Antonini No 3 v SRA

[2008] NSWDC 33

CITATION:	Antonini v SRA (No. 3) [2008] NSWDC 33 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	3-5 March 2008
EX TEMPORE JUDGMENT DATE:	11 March 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $122,763.86. 2. The defendant is to pay the plaintiff’s costs on an indemnity basis in respect of the liability issue, and on an ordinary basis in respect of the quantum issue. 3. The exhibits are returned.
CATCHWORDS:	Train accident - Injuries related to accident - Personal and domestic care requirements
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Transport Administration Act 1988
PARTIES:	Helen ANTONINI STATE RAIL AUTHORITY
FILE NUMBER(S):	Newcastle 376/06
COUNSEL:	Plaintiff - C A W Hart Defendant - P Biggins
SOLICITORS:	Plaintiff - Bale Boshev Defendant - Gillis Delaney Lawyers

JUDGMENT

1 Mrs Helen Antonini was injured when her left leg was caught in the door of a train as it left Hamilton station late at night on 26 August 2003. She claimed against the defendant that it was negligent in the operation of the train from which she was alighting.

2 Although negligence was denied on the pleadings and an alternative claim of contributory negligence was made, the defendant put to the court no submissions on the issue of liability. Further, it was not contended that there was any contributory negligence. It was clear from the evidence that the doors of the train were closed prematurely in a situation where the plaintiff’s presence in the doorway should have been apparent to those operating the train.

3 I, therefore, formally find that the defendant was negligent in the operation of the train and in breach of its duty to the plaintiff, and I make no finding of contributory negligence.

4 The claim was brought pursuant to the Transport Administration Act 1988 which requires that claims in relation to transport accidents be assessed in accordance with the provisions of the Motor Accidents Compensation Act 1999.

5 It was agreed that the plaintiff’s injuries did not result in whole person impairment in excess of 10 per cent and, therefore, no claim is made for non-economic loss. The plaintiff is a retired pensioner and no claim is made for loss of income earning capacity.

6 The issues were:

1. The nature of the injuries suffered by the plaintiff in the accident;

2. The requirements for her care, both personal and domestic, generated by those injuries; and

3. The requirements for past and future out-of-pocket expenses generated by those injuries.

ISSUE 1 - INJURIES

7 The plaintiff claimed to have suffered injuries to her left leg, her back, her left shoulder and her neck.

8 At the time of the accident she was seventy years old. She is now seventy-four. Prior to the accident, as one might expect at the age of seventy, the plaintiff was suffering from some degenerative changes in her cervical, thoracic and lumbar spine. There had also been some incidents in her life causing her injury. She injured her shoulder in April 2000 and in a motor vehicle accident that occurred five days prior to this incident.

9 There is no doubt that this incident caused a fracture of the plaintiff’s left ankle which was reduced at the John Hunter Hospital. At the same time it was noted that she complained of mild left shoulder pain. The plaintiff in evidence said that the train, as it closed, also caught her left shoulder.

10 She was admitted to the John Hunter Hospital on 31 July 2003, discharged to Royal Newcastle Hospital for rehabilitation on 4 August 2003, and discharged to her home on 22 August 2003.

11 On discharge she required a wheelchair. She also was provided with a toilet and shower chair. She said she used the wheelchair for three months and then progressed to using crutches and subsequently to a walking stick. She continues to use the walking stick. She continues to complain of pain in her left leg, her back, her neck and her left shoulder.

12 The plaintiff was admitted to John Hunter Hospital on 30 June 2005 with complaints of acute exacerbation of chronic back pain. Investigations by x-ray, CT and MRI make references to degenerative changes. Dr Ghabrial examined the plaintiff in October 2004 and noted that the plaintiff complained that she had been developing symptoms in her lower back and symptoms in her neck which she attributed to the use of her walking stick. Dr Ghabrial’s opinion was that there were no residual problems with the neck, but that the pain and symptoms in the plaintiff’s back and right sacroiliac joint were the result of an abnormal gait following the injury to her left leg. He said the condition would persist and would aggravate pre-existing asymptomatic conditions of her spine. Dr Ghabrial said the left ankle had healed well but there was some residual deformity and stiffness, and some osteoarthritic change.

