Atkinson v Foote
[1991] TASSC 45
•5 April 1991
Serial No 17/1991
List "A"
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Atkinson v Foote [1991] TASSC 45; A17/1991
PARTIES: ATKINSON, Mark
v
FOOTE, Karen Jane
FILE NO/S: FCA 127/1990
JUDGMENT
APPEALED FROM: Foote v Atkinson B79/1990
DELIVERED ON: 5 April 1991
DELIVERED AT: Hobart
JUDGMENT OF: Cox, Underwood and Zeeman JJ
Judgment Number: A17/1991
Number of paragraphs: 21
Serial No 17/1991
List "A"
File No FCA 127/1990
MARK ATKINSON v KAREN JANE FOOTE
REASONS FOR JUDGMENT FULL COURT
COX J
UNDERWOOD J
ZEEMAN J
5 April 1991
Order of the Court
Appeal dismissed.
Serial No 17/1991
List "A"
File No FCA 127/1990
MARK ATKINSON v KAREN JANE FOOTE
REASONS FOR JUDGMENT FULL COURT
COX J
5 April 1991
The appellant challenges the award by the learned trial judge of damages in the sum of $55,000.00 under the head of loss of earning capacity from October 1988 claiming that his Honour erred in making a number of specific findings and that such award was, in any event, manifestly excessive. In addition, he challenges the award of $26,000.00 for damages for pain and suffering and loss of amenities as being manifestly excessive and the consequence of an erroneous finding of fact that it is unlikely the respondent's condition would improve significantly in the future; and finally, he challenges an award of $1,800.00 for the contingency that future diagnostic or surgical procedures might properly be undergone by the respondent. I will detail this ground of appeal in due course.
The respondent, on 13 December 1986, suffered a whiplash injury when involved in a motor car collision with a vehicle driven by the appellant. Liability was admitted. She was 23 years of age and was in the twelfth month of a two year course as a trainee auxiliary nurse at St John's Park, a geriatric hospital at New Town. A considerable proportion of the work of such nurses involves lifting, carrying and supporting elderly patients. Although never hospitalised or given surgical treatment, she was sufficiently disabled by the injury she received to be unable to work until mid–February 1987. Upon returning to her duties, she was at first able to cope with her work quite well, but upon resuming her heavy lifting duties and similar tasks, she found that her neck became progressively worse and soon reached its original severe level. In March 1987, she took time off from work until June of that year, presenting herself in May to undergo examinations she had been prevented by the accident from attempting the previous December. She found studying aggravated her symptoms, although she achieved good academic results.
In August and September she was off work for a gall bladder operation quite unconnected with the accident, and on her return, was once more able to cope with her work, although she "had good days and bad days still". Following the Christmas break in December 1987, she returned to work in mid–January 1988 and, having been transferred to work in a ward where heavier lifting was required of her, found before long that the old pattern of symptoms had re–established itself. Nevertheless, she was able to obtain credits in her examinations. By June 1988 as part of the continued sympathetic co–operation she was receiving from the administrators of the hospital, she was given a position assisting the recreation officer involving much lighter duties, and in July she transferred to a ward where light duties were available, although she still needed to wear her neck collar while working. In August 1988 she sat for State examinations and achieved credits in all subjects. In mid–October 1988 her course formally ended and her employment was terminated. Had it not been for her injuries, it is common ground that she would have completed her course in about January of that year.
She then sought work as a trained auxiliary nurse at a geriatric hospital on the North–West Coast and being unsuccessful, in November 1988 sought "on call" work at St John's Park. The Acting Director of Nursing, Ms Fawdry, expressed concern in a letter dated 5 December 1988 stating:
"You will be aware that this concern in no way reflects your capabilities, nor indeed your professional reputation. The concern is based on our previous experience of your inability to adequately physically perform the functions of your role.
To be placed 'on call' would necessitate your ability to work in all situations and on all wards throughout St John's Park.
I am prepared to further consider your request on the presentation of two (2) specialist medical reports indicating your 'fitness' to carry out the role and function of a TAN at St John's Park."
