Winterton, and Cliff Evans, had previously been RNs and were involved in the daily operations of the business. Before becoming a director of CPSM, Mr Winterton was the Queensland State Manager of Health Scope Hospitals. He began his career as a RN, later becoming a hospital administrator. Mr Winterton was the director responsible for workplace health and safety at the Facility. The third director was a chartered accountant.
The Facility had 120 beds: a 40 bed nursing home and 80 beds in four 20-bed hostels, Wattle, Rose, Ivy and Jasmine. Two of the hostels, Wattle and Rose, were for high care residents and always had two carers on any shift. The other two hostels, Ivy and Jasmine, were for more independent residents and had only one carer rostered on each shift.
On each shift, there would be one RN in charge of supervising the carers working in the four hostels and one RN in charge of supervising the carers in the nursing home. The RN was responsible for looking after the medication side of things for the residents and the carers were responsible for looking after the residents’ care needs. There was also a RN who held the position of clinical nurse manager and above the clinical nurse manager was the Director of Nursing. Both persons in those positions did not work shift work but more usual business hours.
At the start of each shift, there would be a handover between the RNs and carers for each shift. Separate handovers occurred for those working in the hostel and those working in the nursing home.
Following a shoulder injury in mid-2011, as part of her return to work programme, Ms Knight commenced working in the office of the Facility for approximately three months. Ms Knight believed that she was going to be transitioned to working on a permanent part-time basis in the office. However, the office position was filled by someone else and Ms Knight re-commenced working as a carer in September 2011, working more frequently in the hostels, rather than the nursing home.
Each hostel had a kitchen area and servery from where the meals would be plated and served. The meals would be prepared and cooked in the kitchen of the nursing home and transported on a trolley to the kitchen area of the hostels.
As a carer, Ms Knight’s duties included serving meals to residents and cleaning up after meal service. The carers worked in conjunction with the domestic staff and the cleaners, assisting those staff at meal times. That assistance included cleaning the dining tables and servery at the end of meal time.
Spray bottles containing D4 were used in the cleaning of certain areas of the Facility. Other cleaning products were also made available and used by staff.
The trade name of the chemical, D4, is “Suma San Conc D4A”. D4 contains the chemical, Didecyldimethylammonium chloride. It is the pure product that is classified as hazardous according to the Australian Safety and Compensation Council’s criteria and, at the relevant time, was subject of a Material Safety Data Sheet dated 6 April 2010, which had been issued on behalf of the manufacturer and supplier (MSDS). The references in the MSDS are to the product in its pure form. The MSDS was on a wall displayed in the cleaners’ room where the raw chemical was kept. The MSDS were regularly renewed by Diversey.
The cleaners were responsible for diluting the D4 into spray bottles. The cleaners’ rooms were located in the nursing home and in each of the hostels. The spray bottles and other cleaning products were kept on cleaning trolleys, which were used by the cleaners as they moved around the Facility. Some cleaning products were also kept in the kitchens of the nursing home and the kitchenettes of the hostels.
In about September 2013, Ms Knight says she began to experience intermittent headaches when D4 was used in her presence and when she walked into areas where it had recently been used.
In about March 2014, it is accepted that Ms Knight was requested to attend a meeting with the Director of Nursing, Lorraine Wright, and that in that meeting she reported her symptoms to Ms Wright. It is not disputed that at the meeting it was agreed Ms Knight could continue to ask staff not to use D4 in her presence and could request that they warn her of any intention to use it.
Ms Knight says she was required to continue to work in areas of the Facility where D4 was being regularly used and her symptoms continued to worsen.
On 14 September 2014, Ms Knight lodged a Workplace Incident Form (the Incident Form) which she had completed notifying CPSM of the circumstances and consequences of her exposure to D4.
In completing the Incident Form, Ms Knight reported that the incident was said to have occurred on 14 September 2014 at 1300. The type of injury was described as a “sickness akin to poisoning” and the incident was described as “Exposure to chemicals”. In answering the question as to whether there were witnesses, it was said “Numerous staff on multiple occasions.” The name of the RN/Supervisor on duty at the time was said to be Babaar Pandey.
The incident was described as:
“Over 1 year ago, I Megan Knight developed high sensitivity to the D4 chemical used here to wipe benches etc. This has been discussed at length with the DON & Matt Roberts & staff notified at least 6 months ago to notify me when they wish to use so I can work elsewhere for the 5-10 mins it takes for the surfaces cleaned to dry (I am only affected when this chemical [is] wet). Staff occurrences of using D4 in my presence continue to happen (though not as often) and I am always greeted with the “excuse” that they didn’t know, even though I have spoken to them myself on previous occasions.”
On an attached page, Ms Knight listed all the effects of inhaling D4:
“sinus pain, headache frontal, pains in back of head, stiff neck, stiff shoulders, kidney pain, lymph node pain armpits, fogginess of brain, energy drained (to about 40% of normal energy), agitation, constipation, taking to my bed immediately after shift finishes (1500) and staying there till next morning has usually reclaimed normality.” It was said on the form, “but yesterday the following were added to the list – teary/ fragile emotions, burping, awake at 2am, extremely parched, only sporadic sleep after that.” It was said, “This makes it incredibly hard to finish the shift (as being casual, no sick leave available and loss of income avoided) plus makes me unable to operate after the shift.”
On the form, Ms Knight offered as possible solutions, “either change the chemical or properly inform staff or properly label the bottle.”
On 19 September 2014, at the request of CPSM, Ms Knight attended upon her treating general practitioner, Dr Richards, and was given a medical certificate. Dr Richards had been Ms Knight’s general practitioner (GP) for some 20 years. CPSM offered to pay Ms Knight’s reasonable medical expenses.