13 Dr Ferch, neurosurgeon, treated the plaintiff when she was admitted to the John Hunter Hospital in June 2005. He noted her complaint of a two year period of chronic back pain and bilateral lower limb pain. His opinion was that the back pain was associated with degenerative changes in the lower spine predominantly affecting the L4/5 and the L5/S1 levels. He treated the plaintiff with steroid injections at these levels of her spine. Those injections, the plaintiff said, had substantially relieved her symptoms. Dr Ferch reported that the incident involving the left ankle injury might have aggravated the pre-existing degenerative changes in the lumbar spine and precipitated the development of low back pain.

14 Professor Higgs in 2007 was satisfied that as a result of the incident the plaintiff had suffered the injury to her left ankle and a musculo-ligamentous injury to her lumbosacral spine with permanent aggravation of the age-related degenerative and osteoarthritic spine.

15 Dr Millons accepted that the plaintiff was suffering from a low level of continuing symptoms in her ankle, and that she could have aggravated degenerative changes in her back as a consequence of the incident because of the resulting immobility and altered gait pattern. He attributed one-third of the degenerative change to this incident. He said that her complaints were all reasonably consistent with the injuries caused by her accident. He offered a guarded prognosis and said a low level of ongoing problems was inevitable.

16 Dr Graham examined the plaintiff for the Medical Assessment Service in December 2005, noting that the plaintiff claimed to have suffered a fracture of the left ankle and soft tissue injuries to her back, neck and left shoulder. He rejected the claims relating to the neck and the left shoulder. He stated that the low back condition was not a direct result of the accident but an indirect result because it was reasonable that it could be the result of her limping. He said the condition was static and was unlikely to remit with or without treatment.

17 It is apparent, therefore, from this summary of the medical evidence that it supported the plaintiff’s complaints of the injury to the left leg, namely the fractures at the left ankle and the development of back pain as a result of the altered gait consequent upon the ankle injury. Only Professor Higgs suggested that there was in fact a direct musculo-ligamentous injury to the lower spine. All other doctors stated that it was an indirect injury through the aggravation of the pre-existing degenerative condition of the plaintiff’s spine.

18 I find that the injuries suffered as a result of this incident were a fracture of the left leg and aggravation of the pre-existing degenerative condition of the lumbar spine.

ISSUE 2 - NEED FOR CARE

19 The plaintiff’s evidence was that prior to the accident she had been entirely independent in personal and domestic care. She looked after her own three bedroomed house and a garden where she grew vegetables and flowers, although she paid for assistance in mowing the lawn. She drove her own car. This included trips to Sydney to see her son and daughter-in-law who lived in Sydney. She helped her children with their everyday affairs. She travelled by train every two weeks to Sydney for shopping and she was on one such excursion when this incident occurred. The plaintiff has two sons and a daughter.

20 At the time she was discharged from the Royal Newcastle Hospital one son was living with her. At that time she said she could do nothing for herself and her son cared for her when he was not working. A friend, Anna Petrovic, who also gave evidence, cared for her by cooking, cleaning, washing and dressing her. Mrs Petrovic said that she helped the plaintiff with shopping and banking and took her to appointments. Mrs Petrovic estimated that the time occupied was between two and three hours a day. This continued until about the end of 2005, when Mrs Petrovic needed to attend to her own health needs.

21 The plaintiff’s son, Richard Mutnica, then began assisting her. At the time he was living in Sydney with his wife and young child. When the plaintiff needed assistance, the family moved to Blackalls Park. Mr Mutnica commenced renovation of the plaintiff’s home so as to meet her problems with ambulation more adequately. For a period the plaintiff slept at Blackalls Park. Seven months ago Mr Mutnica and his family moved in with the plaintiff in the now renovated home at Mayfield. The household currently comprises the plaintiff’s daughter, her son Richard Mutnica and his wife and their six year old child. Mr Mutnica works at a club at nights and is at the house during the day to assist the plaintiff. Mrs Mutnica works during the day and cares for her at night. Although the plaintiff agreed that she can still drive, she no longer owns a car and she said she relied on her family to drive her to the shops or to medical appointments.

22 The plaintiff stated that her needs were as follows:

1. Assistance from bed to the shower in the morning, because she wakes with stiffness in her back and her ankle;

2. Assistance with showering;

3. Assistance with all housework;

4. Assistance with cooking, although she can do some light cooking;

5. Assistance with shopping. She says she goes to the shops with a member of her family. She does not shop alone.

6. Transport to appointments.

Apparently the garden is entirely neglected.