The respondent then applied for a number of positions as a child care attendant, but was unsuccessful until about early May, when she obtained casual employment of 2 to 3 days per week at the Jack and Jill Childcare Centre. She found that she could cope with this work, but in June 1989 moved to Queensland with her present de facto husband with whom she was by then romantically involved. She anticipated that the warmer climate might provide her with long term relief for her painful neck symptoms. She also found that there were few jobs available in Hobart at the time for trained auxiliary nurses outside the geriatric area, and she had realised that she should avoid employment involving constant heavy lifting.
In Brisbane she obtained employment as a trained auxiliary nurse at a hospital working in the sterilizing department. The learned trial judge found this work much less arduous than the duties she had been performing at St John's Park, or would have been required to perform in wards at other hospitals. Generally, she was able to cope with this work and lost only about five days work during her seven months' employment there, three of them due to pain developing when she attempted to play ten–pin bowls, a sport in which she had previously played competitively.
In February 1990 she returned to Tasmania, her main reason for doing so being that she found the Queensland heat oppressive and it had failed to provide long–term symptomatic relief for her neck. She applied for a job at the New Norfolk District Hospital, which was not available, and then procured work at the Kingborough Nursing Home on 28 February 1990 doing duties similar to those normally required at St John's Park. She said in her evidence:
"Probably just after about a week of being in there I progressively got worse. My neck started to get sorer and sorer and my shoulder to the stage after I was there about a month I was having a lot of trouble with my neck, a lot of trouble carrying out the duties there so I went to see a doctor, Dr Marstrand at the Hopkins Street Clinic and she wanted me to stop work more or less immediately and because I'd only just started there and didn't want to sort of let them down and also let myself down, because I needed the money, I tried to keep working but probably after two days after I'd seen her I had to come off work because of my neck. I just couldn't lift any more."
She was then off work for about 2½ weeks. Although there was a discrepancy in the evidence as to the circumstances in which she left, his Honour found that she ceased working at that Home following a period of incapacity brought on by the heavy nature of her work. In May 1990 she moved to Launceston with her de facto husband and unsuccessfully applied for work as an auxiliary nurse at St Vincent's Hospital. She commenced a typing course at the TAFE. in Launceston, but abandoned it finding that constant sitting aggravated her neck. In September 1990 she sought work at St Luke's Hospital, Launceston and on 12 November procured a job making sandwiches on a full time basis. At the time of trial (early December 1990) she was still employed there and was seeking to enrol at the TSIT for a degree in medical science. She also acknowledged that at that time she was continuing to look for work as an auxiliary nurse.
The appellant challenges the learned trial judge's finding that it was highly likely that the respondent would have continued on at St John's park after her qualification in October 1988 had she been 100% physically fit. In my view, this finding is unassailable. The respondent gave evidence that, but for her injuries, she would have stayed on as the hospital authorities were offering three months' temporary work to all students who finished the course, and she would have stayed there for those three months "and then the option probably of more temporary work or permanent work being offered". The fact that prior to receipt of any formal offer of three months' temporary full time employment, the appellant had applied for work on the North–West Coast and did not accept that offer is in no way inconsistent with his Honour's finding. The fact is that by that stage she had been injured, she had encountered difficulties in doing the job, a continuation of which was offered, and had managed to stay on by reason of sympathetic treatment by the hospital authorities who had gone out of their way to find light duties for her. She was still receiving treatment, was in need of rest, and her decision to move to the North–West Coast where her home was is fully explicable. The situation would have been quite different had she not had the accident–caused disabilities. Three months' work was on offer and she would have been ready, willing and able to accept it. The evidence also clearly showed that at the conclusion of the three months' temporary full time period, "on call" work was also available. Ms Fawdry also gave evidence that it was the hospital's policy to retain the services of all auxiliary nurses who trained at that hospital, that they were all offered temporary employment for three months "at which time we would hope that it would become permanent". Of course, there was other evidence which demonstrated that many did not remain on the staff, and that only a small proportion of graduates of the respondent's course were now employed there on a full time or "on call" basis but the basic finding was clearly open to his Honour.