At a meeting between Ms Knight and management of CPSM on 25 September 2014, it was agreed Ms Knight could return to work on certain conditions and she did so on 28 September 2014.
With financial assistance from CPSM, Ms Knight continued to seek medical diagnosis in the period between 28 September 2014 and 22 February 2015.
Over the weekend of 20 February 2015, Ms Knight suffered a back injury unrelated to her work at the Facility. She attended work on 23 February 2015 and again on 2 March 2015 but could not complete both shifts. She remained unable to work because of that injury until 10 April 2015.
Ms Knight did not return to work with CPSM after her shift on 2 March 2015. Ms Knight says she has not been able to work since.
CPSM sold the Facility to Estia Health with the changeover occurring in June 2015. The Facility became known as “Estia Mount Coolum”.
Matters in Dispute
There are a number of areas where the evidence of the witnesses conflicts. The issues in dispute on the facts concern the incident reporting structure at the Facility, the extent of the reporting by Ms Knight of her symptoms to others, and the system for the handling of chemicals at the Facility including on-site training. There are slight differences concerning events after the Incident Form was competed. It is convenient to commence with and recite the evidence of Ms Knight, and then to make findings as to each of these matters separately.
Ms Knight’s Evidence
Reporting of Symptoms
Ms Knight said that on a shift in September 2013, she felt a headache come on as soon as she walked into the patient dining room of the Wattle hostel. Ms Knight said that was the first occasion on which she had experienced any reaction.
Ms Knight said that she noticed the carer with whom she was working with on the shift, whom she recalled as being Wendy Sutton, had a spray bottle in her hand and that she saw Wendy spraying the tables in the dining room. Ms Knight said she asked the carer what was in the bottle and Wendy told her it was D4. Ms Knight said she asked if it was a new chemical and was told by Ms Sutton that it had always been here. Ms Knight said that prior to that conversation, she was not aware of the contents of the spray bottles.
Ms Knight could not recall whether she had previously observed carers or other staff at the Facility using spray bottles. Ms Knight said that she had never used the spray bottles herself. Ms Knight said that if she was on cleaning duty at the conclusion of meal time in the dining room, she would use the cloth from the kitchen and on occasions would have with her a tub of hot water and/or detergent.
Ms Knight said that prior to this time, while she was still working in the nursing home, she had started to experience dermatitis on her hands. She said that she had mentioned her dermatitis to the RNs she was working with in the nursing home; though she gave no evidence of any particular conversation with any particular RN. She said, it was only after she started investigating the effects of D4, that she appreciated her dermatitis was connected to being around D4.
Events between September 2013 and March 2014
Ms Knight said that at some time during that shift in September 2013, when she first experienced the headache, she reported the headache to the RN on the shift. Ms Knight could not recall the name of the RN on that shift.
Ms Knight said she told the RN that once she moved away from the area, the headache cleared after about 15 minutes.
Ms Knight said that after the first incident in September 2013, each time she walked into a room where D4 had been sprayed, she would experience a headache. Overtime, she said, her symptoms worsened.
She said that on each occasion when she was working and D4 had been sprayed while she was in the same room, she would raise the issue with the other carer or the cleaner in the room. She said she did not have to be in the same room but in the same vicinity for her symptoms to be felt.
She said the carers would only use the spray whilst in the dining area and when they were cleaning the tables and benches after meal time.
She said that the cleaners would use the spray more generally, in the common areas, in the residents’ bedrooms and bathrooms and in the lounge rooms of the hostels. She said the cleaners would clean the whole kitchen down using D4. Ms Knight said that when they returned the “stuff” back to the kitchen at the end of meal time, she would be “walking straight into that mist”.
She said that she would say the same thing on each occasion. She said, “I believe that every shift I had a conversation with a co-worker or with a registered nurse who was on staff.”
Ms Knight says that, on each occasion, at some stage during her shift when she had developed any symptoms during the shift, she would find the RN and tell them of the incident.
She said she would say to co-workers, “I don’t want this chemical sprayed around me. Give me notice if you want to use it.” She said she would have this conversation with her co-worker for a shift at the start of every shift in the kitchenette of the hostel, immediately after the hand-over meeting with the co-workers on the previous shift. She said that she continued to mention it every shift until she became confident that her co-workers understood and then she would not mention it again. She said that as her symptoms worsened, she started to complain more.
She said that if any cleaners came through, while she was working in an area, she would mention it to them. Ms Knight said that she did not usually see the cleaners using the spray bottles. She said they were usually in different areas.
She referred to RN Emily Thomas as one of the RNs that she told and who was the RN Ms Knight called as a witness at the hearing. In cross-examination, Ms Knight accepted that she did not report it further than the RN at that stage. In responding to a question to give as much detail as possible as to her conversations with RN Thomas, Ms Knight said, “Okay. So I mean it was a repetitive thing. Again I state that I believe that every shift I had a conversation with a co-worker or with a registered nurse who was on staff…about I don’t like this D4 or this happened today.” She said, “I’m telling people.”
Ms Knight was unable to recall the exact conversation or exact dates of any conversations either with RN Thomas or any other RN, but said they were happening all the time and she would say the same thing on every occasion. Ms Knight said in discussing it with a RN it would have been, “This has occurred. D4 has been sprayed. I have had these symptoms. I want this stuff kept away from me.”
Ms Knight says she was reporting her symptoms to supervisors and other staff “all the time”. She said as time went on, she would have expressed some frustration. She said she was asking, “Why do I not have any results yet? Why has nothing changed? Why is this still happening?”
March 2014 Meeting
Ms Knight says that in March 2014, she was called to a meeting with Lorraine Wright. She could recall, during a shift, being told that she was required to go and see Lorraine in her office. She said she would have been told by either the clinical nurse manager or the RN on the shift. She said that Lorraine had said to her that Matt Roberts, who Ms Knight described as a director, had asked Lorraine to speak to Ms Knight because Ms Knight had been telling the cleaners they could not use D4.
