Noveska v City Group Pty Ltd & ACT Health and Community Care Service [2005] ACTSC 42 (31 May 2005)

Last Updated: 8 June 2005

VESNA NOVESKA v CITY GROUP PTY LIMITED ACN 008 599 899 and AUSTRALIAN CAPITAL TERRITORY HEALTH AND COMMUNITY CARE SERVICE

[2005] ACTSC 42 (31 May 2005)

NEGLIGENCE - personal injury - needlestick injury to cleaner in hospital ward - liability of employer - liability of hospital authority - contributory negligence

DAMAGES - personal injury - needlestick injury - chronic regional pain syndrome - depression - credibility of plaintiff - conflicting medical opinion - no issue of principle

No. SC 363 of 2000

Judge: Master Harper

Supreme Court of the ACT

Date: 31 May 2005

IN THE SUPREME COURT OF THE )

) No. SC 363 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: VESNA NOVESKA

Plaintiff

AND: CITY GROUP PTY LIMITED

1^st Defendant

AND: AUSTRALIAN CAPITAL TERRITORY HEALTH AND COMMUNITY CARE SERVICE

2^nd Defendant

ORDER

Judge: Master Harper

Date: 31 May 2005

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the defendants.

Introduction

1. This is a claim for damages for personal injury. On 19 November 1998, the plaintiff was employed by the first defendant, City Group Pty Limited, as a cleaner at the Canberra Hospital. Her services were provided by the first defendant pursuant to a contract with the second defendant, Australian Capital Territory Health and Community Care Service, a statutory authority responsible for the operation of the hospital. The plaintiff's case is that in the course of her employment, she suffered a needlestick injury when collecting rubbish.

2. The plaintiff had been employed as a cleaner at the hospital since about 1992, initially for another cleaning contractor. At some time during her first year at the hospital, the first defendant took over the contract, and she worked thereafter as an employee of the first defendant. By November 1998, the plaintiff was working during the day as a cleaner in the oncology ward, Ward 14 at the hospital. The ward was divided into two areas, 14A and 14B. Each had a number of rooms with patient beds. One was for day patients and the other for longer-term inpatients.

3. In the rooms comprising Ward 14 were numbers of white plastic bins for rubbish. The bins had plastic bags as liners. Some bins and liners were yellow, intended and labelled for infectious waste, and others were clear, for ordinary rubbish. One of the plaintiff's tasks was to empty these bins by removing the liner bags, sealing them with a tie, and placing the bags in a hopper. It was also part of the plaintiff's responsibility to replace the bags with new ones. She was provided with a trolley which consisted of a metal frame on wheels supporting a large soft reinforced canvas bag-style liner, into which she would load a number of plastic bags from the rubbish bins and wheel them to the hopper. Counsel for the plaintiff opened her case by explaining that on the day in question, as she was lifting bags out of the trolley to put them in the hopper, she injured her right hand when a number of needles protruded through the bag she was handling. It is common ground that the needles should have been disposed of by placing them in a sharps container, and that the plaintiff's duties did not include disposing of syringes or needles or sharps containers.

4. The plaintiff was examined at a staff medical unit. Blood tests were performed which confirmed that she had not contracted any viral infection. Her case is that her hand was infected locally, presumably by bacteria, and that the infection was brought under control by antibiotics.

5. Her case as opened was that she went back to work but found that her right arm became increasingly painful. About a year after the injury she was unable to continue, and she has not worked since.

6. Because the claim is against an employer, it has not been pleaded conventionally. No breach of statutory duty by either defendant is relied upon, and the claim is made on common law principles. Particulars are set out in the statement accompanying the originating application which purport to be particulars of breach of statutory duty, but which I read as particulars of negligence. They do not differentiate between the two defendants. The particulars are as follows:

(a) permitting the plaintiff to come into contact with exposed needles;

(b) failing to provide a system of work which did not bring the plaintiff into contact with unprotected needles;

(c) failing to ensure that rubbish to be collected by the plaintiff did not contain unprotected needles;

(d) failing to warn the plaintiff of the presence of unprotected needles;

(e) failing to provide adequate protective equipment and/or clothing;

(f) failing to institute a method of removing rubbish which did not put the plaintiff in contact with unprotected needles;

(g) failure to take adequate steps for the safety of the plaintiff;

(h) permitting unprotected needles to be placed in rubbish for collection by the plaintiff;

(i) failing to ensure that all needles were disposed of in protective containers;

(j) failing to adequately train and/or instruct its servants or agents in proper disposal of needles;

(k) failure to provide adequate equipment for disposal of needles;

(l) failing to take adequate care for the safety of the plaintiff.

7. The defence of the first defendant admits the time, date and place of the injury as alleged, denies any breach of statutory duty (it does not seem to me that any is asserted) and alleges contributory negligence by the plaintiff as follows:

(a) failing to take reasonable care for her own safety;

(b) failing to pay any or any sufficient attention to her work;

(c) failing to use her common sense and experience;

(d) placing herself in a position of danger when there was no need or cause to do so;

(e) if assistance or further assistance was required (which is denied) then failing to seek the same;

(f) if the task in hand was too dangerous (which is denied) failing to inform the defendant before undertaking the same.

The defence of the first defendant does not specifically deny negligence. Negligence was not explicitly pleaded by the plaintiff. The case was conducted on behalf of the plaintiff and the first defendant as a cause of action in negligence, with negligence in issue.

8. The defence of the second defendant admitted that on the relevant date the plaintiff was working at the Canberra Hospital in the employ of the first defendant, but either denied or did not admit the rest of the plaintiff's assertions. The second defendant pleaded contributory negligence in:

(a) failure to wear protective gloves and/or protective clothing;

(b) failure to take proper care for her own safety.

9. At trial, virtually all aspects of the plaintiff's case were in issue, in particular the circumstances of the incident, the nature and extent of any injuries suffered by the plaintiff at the time, the cause and extent of any continuing disabilities and the plaintiff's credibility generally. The hearing occupied nine sitting days.

10. Non-expert evidence about the day of the incident and its circumstances was given by the plaintiff, her supervisor (a fellow-employee of the first defendant) and three members of the nursing staff at the hospital. Expert evidence bearing on the issue included notes and reports from the plaintiff's then general practitioner and oral evidence from a later general practitioner, two neurologists and an infectious diseases specialist. It is necessary for me to summarise the evidence in some detail.

The plaintiff's evidence as to the incident

11. The plaintiff was born on 8 July 1970. She was aged twenty-eight at the date of the incident and is now thirty-five. She was born in Macedonia, and came to Australia in about 1991, initially living in Wollongong and moving to Queanbeyan within a year or so. She qualified in Macedonia as a chemical technology technician, and worked in a laboratory at a large steelworks factory. She married in Macedonia shortly before she and her husband migrated to Australia. At that time she spoke no English, though she was fluent in a number of eastern European languages. By the time of the trial, her English was adequate for her to give evidence without an interpreter.

12. On arrival in Canberra, the plaintiff commenced work immediately as a cleaner at the Canberra Hospital, then known as Woden Valley Hospital, working full-time from 6.30 am to 3.00 pm. After some time she began working a further four hours a day part-time, from 5.30 pm to 9.30 pm, for the same employer. In all, she worked seven days a week as a cleaner, dusting, vacuuming, mopping and collecting rubbish. She worked during the day on Ward 14, the oncology ward, and during the evening in other areas of the hospital. Her routine each day was the same. The first job was to empty the bins. Her evidence was that she received no training about the work from her employer, though she was given some instruction by hospital staff about rooms with signs indicating occupation by a patient with an infectious disease. The diseases might at times have included hepatitis and AIDS. The hospital's requirement was that a cleaner going into an infectious room was to don a gown, mask, gloves and overshoes, which were to be discarded on leaving the room. If the cleaner went into another infectious room on the same round, the process was to be repeated. The gloves were supplied by the hospital and were in boxes on the wall of each of the rooms. They were white or pale yellow and thin - in my observation nearer to the consistency of a party balloon than that of household kitchen gloves.

13. The employer provided pink or red household-style gloves for cleaning, and the plaintiff said that she used those gloves, for example, when cleaning toilets. The plaintiff's evidence was that these gloves were not always available. Sometimes she had asked her supervisor for gloves and had been told that there were none in the store and that she would have to wait until the following Monday. This was a relatively frequent occurrence, as often as every second week, and the plaintiff said that she did not receive any instructions about the use of the gloves. She did not wear them whilst dusting, mopping or vacuuming. She always wore gloves when picking up rubbish from the rooms, but sometimes took them off when pushing the trolley down the corridor to the hopper and before transferring the bags of rubbish from the trolley to the hopper. There was a large yellow plastic hopper labelled for infectious waste in a utility area on Ward 14. The plaintiff, who is a short woman, said that the open top of this hopper was at or a little below shoulder height. This is confirmed by photographs in evidence. It would have been necessary for the plaintiff to lift bags of infectious waste out of the trolley and above shoulder level to drop them into the hopper.

14. The plaintiff was asked in chief about previous experiences with needles. She said that twice before the incident in question she had sustained needlestick injuries but these had not led to infection. The first was about a year or two after she started as a cleaner. She was carrying a plastic bag and was pricked by a needle on her leg. She was sent to the staff clinic, given a hepatitis B needle, and monitored at three-monthly intervals for some time. The second occasion was seven or eight months after the first. The plaintiff was pricked on a finger or fingers. Again she was sent to the staff clinic, given a hepatitis B injection and monitored through blood checks at intervals for some time.

15. The plaintiff was aware that in each of the rooms on the ward there was a plastic box locked to the wall into which used hypodermic syringes and needles were to be placed. The plaintiff had no responsibility in relation to any of these. Only nurses had a key to remove the containers from the wall mounting. Full containers were taken by the nurses to a special room to be collected and disposed of.

16. On the day in question, the plaintiff said that she arrived at work at her usual time, 6.30 am, and after undertaking some cleaning duties on another ward, she moved to Ward 14B and started picking up rubbish. She said that she was wearing gloves. There were thirteen or fourteen patient rooms in Ward 14B, and her recollection was that three of them were labelled infectious. When she went into each of those three to collect the rubbish, she needed to put on a gown, thin gloves, a mask and overshoes, and she did so. For collecting the rubbish from the other rooms she wore her normal uniform and the pink rubber gloves provided by her employer. She put the bags of rubbish into the trolley. When she came to the last room, at some point she took her gloves off and she pushed the trolley down the corridor to the hoppers. She took the rubbish bags from the trolley one by one, and put them into the bin with her hand or hands. With a heavier bag she would hold it at the top with one hand and push up from the bottom with the other. As she was lifting one of these bags into the hopper, she was pricked on the hand by something in the plastic bag. She did not immediately know what it was. She screamed. Her evidence was that she had a couple of pricks and a scratch on the back of the right hand, in the general vicinity of the web between the thumb and forefinger, two or three centimetres towards the wrist from the base of the thumb.

17. She said that at the time a couple of nurses were passing on the corridor. They heard her screaming and came to see what had happened. She told them she had been pricked by something, she thought perhaps flowers. A nurse described by the plaintiff as the nurse manager, Ms Helen de Britt, was walking past with the nurses and she opened the plastic bag, saying "Oh my God! I can't believe it." The plaintiff asked what it was and Ms de Britt said, "It's full of needles inside". The plaintiff then saw a sharps container and a number of needles in the bag with blood, mixed with other rubbish. The plaintiff became frightened, knowing that there were three patients on the ward with infectious diseases. She was scared that one of them might have hepatitis B. She looked at her hand and saw a scratch and a couple of dot-sized needle pricks, with blood coming from all of them. Initially she said in chief that the scratch was about ten centimetres long but revised this to three to four centimetres.

18. The plaintiff then washed her hand. She said that the nurses gave her some alcohol for this purpose, and then sent her to the staff clinic. The bleeding did not last long after she washed her hands and went to the staff clinic. At the clinic she was given a hepatitis B injection and some blood was taken for testing.

19. The plaintiff said that she then went back to work. After working for a while, she looked at her hand again and saw redness all around. She called her supervisor, Slavica Stefanovic, by pager. The supervisor told her that it would be better for her to go home and to see her own doctor. This confirmed advice she had received at the staff clinic to see her own doctor if she had any problems. She said that she went home and saw her general practitioner, Dr Gillespie, that afternoon, by which time the area of injury on the back of her right hand was swollen and red. She feared that she may have contracted a serious infection. Dr Gillespie gave her some disinfectant cream and told her that the infection should go away, but that she should come back to see him if the redness or swelling continued.

20. The next morning the plaintiff went to work at the hospital. She put gloves on and collected rubbish around Ward 14. When she took her gloves off she saw that the swelling had increased and that the swollen area, in the vicinity of the right wrist in the direction of the elbow, was all red with "like little measles all around". She reported this to the supervisor who told her to stop work and go to her doctor. The plaintiff said that she went back to Dr Gillespie. Whilst she was with him he telephoned someone in the infectious diseases department at the hospital, and gave the plaintiff antibiotic tablets and another cream. He said that the infection was local and should go away.

