Beard v Franklins Limited No. DCCIV-96-1634 Judgment No. D3644

[1997] SADC 3644

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Taylor

Hearing

12/06/97 to 13/06/97.

Catchwords

ASSESSMENT OF DAMAGES - Accident by customer in shopping centre - Injury to knee.Loss of earning capacity both past and future earnings $26,000; Non-economic Loss $10,000; Special Damages $4,300; Future Medical Expenses $500; Total $40,800. 51 year old female masseuse; No permanent disability; Past economic loss $26,000.00; Past non-economic loss $10,000.00; Past special loss $4,300.00; Future special loss $500.00

Representation

Plaintiff ELAINE FLORENCE BEARD:
Counsel: MR S COLE - Solicitors: NELSON MANFIELD

Defendant FRANKLINS LIMITED:
Counsel: MR N SWAN - Solicitors: PROUD &; COMPANY

DCCIV-96-1634

Judgment No. D3644

21 July 1997

(Civil)

BEARD v FRANKLINS LIMITED

Civil

Judge Taylor

On the 13 November 1993 Mrs Beard (the plaintiff) was in the Clovercrest Franklins supermarket.After making some purchases she said:-

"I was walking to the checkout and I was walking and the next thing I knew I had fallen down on the floor; I could not stop myself from falling......

I fell and struck my left knee quite heavily on the floor.My right leg went out to the other side, I pulled right through the back of the top part of my right leg and I must have thrown my right arm back and collected a milk container or something behind me and I had a small gash on my wrist."

She described her immediate symptoms as follows:-

"I was in quite a great deal of discomfort; I actually left the Franklins supermarket after I had left a report; .......

My left knee was very sore, the back of my right leg was quite sore as well."

The accident happened on a Saturday and she visited her general practitioner Dr Cameron on the following Tuesday and he referred her to a physiotherapist.

The plaintiff was born on the 16 August 1942.

She worked for some fourteen years as a shop assistant then for a period as a waitress and she married in 1976.

In 1985 she studied at the Adelaide Massage Study Centre and in 1988 she commenced her own business as a masseuse and later on leg waxing in addition.

She said that her work in massageinvolved many private clients and also clients sent by Workcover ComCare.She carried out that work from her home.

Her pre-accident activities included bike riding, aerobics, swimming and dancing.

Two specialist orthopaedic surgeons gave evidence concerning her condition being Dr Christopher H Brown who was her treating surgeon and Dr Geoffrey Jose, Orthopaedic Surgeon who examined the plaintiff and wrote reports and gave evidence concerning his findings.

The plaintiff is now 54 years of age and I accept the evidence of Dr Jose and Dr Brown that she has degenerative changes in both knee structures.As to her right knee Dr Brown said:-

"I believe that she had some pre-existing degenerative changes within the knee and these were certainly confirmed on arthroscopy.I suspect that the symptoms with respect to this knee probably represented a consequence of gait alteration from her left knee problems, but that the accident per se, apart from this link, has not been a direct cause of major pathology in the knee and would therefore agree with Mr. Jose's assessment that the right knee symptoms per se are not related to injury sustained in the subject fall."

Dr Jose has no doubt that the symptoms in respect to the right knee are not connected to the accident and there is no evidence of any gait alteration of the plaintiff and I accept his evidence that if there was a gait alteration to effect that knee it would have to be such a substantial gait alteration that it would be obvious.

I find that there was no such gait alteration and I accept the evidence of Dr Jose that the problems she experienced with her right knee are the result of pre-existing degenerative changes and are not related to this accident.

The plaintiff gave evidence that during her self employment as a masseuse she never had any symptoms in either knee but her evidence is that some time after the accident she commenced working in a cosmetics counter in a store and I accept the evidence of Dr Jose that the change in employment and using her knees, for example obtaining stores from low shelves, was a different use of her knees than she had been use to before and consequently the pre-existing conditions which had previously been symptomless then caused her discomfort.

