Bourke v Clements and Marshall Pty Ltd
[1991] TASSC 184
•29 November 1991
Serial No B70/1991
COURT: SUPREME COURT OF TASMANIA
CITATION: Bourke v Clements and Marshall Pty Ltd [1991] TASSC 184; B70/1991
PARTIES: BOURKE, Margaret Anne
v
CLEMENTS AND MARSHALL PTY LTD
FILE NO: WC 198/1987
DELIVERED ON: 29 November 1991
JUDGMENT OF: Wright J
Judgment Number: B70/1991
Number of paragraphs: 25
Serial No B70/1991
File No WC 198/1987
MARGARET ANNE BOURKE v CLEMENTS AND MARSHALL PTY LTD
REASONS FOR JUDGMENT WRIGHT J
29 November 1991
The plaintiff, Margaret Anne Bourke, is a single woman who lives with her mother at Cygnet in Tasmania. She is now aged 26 years. On 9 October 1985 she was employed by the defendant company at the defendant's apple processing plant at Lymington just south of Cygnet. Her job involved standing beside a conveyer belt removing rotten apples and putting the good apples in position to have the core removed by a coring machine. She was also required to remove bruises and blemishes from the good apples and place the rejected parts into a bucket with the rotten apples. From time to time it was necessary to empty the bucket of rotten apples and although this task was usually undertaken by a male employee, the plaintiff was required to perform that job when he was unavailable.
On 9 October 1985 after lunch, the plaintiff was required by a fellow employee to remove the bucket of rotten apples. To gain access to the bucket it was necessary for the plaintiff to go to the coring machine (referred by her throughout her evidence as a "corking machine") and mount some steps passing over the conveyer belt. She says that as she put her foot up onto the steps her right leg slipped on an apple peel. She swung her left leg over to balance herself on the other side and her left leg hit the top of the conveyer belt, causing her to fall on top of her left knee on the step. She said that her left knee landed on the side of the conveyer belt and she then fell on top of her left knee, grazing it and her right knee as well, causing both of them to bleed. She had a cut on the left knee and a graze on the right knee. The piece of apple peel upon which she slipped became wedged in the sole of her netball shoes which she had worn to work that day.
A fellow employee who was operating the coring machine, Ms Vicky Barrett, came to her assistance and helped her outside the building whereupon further assistance was given by Mr Pat Synot, the male employee whose job it usually was to empty the bucket of rotten apples. Mr Synot took her to a local medical practitioner, Dr Kirk. The plaintiff said that Dr Kirk took x–rays, wrapped her left leg in a bandage and gave her some pain killing tablets and instructed her to go home and rest the damaged leg for a couple of weeks. She did this and returned to work after about two weeks' convalescence.
In the course of cross–examination, the plaintiff was vigorously questioned about the manner in which the accident had occurred. At one stage I asked counsel for the Defence, Mr Hill, "Is there a serious issue as to the mechanism of this injury, Mr Hill?" to which he replied, "Well there could be your Honour, yes, I don't wish to dwell on the point but I'd like to get some more detailed explanation as to how the witness says the accident did occur and the injury was sustained". I replied, "Yes, all right, if you see it as having some relevance, yes". I mention this because at no stage during the course of cross–examination was it put directly to the plaintiff that she had fabricated her story about injuring her leg at work on 9 October 1985. It was, however, put to the plaintiff that in the presence of three fellow employees on the day that she returned to work, late in October that year, she had said that she had not injured her knee at work as claimed by her but had injured it in the course of a motor vehicle accident the previous evening, ie on 8 October 1985.
No evidence was given by either Ms Vicky Barrett or Mr Pat Synot and no evidence was given by Dr Kirk. It is plain that evidence from these three witnesses would have been of great assistance in determining issues as to the genuineness of the plaintiff's present claim. If the case had been pleaded in such a way as to put the plaintiff upon notice that it was being alleged that her claim was a false one, the absence of these three witnesses may have been of critical importance, particularly in view of the fact that the defendant called Mrs Cowen and Mrs Arnold, two of the three employees who were said to have been present when the plaintiff made her damaging admissions, to give evidence of what the plaintiff said on that occasion. I shall discuss the substance of their evidence in a moment.