21. The plaintiff said that the symptoms did not disappear as predicted. They remained for another couple of weeks, with the redness extending about halfway up to the elbow, and increased swelling. She began to drop things and could not use her arm. The pain went up to her neck. One day she got up and noticed that "the redness was still going up". She tried to make an appointment with Dr Gillespie but was told that he was away. She made an appointment with Dr Sukumar, a general practitioner in another Queanbeyan group practice.

22. While she was under the care of Dr Gillespie, she thought perhaps a week or two after the incident, she went to Canberra Hospital and saw Dr Peter Collignon, infectious diseases specialist on the hospital staff. He ordered an ultrasound and advised her to follow up with blood tests, initially at three-monthly intervals, then at intervals of six months, and later annually. She was given the impression that infection arising from the needlestick injury might not be detected in blood tests until up to a year afterwards. The plaintiff attended for blood tests as recommended by Dr Collignon with negative results, though the arm pain continued.

23. She said that by the time she saw Dr Sukumar, the redness and swelling had gone but she had a lot of pain in the arm and loss of feeling in the fingers. Dr Sukumar referred her to Dr G Danta, neurologist.

24. The plaintiff said that when she returned to work after her injury, her supervisor brought some welders' gloves and directed her to wear those when picking up rubbish. These were much thicker and stronger than the household gloves she had worn previously. She found them very uncomfortable, but persisted with them for a couple of days. She had not previously been told to wear welding gloves when collecting and emptying rubbish, and none had been available prior to the injury, though she conceded that she had been told that she should always wear gloves when working. She denied that she had been reminded about this by hospital staff on many occasions. Her understanding was that she was not required to wear gloves when dusting or polishing desks, but she was supposed to wear them when emptying garbage bags.

25. In cross-examination, the plaintiff said that she could not remember whether she was wearing gloves or not when she suffered the needlestick injury. She did not know whether she was supposed to keep the gloves on when moving the bags from the trolley into the hopper.

26. It was put to her that the first nurse who came when she called out was Annette Dahler. She agreed that Ms Dahler had attended, and conceded that she might have been the first nurse on the scene. Her recollection was that Ms Dahler was walking along the corridor with Ms de Britt at the time. She agreed that Ms Dahler and Ms de Britt would have seen the blood on her hand, and also that the staff at the staff clinic would have done so.

27. It was put to the plaintiff that there was no blood in any of the needles in the bag. Her reply was that there were many needles in the bag, and that it was the practice of the nurses to put needles used for blood in with other needles. She said "so they put them all together. So in that many needles it can't be needles without blood in it. I am sure I saw needles - so many needles with blood". She denied that there might have been as few as three needles in the bag when it was inspected by Ms Dahler and Ms de Britt.

28. It was put to the plaintiff that she told one of the defendants' doctors, Dr Hession, whom she saw in Sydney on 1 April 1999, that the injury had occurred when she was removing a lightweight glove to which a needle was attached. There is no question that Dr Hession recorded this in his report to the first defendant's solicitors on 9 April 1999. The plaintiff said in evidence that this piece of detail was incorrect. She said that perhaps she had become mixed up, and that sometimes she did not understand when people talked very fast in English. Perhaps she had said something else.

29. Dr Hession gave evidence by telephone and was not cross-examined by counsel for the plaintiff about this portion of history. It seems to me unlikely that the doctor recorded the detail by reason of a misunderstanding of something said by the plaintiff, and even less likely that the plaintiff gave the information in circumstances of confusion in her mind as to what she was being asked. I think it more likely than not that the plaintiff told Dr Hession that the injury occurred when she was removing a glove with a needle through it. I shall return in due course to an analysis of the evidence generally in relation to the circumstances of the incident.

30. The plaintiff gave evidence in re-examination that, in addition to the sharps containers locked onto the walls of the room in the ward, another sharps container was carried on a nurses' trolley used for carrying medication. This container was not locked onto the trolley. None of the hospital staff who later gave evidence were asked about this, and the plaintiff's evidence is the only reference to it.

The other lay evidence as to the incident

31. The plaintiff's supervisor, Ms Stevanovic, was called in the plaintiff's case. She is still a cleaning supervisor with the first defendant, and has been working at Canberra Hospital for a succession of contractors for twenty-five years. She works from 6.30 am to 3.00 pm. Her native tongue is Serbian, a similar language to the plaintiff's Macedonian, and they are able to understand each other. Ms Stevanovic gave evidence in reasonably good English without an interpreter. She was senior to the plaintiff, and saw her almost every day. She recalled being paged on the day of the incident. She was not sure of the time. By the time she got the message and went to the ward, she said that the plaintiff was already in casualty. Ms Stevanovic went to the casualty department and saw the plaintiff there. After everything was checked up she took her to the staff clinic in another building at the hospital. At the casualty department the plaintiff told her what had happened and showed her her hand. She was not sure which hand but remembered seeing some scratches on the back of the arm or hand in generally the position which had been described by the plaintiff. Her recollection was that they spent about half an hour at the casualty department, and then went to the staff clinic where the plaintiff was spoken to and blood taken for tests. After that, she thought that the plaintiff had gone home.

32. Ms Stevanovic had attended, with other cleaners, training sessions conducted by members of hospital staff. She explained that another set of male cleaners under her supervision were responsible for collecting and disposing of the used sharps containers. They took them to a loading dock from which they were picked up for removal and disposal. The sharps containers were to be dealt with only in that way, and were not to be placed in the rubbish bins, either the yellow infectious waste bins or the ordinary bins with clear liner bags. Ms Stevanovic was responsible for the supervision of about forty-five cleaning staff in all. She said that she ordered gloves every week and made sure that she always had them in stock. It was possible that she might have run out of gloves on occasions, but certainly not every second week.

33. As far as Ms Stevanovic knew, the first defendant did not take any action or institute any changes in procedure following the plaintiff's needlestick injury. She told cleaners, including the plaintiff, to take care when collecting rubbish. She recalled a time when the gloves supplied by the first defendant were changed from pink ones to yellow ones, but she said that they were the same thickness. She was unaware of any change to provide welders' gloves to cleaners. As against this, there is documentary evidence that Mr Ray Dean of City Group notified ACT Workcover during December 1998 that cleaners had been supplied with protective gauntlets for added protection. This influences me to the view that the thicker gloves were provided, and that Ms Stevanovic's recollection is faulty to that extent. This conclusion is reinforced by a note dated 22 January 1999 of a conversation between the plaintiff and a Workcover inspector, Alan Dean, in which it is recorded that the plaintiff said that gauntlet gloves or welders' gloves had not been supplied by City Group until after the accident.

34. Ms Stevanovic was first asked to give evidence and to recall the circumstances a week before she gave evidence, which was almost five years after the incident. She conceded that her memory of the facts was imperfect. While she had no specific recollection of telling the plaintiff, she said that she always told new employees to wear gloves, especially when collecting rubbish and cleaning bathrooms. She did not give an instruction to wear gloves at all times. She warned the cleaners to hold rubbish bags away from their body because of the risk of broken glass in the bags. Cleaners were not given any specific instruction how to hold bags, and in particular were not told that they should not place a hand under a bag to lift it.

35. Ms Stevanovic was shown in cross-examination a report of an incident on 6 May 1997 where the plaintiff had reported a scratch to the skin. She agreed that it was possible that she might have confused the May 1997 incident with the November 1998 one. She might also have been mistaken in her recollection that she had gone with the plaintiff straight from the casualty department to the staff clinic.

36. Ms Stevanovic agreed that the first defendant had provided cleaners with some instruction by videotape and lectures on occupational health and safety issues such as lifting so as to avoid back injury. She also confirmed that she attended meetings with her staff convened by the hospital infection control committee, which gave instruction on dealing with infectious disease rooms, handling infectious waste, and hygiene issues associated with cleaning and mopping of floors. She said that the plaintiff had some training as a supervisor and would occasionally act in that capacity.

37. Counsel for the second defendant called three hospital staff whose evidence was in most respects in sharp conflict with that of the plaintiff. The first was Ms Annette Dahler, a registered nurse of considerable experience. She started nursing in 1980 in Germany, and brought her skills to Australia in 1988. She has worked in the same field since, and is a Bachelor of Applied Science in Nursing Science with a Graduate Diploma in Community Nursing. In November 1998 she was an acting clinical nurse consultant at the Canberra Hospital, working on Ward 14B. She knew the plaintiff. She started work on the morning at about 8.30 am, and soon afterwards she saw the plaintiff in a small alcove off the corridor. The plaintiff called out to her and said that she had just scratched herself, or words to similar effect. Ms Dahler saw on the floor a yellow infectious waste bin liner. The liner was open, and she could see in it a yellow plastic sharps container with its white top partly off and a few sharps spilled out. She also saw a couple of soiled nappies and a couple of empty blood transfusion bags, but no spilt blood. The plaintiff was standing in a huddled position over the bag and Ms Dahler told her to step away. She inspected the plaintiff's hands for any signs of visible injury. She looked at both hands, including palms and back surfaces, and the areas between the fingers. She saw a slight mark on the back of the hand, between the thumb and forefinger, but below the base of the thumb. The skin had not been broken and there was no blood evident. The mark was about two centimetres in length and she said that it would have been consistent with a blunt impact or tear, something like a fingernail scratch. She said that it would not have been consistent with a scratch by a sharp instrument like a butterfly needle. There was no evidence of any puncture marks, and no visible injury at all. She asked the plaintiff to wash her hands and watched her doing so. She inspected the plaintiff's hands a second time after they had been washed. She was certain that there were no puncture marks, the skin was intact and there were no signs of injury. She then told the plaintiff to go to the emergency department for evaluation.

38. The plaintiff appeared hesitant to go to the emergency department. Ms Dahler called the nurse manager, Ms de Britt, over, and briefly explained the situation, mentioning her concern that there were uncontained sharps near a public area. She told Ms de Britt that the plaintiff had said that she had suffered a scratch or needlestick injury, but that she had inspected the plaintiff's hands and seen nothing. Ms de Britt also looked at the plaintiff's hands and instructed her to attend for evaluation at the emergency department. The plaintiff left in the direction of the emergency department. Ms Dahler asked her to report to her on her return. Ms Dahler and Ms de Britt then moved the yellow bin liner carefully across the corridor to another room, out of the public area, so that its contents could be properly disposed of.

39. Ms Dahler saw the plaintiff a little later. She asked the plaintiff whether she had been to the emergency department. The plaintiff replied in the affirmative. She then asked whether the plaintiff had actually spoken to nursing staff for evaluation. The plaintiff said that they had been really busy there. On further questioning it became clear that the plaintiff had not been assessed by the nursing staff. Ms Dahler then telephoned the staff clinic to arrange immediate evaluation. She thought that this conversation took place approaching an hour after the earlier conversation. She inspected the plaintiff's hands again, and again saw no evidence of blood or injury. The plaintiff told her that she did not know how to find her way to the clinic. Ms Dahler paged the plaintiff's supervisor, presumably Ms Stevanovic, and asked her to escort the plaintiff to the staff clinic.

40. Ms Dahler explained that normally sharps containers are mounted on the walls of the patient rooms, attached to a frame which is screwed to the wall. To remove one of these containers and replace it with an empty one, one needs a key which releases the locking mechanism. The key is available only to nurses. Once removed to be disposed of, sharps containers were to be taken to one of two collection points by the nursing staff. They were collected from those collection points by persons described by Ms Dahler as transport workers who she assumed were hospital employees. It seems to me more likely that these transport workers were employees of the first defendant under the supervision of Ms Stevanovic, as explained in her evidence.

41. Ms Dahler said that she had told the plaintiff on probably three or four occasions to wear gloves when she had seen her without them, and she had seen Ms de Britt giving the same instruction to the plaintiff. Ms Dahler remembered one occasion when the plaintiff had cracked skin with deep lesions around her knuckles, exposing her to the risk of infection through the skin cracks. If a cleaner's hands became infected in that way, the cleaner would be capable of spreading the infection to others. Patients in the oncology ward could be expected to have poorly functioning immune systems and would be likely to be unusually vulnerable to infection. Ms Dahler's evidence was that when the plaintiff was told to wear gloves, her usual reaction was to shrug.

42. Once Ms Dahler and Ms de Britt got the yellow waste bag out of the public area and into a secure room, they had quite a wide space to work in. Ms Dahler said that she opened the bin liner carefully, wearing gloves and using scissors. She obtained a chemotherapy bin, which was like a large bucket with a lid. She used a pair of artery forceps, similar to long pliers, to remove the sharps from the waste bag and place them in the chemotherapy bin. There were a couple of butterfly needles and a few conventional needles. Once the sharps had been put into the bucket, Ms Dahler disposed of the soiled nappies and blood transfusion bags. During the entire process she saw no blood.

43. She then carried out enquiries of nursing staff in an endeavour to work out what had happened and where the sharps container had come from. She thought it most likely that the infectious waste bag had come from room 19, where there was an overnight patient who would have had recent blood transfusions. This patient was also the only patient likely to have needed nappies, because he was suffering from a form of diarrhoea. She checked that there was a sharps container on the wall in room 19, and found that it was locked in position in the normal way, though with few sharps in it.