Dr Brown performed an arthroscopy on both of her knees.

There was removal of some fatty tissue close to her right knee but I find and accept the evidence that this had nothing to do with the accident.

I find that after the accident the plaintiff was unable to continue her work as a masseuse for two to three days but then continued.

I find that from all of the statistical and diaryevidencebefore methat from then on her client numbers increaseduntilshe gave up that work to work in the cosmetic counter.

I find that her giving up her work as a masseuse was unrelated to the accident and she gave up that work for domestic reasons.

I find that if she worked she could perform most of her former masseuse work.

Having regard to the evidence of Dr Jose and Dr Brown I find that if there had been no accident on the 13 November 1993 that at the time of this assessment the degenerative changes in her left knee might have been somewhere near as it is now notwithstanding the accelerating effect of the accident.

Liability was admitted and this matter comes on for an assessment only.

A list of special damages has been submitted and the amounts have been agreed but the defendant contends that a great number of the attendancesdo not relate to any injury caused in the accident or in any event not proved to have been caused in the accident.

Where there is a difference in the prognosis ofthe problems with the plaintiff's left knee I prefer the evidence of Dr Jose to that of Dr Brown although there is very little in it between either of their opinions.

I find the opinion of Dr Jose closer to that of the evidence of the plaintiff herself and the work she performed after the accident and in her masseuse work; I note that she commenced the leg waxing part of her work after the accident.

I am satisfied and I find that her left knee was injured in the accident as described by Dr Brown as he observed in the arthroscopy and I find that because of that she lost work for some two to three days after the accident.

Because she changed her employment some months after the accident and then suffered pain in both knees it is a difficult exercise to attribute what the degenerative changes to her left knee were as opposedto the progression of the injury.

Having regard to all of the medical evidence and her evidence I think it is more probable than not that the changes to her left knee as a result of the accident have been accelerated beyond what the normal progression would have been but not to a very great extent.

As a result of the fall the plaintiff also suffered some pain to her lower back and this has caused her some on-going problems although I accept the evidence that this is not now a significant problem, nevertheless it is a matter that I must have regard to in assessing the damages.

The plaintiff is unable to give evidence of any diminution in her masseuse work eg cancellations and in fact the evidence shows that so far from being restricted in what she was able to do she in fact expanded her range of activities.

She certainly had symptoms in relation to her left knee for some time which at that time were not sufficiently serious to stop her working.

Her evidence was that the symptoms died down and I am satisfied that they flared up again in relation to both knees when she changed her employment.

In assessing her damages,I find that her immediate loss of income related to the two days off which she took immediately after the accident and as to her future loss of earning capacity, I arrive at a figure as best I can having regard to the problem which I haveaverted to and using as best I am able the tax returns and income earning ability of the plaintiff.

I will only make two calculations in this assessment, one a total of her loss of earning capacity both past and future earnings and I am satisfied that a total sum of $26,000 is a proper amount to fix under that head.For her non-economic loss Ifind that she suffered pain in her left knee for a considerable period and continuing discomfort and pain and discomfort to her back and the other minimal injuries she sustained and I allow her $10,000 under that head.

The plaintiff submitted a list of special damages which total $5,774.41.

The plaintiff has not proved that a number of these attendances relate to the accident.

Some of the amounts are conceded by the defendant as specifically relating to the accident and in addition to those concessions I find that it is more probable than not that some of the other attendances also relate to the accident and without analysing each amount referred to on the schedule submitted I allow the sum of $4,300.

I believe she may require some analgesics and other medication to relieve her pain in the future and I allow her a sum of $500 under that head.

There will therefore be judgment for the plaintiff for the sum of $40,800.

IN COURT ON MONDAY 21 JULY 1997

H.H. hands down his Judgment.

I fix a total sum of $700 by way of interest.

There will be judgment for the plaintiff for the sum of $41,500 plus costs to be taxed or agreed.