Alison Mallett v Compass Group (Australia) Pty Ltd
[2012] ACTSC 67
•1 May 2012
ALISON MALLETT v COMPASS GROUP (AUSTRALIA) PTY LTD
[2012] ACTSC 67 (1 May 2012)
EX TEMPORE JUDGMENT
No. SC 557 of 2010
Judge: Sidis AJ
Supreme Court of the ACT
Date: 1 May 2012
IN THE SUPREME COURT OF THE )
) No. SC 557 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:ALISON MALLETT
Plaintiff
AND:COMPASS GROUP (AUSTRALIA) PTY LTD ACN 000 683 125
Defendant
ORDER
Judge: Sidis AJ
Date: 1 May 2010
Place: Canberra
THE COURT ORDERS THAT:
Verdict and judgment for the plaintiff in the sum of $152,292.
The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. This order is suspended for 7 days to allow the parties to make further application should they wish to do so within that period.
The exhibits are returned.
In this matter Mrs Alison Mallett was injured at work on 16 April 2010 when she slipped on a mixture of beer and water on the floor of the canteen at Bruce Stadium, Canberra. The defendant admitted that it was negligent in allowing the moisture to be on the floor but contested her claim for damages.
The major area of contention was whether the plaintiff suffered loss of income earning capacity for which she was entitled to be compensated by way of a buffer.
The plaintiff said she fell onto her coccyx and suffered immediate excruciating pain. She was treated at the Stadium by St John’s Ambulance members with ice and after one hour she was driven home.
She had an uncomfortable night and the next morning went to Calvary Hospital where she was prescribed Endone and Panadeine Forte and sent home. A few days later she consulted her general practitioner who ordered an X-ray. This did not disclose any fracture. She subsequently had weekly physiotherapy for eight weeks.
For about three months the plaintiff continued to suffer considerable pain and had difficulty walking. She slept with hot packs to ease her discomfort. After three months she experienced some relief from her pain but continued with symptoms. Her major problem at the time of the hearing was the pain that she was suffered when sitting directly on her coccyx. She said this caused her significant pain, particularly when she stood after being seated for some time.
The result was that she adopted a practice of sitting alternately on one buttock or the other. Whilst this avoided pain in the coccyx at times it caused back pain if she was unable to move from one side to the other, for instance when she was driving.
The plaintiff was referred to Dr Tsai orthopaedic surgeon, who advised her that her pain and discomfort might be relieved by excision of the coccyx but that this surgery had only a 50 per cent success rate, and she should consider it as a last resort only when it became absolutely essential.
The plaintiff claimed that her injury affected her family life. The plaintiff had nine living children of whom seven, ranging in age between seven and 20 years, remained at home. She avoided activities with the children out of concern to avoid another fall. She had discomfort driving or travelling in a car or an aeroplane and she avoided lengthy car journeys.
At the time of her injury she was working full-time for Specsavers as an optical dispenser, the work involved reception work and measuring customers for glasses. She earned $50,000 gross. The plaintiff left that position in July 2010 for reasons unrelated to her injury. She was also working part-time as a canteen supervisor for the defendant in four hour shifts at football match fixtures during the relevant seasons. She earned $21 an hour.
Her pre-accident working history included a period in a travel agency, operation of a café, and part-time work with David Jones and a recruitment agency. She necessarily had some time out of the income earning environment having regard to the size of her family.
The plaintiff had skills in cutting lenses for spectacles and undertook this work for her first husband who was an optometrist. She explained that it was not possible to obtain a similar position in Canberra where retailers of spectacles no longer maintained lens cutting laboratories.
The plaintiff returned to work two weeks after her fall where her employer allowed her the flexibility to stand for most of the time. She worked at a cash register for two shifts at the Bruce Stadium, but did not continue with this work because the cold weather aggravated her condition and caused her intense pain.
The plaintiff obtained work on contract for three months in a position where she was able to stand and move around when necessary. The plaintiff has since qualified as a real estate agent. She was in the early stages of her career at the time of the hearing and her remuneration was by way of commission.
She earned in her first year about $30,000 gross, all of which was applied to repayment of advances paid to her against commissions. At the time of the hearing the plaintiff was working about 10 hours a week. She anticipated that with experience her hours and income would increase.
She said she enjoyed the work and it allowed her to move around and to be flexible in her working hours. She said, however, that the real estate market was currently depressed and competition for properties was strong. Whether she continued to work in real estate depended upon improvement in market conditions.
The plaintiff claimed that her employment options were limited by her injury. She could not take a sedentary position or one that was physically demanding.
Domestically the plaintiff displayed considerable stoicism. Immediately after her accident she was unable to cook or drive. This meant that her husband or older children took over the task of driving the children to their several schools. They ate takeaway food or frozen dinners.
The plaintiff said that sitting was her major problem and that was something, as a mother in a household of seven children, she had little opportunity to do. She said as a result she was not hindered by her injury in undertaking other household tasks.
There was no evidence of any prior or subsequent medical history that was relevant to the assessment of the consequences of the plaintiff’s injury.