44. Ms Dahler had used sharps containers of that kind regularly for a number of years before the incident and since, and had never seen the white lid separated from the yellow base of a container except on that occasion. She had said that the keys for locking and unlocking the sharps containers to the wall frames were all identical, that is to say that a universal key could be used for any frame in the hospital. She said that the practice on Ward 14B was that one of the nurses would have a heavy chain with various keys at any given time. Another nurse needing the key to remove and replace a sharps container would ring a bell, and the nurse who had the keys would bring them to a central point and hand them over. It was not possible to take a sharps container off the wall without using the key, other than by the use of "really brute force".

45. Ms Dahler said in cross-examination that there were less than ten needles visible in the yellow liner, including one or two butterfly needles and two or three other sharp needles. She agreed that the plaintiff would have been entitled to assume that the yellow bag did not include any sharps container or needles. Ms Dahler asked all the nurses on the shift whether they had observed a sharps container in a rubbish bin, and all said they had not seen any such thing. After the incident a new system was instituted whereby there was a record made every time a sharps disposal unit was replaced in a room on a ward. This procedure was short-lived and Ms Dahler regarded it as unnecessary and probably based on false assumptions.

46. She said that there was a domestic stores cupboard on the ward where a supply of empty sharps containers was available. This cupboard was accessible without a key. A nurse needing to replace a full sharps container with a fresh one would be able to collect an empty container from the cupboard for that purpose.

47. Ms Dahler said that the plaintiff at no time during the period immediately after she became aware of the allegation of a needlestick injury appeared upset, or cried out or screamed. The plaintiff appeared generally very calm.

48. Evidence for the hospital was also given by Ms de Britt, who was in 1998 a Level 3 nurse manager in oncology, and by the hearing was director of nursing, medical services, for Canberra Hospital. Ms de Britt has spent about forty years in the nursing profession and has degrees in midwifery and management. She has also undertaken a course in occupational risk exposure to needlestick injuries, and has seen many such injuries over the years.

49. Ms de Britt's evidence was that the plaintiff had been repeatedly non-compliant in relation to wearing gloves while carrying out her duties as a cleaner in Ward 14. She recalled the circumstances of the morning of the plaintiff's needlestick injury. She said that it was about 8.00 or 8.30 am. Ms Dahler brought the plaintiff to her office, a room in Ward 14. They then went to a utility room a short distance away. She saw a draw sheet (a white cotton half-bedsheet) on the floor, with the contents of a rubbish bin laid out on it, including a sharps container. She was told that the plaintiff had sustained a needlestick injury, and had the opportunity to look at her hand closely. She saw no blood, no puncture marks and no sign of the skin being broken. Ms de Britt said that Ms Dahler told her, in the plaintiff's presence, that the plaintiff had mentioned to Ms Dahler that the sharps container had fallen into the bin. Ms de Britt did not observe any gloves in the vicinity of the bag, or in the utility room at all. Her recollection was that the sharps container was open and that some sharps and syringes had spilt out of it. The lid was not completely separated from the base. She was unable to say how many needles she saw, but said that there were a number. She was definite that she had seen no blood anywhere in relation to any of the spilt items.

50. Ms de Britt advised the plaintiff to go to the occupational medicine unit for a full assessment. She did not form a concluded view at the time as to whether the plaintiff had suffered an injury, but she saw no evidence of any injury when she inspected the plaintiff's hands. She was asked why she sent the plaintiff to the occupational medical unit (apparently another name for the staff clinic) if she had not seen any injury. She explained that there was a process which involved accepting a complaint of injury at face value, and making no judgment about it until a full assessment was made by a staff member at the occupational medicine unit. She recalled that at about 10.30 am on the same day she saw the plaintiff. She asked whether she had been to the occupational medicine unit yet. The plaintiff initially said that she had been to the unit, but later conceded that she had not been assessed, and Ms Dahler contacted the cleaning supervisor and arranged for her to escort the plaintiff to the unit. Ms de Britt later completed an incident report form. She recorded on the form that she had spoken to staff on duty at the time of the incident, and to those on the previous evening shift, but that she had been unable to determine how the sharps container came to be in the garbage bag. She had never before, in more than forty years of nursing, come across a sharps container being in a garbage bag. Immediately following the discovery, she and Ms Dahler cleaned up the area together, putting the sharps into the sharps container and the rest of the contents back into the garbage bag, which they sealed for disposal.

51. The incident report form was later referred to the director of nursing to consider whether any action was required, and eventually its details were keyed into a database, `de-identified', and used for statistical purposes.

52. Ms de Britt explained that her concern about the plaintiff's refusal or failure to wear gloves prior to the incident related partly to the plaintiff's own protection and partly to protection of patients. A glove would provide some protection in respect of a needlestick injury, in that, as I understood her evidence, material from the glove might plug the bore of the needle, so that the skin of the person might still be punctured but there would be some protection against passage of fluid or other material from the needle. Heavy duty gloves would be more effective in that regard than thin hospital gloves.

53. Ms de Britt said that the plastic garbage bags were, as a matter of procedure, tied closed by the cleaners when they were removed from the plastic bins in the rooms. This was done by plastic ties with a ratchet mechanism. She did not see any ties in the vicinity of the bag in which the needles were found.

54. Contrary to the plaintiff's evidence, Ms de Britt said that she heard no screaming from the plaintiff, did not open the rubbish bag in the plaintiff's presence, and certainly did not say "My God, I can't believe it... It's full of needles inside" or words to similar effect. Nor did she call other nurses to look at the bag. She did not give alcohol to the plaintiff to wash her hands. The plaintiff gave no impression of being frightened.

55. Cross-examined by counsel for the first defendant, Ms de Britt agreed that she and Ms Dahler had placed some syringes and needles into a chemotherapy bucket, and that others were put back into the sharps container. After this, the sharps container was about three-quarters full or a little more, about the level when it would normally be replaced with a fresh one.

56. She said that the plaintiff did not say that she had been attempting to place the bag into a hopper at the time. Her recollection was that the plaintiff was present when Ms Dahler told her what had happened, and that the plaintiff did not interrupt or suggest that Ms Dahler's account was incorrect.

57. She first became aware than an incident had occurred when Ms Dahler and the plaintiff came to the door of her office and asked her to go to the utility room. It was possible that she might not have heard a cry by the plaintiff from the utility room when in her own office. She agreed that the plaintiff showed some degree of distress when she first saw her. From time to time flowers might be expected to have been placed in garbage bags, possibly including stems with thorns.

58. The third member of the hospital nursing staff to give evidence was Ms Sonja Rogers, a registered nurse and midwife of thirty years experience. In November 1998 she was working at the occupational medical unit. She had been at the unit for about twelve months, and before that had been a nurse at the sexual health clinic at the hospital, where she had considerable experience with occupational exposures to needlestick injuries. The unit was in a separate building from Ward 14, perhaps 150 to 200 metres away.

59. Ms Rogers recalled the plaintiff attending the unit with her supervisor, Ms Stevanovic, and saying that she had received a needlestick injury. She inspected the plaintiff's hand. She did not see any puncture marks. There might have been some redness on the back of the hand below the thumb, but the skin integrity was intact. In accordance with accepted procedure, she took the plaintiff's complaint at face value and proceeded with the protocol as she would have with any other exposure.

60. She confirmed that the hospital had opened and maintained a file in relation to presentations by the plaintiff to the unit. The file showed that blood had been taken from the plaintiff on 6 May 1997. The blood test was apparently clear, though it revealed that the plaintiff's immunity to hepatitis B was somewhat low, and the opportunity was taken to inject her with a further hepatitis B vaccine to boost her immunity. She was sent a reminder on 1 August to attend for her three-month follow-up following the exposure, and another reminder on 28 October 1997, but it appeared from the file that she did not attend as requested, and that her next attendance at the unit was on 19 November 1998, the date of the incident giving rise to the present action. Blood was taken on that date and tested. The tests were negative. Because there was no identified source person for the incident, the plaintiff was called back after one, two and three months for further testing. Again these test results were negative and the plaintiff was informed on each occasion.

61. Ms Rogers recorded on the incident report form that the injury arose from an unknown needle in a sharps container and caused a scratch to the right thumb and two needle punctures. Ms Rogers explained that she recorded this information from what the plaintiff told her rather than from her own observation. She inspected the plaintiff's hand at the time of her first presentation and saw no puncture marks or breaking of the skin, though she might have seen some redness on the outside of the thumb on the back of the right hand. At no stage did she see any blood on the plaintiff's hands.

62. Ms Rogers was cross-examined about her attendance at the pan room or adjoining treatment room on Ward 14B, where she met the plaintiff for an explanation of what had happened. The plaintiff pointed out a yellow plastic infectious waste bag on the floor. Within the bag she saw a yellow sharps container and also some general infectious waste matter, probably including some old dressing packs. She saw some syringes within the opening of the sharps container. She did not remember seeing any syringes or needles outside the container but in the plastic bag. Ms Rogers was unable to say whether, by the time she got there, the bag and container might have been moved or dealt with in any way by other members of the nursing staff.

63. She was asked why she completed the injury report form inconsistently with her own observations, for example ticking a box for `definite parenteral exposure'. She agreed that definite parenteral exposure was defined in an occupational risk exposure management document published by the ACT Government to encompass `skin penetrating injury with a needle contaminated with blood or body substances', and `laceration or similar wound which causes bleeding and is produced by an instrument that is visibly contaminated with blood or body substance.' Her explanation for the entry was that she took the plaintiff's word that she had received a needlestick injury although she herself saw no evidence of it. She said that she recorded what she was told, which she believed was her function, but that in hindsight the way she had completed the form could be misleading. It was put to her that the reality was that she had recorded accurately what she saw, rather than what she was told, but she strongly denied this.

64. She also strongly denied collaborating with Ms Dahler or Ms de Britt in relation to her opinions or evidence. She conceded that her recollection of the events five years earlier might not be perfect, but she had a clear recollection that she examined the plaintiff's hands on the day and saw no puncture or other injury. She saw only some reddening of the skin on the outer part of the thumb. It was put to her that if the plaintiff's general practitioner four days later had seen infected puncture-type wounds, that would make it likely that the wounds were there at the time and that she missed them. She conceded that that was a possibility.

65. A copy of a booklet published by the second defendant originally in 1992, and revised in 1994 and 1997, entitled Occupational Risk Exposure Management (needle/sharps injuries) was in evidence. I am satisfied that this was the edition of the booklet in effect at the time of the needlestick incident. It sets out the policy of the second defendant, and includes among the policy objectives reducing the risk of transmission of blood-borne diseases as a result of workplace exposures; providing accurate and appropriate support and advice dealing with the psychological and social impact of exposures and potential exposures; ensuring adequate counselling and adequate follow-up; encouraging reporting of exposures and needlestick injuries; and collecting and analysing data relating to risk exposure. There is no evidence that copies of the booklet were provided to the plaintiff or persons in her position in the hospital hierarchy, or that the booklet was available in languages other than English. It appears to be directed at hospital staff, and is expressed in language likely to be readily understood by doctors, nurses and hospital administrators but unlikely to be understood by, for example, cleaning staff whose first language is not English. It is fifty-nine pages in length and reasonably technical. A quotation from the booklet in relation to gloves will serve to illustrate its style:

Gloves reduce the bioburden on hands during patient care procedures. They provide a barrier to prevent the wearer from possible exposure to micro-organisms, eg herpes simplex virus in saliva, human immunodeficiency virus, hepatitis B virus and hepatitis C virus in blood.

They are also part of aseptic techniques and in these circumstances operators are required to wear sterile gloves to protect the patient from the resident flora on the carer's hands.

When to wear gloves

Gloves are to be worn when contact with blood or blood and body substances is a possibility.

. . .

Types of gloves should be appropriate for the task being performed.

Sterile gloves are to be worn for all procedures that involve normally sterile areas of the body.

Non-sterile gloves are worn where contact with blood or blood and body substances is likely when performing procedures that do not involve normally sterile body sites.

General purpose utility gloves are worn when performing `housekeeping chores' for example, cleaning.

66. Interestingly, the booklet contains an injunction that all sharps containers must be changed when two-thirds full. The nursing staff who gave evidence about changing of sharps containers did not seem to be aware of this.

67. It appears to me that the booklet is aimed at hospital staff including nursing staff at the level of Ms de Britt, Ms Dahler and Ms Rogers. It is not aimed at cleaning staff, and there is no evidence that it was made available to cleaning staff or to any staff of the first defendant.

68. A carpenter named George Tomeski gave evidence through a Macedonian interpreter. He met the plaintiff through his brother and through the Macedonian church in 1997 or 1998. At some time during 1999 the plaintiff showed him her arm. She told him that she had been injured some days earlier. He saw some sort of a blister and a number of red spots, consistent with having being pricked by a sharp object, on the back of the right hand between the thumb and the index finger. He recalled with less clarity that he had also seen a red scratch line in the same area.