The second finding challenged was that in all probability the respondent would have remained in constant employment as a trained auxiliary nurse until the present time had it not been for the injury that she sustained to her neck in December 1986. In making that finding, his Honour noted the high regard in which she was held by Ms Fawdry and Mrs Molleson, both senior nursing administrators, as well as the respondent's good academic results and her high degree of motivation. She was clearly a better than average prospective employee, and had she elected to take the three months' temporary full time work and thereafter sought "on call" work, her chances of remaining in constant employment with St John's Park were very good. There was evidence that of the fifteen graduates of January 1988 (when the respondent would otherwise have graduated) six were still currently employed there (four of them on a full time basis, one "on call", and one part–time for 32 hours per week). Those who were now full time had not always had that status, but had been "on call" and had become full time as vacancies occurred. There is no reason why the respondent should not have had similar continuity of employment at St John's Park had she wanted it. But for her injury and the failure to get relief from it in Brisbane, her sojourn there might well have been a lot longer, while although there are relatively few vacancies for trained auxiliary nurses in other Tasmanian institutions, there are quite a number of positions and some turn–over. In my view, this was a finding clearly open to the trial judge notwithstanding evidence that there had been changes of policy and a favouring of staff with general nursing qualifications if they were available. It should be remembered that the finding was merely of constant employment, not necessarily of constant full time employment.
The third alleged error in his Honour's findings was described as an error "in rejecting the appellant's contention that the employment pattern for trained auxiliary nurses revealed by all of the evidence indicates a likelihood that the respondent would not be employed full time as an auxiliary nurse if she was working as an auxiliary nurse at the present time". Mere statistical information of the pattern of employment of trained auxiliary nurses in institutions from the administrators of which evidence was adduced is of little assistance in determining the probabilities of the respondent being now employed full time but for the accident. It is abundantly clear that many of those presently employed choose to work on a part time basis because of other family commitments and the fact that there are many part time auxiliary nurses in no way affects the probabilities of the respondent procuring and retaining full time work in my view. The preference for nurses with general training may reduce the respondent's chances of being employed as a trained auxiliary nurse, but not to the extent of precluding a finding which was heavily dependent on the trial judge's assessment of the respondent's capacity and motivation that in her case she would probably have succeeded in procuring full time work.
The next principal criticism of his Honour's award is that it relied too heavily upon the evidence of neurosurgeons, Mr Liddell and Mr Hunn, to the effect that the respondent should avoid work involving repeated lifting and that he failed to pay regard to the respondent's own willingness, if not determination, to undertake work of that sort as evidenced by her repeated attempts to procure employment as a trained auxiliary nurse where heavy lifting was likely. In my view, his Honour was fully entitled to accept the medical evidence, the effect of which was that heavy lifting should be avoided lest it result in further symptoms. The fact that the respondent may have been willing to take the risk if the opportunity were given her does not require any devaluing of this evidence. In any event, when in early 1990 she undertook work of that kind at the Kingborough Nursing Home, she developed disabling symptoms very quickly. She was fortunate in Queensland to have a job which did not expose her to the same risk, but such jobs are, obviously, rare.
In my view, his Honour was fully justified in assessing damages for loss of earning capacity on the basis that her injuries are such as to effectively preclude her from full time work in the calling for which she trained so meritoriously and for which she demonstrated such enthusiastic aptitude.
Given such a basis and in the light of the evidence of the difficulties which she has had in procuring other employment, let alone performing the tasks it may entail, I think a lump sum award of $55,000.00 is not over generous if her condition is unlikely to improve significantly in the future (as to which I will return). Some unspecified part of this sum may be taken to represent compensation for her inability to achieve earnings whether as a full time or "on call" auxiliary nurse during the periods prior to trial when she was not in employment. The evidence indicates that had she been in such employment full time prior to trial, making due allowance for actual earnings received, she would have been some $21,500.00 net better off. She may well not have obtained full time employment throughout this period as the "on call" experience of her contemporaries indicates, but even on a constant basis which was part time for some of that period, the economic loss due to the diminution of her earning capacity to the date of trial could still amount to a substantial sum, leaving as provision for the future a figure significantly less than $55,000.00.