To understand the significance of the pleadings in this case it is necessary, I think, for me to reproduce them in their entirety:
"AMENDED GROUNDS AND PARTICULARS
1 The Plaintiff's claim is for workers' compensation for that :–
(i)on or about the 9th day of October, 1985 the Defendant was the employer of the Plaintiff within the meaning of the Workers' Compensation Act 1927;
(ii)on the said date the Plaintiff suffered personal injury by accident arising out of and in the course of her employment with the Defendant at the Defendant's factory at Lymington Road, Cygnet in Tasmania, when she hurt her leg after tripping on apple peel on the factory floor;
(iii)the injury suffered by the Plaintiff resulted in damage to the left knee which, from time to time since the 9th day of October, 1985, has prevented, and currently continues to prevent, the Plaintiff from resuming her employment with the Defendant;
(iv)the Defendant accepted liability to pay and paid compensation to the Plaintiff in respect of the said injury pursuant to the provisions of the Workers' Compensation Act;
(v)on dates which the Plaintiff cannot specify until after discovery, but in any event from the 20th day of February, 1987 to the date hereof and continuing, the Defendant has wrongfully refused to make payments of compensation to the Plaintiff in respect of the said injuries;
(vi)by reason of the said personal injury suffered by the Plaintiff, the Plaintiff has a ten per cent residual loss of function of the left leg.
AND the Plaintiff claims :–
(a)A declaration that she is entitled to compensation pursuant to the provisions of the Workers' Compensation Act.
(b)Weekly payments of compensation calculated in accordance with the First Schedule of the Act for such period that the Plaintiff has been incapacitated for work on account of the said injury and in respect of which she has not received weekly payments, and in any event from the 20th day of February, 1987 to the date hereof and continuing.
(c)Payment of all medical, hospital and allied expenses incurred by the Plaintiff in respect of her said injury and payable by the Defendant pursuant to Section 8A of the aforesaid Act, but not already paid by the Defendant.
(d)$2,899.38 in respect of the ten per cent residual loss of function of the Plaintiff's left leg.
(e)Costs.
DEFENCE
1The defendant admits paragraphs 1 (i) of the grounds and particulars.
2Save that the defendant does not admit that the plaintiff hurt her leg as alleged the defendant admits the other allegations contained in paragraph 1 (ii) of the Grounds and Particulars.
3Save that the defendant does not admit that the said injury continues to prevent the plaintiff from resuming her employment with the defendant, the defendant admits the other allegations contained in paragraph 1 (iii) of the Grounds and Particulars.
4The defendant admits the allegations contained in paragraph 1 (iv) of the Grounds and Particulars.
5The defendant denies the allegations contained in paragraph 1 (v) of the Grounds and Particulars.
6The defendant says that the plaintiff is not entitled to the relief sought."
Read in conjunction with the Amended Grounds and Particulars of the plaintiff's claim, it seems clear that the Defence, in pars2 and 3, is limiting the issues in such a way that they may be reformulated as follows:
"The defendant does not admit that the plaintiff hurt her leg in the manner alleged in par1(ii) of the Amended Grounds and Particulars, but admits that she did suffer personal injury by accident arising out of and in the course of her employment at the defendant's factory on the day in question. Furthermore, the defendant, appears to confine its contest to the continuing disability alleged by the plaintiff, ie, by the admission made in par3, the defendant appears to be admitting that from time to time since 9 October 1985, the plaintiff's injury has prevented her from resuming her employment."
The apparent inconsistency between these pleadings and the evidence adduced by the defendant from Mrs Arnold and Mrs Cowen was the subject of debate at the trial. Despite being afforded every opportunity to apply to amend the Defence to either broaden or clarify the matters in dispute, Mr Hill declined that invitation. By adopting this course it appears to me that the defence has put itself in a very difficult position. In the first place I can hardly be critical of the plaintiff for failing to call Mrs Barrett and Mr Synot to give evidence as to their knowledge of the plaintiff's mishap. The defendant does not seek directly or indirectly to challenge the proposition that the plaintiff did suffer injury by accident at her place of employment on 9 October 1985. It was not suggested that she deliberately staged that accident to provide her with a plausible basis for claiming compensation for injuries received the previous evening. If this fact had been put in issue, the evidence called from Mrs Arnold and Mrs Cowen would go a long way towards defeating the plaintiff's claim. However the defence does not invite me to use their evidence for this purpose, but rather, as I understand it, simply as material admissible pursuant to s98 of the Evidence Act 1910, having a general tendency to damage the credit worthiness of the plaintiff, rather than as constituting a direct admission by her against her present interest. Why the defence attack upon the plaintiff should be limited in this way I am at a loss to understand, but I must do the best I can to resolve the disputed issues within the parameters drawn by the pleadings and the specific concessions made by defence counsel at the trial.