69. Mr Tomeski observed the hand several days later, and saw that the blister had broken. He noticed from time to time that the blister would heal but later reappear. The plaintiff's activities at the Community Centre after this injury had been limited to occasional translation or explanation of documents.

70. Mr Tomeski denied in cross-examination that he and the plaintiff were good friends. There had been periods when he had attended the centre nearly every day. He had never spent as much as eight or nine hours at the centre, and could not really say whether the plaintiff might have spent that length of time herself. She had been secretary of the centre in 1998 and 1999, and had performed some secretarial functions in later years. Mr Tomeski had served for one or two terms as treasurer. He agreed that she checked financial matters and other paperwork at times. He knew that she was able to drive a car. He had seen her at school dance parties, and he knew that she organised concerts and took bookings. She did not have much to do with the soccer club, though she did work on a number of occasions for the Macedonian-Australian Humanitarian Society. He had seen her serving drinks at the centre on occasions, and sometimes mopping. He was aware that she answered the telephone, and he was aware of the Friday and Saturday radio work. He knew that she was still doing the Friday evening programme, but had ceased the Saturday show.

71. He said that in 1998 he was not in employment but was living off his assets, being a number of commercial properties and investments. He agreed that he had smoked, drunk and played poker machines with the plaintiff at the Queanbeyan Leagues Club, and that the plaintiff had sometimes driven there. They might have stayed at the club for some hours on occasions. He also agreed that he had been shopping with her at Woolworths. He said that his relationship with her had become closer because of her problems. On one occasion he had accompanied the plaintiff to the infectious diseases section at Canberra Hospital. She used to call him and ask him to go with her to medical sessions. Initially he said that this was so that he could help her with interpreting and translating. I found this answer difficult to accept, considering that the plaintiff's spoken English is very much better than that of Mr Tomeski. As the cross-examination proceeded, he sought to distance himself from his earlier answer.

72. I did not find Mr Tomeski a persuasive witness. I was left with the impression that he was a good deal closer to the plaintiff than he was prepared to admit, and I am not inclined to place a great deal of weight on his evidence about his recollection of what he observed on the back of the plaintiff's hand or when he observed it.

73. Liljana Nedeska gave her occupation as builder. She worked with the plaintiff's husband as long ago as 1988, and she met the plaintiff when she first arrived in Australia in 1991. They became friends and would see each other at least monthly. She saw the plaintiff a week or ten days after the needlestick incident. She noticed that her right arm was swollen and that she had small needle-like spots on the back of her right hand and wrist, and also on the underside of the wrist. Later in her evidence she said that she had seen a mark like a big blister on the back of the plaintiff's hands, and that the measle-like mark were like little blisters. She continued to see the plaintiff, visiting her two or three times a week, though sometimes not seeing her for two or three weeks. The plaintiff's arm was swollen, and she appeared to be in pain and unable to do as much as before. She also appeared depressed. Ms Nedeska occasionally went to the Macedonian Community Centre, and since the incident had seen her there on only a few occasions.

74. In cross-examination, she agreed that she was a good friend of the plaintiff. She attended the Community Centre on average perhaps once a month. She had seen the plaintiff drive her car since the accident, but was unaware of her helping with the soccer club or attending the Community Centre for extended periods. She was unaware that the plaintiff was still presenting a radio programme. She had never been to the Queanbeyan Leagues Club with the plaintiff, or played poker machines with her anywhere else. She was unaware that the plaintiff had worked at the Queanbeyan Police Station. She was first asked to give evidence and recall the events of late 1998 about a month or two before the hearing.

75. Again, Ms Nedeska is clearly a close friend of the plaintiff, and I am not satisfied that her evidence about her recollection of what she saw of the plaintiff's hand and arm more than five years earlier should be accepted as objective and reliable. I do not think that Ms Nedeska deliberately gave false evidence, but I think it not unlikely that her recollection was influenced by what she was told at the time and has been told since by the plaintiff, and involved some degree of reconstruction.

76. Steve Taskovski is a real estate agent and an elected member of Queanbeyan City Council. He is also a member of the Macedonian community in that city. He knew the plaintiff and her husband prior to the needlestick incident. He was secretary of the soccer club for fifteen years, and by 1998 was president. He also served as president of the Macedonian church during those years. He recalled that the plaintiff served a term in the late 1990s as secretary of the Community Centre. This involved correspondence and telephone conversations, for example, in relation to bookings of the hall.

77. Mr Taskovski recalled an occasion in November 1998, he thought within a week of her injury, when he saw the plaintiff holding her right hand and forearm across her body. He asked what had happened and he noticed swelling and red spots on the back of the right hand between the thumb and the index finger. The plaintiff told him that it was sore to an unbearable degree, and he told her to see her doctor.

78. He saw her again two or three weeks later. The swelling had gone down but had not disappeared, and there were still red spots on the top of the hand consistent with some sort of injury. He said that after the incident, she did not spend as much time at the Community Centre as she had previously. She was patently unable to carry out her previous duties, although she always tried to be helpful.

79. In more recent times Mr Taskovski had seen the plaintiff at the Community Centre on most occasions when he attended. He had never seen her serving drinks, cleaning or cooking. He had seen her booking functions, answering the telephone and checking financial statements, and he was aware that she presented a radio programme on Fridays. He described himself as a good friend of the plaintiff's and also a good friend of Mr Tomeski. He was unaware that the planitff had worked at the Queanbeyan Police Station. He knew that she drove a car. He knew her husband very well, and was aware that he played soccer. They had played soccer together in the late 1980s. He had been asked to recall the events and give evidence for the first time two or three weeks before the hearing.

80. Although Mr Taskovski is clearly a man of standing in the community, I did not find his evidence about his observations of the plaintiff's hand in 1998 persuasive. He was giving evidence about events more than five years earlier, which he had been asked to recall for the first time only very recently. He is a good friend of the plaintiff and her husband. It would not be surprising if his recollection had been influenced by what he had been told since, and involved a degree of reconstruction.

81. I made earlier mention of an entry in the records produced on subpoena by ACT Workcover of a handwritten note of a discussion between the plaintiff and Mr Alan Dean on 22 January 1999. In that note, Mr Dean writes: "Vesna wearing gloves at time incident!!! Needle actually stuck into glove and scratched when Vesna removed her hand in a re-active movement". Interestingly, this is consistent with the history given by the plaintiff to Dr Hession in April 1999 (see later), and also with the exposure form completed on the day of the accident by Ms Rogers. Mr Alan Dean prepared a formal report into the incident on 22 January 1999, the same day as his conversation with the plaintiff, which included the following:

Vesna wearing wrist length rubber gloves at the time of the incident. Gauntlet gloves (welders style) were supplied after the injury occurred. Needle stuck into glove and scratched Vesna's right hand when she removed her hand from the glove in a reactive movement. Vesna also sustained two puncture wounds to her right hand.

82. Ms de Britt, on the other hand, completed a formal report addressed to Mr Dean at Workcover, received there on 4 January 1999, in which she stated: "despite being told by ward staff many times, Vesna was not wearing gloves at the time she was emptying the bins." As I have mentioned earlier, the plaintiff's initial oral evidence was that she was not wearing gloves at the time of the incident, having removed them when wheeling the trolley towards the hopper, though she later said that she was unsure whether she was wearing gloves or not.

The medical evidence bearing on liability

83. Regrettably Dr Donald Gillespie, the plaintiff's general practitioner at the time of the incident, was unable to give evidence for medical reasons and has died since the hearing. His clinical notes were tendered. The first note of an attendance by the plaintiff at his surgery following the incident is dated Monday 23 November 1998, four days after the incident, which occurred on a Thursday. The note is in Dr Gillespie's handwriting. Not all of the note is legible. The portion which is clear reads as follows:

Punctured by needles rt. hand 3 days ago when . . . bin - had been emptied in the rubbish bin at oncology ward Canberra Hospital. Specimen taken for blood test and given injection . . . still a little swollen and tender - given amoxicillin 500mg . . . she is due Feb 99 to have D and C . . . and laparoscopy - counselled to wait.

84. A note dated 25 November 1998 reads "hand more swollen and painful." On 30 November 1998 the note reads "hand still sore and slightly swollen - continue antibiotics." On 4 December 1998, Dr Gillespie noted "hand recovered. A little swelling. No pain - may return to work 7/12/98." The next note is dated 7 December 1998: "fingers still sore and swollen . . . another antibiotic . . . Cert. from 7/12/98 to 11/12/98."

85. Dr Gillespie saw the plaintiff again the next day, 8 December 1999. He noted that the plaintiff wanted to find out `what was in the needles'. He made a telephone call to one Rick Creech, whose telephone number is noted with the reference `occupational health'. He advised the plaintiff to contact Mr Creech.

86. Dr Gillespie saw the plaintiff again on 11 December: `still red hand at first metatarso-phalangeal joints - a bit sore'. He prescribed Voltaren and extended the plaintiff's certificate for time off work to 15 December. It appears that he also changed her antibiotic. On 15 December he noted that the redness was nearly gone, with one area of itchy skin. The joints had improved, which he thought was probably due to the Voltaren. On 18 December he noted `hand better. Still a bit sore when she uses it but is willing to work Monday 21/12/98 . . . may resume work 21/12/98'. He next saw the plaintiff on 21 December. Noting `still sore', he referred the plaintiff to Dr Peter Collignon, a specialist in infectious diseases at the hospital. He wrote a short letter of referral commencing "Herewith Vesna Noveska who had her right hand punctured by various needle [sic] in a dustbin at oncology 14B ward. I understand specimens have been taken from her at the time. The hand has been sore since with tender red regions where the puncture marks were . . . She is still complaining of tenderness and swelling and is very anxious about the whole thing." Dr Gillespie saw the plaintiff on another half a dozen occasions through to the end of January 1999. During this period Dr Gillespie noted that the symptoms were improving though there was still some swelling and soreness in the forearm. He referred the plaintiff for physiotherapy.

87. On the last date he saw her, 27 January, he sent a typed letter to the plaintiff's workers' compensation insurer. The opening paragraph of the letter reads:

Mrs Noveska presented on 23/11/98 complaining of painful right hand where she had sustained multiple needle prick injuries at work as a cleaner at the Canberra Hospital on 19/11/1998. The dorsum of the hand in the web space between the right thumb and index finger was red and swollen with puncture marks in the skin. The finger and thumb were also puffy. The history was that she put her hand into the rubbish bin of the oncology ward, and her hand was injured by needles that had been incorrectly emptied from a sharps bin.

88. Dr Collignon gave oral evidence. He prepared a number of written reports but none of these was tendered. He first saw the plaintiff on 23 December 1998. He noted that there were a few small skin lesions, which looked healed, over the dorsum of the hand in the region between the thumb and first finger. He said in evidence that he presumed that he must have formed the view at the time that the marks he saw were consistent with the history given by the plaintiff of a number of needlestick injuries on the back of the hand. He said that a skin lesion caused by a needle usually healed completely within a month, so that one would not necessarily expect to see any mark at all by the time he saw the plaintiff, almost five weeks after the incident. He presumed that the plaintiff must have pointed out some spots to him, and he must have formed the view that there could have been a needlestick injury or injuries at that site. He had no reason to disbelieve her at the time, but said that one could not say with any certainty that the marks were caused by a needlestick injury. Dr Collignon has seen numerous patients with needlestick injuries over the years. They are not an uncommon occurrence in hospitals. Most needlestick injuries at the Canberra Hospital do not cause infection and are not referred to him. On examination Dr Collignon found no evidence of any infection in the plaintiff. He had a note that the plaintiff had told him that she had had a number of small pimple-like lesions. He said that this was not what one would normally see with a needlestick injury, and that it was more suggestive of, for example, a staph infection, another common risk in the hospital environment. His opinion was that the signs and symptoms with which the plaintiff presented were more likely to be due to an infection from some other cause than to a needlestick injury.

89. Dr Collignon also said that it was very unusual in a hospital situation for multiple puncture marks to follow a needlestick injury. Usually there was a single puncture mark. It would also be very unusual to contract a staph or bacterial infection from needles. Bacteria were not usually present in needles in large numbers, and viral infections were of far more concern. He conceded that it was possible that the plaintiff might have had a bacterial infection when Dr Gillespie first saw her, and that the infection had resolved by the time she saw him on 23 December.

90. Asked about the evidence of the nursing staff as to their observations on the morning of the accident, he said that one would expect to have seen a puncture mark and perhaps a cut in the skin, with some redness at the site of bleeding. If the observations made by the nursing staff were accurately reported, it was very unlikely in his view that there had been a puncture.