23 Mr Mutnica estimated that he spent between five and six hours a week caring for the plaintiff. Mrs Mutnica’s estimate of the time that she provided for the plaintiff was three to four hours a week. The totals of these estimates was eight to ten hours a week.

24 Of the medical advisors, only Dr Millons made any reference to domestic and personal care. He stated that the plaintiff’s needs would be met by two to three hours a week to deal with heavier housework. He considered the proposal by Allison Elvis of six hours a week for domestic care, twelve hours a year for personal care, and eight hours a year for spring cleaning to be excessive. He considered the proposal by Amanda McLaughlin of thirty minutes per fortnight to be inadequate. In my view, this estimate was clearly unacceptable because it was based on cleaning needs at a time when the plaintiff’s house was under renovation and was not being cleaned on a regular basis.

25 It is clear that a reasonable provision for the plaintiff’s needs arising from this accident falls between these competing estimates. I have concluded from the evidence that the plaintiff’s mobility and capacity has been affected by both the injury to her leg and the back pain which was the consequence of the accident and the pre-existing conditions which were the result of other injuries and the aging process.

26 I have formed the view that the claims made for past care are excessive. I find that the evidence supports the following allowance in respect of the injuries from this accident:

1. For personal and domestic care for a period of six weeks following the accident an allowance of fourteen hours per week.

2. Thereafter and into the future, in my view, an allowance of six and a half hours per week is reasonable.

27 I have been asked to provide for future care at commercial rates on the basis of the plaintiff’s evidence that, if funded, she would pay for assistance. I do not think that this family will engage commercial assistance beyond perhaps two hours a week for the heavy housework.

28 For the future, therefore, I have allowed four and a half hours at the voluntary assistance rate of $22.91 per hour and two hours at the commercial rate of $33 per hour. I have also limited the allowance to eight years on the basis that I consider it probable that, the plaintiff by then being into her eighties, a need would arise in any event by reason of her age and the pre-existing unrelated conditions.

29 Equipment as claimed has been allowed in the sum of $349.30, except for the armchair and the kitchen stool in respect of which there was no evidence.

30 Occupational therapy advice has not been allowed because it has not been supported by evidence.

31 Past out-of-pocket expenses have been allowed in the agreed sum of $4,604.40.

32 Future out-of-pocket expenses have been allowed as claimed, but they have been discounted by 40 per cent to take account of the plaintiff’s pre-existing medical conditions and her advancing age.

33 The result is as follows:

1. Domestic care for the past for twenty-six weeks, $7,098; for 262 weeks at six and a half hours at the voluntary assistance rate, $36,614.50; for the future for eight years, four and a half hours at $22.91, $35,630; two hours at $33, $22,810. The total allowed for the plaintiff’s care is $102,152.50.

2. Past out-of-pocket expenses, as stated, are allowed in the sum of $4,604.40.

3. For the future the allowance is $15,657.66, making a total of $20,262.06.

4. Equipment is allowed in the sum of $349.30.

34 The total of these sums if $122,763.86. There will be verdict and judgment for the plaintiff accordingly.

35 The plaintiff asks for costs on an indemnity basis based upon an offer of compromise served upon the defendant on 10 July 2007. The difficulty with the offer of compromise is that it offers a compromise in the sum of $80,000 plus out-of-pocket expenses. The amount ultimately awarded for out-of-pocket expenses exceeded $20,000. The amount claimed was in excess of that.

36 In the circumstances, it appears to me that the offer of compromise cannot be relied upon.

37 The plaintiff does make the point that the defendant maintained its position on liability until the opening day of the hearing, and that the plaintiff came to the court prepared to deal with the issue of liability. It did appear to me to be a case where the defendant ought to have been well aware in advance of the hearing date that its position was weak.

38 Accordingly, I propose to allow costs on an indemnity basis in respect of the liability issue and on an ordinary basis in respect of the quantum issue.

1. Verdict and judgment for the plaintiff in the sum of $122,763.86.

2. The defendant is to pay the plaintiff’s costs on an indemnity basis in respect of the liability issue, and on an ordinary basis in respect of the quantum issue.

3. The exhibits are returned.

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