Ms Knight said that she said to Lorraine:
“Sounds like Chinese whispers have been going on. I have been getting some headaches and other symptoms from this chemical. I don’t like it. I’m trying to avoid it. I’m telling other carers about it. I’m asking them that if they must use it, if they would give me 15 minutes notice and – so I can get out of the room. It’s – it’s so far affected me when it’s wet on the surface and if I can – and it’s been giving me headaches and if I can get away from it then the headache does seem to go away. So at this point, I think I’m safe, once it dries.”
Ms Knight said she told Lorraine that she did not use it and that she used hot water and dishwashing detergent and that she wore rubber gloves.
Ms Knight said that Lorraine agreed she could continue to ask co-workers not to use it around her. She said Lorraine agreed she should continue to report to the RNs and that Lorraine would continue to be informed. She said Lorraine said that she would let everyone know and let the staff know not to use it around her. Ms Knight said she remembered feeling intensely relieved that it was being discussed at this level, because “it was also very stressful at this point, very highly concerning”.
Ms Knight said she did not have any further discussions with Lorraine Wright because she said it was decided that Ms Knight would continue to report to the RNs. She said her focus was to report back to the RNs and all her comments were made to them.
March 2014 to September 2014
Ms Knight said that after this meeting, she was waiting for changes to happen and “changes didn’t happen”. She said she was reporting to the RNs and she was confident that they were reporting. She said, “I was forming the impression that they were hitting a brick wall…”
When questioned further, Ms Knight said she could not remember any particular conversations because “there were so many conversations.” Ms Knight accepted she could not remember any actual conversations with RN Emily Thomas.
Ms Knight said that despite her requests to co-workers, the spray continued to be used and her symptoms continued to worsen. She said she would get a “prickle in her nose” when the spray had been used. The irritation in her nose would then become a headache at the front of her forehead, then transfer round to a headache at the back of her head, her neck, across her shoulders and all down her spine would stiffen up, her kidneys would start “working overtime” and from the bottom of her ribs down to the top of her backside would burn. She said, as a casual worker, she could not afford to say that she needed to go home.
Ms Knight said the RNs said to her that they were telling everyone not to use it and she said they said to her to keep telling everyone not to use it. In cross-examination, Ms Knight accepted that her employer was telling people not to spray it around her and had told her not to use it.
Ms Knight said that she was expecting something to be formalised. She said there was a folder in the lunch room which contained memos and she looked through that folder on a few occasions and never came across any memo.
In cross-examination, Ms Knight accepted that the spray was not being used around her as much, but said that her employer was not enforcing a system that would reduce her exposure to D4.
She said “it wasn’t happening every shift” any more but it was still happening and her symptoms started to radically increase in about July 2014. She said she experienced gasping when trying to sleep and that her hair went almost completely grey and took on a very unkempt state. She said she was finding her work shifts “physically devastating” and she was “coming home so tired.”
Incident Form September 2014
Ms Knight said that an incident occurred on 14 September 2014 when a spray bottle was used by one of the RNs directly behind her. Ms Knight recalled the RN as being Babaar Pandey. Ms Knight said she had been rinsing the dishes to put them in the dishwasher. She said she got a prickle in her nose, turned around and Babaar was spraying D4 over the medicine trolley.
As a result of that incident, Ms Knight decided that she would complete an incident form. Prior to leaving the Facility at the end of the shift that day, she printed an incident form which she then completed at home that night. The next morning, on 15 September 2014, prior to commencing her shift, she delivered the Incident Form to the office of Lorraine Wright, by placing it underneath Ms Wright’s closed office door.
Ms Knight said that no-one contacted her during her shift that day and she said it was not until the middle of her shift on 17 September 2014, at around 6.00pm, Shane Winterton and Lorraine Wright came to see her when she was working in the Wattle hostel and asked her to step outside on to the lawn area. She said the meeting took over an hour.
Ms Knight says that Mr Winterton said, “Now you’ve put it in writing, you’ve made it legal.” She said Mr Winterton had said one of the other director’s wives had gone into anaphylactic shock in reaction to a chemical and gone into hospital. She said Mr Winterton was concerned about allowing her back into the building. Ms Knight said the meeting was on 17 September and that she did not have any more shifts until 22 and 24 September 2014. She said Mr Winterton told her she would have to wait until he contacted her as he needed to sort his legal position out. She said she found Mr Winterton’s comments “very shocking” because she thought “we were talking about my health.” Ms Knight said she suggested, “Well, why don’t we just use another product, if I’m reacting to this one.” She said Mr Winterton responded in the course of that meeting that that was impossible.
Events Subsequent
Ms Knight received a letter from Mr Winterton, as the director and business manager of CPSM dated 19 September 2014. The letter confirmed that Ms Knight was not to attend the workplace until some further medical advice could be sought and more investigations made, with CPSM offering to pay her reasonable medical expenses. The letter stated that she would be paid for her forfeited shifts which were due to occur on 22 and 24 September 2014.
Ms Knight said that she attended upon her treating GP, Dr Richards and sent to Mr Winterton a copy of the medical certificate signed by Dr Richards.
Ms Knight says she then received a telephone call asking her to come into a meeting with Lorraine Wright. She says the meeting took place on 25 September 2014. She said Ms Wright did not enquire about her health at that meeting but told her she could return to work on normal duties, that she could lock away the D4 when on shift and she was to continue to tell staff not to use D4 around her. She said she was told it was her responsibility to keep herself safe and that her employment would be terminated if she did not do so. She said there was no discussion; just a set of orders given to her and then she was dismissed and made feel as though she had done something wrong. Ms Knight said that the meeting with Lorraine was the last time her employers instigated any contact with her on the subject of D4.