Dr Griffith and Dr Silver provided medico-legal opinions.
Dr Griffith, on initial examination, suspected there had been a fracture and subluxation of the coccygeal segments. He recommended further investigation.
A CT-scan with SPECT was undertaken in February 2011. Dr Griffith said this confirmed his suspicion that there was significant pathology in the form of a fracture in the coccygeal region with displacement of coccygeal elements and active inflammation causing local tenderness. He recommended that the plaintiff use a hollow pillow to ease her discomfort when sitting.
The plaintiff chose not to do so. She considered that it gave her an unprofessional appearance at work. She said it was not needed at home because she rarely sat down. Dr Griffith stated that the only choices available to the plaintiff were to tolerate her current situation or to have surgery, the result of which was not guaranteed.
Dr Silver first examined the plaintiff in December 2010. He reported that she suffered traumatic coccydynia. He initially concluded that the injury resolved spontaneously without sequelae. He read the X-ray as displaying no recent fracture but noted damage to the coccyx that he said was the result of a longstanding fracture or an anatomical variation. Thus, he said, the plaintiff was fully recovered and her prognosis was excellent.
Dr Silver subsequently reported on the CT-scan. He agreed with Dr Griffith that it revealed a distal coccygeal fracture and the marked angulation described by Dr Griffith. He did not accept that these features were the result of the plaintiff’s fall. He suggested that they were more likely the result of the plaintiff’s obstetric history. I considered this unlikely, having regard to the absence of evidence of any pain or discomfort in this area prior to the date of the plaintiff’s fall in April 2010.
Dr Silver further examined the plaintiff in April 2012. He noted tenderness on examination that he considered to be surprising and said that it suggested there might be soft tissue involvement. He diagnosed on this occasion ongoing coccydynia after prolonged sitting with guarded prognosis and the likelihood that the plaintiff’s symptoms would continue. He said those symptoms were directly related to the plaintiff’s fall. In my view Dr Silver’s assessment of the plaintiff’s condition appeared to minimalise the extent of her ongoing symptoms.
The plaintiff was also examined by Dr Smith at the request of the defendant. Hid report was not made available to the court. I inferred that this would not assist the defendant.
The plaintiff presented to the court as open and frank concerning her condition. She did not appear to exaggerate or take advantage of her situation to secure the benefit of an allowance for assistance in the future with her domestic obligations. Rather she appeared to understate her situation.
I accepted that at the age of 47 she faced an extended period of chronic pain with physical restrictions. Her symptoms were likely to increase as she aged, and she necessarily adopted a more sedentary lifestyle. I assessed the plaintiff’s general damages at $65,000, allocating $25,000 to the past and $40,000 to the future.
The parties agreed that the plaintiff’s past income loss was $1,611. For the future the plaintiff said she intended to work to retirement age. She sought a buffer having regard to the restrictions she faced as a consequence of her injury to the range of employment available to her.
The defendant argued that a buffer was not required since the plaintiff was currently employed in real estate in work that she enjoyed and which she intended to pursue. I accepted that if it became necessary to find other employment the plaintiff would not be able to take sedentary work or work that involved significant physical activity.
I regarded this as a serious constraint on the income earning capacity of a female of her age and I awarded her $75,000 or one and a half years of her prospective income as a buffer against future unemployment.
Past out-of-pocket expenses were agreed in the sum of $3,111.33. The plaintiff claimed an allowance for the future in the event that she decided to proceed with surgery. This claim was opposed by the defendant who pointed to the minimal treatment provided to the plaintiff since injury and argued that the question of whether the plaintiff would proceed to surgery was purely speculative.
Again I disagreed with the defendant. Advances in medical science might well improve the prospects of success at the point when the plaintiff’s life becomes less active and she elects to proceed with surgery. I allowed $5,000 against this contingency.
In respect of the claim for domestic assistance I allowed for the past 10 hours a week for five weeks at $25 an hour in the sum of $1,250. As noted, there was no evidence of any future need for domestic assistance.
In summary, the result was that I awarded the plaintiff the following:
(a)General damages $65,000.00
(b)Income loss for the past $1,611.00
(c)For the future $75,000.00
(d)Out-of-pocket expenses for the past $3,111.33
(e)For the future $5,000.00
(f)Domestic care for the past $1,250.00
In addition to these figures I add interest in the sum of $1,000 on past general damages and interest in the sum of $320 on the past economic loss so that the total of the compensation awarded is $152,292.
The orders that I make are as follows:
1. Verdict and judgment for the plaintiff in the sum of $152,292.
2. The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. This order is suspended for 7 days to allow the parties to make further application should they wish to do so within that period.
3. The exhibits are returned.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Sidis.
Associate: Kayla Martin
Date: 4 May 2012
Counsel for the Plaintiff: Mr A Muller
Solicitor for the Plaintiff: Maliganis Edwards Johnson
Counsel for the Defendant: Mr D Shillington
Solicitor for the Defendant: Sparke Helmore
Date of hearing: 27 April 2012
Date of judgment: 1 May 2012
0
0
0