At p526 of the transcript Mr Hill made the following statements:
"Let me say the defence doesn't contend that the plaintiff didn't suffer an injury on that day in the course of her employment ... the defence accepts that she did trip and suffered a laceration to the leg or to the knee but it's then a question as to what flowed from that and what incapacity flowed from that ... it was never put to the plaintiff that that injury didn't occur."
Later on at p529 Mr Hill said:
"For the purposes of this case it's accepted by the defendant that the plaintiff suffered injury, that she was subsequently incapacitated and was therefore paid workers' compensation, but in making that concession I am not conceding that the period of that incapacity due to the lacerated knee caused at work extended over the period of the certificates because that would depend upon when other facts came to the knowledge of the defendant in relation to the suggestion that she'd been involved in a car accident the night before and so on, but the defence puts it this way, that the defendant accepts that the plaintiff suffered injury at work on the 9th June ... that she was incapacitated for some period, some period following that and that she was paid workers' compensation, but the defence now claims any, if there was any, ongoing incapacity for work, it is not related to that injury but related to some other injury which occurred outside work hours namely the night before."
The witness Gwendoline Mary Arnold gave evidence that she has been a long time resident at Cygnet and that she has worked at Clements and Marshall for about 15 years. She was working at Clements and Marshall in 1985 at the time that the plaintiff sustained the injury at work. She recalls speaking to the plaintiff outside at morning tea time on the day after the plaintiff returned to work after hurting her leg. She said:
"Well we were at the grader and Miss Bourke and we were all standing there and she said that she'd had the accident but that it didn't happen in the factory that it happened on the previous occasion and she said it didn't matter because she'd have a couple of days of compo, words to that effect, I didn't say anything I just walked off disgusted. She didn't say when it occurred, oh, the previous evening, that's all she said. She said it was a car accident the previous evening."
In cross–examination Miss Bourke had denied any such conversation as this and her counsel, Mr Denehey, vigorously cross–examined Mrs Arnold to suggest that no such conversation had occurred. Mrs Arnold's evidence however was substantially supported by that of Mrs Beverly Alice Cowen who said that she could not remember the exact words used by Miss Bourke on the occasion in question, but, "it was something like, 'I didn't really hurt my leg at work, I hurt it in a car accident the night before but they won't know, I'll get a couple of days compo'." She said that when this comment was made, she, Mrs Cowen made the remark, "Oh, a couple of days won't hurt". Mrs Cowen was also vigorously cross–examined by counsel for the plaintiff and, in light of the potential importance of their testimony I paid very close attention to the demeanour of both witnesses.
I must now record that they impressed me as being careful and honest witnesses. They were clearly not motivated by animosity towards Miss Bourke and I think that they were plainly somewhat reluctant to come forward and give testimony against her. Mrs Cowen in particular was a very impressive witness and I have no hesitation in accepting that what she told me represents her genuine recollection of what occurred. Mrs Arnold was a patently honest witness but perhaps a little less reliable than Mrs Cowen, although as to the crucial elements of the conversation, they were both unshaken. It is not without significance however, that both of them also have a recollection of seeing Miss Bourke being assisted out of the factory, apparently injured, a few days prior to the conversation of which they spoke. These observations obviously tend to support the plaintiff's claim to have sustained a disabling injury to her knee at her place of work. The context of the conversation in which the plaintiff mentioned a motor accident to these two women could not be recalled by either of them and even allowing for the fact that the plaintiff believed she was amongst friends, her utterance of the words attributed to her, unless arising out of some specific type of discussion, appears most odd. I feel that I cannot entirely discount the possibility that both women misunderstood what Miss Bourke said to them.