Ms Knight said she returned to work on 28 September 2014 and she was put back on the roster. She said she would speak to people at the beginning of the shift and then she would grab the spray bottles of D4 from under the kitchenette sinks and lock the D4 away in the store room. Ms Knight said that at the end of the shift, she would bring the spray bottles back out of the store room. Despite taking these steps, Ms Knight said that the chemical continued to be used around her.
She said her symptoms continued to worsen. On 1 October 2014, when she was working at her stall at the Eumundi Markets, she experienced the breathing problems, which worsened when she was driving back from the markets. She was due at work in the afternoon but was taken by ambulance to the Noosa Hospital where she spent six hours in emergency. Ms Knight says she was sent home with no answers.
She said subsequent to that there was a particular altercation involving a young girl in the kitchen. Ms Knight said it was the third time of telling the young girl about D4. She said it resulted in an argument in the hallway, just down from Ms Wright’s office at night time. Ms Knight said she called Ms Wright the next day to report the incident. Ms Knight said that she made the phone call to Ms Wright on 19 November 2014. Ms Knight said she did not complete an incident form because she said she was not allowed to complete the forms.
During this period, Ms Knight sent a number of emails to Mr Winterton. In those emails, Ms Knight raised with Mr Winterton the fact that her hours had been reduced.
Ms Knight says she was called to another meeting with Mr Winterton and Mr Evans at the end of her shift on 14 October 2014. Ms Knight said that Mr Winterton was angry because of Ms Knight having referred in an email to Lorraine making a statement to her “in her usual acerbic style”. She said Mr Winterton raised with her the issue of respect, the issues around her being a casual worker and her hours not being guaranteed and the issue as to the cost of her attendance upon Dr Solley, which Ms Knight said they agreed to cover.
Ms Knight said that she then attempted to get a sample of the D4 to take to Dr Solley. She said that was the first time she became aware of the MSDS that was on the wall in the cleaners’ room of the Wattle Hostel. She said that was also the first time she realised the chemical in its raw state was kept in the cleaners’ room.
Her next email to Mr Winterton was on 24 November 2014. Following that email, Ms Knight had a conversation with Mr Winterton. She said that conversation occurred in the reception area. She said she raised with Mr Winterton an error in Dr Solley’s report and also again raised D4 being removed and another product being used instead. She said Mr Winterton said, “We could get another chemical and [Ms Knight] might react to that and so it was impossible.”
Ms Knight said she went on leave in mid-December 2014, resuming work on 4 January 2015.
Mr Winterton sent an email on 20 February 2015 in which he said, given Ms Knight’s on-going difficulties and his belief that there was nothing further they could do, he would require a full fitness clearance, and then he proposed that they meet. Over the course of that weekend, Ms Knight suffered a back strain, unrelated to her work at the Facility. She attended work on Monday, 23 February 2015 but could not complete her shift. Ms Knight attempted another shift on 2 March 2015 but Ms Knight was still in pain. She then obtained a medical certificate until 10 April 2015.
Ms Knight completed a WorkCover claim for her back strain on 2 March 2015. The claim for her back strain was for the period up to 10 April 2015 and then it converted to a WorkCover claim for the D4 issues.
Ms Knight says that at that time she started to keep a health diary.
Ms Knight says that Mr Winterton phoned her on 4 March 2015 and he offered her two weeks pay. She said that Mr Winterton said that he thought her time at Mt Coolum Aged Care had ended and she said the two weeks’ pay offer was to pay her out. Ms Knight says there were half a dozen phone calls between herself and Mr Winterton between 4 March 2015 and 28 April 2015. She said she made it clear that they were not being cleared and that any offer needed to be made in writing. She said she then became fully engaged in her WorkCover claim.
Ms Knight said that WorkCover called on 21 April 2015 and said that she had not been accepted for wage cover and told her to go back to work. That position was confirmed in writing in letters dated 21 and 22 April 2015. Ms Knight said that she then phoned Mr Winterton. She told Mr Winterton that she was supposed to return to work. She said that Mr Winterton said he had ordered that she be taken off the roster in March 2015 as “it was too risky”.
Incident Reporting System
Ms Knight said that there had been a change in the reporting structure which meant that her reports to the RN were as far as she could go with reporting her symptoms. Ms Knight maintained that she was not allowed to complete an incident form. She said the reporting system required that the RN was the person who decided if an incident form was to be completed.
Ms Knight maintained that the reporting system had changed at the Facility while she was working there. She could not recall when the change occurred but she could recall at some point carers were no longer able to complete patient notes and she said that extended to carer’s completing incident forms involving either residents or staff.
Ms Knight said that meant that she was required to report all incidents through a RN and that the RN was the person responsible for determining if an incident form was completed and it was the RN who provided the incident form to management. She accepted that if a form was completed for an incident she had reported, it would be signed by her and the RN.
In the period between September 2013 until February 2015, when Ms Knight finished working at the Facility, Ms Knight said the reporting structure was always from the RN and from there to the Director of Nursing and then to the directors.
Training
Ms Knight said that she had received no training on this product, in particular she referred to there being no training as to how to keep themselves safe from the product or that the product was even possibly a danger to staff. She said she had to constantly enter areas where it was being used and she was completely ignorant of being in danger. She said she knew nothing about D4.
She said the MSDS was unclear. She said it talked about protective equipment but she was told nothing about who mixed it, what was the concentration and what measures were in place to ensure it was being mixed to the manufacturer’s concentration. In giving evidence, she said she was hoping for that information from the witnesses in this trial.