91. On 1 February 1999, the plaintiff consulted Dr Sukumar for the first time. Copies of his notes had been produced to the Court in response to a subpoena and were in Court during the hearing, but were not tendered. Dr Sukumar gave evidence by telephone. It was clear that he did not have the notes before him. He had with him copies of typed reports he had sent to the plaintiff's solicitors and to the workers' compensation insurer. The first of these reports was dated 15 October 1999. Dr Sukumar sent the plaintiff to Dr Danta, a neurologist, who saw her on 11 May 1999 and who sent Dr Sukumar a typed report the following day. I record this sequence of events because I am a little concerned whether the history set out by Dr Sukumar in his report to the plaintiff's solicitors was extracted from his notes, or whether he paraphrased the history from Dr Danta's May 1999 report. The history is so similar that I suspect the latter and hence have some reservations about Dr Sukumar's oral evidence. For example, Dr Danta reported to Dr Sukumar that one of the plaintiff's complaints was of discolouration and swelling of the right forearm. He said that the discolouration came about once a week or fortnight, seemed to be provoked by the use of the right arm, and lasted a day or so. Dr Danta said that the plaintiff had described to him a reddish discolouration on the volar aspect of the right forearm and on the inside of it.

92. Dr Sukumar in his October 1999 report to the plaintiff's solicitors stated that use of the right arm caused swelling and discolouration of the hand and forearm, and that a reddish discolouration had been observed on the under-aspect of the right forearm. I think it more likely than not that Dr Sukumar was simply paraphrasing this aspect of the history from Dr Danta's report, and I am not satisfied that either Dr Danta or Dr Sukumar saw the reddish discolouration complained of at any time. Dr Danta gave oral evidence, which I shall come to, from which it is clear that he recorded the plaintiff's description of the discolouration but did not see any evidence of it himself. He simply accepted that the discolouration came and went at times. I suspect that Dr Sukumar may have assumed from Dr Danta's report that the latter had personally observed the discolouration.

93. In his oral evidence, Dr Sukumar refreshed his memory from the October 1999 report rather than his original notes, and said that he had observed the reddish discolouration. However, his report goes on to say that physical examination was unremarkable and that skin colour was normal. The plaintiff's evidence in chief was that when she first saw Dr Sukumar, the redness had already gone though she was still in a lot of pain. I think that Dr Sukumar has confused himself by relying on his report rather than his original notes as to the discolouration issue.

94. Dr Sukumar said in his letter to the plaintiff's solicitors that during his first consultation with the plaintiff she complained of constant nocturnal burning pain in the right wrist radiating along the ulnar border up to the level of the scapula, along with frontal headaches, anxiety, depression and sleeplessness of over four months duration.

95. I shall return to an analysis of the evidence in relation to the needlestick incident after summarising the evidence as to the impact of the claimed injuries on the plaintiff, that is to say, the evidence as to quantum.

The plaintiff's evidence in relation to quantum

96. The plaintiff gave evidence in chief that before the needlestick incident, she had been the secretary of the Macedonian Community in Queanbeyan. The Community maintained a church and a community centre. The plaintiff conducted a radio programme each Friday evening from 7.00 pm to 8.00 pm on community radio. She usually recorded the programme in advance, and it was broadcast between those hours. Apart from this, she went to the church once a week and helped with services and functions, sometimes driving older people to the church. She also assisted in organising dances and other community activities.

97. After a time the plaintiff returned to work on light duties. She was transferred by her employer to light cleaning duties at another location, the Australian Geological Survey Organisation at Narrabundah. She continued there for about five or six months. During that time she had a miscarriage. Eventually she said that she just could not go on. She gave up work, and has not worked for reward (with a minor exception which came to light during her cross-examination) since then. Asked about her condition at the time the hearing began, in September 2003, she said that she did not do much. Sometimes she stayed in bed for a couple of days at a time. She was in a lot of pain and was depressed. She was pregnant and Dr Sukumar had taken her off all medication.

98. She was asked whether she was continuing with any voluntary work with the Macedonian Community. She said that sometimes, when she was feeling alright, she would go to the church and the centre, but rarely, perhaps once a month. She would check on financial matters, and check other paperwork in relation to church services, the Macedonian soccer club and a dancing group. A number of other Macedonian people were helping with these tasks and she did not have to do much. She had previously been doing a live radio broadcast each Saturday afternoon from 3.00 pm to 6.00 pm, but found that she could not continue and ceased this programme. It was not clear from the plaintiff's evidence whether she had been presenting the Saturday programme before the needlestick incident, nor was it clear precisely when she ceased to broadcast it. In relation to the Friday programme, she said that she sometimes did it and sometimes got someone else to do it in her place. She had given up recording it in advance, which had been necessary when she was working. When she did present it, it went to air live. She was unfit for any form of paid employment because of the pain in her arm, sometimes extending to the leg and back. She was not able to do much around the house. She did some vacuuming which she found painful, and was able to do a little cooking. She could drive a car but with difficulty. She was unable to do any gardening. She tried to do as much as she could, but found that she got tired quickly.

99. Cross-examined, she said that her condition had become worse since she became pregnant. Her husband was able to help to some extent in the house, although he was on a disability pension because he suffered from schizophrenia. (The plaintiff by the time of the hearing was also on a disability pension.) He was unable to work and had poor English skills, though he was able to play Division II soccer for Queanbeyan City Soccer Club.

100. The plaintiff conceded in cross-examination that at times she was able to go out every day, and was able to spend as long as nine hours at the Community Centre, depending on how she felt. She did not deny that there had been times when she had spent long periods at the centre every day for more than two months. She usually drove herself there, though she sometimes walked or was given a lift. She helped with correspondence and bills for payment. Her English was better than most of the other members. She sometimes organised dance parties for the local Macedonian school, and other fundraising activities, and she helped with the soccer club.

101. Standing for prolonged periods caused her increased pain. She doubted whether she would be able to stand for fifteen minutes without a break. Sometimes at the club she served drinks from the bar, and sometimes she helped with cleaning up. Sometimes she would answer the telephone. She said that she had not been out much in the six months leading up to September 2003. She denied attending social functions, talking, laughing and drinking, and said that she had been unable to attend her husband's soccer club presentation night three weeks earlier because she was very sick on that day.

102. She was asked in some detail about her activities in June 2002. She agreed that she had been able to drive her car, though not every day and generally with some pain. Perhaps she had gone to the Community Centre almost every day in June and July 2002, arriving at about 11.00 am, and she might on occasions have stayed for a number of hours. She might have answered the telephone most of the time when she was there, and she might have done some serving of food and drink, some cooking, and a smaller amount of dusting and mopping. Asked whether it had been her habit at that time to go to the Queanbeyan Leagues Club and play poker machines, her reply was "sometime maybe I was going there". She agreed that she had a disabled sticker and might have parked in a disabled space at the Club. She agreed that sometimes she did the family shopping, parking in a disabled space at the supermarket, and sometimes pushing a trolley with groceries.

103. Video film of the plaintiff was then shown, taken in June and July 2002, showing her driving her car, attending at the Macedonian Community Centre, and attending, as a spectator, a soccer match in which her husband was playing. She was seen to be standing, drinking a takeaway cup of coffee, and chatting to a number of other spectators at different times, rotating her head without apparent restriction, waving her arms, and smoking intermittently, for more than two hours, in the rain for the latter part of the period. She was then seen to get into her car and drive home.

104. Film was then shown taken on the following day, of the plaintiff driving to an address in Wickerslack Lane near Queanbeyan, the residence of friends of hers named Jefferson, where she stayed for about five hours. The plaintiff could not recall but did not deny these events.

105. A further portion of film was shown, taken on 26 June, showing the plaintiff and her solicitor in Canberra City. The plaintiff agreed that she had driven from her home at Queanbeyan to Canberra for a conference with her solicitor on that day. The film showed her smoking, walking, and moving her arms without any apparent difficulty.

106. The plaintiff agreed in cross-examination that she might have another attempt at paid employment after her life settled down after her baby was born, and agreed that she would be keen to try, though she said that she did not think that she could do it without medication because she was in pain nearly all the time.

107. Cross-examined about whether she had done any other paid work since giving up employment with the first defendant, she said that she had done some unpaid work at the community centre, and also at the home of her friend Mrs Jefferson, and of another friend, Ms Velovska. She sometimes cleaned the toilets at the Macedonian centre, and if the floor needed mopping she would try to do as much of this as she could. She could not think of any other work she had done. She was then asked whether she had done any cleaning work at the Queanbeyan Police Station, whereupon she recalled that she had done so. A Macedonian male friend who usually worked there was sick and had asked her whether she could stand in for him. She had only done this a couple of times, perhaps in about October 2002.

Quantum - the other lay evidence

108. Cvetan Sinadinofovski is a geophysicist with Geoscience Australia, formerly the Australian Geological Survey Organisation, and before that the Bureau of Mineral Resources. He works as a scientist in the seismology area in the organisation's building at Symonston. He met the plaintiff early in 1999 when she was working as a cleaner in the building. One day he saw her crying. He stopped and asked her what was wrong. Mr Sinadinofovski is also of Macedonian background, though he had not known the plaintiff before. She told him that she had pain in the right hand and arm. He observed that the whole arm appeared to be swollen and reddish. He saw her and spoke to her on a number of other occasions, and she appeared to him to be in considerable pain each time. He advised her to see a doctor. He noticed that she was hardly moving her right arm and that she appeared very anxious. On a couple of occasions he saw her sitting, unable to stand because of apparent back pain. He saw her crying at his place of work about three or four times.

109. He said that the organisation had moved into the building in 1998. He first saw the plaintiff early in 1999. He was secretary of the Macedonian centre in Canberra and this involved him visiting the centre in Queanbeyan a couple of times a year. He had not seen the plaintiff at the centre prior to 1999, but after that he saw her there from time to time. He was first asked to give evidence in late 1993, but said that he had made some contemporaneous notes to the effect that he had met a woman who was Macedonian and had been suffering. He had probably thrown the notes away within a year.

110. Mr Sinadinofovski impressed me as an honest witness. He was overtly sympathetic to the plaintiff, but I accept that he had not known her before his conversation with her early in 1999, and that his evidence is not influenced by close personal friendship.

111. Gordana Mileska, an eighteen-year-old student with a part-time supermarket job, said that she worked at the Macedonian Community Centre in Queanbeyan every Saturday from 3.00 pm to 6.00 pm, and had been doing so since 2000. This began when the plaintiff telephoned her and told her that the programme was being extended from one hour to three hours, and that she was unable to cope with the additional load. Before this, the plaintiff had been the main presenter,. Since the extension to three hours, the plaintiff has come in on a Saturday only, to participate in an occasional interview.

Quantum - the medical evidence

112. I have mentioned that the plaintiff, having seen Dr Gillespie on a number of occasions immediately after the needlestick injury, went to Dr Sukumar for the first time on 1 February 1999. She saw him again on a number of occasions during February, March, April and May 1999, and less frequently during the rest of 1999 and subsequent years. He referred the plaintiff to Dr C J Andrews, neurologist, for nerve conduction studies to both arms. These were carried out on 22 February 1999 and were normal, excluding the possibility of a carpal tunnel syndrome in the right arm.

113. In March 1999, Dr Sukumar referred the plaintiff to another neurologist, Dr G Danta, who saw her on 11 May. Dr Danta obtained a history to the effect that she had abraded the back of her right hand with needles when cleaning rubbish in November 1998, resulting in an infection which required antibiotics. She returned to work after two weeks and was scrubbing some object with steel wool when she developed pain in the right wrist and forearm. Shortly after that she went off work. She described a pain on the inner side of the right forearm with swelling, present all the time and increasing with physical activity involving the use of the arm. In about February or March 1999 the pain spread up the right arm to the shoulder and then down the trunk to the right buttock. The pain was intermittent, recurring every few days and lasting a number of hours. It was provoked by use of the right arm. The plaintiff described a reddish discolouration of the volar aspect of the right forearm and on the medial side of it, which came on about once every week or two, and seemed to be provoked by use of the right arm. It tended to last a day or so. Dr Danta did not observe any discolouration or swelling. He found no muscle weakness or wasting. He diagnosed a complex regional pain syndrome. He arranged an appointment for the plaintiff to have a right stellate ganglion block. The plaintiff attended for this on 13 May 1999 but could not tolerate the procedure and it was not completed.

114. Dr Danta said that the story was typical of the complex regional pain syndrome in that pain spread from a body part which was only slightly injured, and symptoms included discolouration and swelling. The condition sometimes settled but in other cases became chronic and could become permanent. It tended to be caused by relatively slight rather than severe trauma.

115. Dr Danta reviewed the plaintiff at the request of her solicitors in April 2003. The history she gave was that she had given up work in 1999, had difficulty doing things at home, and felt that her condition had not only persisted but was getting worse. Physiotherapy had not helped. She was taking pain-killing medication regularly. Dr Danta found that the symptoms were unchanged, including pain radiating up the right arm to the shoulder and neck, aggravated by use of the right arm and causing difficulty in cooking, cleaning and driving. On physical examination, neck movements were full, with tenderness on the right side towards the rear, slight tenderness over the right trapezius, and tenderness over the right lateral humeral epicondyle. There was no swelling or discolouration of the right arm, and no muscle weakness or wasting. The plaintiff said that appreciation of pinprick over the whole of the right arm was weaker than on the left. Dr Danta thought that treatment of her condition might not have been optimal, but the condition had become ingrained and there was very little chance of any significant improvement.