In my view, it has not been demonstrated that his Honour's award in respect of loss of earning capacity has been in any way erroneous.
An award of $26,000.00 for pain and suffering and loss of amenities in this case is, in my respectful view, at the top of the range, but it has not likewise been shown to be erroneous. It is true that the respondent was never hospitalised nor subjected to surgery, but his Honour took into account the chronic nature of her condition and her vulnerability to the onset of pain brought about by relatively common place physical activity. A challenge was mounted to his finding that it was unlikely that her condition would improve significantly in the future (a matter of significance, obviously, common to both aspects of her claim for damages). Nevertheless, his Honour was entitled to accept the opinion of Mr Liddell expressed in his report of 30 August 1990:
"Inasmuch as she continues to experience significant discomfort, almost five years post injury, I expect that she will continue to experience significant discomfort for a prolonged period.
Furthermore, as the improvement in her symptoms, alluded to in Mr Duffy's reports, does not appear to have occurred, I still believe that it may be appropriate to further investigate her, with a view to considering surgical intervention."
and his oral evidence that her symptoms may never resolve.
While conceding that there are unfortunately many plaintiffs considerably worse affected by their injuries than the respondent in this case and whose awards, though considered appropriate by the courts, are nonetheless not proportionately higher and may represent but cold consolation for their sufferings, the respondent's injuries are sufficiently severe and chronic to justify a substantial sum by way of general damages. I do not think it has been shown that the sum of $26,000.00 is manifestly excessive.
The final sum the subject of this appeal is an allowance of $1,800.00 against the possibility that the respondent's condition will deteriorate to such an extent that she may elect to undergo diagnostic and surgical procedures. His Honour said:
"Taking into account the hospital costs and surgeons' and anaesthetists' fees, as well as the [respondent's] potential loss of income, I think it would be reasonable to allow a moderate sum against this contingency. I propose to allow the sum of $1,800."
I have already cited Mr Liddell's opinion that such procedures might well be appropriate, although he did not express it in terms of probability. Nevertheless, his evidence makes it clear that it was more than a mere or remote possibility. It is argued, in effect, that it is rendered a remote possibility for which no allowance ought to be made by the respondent's own evidence that she would not be prepared to undergo such procedures unless she had some assurance that they would be successful and that no such assurance could be given. Nevertheless, she is not to be irrevocably held to that position even if it does represent her present intentions. The contingency still exists that she may be forced to change her attitude by the severity andor persistence of her symptoms.
It is clear from the authorities that possibilities so remote as to be merely speculative ought to be disregarded in the assessment of damages, but that otherwise they require evaluation as prospects or chances and should be compensated accordingly (Davies v Taylor [1974] AC 207, Bartlett v Buckfield [1974] 2 NZLR 182, Callaghan v William C Lynch Pty Ltd (1962) 79 WN(NSW) 830, Chaplin v Hicks [1911] 2 KB 786 and Malec v J C Hutton Pty Ltd (1990) 169 CLR 638). From the evidence, the surgeons' fees would be in the order of $2,500.00 while hospital accommodation in shared wards for a possible sojourn of about fourteen days would be well over $4,000.00. In addition, there would be theatre fees to say nothing of possible loss of earnings during a period of convalescence of anything from one to six months if surgery were undertaken. Thus an allowance of $1,800.00 against this contingency represents a very substantial discount of the actual cost should it eventuate. I do not think it can be said for a moment that such an allowance was greater than the evidence justified.
In my view, the appeal should be dismissed.
File No FCA 127/1990
MARK ATKINSON v KAREN JANE FOOTE
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
5 April 1991
I agree with the reasons for judgment of Cox J I would dismiss the appeal.
File No FCA 127/1990
MARK ATKINSON v KAREN JANE FOOTE
REASONS FOR JUDGMENT FULL COURT
ZEEMAN J
5 April 1991
I agree that this appeal should be dismissed for the reasons prepared by Cox J which I have had the advantage of reading.
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