Ms Knight said she was concerned as to who was responsible for mixing the chemical in the spray bottles. She said she could recall on one occasion when she putting the spray bottles away, she noticed that one bottle contained pink liquid and the other contained purple liquid. Ms Knight said that really concerned her as to the level of concentration of the chemical in the bottles.
Ms Knight said she was not aware of any risk assessment being conducted by CPSM. She said she was not aware of any quality of air testing.
Ms Knight said that her employer was not enforcing a system that would reduce her exposure to D4. In cross-examination, Ms Knight accepted that her employer was telling people not to spray it around her and had told her not to use it.
Her evidence was that she had never used it. Ms Knight said the system was not successful. She accepted that others were telling staff but staff were still using it. She accepted it had improved but it had not stopped.
Ms Knight accepted that there was more general “on the job” training. She described the training as continual and said that they were required to complete modules and said it was subject by subject. Initially she said it was in the classroom but subsequently became online.
She said much of the training had to be completed in a staff member’s own time. She said they had to be up to date to be able to continue working.
Resolution of Factual Issues
Some of Ms Knight’s evidence is supported by the evidence of other witnesses, but not much and most of it is contrary to the evidence given by other witnesses.
Reporting of Symptoms
It is convenient to start with the extent of reporting by Ms Knight of her symptoms.
One of the witnesses who says that Ms Knight had reported to her the existence of symptoms said to be related to the use of spray was RN Thomas.
RN Thomas worked at the Facility at the same time as Ms Knight was working there. RN Thomas still works at the Facility, now known as “Estia Mount Coolum”. At the relevant time, RN Thomas was employed as a care co-ordinator for the hostel residents and all the staff that worked in that section. Her Director of Nursing was Lorraine Wright and her evidence was that the carers would report to her and she reported to Lorraine.
She said that as care co-ordinator, she was Ms Knight’s supervisor from approximately November 2012 until May 2014. Sometimes, her role as the care co-ordinator would involve her working as the RN anyway. In about May 2014, RN Thomas changed roles to being night RN.
RN Thomas said she could not recall when Ms Knight started to raise issues but she could recall an incident in the Wattle hostel during a shift when Ms Knight was opening windows and was very distressed because she was starting to get a headache. She said Ms Knight was feeling really unwell.
RN Thomas said Ms Knight had “like, watery eyes and she was saying people – I’ve asked people to stop using the spray because it’s been – you know, a reaction.” RN Thomas said, “you could see she was physically – her eyes were red. She didn’t look well and she needed to basically get out into the fresh air…”. She said that she thought ultimately on that shift Ms Knight went home as she was feeling so unwell.
In cross-examination, RN Thomas agreed that Ms Knight had also referred to her nose being very itchy, a sore throat and a headache; “kind of flu-like symptoms, I guess, but like, really quick onset.”
She said that she could recall four or five times when Ms Knight was feeling unwell and needed to go home. She said she could recall one occasion, possibly two, when Ms Knight went home feeling unwell and called in the next day still feeling unwell. RN Thomas said that she would then be responsible for finding a replacement staff member.
RN Thomas said that when a staff member was feeling unwell and was sent home, she would have to report it up the line to her senior, who was to Lorraine Wright.
RN Thomas said that she could not recall specifically the conversations with Ms Knight about D4, but believes there would have been a handful of conversations when Ms Knight reported suffering symptoms from her suspected reaction to D4.
In cross-examination, in answer to a question as to whether specifically between September 2013 and May 2014 Ms Knight had reported to her each and every occasion that Ms Knight worked with her, RN Thomas said, “She would have reported it a few times.”
Apart from the Wattle hostel incident, RN Thomas said she could not recall any other particular conversations. When asked if she could recall the period when complaints were being raised, RN Thomas said that it would have been when it was hot because she could recall there being complaints about the windows being open. She said it would have been sometime, “like February, March, April”.
This evidence is not consistent with the evidence of Ms Knight that she made constant complaints about the use of the spray to the RNs and her evidence of having made those complaints consistently since September 2013.
Ms Knight’s evidence is also not consistent with other evidence.
The defence called Ms Glenys Parsons who had been employed at the Facility as a cleaner for approximately 23 years and at the relevant time was head cleaner. Ms Parsons said that she could vaguely remember Megan. She said that she could recall, when she was cleaning down in the Wattle hostel, on one occasion being asked by Megan not to use the chemical as she was allergic to it. She said that she can recall that she moved from that area and started doing work in another area and then returned to finish the kitchen area. It is unlikely that if Ms Knight had complained as much as she says that Ms Parsons would not have recalled it.
It is also surprising that those in management positions had not become aware of the complaints.
The defence called Lorraine Wright who was a qualified registered nurse and the Director of Nursing at the relevant time. Ms Wright commenced working for CPSM as a clinical nurse manager in May 2012 in the hostel area of the Facility, a position she held for about six months before she was appointed to the role as Director of Nursing; the title of that position being subsequently changed to Facility Manager.
In her role as clinical nurse manager, Ms Wright was responsible for managing the RNs, enrolled nurses and carers who were working in the hostel area of the Facility.
Ms Wright said that she recalled a conversation with Ms Knight following a conversation she had with the cleaning supervisor, Ms Parsons. Ms Parsons had come to see Ms Wright to ask why they were not to use the cleaning products anymore. She said that Glenys had explained to her that Ms Knight had asked her and other cleaners not to use the cleaning products anymore. She said Ms Knight had said to her they were not to be used. Ms Wright said she told Glenys that she would speak to Megan.
Ms Wright’s recollection of the meeting with Megan is largely consistent with the evidence of Ms Knight, though both Ms Wright and Ms Parsons recollection is that the meeting was called as a result of a meeting between Ms Wright and Ms Parsons. It is generally accepted the meeting took place in March 2014 and their evidence as to outcomes for the meeting is largely consistent.