The evidence of Mrs Arnold and Mrs Cowen leaves me in a real quandary. Taken at face value, it means that the plaintiff has quite specifically made an admission that she injured her knee in a car accident and not at work. On the other hand, the defence accepts that she did injure her knee at work and apart from the statement attributed by them to the plaintiff, the evidence of both witnesses tends to support this. Having regard to that medical evidence as to the nature of the plaintiff's injury which I am prepared to accept and the immediate symptoms which such an injury would almost certainly give rise to, I have the greatest difficulty in accepting that the plaintiff, having sustained a significant knee injury on 8 October 1985, could have gone to her place of work the following day and worked throughout the morning without the severe effects of that injury being apparent to her work mates. But inherent in the evidence of Mesdames Arnold and Cowen is the proposition that this is what she must have done. Mr Morgan, an orthopaedic specialist, said that such an injury is immediately painful and that, "Anyone who suffered a partial tear of the medial collateral ligament would limp with it and would continue to do so, even with medical treatment for some weeks". Mr Turner, also an orthopaedic specialist, expressed a similar view.
There is no independent evidence that the plaintiff was involved in a motor accident the previous evening and I am at a loss to understand why the plaintiff should have said that she was involved in such an accident if it did not take place. In the final analysis however, everything except the evidence of Mrs Arnold and Mrs Cowen points to the plaintiff's incapacity at all times since 9 October 1985 as being due to her fall at work. In light of the clear concessions contained in the Defence, reinforced by statements of counsel during the course of the trial, notwithstanding the evidence of Mesdames Arnold and Cowen, I am quite unable to conclude that the plaintiff's incapacities on and after 9 October 1985 may be properly attributable to any occurrence other than her accident at work on that day. Consequently, to the extent that an analysis of the medical evidence permits, I hold her entitled to recover compensation from the defendant in respect of her incapacity since that date.
The net result of my rejection of the plaintiff's evidence denying the substance of the conversation with Mesdames Arnold and Cowen is as follows: (a) as claimed by Mr Hill, her general credibility has become suspect and (b), in some areas, (for example her claim to regularly exercise the affected leg for an hour each day) her evidence is unacceptable either because it conflicts with other evidence in the case or because it is inconsistent with the undisputed areas of medical opinion. Her claim to have been unaware of the nature of workers' compensation until consulting her solicitors is also highly suspect. These conflicts and inconsistencies would cause me some difficulty if I were called upon to assess her general damages for pain, suffering and loss of amenities in a common law negligence claim. However this is not my task in the present case. What does emerge, despite the manifest inconsistencies and the differing medical opinions expressed and the reservations I feel as to the plaintiff's reliability, is a clear and substantially acceptable picture of a young woman who has given up her involvement in sporting activities in which she previously excelled, who has unsuccessfully attempted to obtain and retain long term employment, who has continued to experience painful symptoms in the knee and who has vainly pursued several avenues of medical advice and treatment in the hope of improving her condition.
I am acutely aware that I have heard from neither Dr Kirk nor Mr W.B. Law. As already mentioned, Dr Kirk saw the plaintiff immediately following her injury at work. She described him (and was not contradicted) as "the company doctor", ie the doctor to whom the defendant sent its sick or injured employees. As such it may be inferred that Dr Kirk was available to the defendant to call him if it wished. His absence from the witness box is puzzling and unexplained but in the final analysis is equivocal. The same might be said of Mr W B Law, although in his case a medical report dated 20 January 1986 was submitted by consent, in which he expresses the unqualified opinion that when he saw her on 22 November 1985, the plaintiff, "had a tear of the medial ligament of the knee". This diagnosis is confirmed by an entry in the Royal Hobart Hospital records. This too was the fairly firm diagnosis of Dr Wilkins who impressed me as a competent and skilled general practitioner, well able to make a reliable diagnosis of this kind in light of his significant experience with such injuries. I am conscious also that I have not heard from Mr Clements who performed the plaintiff's first arthroscopy although his report also was tendered by consent.