116. In his oral evidence, Dr Danta explained that there were two types of complex regional pain syndrome: Type 1 which follows soft tissue injury and Type 2 which is a consequence of nerve injury. Both generally follow slight or minimal injury. The main symptom is pain at the site of the injury, often spreading up and down the affected limb, other limbs and the trunk. The pain is accompanied by a disorder of the sympathetic nervous system reflected in sweating, swelling and discolouration. It is not known why the condition follows slight rather than severe trauma. One measure which can help is a sympathetic nerve blockade. Dr Danta attempted a blockade immediately after he first saw the plaintiff but it was not completed, either because she could not tolerate it or because it was technically difficult. In his view it should have been attempted again, and this was the basis for his comment that her treatment might not have been optimal. Although he saw the condition as chronic and perhaps permanent, he thought that the plaintiff should still be able to perform such tasks as cooking and cleaning to a limited degree, and secretarial work provided that she had breaks when she needed them.

117. In cross-examination, Dr Danta accepted that there was no evidence of any nerve injury. It followed that if the plaintiff was suffering from chronic regional pain syndrome, it must be Type 1 and not Type 2. He said that an injury to the skin could be classified as a soft tissue injury. He did not agree that a bruise was a necessary consequence of a soft tissue injury. There might be no obvious signs. A little later, however, he conceded that if there were no signs or symptoms there must have been no injury. He agreed that the diagnosis was entirely dependent upon accepting the plaintiff as an honest historian. He went on to say that chronic regional pain syndrome had previously been known as repetitive strain injury. It was recognised by pain specialists as a specific condition, but its cause was unknown. He accepted that it would be possible for a person to fake the pin-prick test he carried out on the plaintiff's arms.

118. Dr Danta was asked whether he could explain medically how it was possible to get a pain in the low back or buttocks from a scratch on the right hand. He said that the cause was not known but was thought to be due to an abnormality in the electrical circuits in the spinal cord. This was generally assumed to be the case but there was no proof for it. It was simply a theory.

119. Dr Danta said that he had accepted the plaintiff as telling the truth. When it was put to him that she had undertaken some shifts cleaning a police station, he agreed that this was inconsistent with the history she had given him but said that it was relative and depended on the work involved. She might have been untruthful in her history, or exaggerating, or in the alternative she might have had less pain when she was doing that work. He agreed that another possibility was that the plaintiff wished to present as someone far more seriously injured than she was in fact, and that she was motivated by the prospect of financial gain to present a false picture. He agreed that if the plaintiff was capable of working for eight hours a day at the Macedonian Community Centre answering the telephone, serving drinks, doing some mopping, checking financial statements, and making bookings, then she ought to be capable of carrying out an equivalent paid job.

120. The plaintiff saw Dr Andrews again in April 2003 at the request of her solicitors. He said that there was nothing to find as a complication of the needlestick infection of which he was given a history. He wondered whether the plaintiff might be suffering from arm pain originating from a nerve root, and he thought that it might be reasonable to have that investigated by scanning of the cervical spine. He found on physical examination no abnormality other than mild tenderness at C6-7 on the right. Full neurological examination was normal. He was unable to find any linkage between the original injury and the plaintiff's symptoms of neck and right arm pain. He thought that the symptoms might have been due to a pinched C6 nerve.

121. He was asked about the diagnosis of regional pain syndrome. He said that this was a diagnosis that he made under certain circumstances. There needed to be evidence either of a damaged nerve or of major soft tissue injury, followed by a condition known as reflex sympathetic dystrophy. He found no physical indications of reflex sympathetic dystrophy. There were none of the signs one might expect to see involving the texture, colour or warmth of the nails or skin. Reflex sympathetic dystrophy was thought to be due to over-constriction of arteries, resulting in a pale, motley and shiny appearance of the skin and a lower than normal surface temperature. Soft tissue injury, in Dr Andrew's view, required fairly major injury to the soft tissues of the body or something along the lines of a fracture - generally a fairly significant injury. He would not regard a simple puncture or breaking of the skin as amounting to a soft tissue injury.

122. Dr Sukumar reported to the plaintiff's solicitors in October 1999, following receipt of Dr Danta's report, that he had made a provisional diagnosis of complex regional pain syndrome Type 2, with a wide area of pain distribution, as a result of the needlestick injury. He said that Dr Danta in May 1999 had seen the plaintiff and confirmed this diagnosis, suggesting stellate ganglion blocks. In summary, he said that the plaintiff was suffering from complex regional pain syndrome Type 2 involving her right arm, the right half of her torso and her low back as a result of the needlestick injury. He said that there was no known curative treatment and that her prognosis was unfavourable.

123. There is no other evidence that Dr Sukumar had reached a provisional diagnosis before sending the plaintiff to Dr Danta. Indeed, in the early stages it appears that he thought that she might have been suffering from carpal tunnel syndrome in the right arm. Dr Danta did not confirm a diagnosis of regional complex pain syndrome Type 2 but rather diagnosed regional complex pain syndrome Type 1. Dr Andrews had already ruled out any relevant nerve damage. Dr Sukumar did not appear to me, in his oral evidence, to have a clear understating of the distinction between Type 1 and Type 2 regional pain syndrome, and I thought he had probably misunderstood Dr Danta's diagnosis. He gave evidence that the Type 1 syndrome progresses naturally to Type 2. This is quite different to the evidence of Dr Danta, a specialist neurologist whose opinion I prefer on that issue.

124. The plaintiff was assessed on two occasions by Dr G E Hession, a specialist occupational medicine physician, in April 1999 and April 2001. The history he was given by the plaintiff was that her injuries occurred when she was removing a lightweight glove to which a needle was attached, and that a passing sister had observed ten or more needles which had escaped from a sharps container. He was told that a couple of days after this incident, the plaintiff was aware of papules and swelling at the site of the injuries. Her general practitioner, Dr Gillespie, had prescribed antibiotics which she took without much benefit. She returned to work after two months on restricted duties because of persisting soreness and swelling of the right forearm, and by April 1991 was still on light duties. Dr Hession found no evidence of abnormality in the region of the alleged injury site. He noted that the plaintiff was wearing an elastic support over the mid-forearm. There was no evidence of localised or diffuse swelling of the right arm, which had a full range of movement at shoulder, elbow and wrist. She had a firm grip and no specific tenderness. Dr Hession detected no abnormality on examination and could not account for her alleged disabilities in terms of organic disorder. He found no other cause for her symptoms and suspected that psychological problems in her domestic environment might be relevant. He did not see her as physically disabled. Her symptoms were psychosomatic, possibly based on fear of AIDS or hepatitis B as a consequence of a needlestick injury. Her prognosis was entirely favourable.

125. When Dr Hession reviewed the plaintiff in April 2001, he noted that she had ceased work in July 1999 because of worsening pain following a miscarriage. For the past two years she had taken six Panadeine Forte tablets on most days, as well as the antidepressant Cipramil. She complained of continuous pain along the length of the right arm as far as the neck, with periodic swelling of the upper forearm and intermittent numbness in the fingers of the right hand. She told him that she had no particular recreational interests apart from occasionally watching her nine-year-old son playing soccer. She complained of tenderness on the volar aspect of the right forearm but there was no evidence of swelling or wasting. She was no longer wearing an elastic support. Movements of the joints of the arm were full and the neck was fully mobile. She presented as depressed and tearful.

126. On this occasion Dr Hession thought that the plaintiff was suffering from a regional pain syndrome which was indirectly attributable to the accident. He thought that she had developed an abnormal psychological response because of her belief that she had contracted a serious physical condition. She should be referred to a pain management clinic in the hope of finding some alternative to the Panadeine Forte. He thought that antidepressant medication was appropriate. It was not uncommon for the symptoms of regional pain syndrome to persist for years. It was more likely that not that she would be left with permanent residual disability in the form of a restriction in her ability to carry out routine daily tasks due to pain. She might be able to work as a receptionist or service station console operator. He assessed her as having lost ten percent of the efficient use of the right arm at or above the elbow. Her prognosis was uncertain but likely to be unfavourable.

127. In cross-examination, Dr Hession was asked to assume that the plaintiff's hands had been inspected soon after the needlestick incident by senior nursing staff who had found no puncture marks. He said that this would change his attitude. It implied that the plaintiff had been untruthful in the history she had given him. Any infection may well have resulted from some cause unrelated to the needlestick injury.

128. He was then asked to assume that the plaintiff had for extended periods since the needlestick incident attended the Macedonian Community Centre at Queanbeyan, sometimes daily for months, and sometimes for eight or nine hours a day, engaged in the activities which had emerged in previous evidence. He was also asked to assume that she played poker machines with a friend at Queanbeyan Leagues Club and worked on two occasions in October 2002 as a cleaner at the Queanbeyan Police Station. He said that she had not given him the impression she was capable of such activities and if they were true he had been misled.

129. In response to counsel for the plaintiff he said that it was possible, though a little difficult to believe, that the plaintiff had suffered a needlestick injury which had not been detected by the nursing staff. It was conceivable but he would have thought that nurses specifically looking for evidence of needlestick injury would have picked up prick marks in the skin. The likelihood of infection would depend on whether the skin was broken or not. If the skin barrier was broken at all, in theory infection was possible. It was conceivable that a scratch might not be sufficiently deep to cause bleeding but still might be deep enough to be a source of infection.

130. The plaintiff was examined for medico-legal purposes on behalf of the second defendant, the hospital, by Dr D W Gronow, medical director of the Sydney Pain Management Centre, a medical practitioner with specialist qualifications and experience in anaesthetics, pain medicine and palliative medicine. Dr Gronow saw the plaintiff in February 2002. She gave him a history consistent with that given to the other doctors. She complained at the time of constant pain over the ulnar aspect of the right forearm, increasing with activity and radiating to the hand and to the neck. She said that this would occur if she carried as little as a two-litre container of milk. Her hand would swell intermittently every day. She usually walked with her hand resting in her pocket. She also described occasional mid-thoracic pain. She rated her pain level at between eight and nine out of ten. She was taking four to six Panadeine Forte tablets a day, but felt that they were losing their effect. She was also taking two Cipramil tablets per day.

131. She told Dr Gronow that about a year after they moved to Australia, her husband developed schizophrenia and had not worked since. She was the carer for her husband and her son and had provided all financial support until she was injured. She had almost completely paid off the mortgage on their unit. The relationship between her husband and her son was very poor, and the son was cared for before and after school by his godparents. The plaintiff constantly felt nauseated and had lost her appetite. She slept poorly and had lost a lot of weight. She often cried at home and thought of suicide. She felt abandoned by her work colleagues and the Macedonian community. She went to church regularly but found little support there, and otherwise generally stayed at home.

132. On examination she showed distress, crying during the interview and having difficulty focusing on the question she was asked. She seemed to have normal dexterity in both hands despite complaining of tenderness over the right forearm. There was no evidence of any swelling. There was limited discolouration over the area she identified as the site of the needlestick injury. Dr Gronow said that her presentation was of major depression but he could not support a diagnosis of complex regional pain syndrome. He thought that her level of disability was related to her psychological response to the injury, rather than the impairment of her arm. He thought it probable that her level of disability was related to the needlestick injury. He saw considerable room for improvement if her depression was properly treated and her pain properly managed through medication. He thought that her level of disability was not permanent and that with proper treatment, any permanent impairment would be minimal. She was not, when he saw her, fit for her pre-injury work as a cleaner or for any employment, though with appropriate treatment she would be able to return to work as a cleaner, initially part-time. It might take twelve months or longer to get her back to work as a cleaner full-time, but with her level of intelligence and her past training in Macedonia, she was an ideal candidate for retraining.

133. Dr Gronow was later provided with an opportunity to see the surveillance film shown to the plaintiff during the course of her cross-examination and he provided comments on it. After viewing the film, he changed his opinion. He saw her on the film performing a variety of activities both alone and in company with others, including watching a soccer match. He could not identify any pain behaviour, any restriction of use of either hand or any restriction of movement of the neck or shoulder or arms. She appeared to be interacting normally with those around her and interested in following the progress of the soccer match. She did not present as withdrawn or isolated. Her functional activity was considerably better than as described in his consultation with her. He could not identify any avoidant reaction consistent with neuropathic pain. He saw no evidence of distress, saying that the plaintiff appeared to be well integrated into the group of friends with whom she was watching the soccer match. He identified no abnormal behaviour. The presentation on video was generally quite inconsistent with the presentation at his consultation with her and with her complaints at that time.

134. In oral evidence, Dr Gronow, asked to assume the plaintiff's involvement in activities such as at the Macedonian Community Centre and the Queanbeyan Police Station as referred to previously, said that if that were correct, her capacity would appear to be approaching a normal level of capacity for an average person.