Ms Wright did not accept that she had received any reports from RNs prior to the conversation with Ms Parsons. She said that she could not recall RN Thomas ever approaching her to raise the issue.
Ms Wright said that when she did her daily rounds of the hostel she did not observe Ms Knight to be unwell. She said there was “nothing obvious”. Ms Wright said she did not observe “a runny nose, sneezing, itchy watery eyes.” Ms Wright said there were no obvious signs of “typical allergy type symptoms”.
The defence also called Mr Winterton. Mr Winterton said that during conversations with Ms Knight he did not observe any of the symptoms of which she complained. He said he never observed Ms Knight in respiratory distress. Mr Winterton said he spent an extensive amount of time working in anaesthetics and recovery where he was required to ventilate patients and watch for signs of respiratory distress. He said that he felt relatively competent to identify respiratory distress and said that he never observed any signs and symptoms in Ms Knight. He said they discussed with Ms Knight that she did not appear to be struggling to breathe in their presence at any time.
These witnesses gave their evidence frankly and objectively. There was no appearance of Ms Wright, RN Thomas or Ms Parsons seeking to protect their employer or the business from any blame.
The inference is inescapable that, in giving evidence, Ms Knight exaggerated the extent of her symptoms and complaints to her co-workers or the RNs. It is also not probable that Ms Knight would complain to her fellow carers and cleaners about her situation to the extent that she alleges, and that those complaints did not escalate; either by her or others to senior management prior to March 2014.
Incident Reporting System
In all of this time there was, as mentioned earlier, only one incident form lodged by Ms Knight. The evidence of other witnesses in relation to the use made by staff of incident reports is different to that given by Ms Knight.
RN Thomas said there was a system in place for incident reporting, though she did not give further evidence on the subject.
Following the purchase of the Facility by CPSM, Mr Winterton said CPSM overhauled the management systems used in the Facility, including the reporting systems and the management of chemicals used on site. He said he believed the changes occurred in about 2011/2012.
Mr Winterton said the change in the quality management system involved changing the forms available for use by staff, including the annual leave forms, the hazard forms and the incident forms. The system chosen was called “Frontline Aged Care”. That system has not subsequently been changed.
Mr Winterton said that the forms were available at all times for all staff in the nurse’s stations. He said there were two nurse’s stations in the Facility; one in the nursing home and the other in the Jasmine hostel. He said the Jasmine hostel was about 60 to 80 metres away from the Wattle hostel. He said the nurse’s stations were open areas that staff could access at any time.
Mr Winterton said that if any staff member had an injury on site they are told to report that to the RN in charge on the shift and a form could be filled out with the staff member and the form could be passed through to management. He said, if a staff member had an injury which required medical attention or the staff member had to leave site, then he would be contacted in his role as the Workplace Health and Safety Officer on site.
Mr Winterton said that a staff member could “…grab a form from the nurse’s stations and fill them out themselves any time they please.” He said they are certainly not required to report the matter through the RN; though he accepted that was one system.
He said that all incoming staff were made aware of how to report an incident and who to report it to. He said as part of the rollout of the new quality management system, there was training for all existing staff.
Mr Winterton confirmed that the Incident Form completed by Ms Knight was one of the new forms. Mr Winterton said that the completion of an incident form was a frequent and regular occurrence.
Mr Winterton said that all incident forms that were received were kept and forwarded for review by the Workplace Health and Safety Committee every quarter. He said they would have many incident forms reported to the Committee every quarter. He said that representatives from the different areas of the business were part of the committee. He said that numerous ‘carers’ were part of the committee. He said there were also “registered staff, domestic staff, administration staff, management, [and] maintenance.”
He said that the names of all workplace health and safety staff were published and made aware to all other staff so that if any staff wanted to raise a concern, they could raise that with any of the workplace health and safety staff members, rather than approach him or complete a more formal incident form.
He said a communication book was maintained in the staff room, “if things needed to be communicated to staff, memos and so forth, changes, they are all put into there.”
Mr Winterton said that, apart from Ms Knight’s issues with D4, no other issues with D4 had ever been reported at any time.
Ms Wright agreed that there had been a change in reporting, but said this was around progress notations in residents’ files. She said it was decided that the RNs and enrolled nurses, and not the carers, should do more of the progress notations on residents’ files. She said that carers had not been trained in the completion of those notes and this led to the change in the system.
Ms Wright said that anyone who had an incident knew how to access the incident forms and how to fill the forms out.
Ms Wright said that staff did have to report the incident to the RN on the shift because, she said, the RNs needed to be aware an incident had occurred. She said the name of the RN was to be included on the incident form.
Ms Wright said that there was no directive ever given that carers could not fill out the incident forms. She said that often carers would fill out forms and not report it to anyone and that caused problems in terms of tracking the incident. She said it was for that reason that staff were told to inform the RNs of incidents during a shift.
It is improbable that a modern workplace would not have a reporting system as explained by Ms Wright, and it is unlikely that Ms Knight was unable to lodge an incident form. Ms Knight’s evidence as to the reporting system and her not being allowed to independently lodge an incident form is simply not believable; it goes against the evidence of the other witnesses and against her own actions in ultimately completing the Incident Form. Her evidence on this issue significantly affects the credibility of her evidence as a whole and was clearly directed to attempting to impose the knowledge of her symptoms on management at an early point in time.
Training
The credibility of Ms Knight generally is important in assessing her evidence and complaints regarding training.
RN Thomas said the RNs did receive some training about the storage of chemicals and cleaning products and making sure they are safe and away from residents. She said RNs would not have received training on all the chemicals used in the Facility.
She said carers would have received similar training to the RNs, which she described as, “it would have been more for the hazardous effects…and keeping safe storage.”