On the basis of the evidence from Dr Wilkins, Dr Dubetz, Mr Law and Mr Bye, I am satisfied on the balance of probabilities that a partially torn medial collateral ligament was the principal injury sustained by the plaintiff in her fall at work and that this has been the effective source of the plaintiff's subsequent chronic pain and resultant disability. I have reached this conclusion after giving full consideration to the contrary opinions expressed by Mr R W L Turner and Mr D. Morgan whose views are plainly entitled to be accorded great respect. I see no good purpose in comparing the medical evidence in detail but it would be fair to say that the plaintiff's long term contact with Dr Wilkins, his partner Dr Dubetz, and Mr Bye is a feature which helps to persuade me that their evidence may be relied on, particularly as none of them expressed reservations or doubt as to the genuineness of their patient's complaints or her desire to regain her health and strength despite an acknowledgement by Dr Wilkins and Mr Bye that some of her symptoms were unusual or bizarre.
Her present condition appears to stem from an initial soft tissue injury to the medial collateral ligament in her left leg which was inappropriately treated in the first instance. She has failed to build up the muscle bulk of the left quadriceps caused by prolonged immobilization of the knee and general inactivity. This has caused a weak and painful knee joint which may now be aggravated to some extent by chrondomalacia of the left retro–patellar surface. As some of the doctors and physiotherapists who have examined her have formed differing conclusions as to the presence of, or have failed to detect, objective facts such as the wasting in the left quadriceps muscle and swelling and inflammation of the knee, it is not surprising that there is a substantial divergence of medical opinion as to the nature and extent of her disability. However, as I indicated, I am satisfied that following the initial injury there has been wasting of the left quadriceps muscle and that this has produced the mechanisms described by Mr Bye at pp263–264 of the transcript and that these mechanisms in turn produce the chronic pain syndrome.
There has been some contribution to the conflict in the medical opinion from the plaintiff's obvious incapacity to consistently and accurately describe her history and symptoms This incapacity was demonstrated in the witness box and was amply confirmed by Mr Bye's assessment of his patient. To some extent this incapacity may be attributed to the plaintiff's limited intellect, naivety and poor educational record. To some extent it may be the product of conscious exaggeration on her part.
Nonetheless the overall assessment which I make is that since 1 April 1987 at the latest, the plaintiff has been disabled for work of the kind which she was performing on 9 October 1985. In accordance with the provisions of r3 of Schedule I of the Workers' Compensation Act 1927, that incapacity should be treated as a total incapacity to the present time as I am satisfied that the plaintiff has been unable to obtain reasonably regular employment since October 1985 as a result of her injury. I find it unnecessary to be more specific than this because on the figures agreed by both counsel it is quite clear that making due allowance for all sums earned by the plaintiff in such alternative employment as she has been able to obtain since October 1985, her final statutory entitlement to weekly compensation would have been exhausted on or about 17 December 1989.
The plaintiff also claims $2,899.38 representing lump sum compensation payable in respect of an alleged 10% residual loss of function in her left leg. Mr Bye's opinion was that the plaintiff has a loss of function of this magnitude whereas Mr Binns assessed it at 5%. Ms Lawrence, the physiotherapist, without quantifying it, suggested that the loss of function was greater than 10%. Counsel for the defendant, Mr Hill, submits that before the plaintiff can demonstrate an entitlement to recover lump sum compensation she must be able to show that such loss as she has is permanent or incurable. I accept the submission but note that both Mr Bye and Mr Binns were of opinion that the plaintiff would not improve in future. As Mr Binns succinctly and laconically said, "people with these symptoms never do".
Realistically therefore I think that I should accept that whilst the plaintiff has the physical capacity to improve her quadriceps muscle and thus, perhaps, improve the function of her leg, her psychological and intellectual make–up is such that she will be unable to do so. I accept that she has a permanent 10% loss of function of the left leg and that therefore she is entitled to the sum of $2,899.38 as claimed.
The plaintiff also claims medical and hospital expenses but there is no acceptable evidence upon which I am able to make a calculation as to the quantum of any such expenses incurred by the plaintiff for which she has not been indemnified.
The plaintiff is entitled to weekly compensation amounting to $49,435.30 and lump sum compensation amounting to $2,899.38. There will be judgment in her favour for $52,334.68.
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