Written by Peter CarterNovember 20, 2015
Melanie Digby had worked at the Palmwoods campus for about 12 months when in June 2008 senior Constable Mark Reedman arrived for a “stranger danger” demonstration.
Jennifer Adermann had warned the Maroochydore officer when making the arrangements by phone a month earlier that care would be needed when sounding a police siren as some disabled trainees “could have seizures or episodes of distress” from very loud noises.
She was referring in particular to Ryan who became startled and had “an extreme fright response” when exposed to loud noises, triggering convulsions that caused him to lose control of his muscles and fall.
Officer Reedman arrived at about 1:30 pm and gave a talk in a training room for about half an hour before demonstrating features of his squad car to four trainee groups as they came forward.
Melanie – who heard no warning of a pending siren demonstration – was standing near Ryan and saw him fall forwards towards the concrete step as soon as it went off.
As she lunged to arrest his fall with her arm around his abdomen, she immediately felt pain in the front of her shoulder and shoulder blades.
Melanie’s treatment for the resulting chronic pain included narcotic medications over long periods that pain specialist Mark Tadros thought were “inappropriate” but the best her GP could do to manage the condition.
She launched a lawsuit against her employer – the Compass Institute – and the police on the basis that they had both, by their negligence been responsible for Ryan’s fall and her medical malaise.
Constable Reedman had in fact given a warning before sounding the siren. He told those within earshot, that – because police sirens are loud – persons nearby should cover their ears. He then went back to the car and yelled out “one, two, three” before turning the deafening siren wailed out.
Her case though was that the institute had failed to adequately brief staff on what actions to take to protect the trainees after the policeman gave his warning.
She claimed that there had been no planning for the exercise and a risk assessment of the event had been overlooked.
Her third contention was that although most staff had received training from Epilepsy Queensland “not to intervene to try to catch a person having a seizure”, Melanie had missed out on that training.
Justice Roslyn Atkinson accepted all three arguments: Compass was liable for failing to provide that training, devise a plan as to how to manage the trainees and for failing to conduct a risk assessment.
The same could not apply to the police. The officer had only been briefed on the need to give a pre-siren warning, not to wait until some trainees had been removed from the demonstration area before sounding the siren.
So far, so good but could all Melanie’s symptoms be attributed to the incident?
Her Honour thought not, particularly as surveillance footage suggested the “violent tremor” of her right arm which she carried into the courtroom was baloney.
Digby’s case – that she could not use her right arm because of the tremor for many activities and was socially withdrawn – was in glaring contrast to what was revealed by the clandestine video. In the court’s view, no explanation for such “stark contrast” other than gross exaggeration appeared reasonable.
Psychiatrists Harvey Whiteford and Chris Cantor both agreed once they viewed the footage and were made aware of her “Facebook socialising for several hours a day for two days a week”, Digby’s complaints were overstated.
Likewise, orthopedic surgeons David Gilpin and Mark Robinson confirmed on citing the DVD film, that the impairment claimed in her elbow, wrist and hand was nil and that her shoulder deficit was less than they had observed during examination.
Rather than a serious injury, Digby suffered no more – according to Justice Atkinson – “than a mild shoulder injury complicated by a minor somatic symptom disorder and a consequent addiction to painkillers”.
Her Honour concluded she had embellished her symptoms “probably for the financial gain which she hoped to obtain from the litigation.”
Her loss was assessed at $306k which after deduction of the WorkCover refund, came to $158k. Loss of future earning capacity for the 39-yr-old was restricted to $40k.