135. The plaintiff was sent by her solicitors to the late Mr E A Petroni, clinical psychologist, who saw her in April 2000 for the purposes of a report. Mr Petroni saw her on only the one occasion and died well before the hearing. He assessed the plaintiff as quiet, docile and soft-spoken, and of high-average intelligence. Her emotional tone was lethargic. He accepted her account as frank and sincere, and saw no reason to suppose that she was exaggerating or dissembling. He found her presentation consistent with reactive depression and chronic anxiety. Constant tension and general pain and discomfort were indicated, accompanied by feelings of insecurity and inhibition. He thought that she would be assisted by psychotherapy though her prognosis was not encouraging. He said that she was suffering from complex chronic pain syndrome for which there was no accepted standard treatment strategy. This was invariably accompanied by psychological variables and a perceived loss of efficiency and perhaps usefulness. He found that her anxiety and depression were secondary to her physical injury. There being no evidence of anything to the contrary, he attributed her physical symptoms to the needlestick injury. He thought that her pain threshold had been lowered, and that her condition was unlikely to resolve in the medium term although the pain threshold and psychological adjustment could be improved. He recommended a series of fifteen sessions of psychophysiological treatment including visualisation strategies and cognitive behaviour modification therapy. After this initial programme, he thought that she was likely to require acute phase intervention from time to time. He then thought that from a psychological point of view she should be capable of returning to work in a non-stressful job, but her psychological state was inexorably linked with her pain so that the extent of her physical capacity for work was more appropriately the province of a rehabilitation physician.

136. It does not appear that any steps were taken to provide the plaintiff with the psychological treatment recommended.

137. In June 2001 the plaintiff was seen on behalf of the first defendant by Dr L Fridgant, psychiatrist. He obtained a similar history to that recorded by Mr Petroni. The plaintiff told him that she did not believe that she would ever improve. She said that in February 2000 she had gone overseas and consulted doctors in Macedonia from whom she received a negative prognosis. This had distressed her and increased her depression. Dr Fridgant noted that her predominant tone was of hopelessness. The extent and quality of her pain was difficult to relate directly to the original injury. He thought that her deteriorating mood and sense of hopelessness arose from unresolved issues of diagnosis and untreated physical injury. The needlestick incident was a peripheral precipitant to her current mental state rather than a direct cause of it, the extent of the connection being difficult to establish. He diagnosed adjustment disorder with depressed mood, chronic, related to but not caused by the needlestick injury. He strongly recommended psychiatric assistance and treatment. He was not attracted to the diagnosis of regional pain syndrome which in his view obscured rather than clarified the issues. He thought that she should be assessed by an occupational therapist with a view to retraining in her original specialty. Successful resolution of her depression would probably reduce her perception of pain. She should be encouraged to return to part-time work. Dr Fridgant found no evidence of malingering or exaggeration of symptoms. He recommended that she be referred to a clinical psychologist for cognitive behavioural management, a similar recommendation to that made by Mr Petroni a year earlier.

138. Dr Fridgant gave evidence by telephone. He agreed that his conclusions were dependent on the history he had been given. He had not been told of the plaintiff's friendship and activities with Mr Tomeski, or her attendances at the Macedonian Community Centre, or that she was capable of standing for over two hours and watching a soccer match. He agreed that all of these things would be relevant, as would attendance at school dance parties and involvement with fundraising and with the running of the soccer club. He had not been given the impression she was driving almost every day, and he thought that was relevant. All of these things would create a totally different impression to the one he formed, which was that the plaintiff spent a typical day at home looking after her husband, and occasionally visiting the Macedonian centre. He agreed that if one accepted the assumptions put to him as to the plaintiff's actual activities, the plaintiff had not been truthful with him as to her capacities. His assessment of her would have been different. He may well have reached the conclusion that she was malingering or not telling the truth and that there was in essence nothing wrong with her.

139. In May 2002 Dr Sukumar referred the plaintiff to Dr R Kumar, a Canberra psychiatrist. In a very brief report, Dr Kumar agreed with Dr Sukumar that the plaintiff was suffering from chronic pain syndrome with a co-morbid depressive disorder, which had produced significant disability in terms of her work and enjoyment of life. Her current treatment seemed to be satisfactory but she might benefit from cognitive behavioural therapy, and Dr Sukumar might consider referring her to a psychologist. It does not seem that any steps in this direction were taken.

140. Dr Kumar gave evidence by telephone. He said that he had spent about fifty minutes with the plaintiff. He had not seen her husband and he did not provide the plaintiff with any treatment. He had accepted Dr Sukumar's diagnosis of chronic pain syndrome. He did not himself see any swelling in the hands, and did not carry out any physical examination or tests. He relied on the history given by the plaintiff, and on his observation of her depressed affect and poor reactivity. He explained that there were no diagnostic tests for a psychiatric diagnosis. Counsel for the second defendant put a number of assumptions to Dr Kumar and asked whether they would be relevant to a clinical diagnosis of depression. The doctor replied in the affirmative, saying that people with significant depression would have difficulty in continuing with the normal activities of life, and tended to be withdrawn. If the assumptions were correct, they would raise some concern about the diagnosis. Such activities as cleaning at the Queanbeyan Police Station, attending the Community Centre regularly, giving radio broadcasts, and standing at a soccer match for two hours conversing with a number of other members of the Macedonian community, were inconsistent with the history provided by the plaintiff on which Dr Kumar relied on in arriving at his diagnosis of depression.

141. Following receipt of Dr Kumar's report, Dr Sukumar wrote to the plaintiff's solicitors saying that in summary the plaintiff remained socially, occupationally and emotionally dysfunctional. Consequently her medium and long term prognosis for full recovery was guarded. She was effectively unemployable as a cleaner. Given her limited literacy and English language skills, Dr Sukumar thought that she would never be able to re-enter the workforce and have a productive life in the future.

142. In July 2003 Dr Sukumar reported that the plaintiff had recently fallen pregnant and was eagerly looking forward to the birth of her child. She had gone off medication for the duration of the pregnancy. Dr Sukumar was hopeful that with the arrival of the baby, her focus would shift from her own problems to the care of the baby and might bring on significant resolution of her symptoms. Subject to this, he affirmed his previous prognosis.

143. Dr Sukumar did not see the plaintiff again before giving his evidence in October 2003. He agreed in his oral evidence that his diagnosis was totally dependent on acceptance of the plaintiff as an honest historian. In that evidence Dr Sukumar agreed that if one accepted the evidence of the three members of the nursing staff at the hospital, there was no basis for a finding of infection caused by any needlestick injury, and thus no basis for connecting any such injury with the symptoms giving rise to the diagnosis of regional pain syndrome.

144. Dr Sukumar gave his evidence on the fourth day of the hearing, 2 October 2003, after which the hearing was adjourned until the end of March 2004. By then the plaintiff had had her baby, but neither the plaintiff nor Dr Sukumar gave further evidence. Other medical practitioners gave evidence when the hearing resumed in March and April 2004, but none had seen the plaintiff any more recently than Dr Sukumar. Thus by the time the hearing concluded there was no evidence from any medical practitioner who had seen her in the previous twelve months. It follows that there is no medical evidence as to whether the birth of the child has resulted in any improvement in her physical or psychological condition.

145. The plaintiff was present in Court during the four days of hearing commencing on 29 March 2004, with her baby, and I had the opportunity to observe her in the back of the Court. Whilst I profess no expertise in assessing physical disability by observation, I did not detect any restriction of movement or activity during those days. The plaintiff seemed to me to be behaving like a normal mother with a baby.

146. From a letter in evidence sent by the solicitor for the second defendant to the solicitors for the other parties shortly before the commencement of the hearing, I infer that Dr J R Strum, Dr Robert Lewin and Associate Professor David Champion examined the plaintiff on behalf of the second defendant and provided written reports. None of those doctors were called and no reports by them were tendered. I draw the available inference that their evidence would not have assisted the defendants. There is no evidence as to when they saw the plaintiff or indeed as to their areas of specialisation, and thus the inference carries little weight.

The credibility of the plaintiff

147. In assessing the plaintiff's credibility, it has been necessary for me to scrutinise the whole of her evidence, in relation to the circumstances of the needlestick incident and in relation to the effect of the incident on her, both physically and psychologically. A comparison of her evidence with the evidence of other witnesses has also been necessary.

148. There is a sharp difference between the plaintiff's evidence and that of the three members of the hospital nursing staff, Ms de Britt, Ms Dahler and Ms Rogers. I formed a favourable impression of the demeanour and consistency of each of those witnesses. None of them had any reason to give evidence which was other than in accordance with their best recollection. I have no doubt that if any of the three of them had observed puncture marks or bleeding or a scratch, they would have recorded it and remembered it. A complaint of a needlestick injury accompanied by a physical examination which shows no sign of a needlestick injury is, it seems to me, very much the kind of incident one would expect a nurse in a senior position to remember. For one of the nurses to have missed such signs on examination might be understandable; for three to do so I find inconceivable.

149. In contrast, there were many aspects of the plaintiff's evidence which were unreliable. I strongly suspect that her evidence in chief and in the early part of her cross-examination, before being confronted with the video material, was pitched consciously at presenting a picture to the Court which suited the plaintiff's case and did not accord with reality.

150. There were particular aspects of the plaintiff's evidence which were internally inconsistent. I have mentioned the question of whether or not she was wearing gloves at the time of the needlestick incident. She told Mr Dean, the Workcover inspector, in January 1999 that she was wearing a glove and that the needle scratched her as she took the glove off. She said the same thing to Dr Hession in April 1999. Her oral evidence was that she had taken her gloves off prior to the needlestick incident. Ms de Britt and Ms Dahler were clear in their recollection that she was not wearing gloves when they saw her, and that there were no gloves in the vicinity. It is unnecessary for me to make a finding of fact as to whether or not the plaintiff was wearing gloves at the time of the incident. The significance of the issue is that it is indicative of the unreliability of the plaintiff's evidence or at least of her recollection.

151. The next example of internal inconsistency is the difference between the plaintiff's evidence in chief and her subsequent concessions in cross-examination as to her activities at the Macedonian Community Centre, and the Queanbeyan Leagues Club, including her attendance at the soccer matched where she was filmed at great length.

152. A further example of her unreliability is her firm evidence in chief that she saw her general practitioner, Dr Gillespie, on the day of the incident. It is clear from the doctor's records that she did not see him until four days later.

153. Another area of inconsistency arose from the plaintiff's evidence about prior needlestick injuries. Her evidence was that she had two previous injuries, the first about a year or two after she started work at the hospital in 1992, and the second seven or eight months after the first. I accept that no one has contradicted her evidence about those two injuries, and that by the time subpoenas were issued the hospital may not have retained any records of them. However, the plaintiff gave no evidence until cross-examined, about an incident in May 1997, the year before the incident giving rise to the cause of action. There is no obvious reason why she would have sought to hide the 1997 incident, and perhaps it does no more than illustrate that her memory as to events by then six years in the past cannot be relied upon.

154. Having regard to these inconsistencies, where the plaintiff's evidence conflicts with that of Ms de Britt, Ms Dahler and Ms Rogers, their evidence is to be preferred. I accept that when the back of her right hand was examined within minutes of the incident, and later on the same morning, there was no visible evidence of any puncture wounds or bleeding, and that all that could be seen was, at most, a mark in the area consistent with a fingernail scratch, not deep enough to break the skin, and possibly some redness in the area.

Findings in relation to the incident

155. It is regrettable that Dr Gillespie was unavailable to give evidence and to explain the apparent discrepancy between his clinical note of 23 November 1998 and his report to the insurer of 27 January 1999. The former, set out fully earlier, relevantly includes: "punctured by needles right hand 3 days ago . . . still a little swollen and tender . . .". This of itself would not persuade me that Dr Gillespie had observed puncture marks. It is equally consistent with his recording a history given by the plaintiff, and with the only sign he saw himself being mild swelling. On the other hand, in his letter to the insurer, he said that the plaintiff "presented on 23/11/98 complaining of painful right hand where she had sustained multiple needle prick injuries . . . on 19/11/1998. The dorsum of the hand in the web space between the right thumb and index finger was red and swollen with puncture marks in the skin. The finger and thumb were also puffy." This undoubtedly gives the reader the impression that Dr Gillespie observed the puncture marks.

156. The letter, however, was written two months after the initial consultation. It is common knowledge that the typical general practitioner sees many patients in the course of a working day. Even taking into account the Christmas-New Year period, it is reasonable to assume that Dr Gillespie had seen dozens if not hundreds of patients in that two-month period. It would not be surprising if he wrote the letter to the insurer based on a reading of his notes rather than on direct recall of what he observed nine weeks earlier. General practitioners are not forensic investigators. They tend, in the absence of strong evidence to the contrary, to accept what their patients tell them. Needlestick injuries of the kind complained of by the plaintiff would be expected to leave puncture marks. It seems to me that the apparent inconsistency between the evidence of the nurses, which I accept, and the statement in Dr Gillespie's letter of 27 January 1999, is explained by the fact that, when he wrote the letter, he assumed from his earlier notes that he had observed the puncture marks, whilst in reality he had not done so.

157. The evidence of Dr Collignon and Dr Sukumar is not of much assistance on the question of puncture marks. Dr Collignon's evidence was that a skin lesion caused by a needle usually heals completely within a month. He did not see the plaintiff until five weeks after the incident, and it was more than a month later that she saw Dr Sukumar for the first time.