She said she did not personally have training on D4. She said she was aware that there was a MSDS for D4 and she said she thought it would have been kept in a folder in the cleaners’ rooms and the main office as well.
She said when staff first started working there was induction training, though she said most of it was now online but agreed that back in 2014 it would have been more in paper form.
RN Thomas agreed that staff were trained generally on topics such as safety in the workplace, safe manual handling and that there were extensive workplace health and safety training programs offered on site and the training programs and safety modules were updated regularly.
RN Thomas agreed that if someone did not complete their training they would be followed up by management to undertake the training before they continued with their work. She agreed there was a system in place of incident reporting and there was a lot of focus on safety in the workplace and safe work practices. RN Thomas added, “there always is”.
Ms Wright said there was mandatory training for staff which included elder abuse, infection control, and chemical handling training. She said that there were quite a few that fitted under the mandatory training requirements but she could not remember all the names.
Ms Wright said that there was direct personal care training for staff and residents, particularly regarding manual handling, documentation and accountabilities. She said in her role from time to time she would provide clinical training to staff but she could now not recall particulars of the training that she had provided. Ms Wright said that training was provided throughout the year.
Ms Wright said that staff were required to sign off when they attended training.
There were no documents showing that Ms Knight was given any training in relation to the chemical D4 or its use. There is, however, plenty of evidence as to the training generally undertaken at the Facility.
Mr Winterton said that when the Facility changed over to a new dispensing system and new chemicals, all existing staff were provided training on the new system. His evidence was that the extent of training depended on the nature of their work. He said that all new incoming staff were provided training on chemical usage and handling, with the domestic staff (kitchen, laundry and cleaning staff) receiving more intense one on one training than the carers. He said the carers were provided more basic information on the products being used and what products should be used on particular surfaces. He said the information for the carers was contained in information sheets. No information sheets were tendered in evidence; though the MSDS relating to D4 and its use at the Facility was tendered.
Mr Turner, an account executive of Diversey, confirmed that Diversey as the supplier of chemicals to the Facility, also conducted monthly service visits to the Facility in which he would go in and check that the chemicals were being used correctly, check the dishwashers and the dispensing units were all operational and provide any necessary training. Mr Turner said the staff were taken through the training program called “Safe Handling of Chemicals”. Mr Turner explained that training program was just a basic do’s and don’ts on how to handle chemicals safely and when to wear protective equipment. He said he would also go through what he called “Product Application Training”, which he described as training as to the products that are used on site and how to use them correctly. Mr Turner said that the training program offered by Diversey was a prescribed training program with a PowerPoint presentation that would either be put up on a screen or an A3 flip chart used to take staff through the program, depending on whether the Facility had access to a projector.
He said that most sites would have training once a year to familiarise staff and/or reacquaint them with the chemicals and the safe handling of the chemicals.
In relation to D4, he said they would usually show the staff how to fill the bottle up with the water first, slide the bottle into the dispenser and then give one pump on the grey button on the front of the dispenser which puts one shot of the product into the bottle and then the top is screwed on it. The system stops too much chemical being put into the bottles.
Mr Turner said that they are always training staff, “to make sure you only put one shot into the dispenser”. He said he would explain to staff that if they put too much chemical into the bottle then they would end up over concentrating it, and he said then it becomes a bit of a non-rinse sanitiser that they would need to actually wipe down the surface afterwards to rinse it off. Mr Turner explained that this particular sanitiser was a non-rinse sanitiser, as long it was mixed correctly.
Ms Parsons confirmed that staff received education on a regular basis; once or twice a year. She described the training as including how the cleaning was to be done, how the chemicals were to be used and how to fill the spray bottles using the dispensary units at the Facility. Ms Parsons confirmed that the training was provided by the supplier of the chemicals.
Ms Parsons said that they explained in the training that people were not to spray the chemicals in the air, but rather to spray it on the surface and wipe it off. She said that it was explained that employees were not to mix the chemicals.
Taking the evidence as a whole into consideration and the credibility of Ms Knight, I am not persuaded that Ms Knight did not receive any training on the safe use of chemicals, including D4.
Events after Incident Form
There are not many differences in the evidence concerning the events after Ms Knight completed the Incident Form.
Ms Wright said that upon receipt of the Incident Form she would have asked Megan to come and see her. She said she could not recall when that conversation occurred, though she believed the meeting would have occurred in her office.
Ms Wright said that she did not recall a meeting between herself, Mr Winterton and Ms Knight on the lawn area outside the Wattle hostel at around 6.00pm, as suggested to her by Ms Knight. Ms Wright said that it would be unusual for her to be on the premises at 6.00pm and unusual for her to conduct a meeting outside in a public area.
She said that her usual process would be to talk to the person involved, usually in the private area of her office, she would have had a discussion about her concerns and explained that the next process would be to escalate the matter to Mr Winterton. Ms Wright said that she was not sure when she sent the Incident Form to Mr Winterton but she has recorded on the Incident Form that it was sent to Mr Winterton and she knows that she did escalate it.
She said that it is documented on the Incident Form that she also notified her clinical manager at the time, who it is noted on the form was Cynthia Bull.
Ms Wright said she could not recall a meeting with Ms Knight on 25 September 2014, though accepted that she could not recall the dates of her meetings. She also could not recall what date Ms Knight returned to work.
Ms Wright said she could recall during this period a discussion with Ms Knight in which she said she wanted to lock the D4 away. In cross-examination, Ms Wright did not accept that in the meeting with Ms Knight that she told Ms Knight “to keep [herself] safe or [her] employment will be terminated.” In answering a question from Ms Knight, Ms Wright said that she would not use that terminology “with you or anyone”. Further, she said that it was not her decision to make to terminate someone’s employment.
