Butler v Barnfield Holdings Pty Ltd - [2000] WADC 322

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BUTLER -v- BARNFIELD HOLDINGS PTY LTD [2000] WADC 322

CORAM: KENNEDY DCJ

HEARD: 17-21 SEPTEMBER 2000

DELIVERED : 13 DECEMBER 2000

FILE NO/S: CIV 4262 of 1998

BETWEEN: SONJA CHLOE BUTLER
Plaintiff
AND
BARNFIELD HOLDINGS PTY LTD
Defendant

Catchwords:

Negligence - Employer/employee - Employee slipped on bin lid - Assessment of damage - Back injury requiring surgery - Subsequent pain and depression

Legislation:

~~Motor Vehicle (Third Party Insurance) Act 1943~~

Result:

Defendant negligent - Damages assessed at ~~$324,249.36~~ $328,749.36

Representation:

Counsel:

Plaintiff: Mr B G Bradley
Defendant: Mr A J Power

Solicitors:

Plaintiff: Moss Bradley
Defendant: Pullinger Redhead Stewart

Case(s) referred to in judgment(s):

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Kondis v State Transport Authority (1984) 154 CLR 672
McLean v Tedman (1984) 155 CLR 306
Purkess v Crittenden (1965) 114 CLR 164

Case(s) also cited:

Astley v Austrust (1999) 73 ALJR 403
Black v MVIT [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 81-043
Commissioner for Railways v Halley (1978) 20 ALR 409
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Davie v New Merton Board Mills Ltd [1958] 1 QB 210
Fox v Wood (1981) 148 CLR 438
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Jury v Commissioner for Railways (NSW) (1935) 53 CLR 273
Keogh v Dom-Vie Pty Ltd, unreported; FCt SCt of WA; Library No 950649; 29 November 1995
Paris v Stepney Borough Council [1951] AC 367
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Thomas v O'Shea (1989) A Tort Rep 80-251
Toth v Yellow Express Carriers Ltd [1969] 2 NSWR 425
Wade v Allsop (1976) 10 ALR 353
Watts v Rake (1960) 108 CLR 158
Wilsons & Clyde Coal Co Ltd v English [1938] AC 57