158. I have already explained that I found the evidence of Mr Tomeski, Ms Nedeska and Mr Taskovski on this question unconvincing.

159. The conclusion must be that the incident on the morning of 19 November 1998 did not result in any puncturing of the skin by needle points or any bleeding. At most it caused a superficial scratch insufficient to break the skin.

160. There is no issue that on the morning of 19 November 1998 the plaintiff was working as a cleaner at the hospital in the course of her employment with the first defendant. She was in the course of removing from the plastic bins in the rooms on Ward 14 the plastic liner bags, including yellow bags marked and intended for infectious waste. Her practice was to seal these bags with a plastic ratchet tie, and to place them in her trolley, which she would wheel to the large yellow hopper labelled and intended for bags of infectious waste. I accept that while the plaintiff was in the course of lifting a full yellow bag from her trolley into the hopper, she felt something sharp on the back of her right hand, through the bag. It is unclear precisely what happened next. Clearly the plaintiff did not continue in her movement of pushing the bag up and over the edge into the hopper. Somehow, and it is unnecessary for me to find precisely how, the bag ended up on the floor and open, and it could be seen that there was a sharps container in the bag, that the container was partly open at the top, and that some needles had come out of it and were unprotected within the yellow bin liner. I accept that the point of at least one of these needles came through the yellow bag as the plaintiff lifted it and pricked or scratched, without breaking the skin, the back of the plaintiff's hand.

161. The plaintiff had had at least one and perhaps three previous needlestick injuries, though fortunately they had caused no permanent damage. She was aware of the risk of a needlestick injury in the hospital environment, and of the procedure to be followed should one occur.

162. It is not clear whether the plaintiff actually contracted a bacterial infection. She probably thought that she had done so. Dr Gillespie prescribed antibiotics but this may have been by way of protective cover rather than following a diagnosis that the plaintiff's hand was infected. At all events, by the time the plaintiff saw Dr Collignon on 23 December 1998, any infection had cleared up.

Negligence

163. It becomes necessary to consider in the light of those factual findings whether the contact between the needle or needles and the back of the plaintiff's hand occurred in circumstances amounting to a breach of duty of care by either defendant to the plaintiff.

164. The plaintiff's terms of employment required her to work at the hospital. It was the second defendant which provided and controlled the place of work. The plaintiff had been working there for six years or more, regularly on the same ward. The hospital provided some instruction to the plaintiff in relation to wearing protective clothing in room occupied by infectious patients, and the nursing staff as a practical matter gave directions to the plaintiff, for example, in relation to the wearing of gloves. It was clear from the evidence of Ms de Britt and Ms Dahler that they regarded it as part of their function to give instructions to the plaintiff direct as to matters of that kind. The hospital therefore exercised in practice a greater degree of control over the work done by the plaintiff and the manner in which she did it than might normally be expected in the case of an employee of a contractor.

165. The first defendant as employer also exercised control over the plaintiff through the supervisor, Ms Stevanovic, and the manager on site at the next level above her. Conventionally an employer owes a higher duty of care to an employee than is owed in similar circumstances by, for example, a principal to a sub-contractor, or an occupier to a licensee or invitee. The distinction is less obvious in a case like the present, where the occupier is in a contractual relationship with the employer, and itself exercises a degree of control over the employee. When one adds into the equation the particular risks of injury and of contracting disease in the hospital environment, for example by way of needlestick injury, it becomes difficult to differentiate the duty of care owed by the employer from that owed by the hospital.

166. Needles were not the only sharp objects which might have been disposed of in rooms in the ward. The hospital booklet makes reference to the dangers of broken glass with particular reference to glass instruments used in the hospital system, which should be disposed of in sharps containers. It is not difficult to conceive of glass being broken inadvertently, for example by family or friends visiting patients, without the knowledge of nursing staff. Visitors would be unaware of the existence of the system whereby broken glass should be put into sharps containers and one could well imagine that broken glass might find its way into the lined bins in the rooms. There was reference in the evidence to the plaintiff initially thinking she might have been pricked by thorns from roses. Flowers in hospital rooms are commonplace and one could well imagine thorny rose stems being disposed of in the ordinary rubbish. These were risks which should have been obvious to the employer and to the hospital. A reasonable response to the risk would have been the provision of gauntlet or welders' gloves as were said to have been provided shortly after the incident. Whilst no doubt a needle could penetrate a welding glove, such gloves would give very much greater protection and would be expected to reduce the risk of injury substantially.

167. Having regard to these finding of fact, it becomes necessary for me to decide three separate issues. The first is whether, assuming that the needlestick incident caused damage to the plaintiff, that damage was caused by a breach of the duty of care which I find both defendants owed to the plaintiff. In essence, the plaintiff's case is that each of the defendants failed to provide her with a safe place and system of work. More specifically, the negligence is said to consist in failing to have in place a system which ensured that exposed or unprotected needles were not disposed of in bins with plastic liner bags; failure to provide adequate training and instruction; failure to provide appropriate gloves; and failing to warn.

168. I am satisfied that the hospital had a system in place that was designed to, and generally did, ensure that needles were disposed of in sharps containers and not in rubbish bags. I am satisfied that the sharps containers generally served their purpose well. They provided a one-way disposal system, along the lines of a money box or letter box: that is to say, subject to size and shape, objects could easily be put into the containers but could not be retrieved. I am also satisfied that there was in place a system which was designed to, and generally did, ensure that there were adequate sharps containers in fixed positions throughout the ward, able to be removed from their mountings only by staff with appropriate experience and authority. I am satisfied that the system whereby the nursing staff, after removing and replacing a sharps container, took it to a designated area to be disposed of by appropriately experienced and instructed cleaning staff, was generally an adequate one.

169. It is clear that on 19 November 1998, the system broke down. Despite investigations by hospital staff and by ACT Workcover, the breakdown has not been explained. Somehow, a sharps container found its way into an infectious waste bin in one of the rooms, and to compound the breakdown in the system, the sharps container in the bin was somehow open to such an extent as to permit a number of needles to come out of it.

170. No system is foolproof. It seems that the breakdown must have been due to human error or carelessness. It is, I suppose, possible in theory that the container found its way into the bin through the intervention of a patient or visitor, but this was not suggested by counsel for the hospital and I think it more probable than not that there was human error or carelessness on the part of a member of the hospital staff, for which the hospital cannot escape vicarious liability.

171. As I have said earlier in these reasons, it is clear that there was a risk that sharp objects might find their way into a rubbish bag, whether broken glass, rose thorns or needles. The plaintiff must be taken to have had some awareness of this risk, having suffered, according to the hospital records, a needlestick injury the previous year, and according to her own evidence, two needlestick injuries earlier in her period of employment as a cleaner at the hospital. At the same time, it must be acknowledged that the plaintiff was a busy cleaner, working many hours a day, no doubt to a tight schedule, and every day taking numerous bags out of bins, tying them and taking them in her trolley to the hopper.

172. The hospital provided instruction to the plaintiff only in relation to patients suffering from infectious diseases. The gloves provided by the hospital were thin and single-use, and were designed to prevent the spread of infection by direct contact, rather than to protect the wearer against needlestick injury.

173. The gloves provided by the employer prior to the incident were standard household gloves used for cleaning and dishwashing. There is evidence that the senior nursing staff told the plaintiff to wear them when they saw her without them, and indeed became quite annoyed with her when she failed to comply with these directions. However, there is no evidence that anyone explained to the plaintiff the reason for doing so. One might reasonably think that the gloves were provided to protect the wearer's hands from cleaning fluids and from the bacteria likely to be present in and around toilet bowls. The plaintiff might reasonably have taken the view that she was being taken to task simply for not complying with the rules. One would like to think that an institution such as a hospital would have a good reason for the rules it seeks to impose upon cleaners and others, but it is not an uncommon experience to come across institutional rules which appear to have no practical rationale.

174. In any event, whether or not the plaintiff was wearing the gloves provided by the employer, it does not seem to me likely that the gloves either did protect her against a needlestick injury, or would have done so. The gloves are a little thicker than a rubbish liner bag but certainly not thick enough to protect against a needle, though I accept the evidence that such gloves might have provided some protection against bloodborne substances in the hollow bore of a needle.

175. The gauntlet-style welding gloves, on the other hand, were, on the evidence, a great deal thicker and probably would have protected against needlestick injury. Certainly they would have prevented the very minor contact between the needle or needles and the plaintiff's skin which I find took place. These gloves were clearly available and commercially practicable: the employer provided them soon after the incident. I am satisfied that the employer was, or should have been, aware of the risk to its employees in the position of the plaintiff of injury from sharp objects in rubbish bags. The risk was far from fanciful, and the provision of thick gloves was a reasonable and practical response to it.

176. Whilst the hospital may have imposed on the employer a contractual responsibility to provide appropriate equipment to its staff, it was the hospital which was responsible for the place of work and most aspects of the system of work, and which was aware to a far greater degree than the employer of the risks involved. The hospital should have ensured that cleaning staff wore thick gloves when handling rubbish bags. Both the hospital and the employer were aware of the plaintiff's stature by comparison with the height of the hoppers into which the rubbish bags were required to be placed. They must be taken to have been aware that it would not have been feasible for the plaintiff to lift the rubbish bags over the edge and into the hopper by the top, but rather that the plaintiff would have to use both hands for this task.

177. It follows that I am satisfied that, in permitting needle points to come into contact with the skin of the back of the plaintiff's right hand, both defendants were in breach of the duty of care they owed to the plaintiff.

Damage

178. The next question to be considered is whether the breach of duty of care caused any damage. I have explained my reasons for finding that the needle or needles did not puncture the skin of the plaintiff's hand and that they caused at most a superficial scratch insufficient to break the skin. It follows that, on my findings of fact, any superficial breach of the outer skin layer was insufficient to be a source of bacterial infection. This falls short of an injury to the plaintiff's person.

179. Although the disabilities alleged by the plaintiff include depression, and her claim is supported by the evidence of a psychiatrist and a psychologist, the case has not been presented as one for purely psychological damage or nervous shock. The case has been pleaded and presented as one for damages for personal injury, with anxiety and depression as sequelae of later onset, secondary to the pain caused by the physical injury. In the circumstances, the plaintiff has not made out her case and cannot succeed.

180. Despite that conclusion, I accept that the plaintiff has had genuine pain in the right arm, and has suffered from a degree of anxiety and depression. An evaluation of the severity of her physical and psychological conditions is complicated by her exaggeration of her disabilities, both to the doctors who have seen her and to the Court. I have found the plaintiff to be an unreliable historian and witness, and her unreliability casts doubt on the opinions expressed by almost all of the medical witnesses.

181. I should say that I reject Dr Danta's diagnosis of complex regional pain syndrome. I prefer the evidence of Dr Andrews to that of Dr Danta on the question of the severity of the soft tissue injury which is needed to trigger the syndrome.

182. Counsel informed me that it was agreed between the parties that if the plaintiff succeeded, her damages were to include treatment expenses of $2,846.31. There was no agreement as to other components of damages.

183. The usual practice of the Court, in an action for damages for personal injury, is to proceed to a provisional assessment of damages notwithstanding finding against the plaintiff in relation to liability. The reason for the practice is to avoid the necessity for a new trial on damages in the event that the judgment is overturned on appeal. The practice is desirable in the typical case where the major issue between the parties is as to liability, and there is no challenge of substance to the evidence in the plaintiff's case as to quantum. The practice is not necessarily appropriate in a case like the present, where the plaintiff's failure to prove her case on the balance of probabilities in relation to liability flows from adverse findings as to credibility. Those findings must infect the plaintiff's evidence in relation to damages, and the medical evidence to the extent that the opinions of the witnesses are based on acceptance of the history given by the plaintiff. It seems to me that in these circumstances, a provisional assessment of damages would not necessarily be of assistance should it be found by an appellate court that I have fallen into error in relation to liability.

Contributory negligence

184. Had I found in the plaintiff's favour, I would not have found her guilty of contributory negligence. Whilst she must be taken to have been aware of the risk of sharp objects in rubbish bins, she had been given no instruction as to any safe method of transferring the rubbish bags from her trolley to the hopper, and provided with no equipment to remove or reduce the risk of injury. No method was postulated on behalf of the defendants by which she could have achieved that purpose without risk.

Conclusion

185. There will be judgment for the defendants. I shall hear the parties in relation to costs and any other outstanding issues.

I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 31 May 2005

Counsel for the plaintiff: Mr G J Lunney

Solicitor for the plaintiff: Romano & Co

Counsel for the first defendant: Mr F M G Parker

Solicitor for the first defendant: Dibbs Barker Gosling

Counsel for the second defendant: Mr F J Purnell SC & Mr I D Bradfield

Solicitor for the second defendant: ACT Government Solicitor

Date of hearing: 29, 30 September, 1, 2 October 2003, 29, 30, 31 March, 1 April, 21 June 2004

Date of judgment: 31 May 2005