Ms Wright said that she recalls the extra measures put in place following receipt of the Incident Form was to move Ms Knight from the Wattle hostel, to being rostered to work in the Ivy or Jasmine hostels, because then she would be the sole carer and have greater control over her environment. She said that she thought that suggestion was raised by Ms Knight but that she thought that was a “good suitable measure to take so I was happy to follow along with that.” In cross-examination, Ms Wright accepted that Ms Knight may not have always been rostered to work in the Jasmine or Ivy hostels but said that she believed they had tried to roster her in the ‘one carer’ hostels.
Mr Winterton said that following receipt of the Incident Form from Ms Knight, he recalls that he was involved in several conversations with Ms Knight. Mr Winterton also said he could recall walking through the Wattle hostel in the week or days before the Incident Form was submitted and being approached by Ms Knight and the issue being raised. He said that prior to that he had no knowledge of there being any issue around D4.
In those circumstances, Ms Knight has failed to prove that CPSM failed to ensure that any or any reasonable warning was given to Ms Knight with a risk of exposure to the chemical D4 or to warn Ms Knight of the risk of her suffering skin and respiratory sensitisation to D4 and other chemicals as a result of exposure to the chemical D4, as alleged in sub-paragraphs (i) and (j) of the Amended Statement of Claim.
Keeping the Facility Safe and Protecting the Plaintiff from Injury
There remains the general allegations made in sub-paragraphs (a) and (d) of paragraph 28 of the Amended Statement of Claim that the defendant failed to keep the Facility safe for the conduct of the plaintiff’s work and to protect the plaintiff from injury at the Facility. The allegations are met by the evidence and the conclusions reached in relation to the particular acts of negligence. The allegations fail.
QUANTUM
It remains necessary to assess damages in the event that I am found to be wrong in dismissing the claim against CPSM.
There are considerable difficulties in attempting to assess damages independently of the findings on liability. Important findings have been made about Ms Knight and the concept of chemical sensitivity. The evidence of Ms Knight as it related to her alleged symptoms could not be accepted. It was not supported by the evidence of other people who gave evidence and who had observed her, and was inconsistent with her life experiences as shown by her on social media. The version put by Ms Knight is not consistent with the expert evidence (which I accept) that, to the extent that chemical sensitivity exists, once a person is removed from the environment, the symptoms cease. The expert evidence (which I accept) is that chemical sensitivity may be a condition suffered by people exposed to large doses, but that was not the case here.
Dr Brandt was of the view that it was difficult, based on the medical and occupational history and published toxicology information, to reconcile the degree and extent of ongoing physical symptomatology and disability with Ms Knight’s described exposure to D4 spray. Dr Brandt considered that there was no objective evidence that she had developed respiratory sensitisation or occupational asthma, or dermatitis.
Dr Solley, although he considered Ms Knight was probably hypersensitive to particular agents in the workplace, agreed that the assessment was based on subjective complaints. Importantly Dr Solley said that, once a person who is affected steps away from the exposure, it should usually resolve.
Neither Doctors Matthew nor Shaikh considered that there was anything which would support a diagnosis of a psychiatric disorder. There is accordingly no basis to assess an amount under schedule 9 of the Workers Compensation and Rehabilitation Regulation 2003 (Qld) (Regulations).
There is accordingly no evidence that Ms Knight has any condition, let alone a permanent disability, arising from the exposure to the chemical D4. There is accordingly no basis for calculating damages under the Injury Scale Value system contained in the Regulations.
The medical evidence affects the whole claim for damages. There is no evidence that supports the proposition that Ms Knight has a condition which has impacted her capacity to work or would justify an award of damages for economic loss, or any special damages.
Ms Knight claims loss of income between 14 September 2014 to March 2015 at $350 per week, and a further loss of $750 per week until 15 August 2017, and future economic loss of $700 for 10 years.
If I had found that Ms Knight was suffering any injury at work, it would have been reasonable to assess the loss of income for the period between September 2014 and March 2015, when she was requested not to return to work until her claim was investigated; less, of course, the period Ms Knight was incapacitated by her back injury.
The assessment thereafter is problematic because there is no evidence (which I accept) that the alleged chemical sensitivity from her work with CPSM caused any permanent incapacity. At best for Ms Knight was the evidence of Dr Solley who stated that once the source of the irritant is removed, the condition resolved.
In short, I am unable to find that any absence from work by Ms Knight in the past was, or as to the future will be, as a consequence of the chemicals used at CPSM.
Ms Knight claimed a variety of medical expenses; which were set out in a schedule. The schedule included spices, herbal vitamins, coconut water, oils, milk for yogurt and some other products which Ms Knight described as “useless”. Ms Knight was involved and interested in alternative medicines. The inference is inescapable that these expenses arose from that viewpoint. There is nothing to indicate that the expenses arose from the alleged injury.
The same schedule also sets out various expenses for petrol, tolls, parking and trains; presumably for doctors’ appointments. If I had found that there was an injury and that CPSM had caused the injury to Ms Knight I would have allowed those expenses. I would not have allowed, however, expenses at Officeworks, given the absence of any explanation as to how that related to the alleged injury.
There is proof, in the form of correspondence from Medicare and WorkCover, that moneys have been expended on medical expenses for Ms Knight. If I had found that there was an injury and that CPSM had caused the injury to Ms Knight I would have allowed those expenses.
There is a claim for the future cost of counselling, medication and treatment, and travel expenses. I am not satisfied that Ms Knight would benefit from any counselling, and in any event, I do not consider that she has a psychiatric disorder, let alone one that arises from her employment. There is nothing that supports any expenditure for medication or treatment; even if I had found that Ms Knight suffered from the injury alleged.
Conclusion
The claim is dismissed.
I will make orders for the parties to make submissions on costs, unless costs can be otherwise agreed between the parties.