KENNEDY DCJ: The plaintiff alleges she was injured at work on 21 August 1996 when she slipped and fell on a rubbish bin lid. She sues her former employer for damages, for negligence and in contract. Liability is denied and quantum is an issue.
At the time of the incident the defendant carried on business as "Claremont Fresh Markets" ("Claremont Fresh"), the general manager of which was one Andrew Mulcahy. The plaintiff was 25 years old, a law graduate who started work in the deli section of Claremont Fresh toward the end of 1995 and became the manager of that section in about January 1996. The plaintiff had worked in food preparation or service of one type or another since high school and had run her own catering business from home, but as far as I am aware had no experience as a manager.
Her job involved ordering produce, preparing staff rosters, doing some work as a chef, arranging for a chef to take her place, serving on the counter and setting up the show cabinets. It was her job to meet with the Health Service Department Inspector and to convey his instructions to Andrew Mulcahy.
Generally she and one other chef worked in the kitchen except at the end of the day when there was washing up to be done then more staff were needed there. Preparation of sandwiches, rolls and cooking was usually done in the morning in the kitchen.
Exhibit 2 is a rough sketch of the entire Claremont Fresh floor space at the time. The area with which we are concerned is that shown as the kitchen, the deli, the food preparation area and the door between the food preparation area and the kitchen. The significance of the balance of the contents of Exhibit 2 is that workers in other areas used the kitchen as a walkway to the car park and service entry. Exhibit 5 is a rough sketch of the kitchen which at its widest point is about two metres. Exhibits 3 and 4 are photographs of the southern wall of the kitchen that is inside and to the left of the door which leads from the food preparation area to the kitchen. Exhibit 3 also contains a picture of the door through which the plaintiff came immediately before she fell. That door is partly blocked in the kitchen with a metal tray so that anyone walking through the door from the food preparation area has to walk to their right. That door opens outwards into the food preparation area. In Exhibit 3 the position of the bin in the kitchen on the left of the door can be seen.
The Town of Claremont Health Inspector, Mr Kim Nolan, complained about the bins and in Exhibit 6, a "Food Premises Inspection Form" directed:
"Please install a sufficient amount of bins with liners and lids."
The plaintiff said that she could not remember whether she had actually seen this piece of paper but certainly Mr Nolan had brought this matter to her attention and reinforced that the bins had to be adequate and they had to have lids. There were a number of things on the list which Mr Nolan provided to her. She then showed it to Mr Mulcahy, he told her that he would arrange the bigger items but that she should buy the bins. She suggested larger bins with hinged foot pedal and controlled lids but Mr Mulcahy told her to get what they already had so she went to Coles and bought three bins with lids, one new bin was put into the kitchen.
Mr Nolan confirmed that he had given this direction and that the kitchen was a very congested area. He further said that there are any number of bins available with lids incorporated into the bin design, with swing lids or foot pedals.
The plaintiff noticed immediately that there was a difficulty with the lids in that the staff frequently would not put the lid back on and would wedge it between the bin and the metal bench. Whenever she saw this she would replace the lid and tell whoever was there that they must keep the lid on. Also the lid came off on occasions when the bakery people or the butchers would swing through with trays and knock the lid off and it would then lay next to the bin. Mr Nolan arrived on one occasion when the lid was not on the bin and he complained again. She then said to Mr Mulcahy that they should either shift the bin or have a different type of bin. Mr Mulcahy told her not to worry about the matter because the kitchen was being remodelled. Mr Mulcahy was not called to give evidence.
On 21 August 1996 the plaintiff was carrying a plastic vegetable crate containing capsicums from the food preparation area into the kitchen. Because her hands were full she asked a co‑worker to open the door which the co‑worker did pulling it back into the food preparation area. The plaintiff knew there was a slight obstruction inside the kitchen and that it was necessary for her to walk to her right. She put her right foot into the kitchen and immediately felt that she had stepped into the bin lid, she sensed that her foot was not meeting the floor and could feel the plastic grooves in the bin lid. Her foot went from under her, she grabbed at the metal bench on the left hand side but fell and twisted and ended up on her left buttock and side. She then noticed that the bin lid had skidded toward the sink and was approximately in the position where she has put a red cross on Exhibit 5. At the time she was wearing rubber soled boots.
She immediately felt pain in her hip and lower back but got up by herself and when a fellow worker came to her she said that she was all right. The pain lasted a few hours, however they were starting the lunch rush and she was so busy that she did not notice it. When the busy period wore off at around 2.00 pm‑2.30 pm she noticed that she was sore but did not feel as bad as she had when she initially fell over.
That evening she was going to play netball. She was in a team with a group of friends, there were no spare players and each week they were struggling to make up the team so she felt that she could not let them down. She was collected by her then boyfriend, Mr Guy Benfield. She told him that she was feeling sore; he suggested she not play but she determined that she should. At approximately 6.00 pm they attended at the netball, the game was in two halves of about 20 minutes each. Her back was sore but she was being careful and about half way through the second half when her team was ahead she stopped playing. It is not a contact sport and there were no incidents during the game. Mr Benfield gave evidence and largely confirmed this evidence.
During cross‑examination she was referred to a note of her then general practitioner, Dr Ward, which records that she slipped on the lid but goes on to say that she played netball on the same evening and "tripped". The plaintiff denied that she told Dr Ward that she tripped at netball and she did not trip at netball. She has never been knocked to the ground and there was an umpire who kept the game in control. She did stretch when she played netball but on this night she could not move very well and found it difficult to play and as the game wore on her back became painful to the point where she stopped playing. She did not believe she was at risk of any severe bumping at netball which is not a contact sport.
On 22 and 23 August 1996, which is the Thursday and Friday, she attended at work but was very sore, however, she had no choice because the chef was away and there was no-one there who could do the work that she was doing. She cannot recall if she worked Saturday, but certainly she did not work Sunday.
On the Monday she attended at the physiotherapist she had been seeing earlier. The physiotherapist, Mr Meredith, in his report of 7 May 1999 said:
"On 26 August 1996 Ms Butler returned. She reported that five days earlier she had been carrying heavy boxes at work when she slipped and fell awkwardly. Ms Butler was able to play netball that evening although she did not report any incident during the game. The next day Ms Butler had developed central low back pain but no leg pain. Ms Butler's signs and symptoms were moderate to severe so, given the recent history, I suggested she arrange a visit that day with her general practitioner, Dr Gary Ward, for assessment regarding a worker's compensation claim."
As a result of his advice she went to her general practitioner and he put her off work for two weeks. On 9 September 1996 she returned to work and had a lumbar support to wear. She went back on light duties and played netball on one further occasion. The pain got much worse and she had shooting pain down her left leg. That shooting pain initially was associated with movement but eventually it was constant and went down to her toes. She went back to work because she thought that eventually she would get better but over the subsequent weeks it got worse, and eventually she was in agony and dragging her left foot.
On 7 October 1996 she returned to her general practitioner. She was then referred to Mr Bannan, a neurosurgeon, who performed a discectomy on her on 12 October 1996.
By its defence the defendant denies negligence, pleads that the plaintiff caused the incident, or at least was contributorily negligent. On the final day of the hearing in his opening, defendant's counsel very sensibly abandoned the allegation that the plaintiff caused the incident or was contributorily negligent but continued to deny that the defendant was negligent.
The defendant was clearly negligent. It is well established law that an employer has a non-delegable duty to an employee to put in place, maintain and enforce a safe system of work. The risks of slipping in the work place is well known and it was easily foreseeable that eventually someone would slip on this bin lid. Furthermore, there were cheap and easy ways of ensuring that this did not happen. I would also add that it would not be appropriate to expect a 25 year old inexperienced woman to give directions to the butcher and the baker about their behaviour in walking through the kitchen: see McLean v Tedman (1984) 155 CLR 306 and Kondis v State Transport Authority (1984) 154 CLR 672.
There are two further matters which the defendant did pursue and I shall deal firstly with that contained in par 8 of the defence, which is:
"Further and in the alternative if the plaintiff has suffered the injuries and required the medical and hospital treatment as particularised in the statement of claim (which is denied) then the defendant says the same is not due to the negligence of the defendant but due to a supervening cause which arose immediately after the alleged accident or subsequent to the alleged accident whilst the plaintiff was playing netball on 21 August 1996 and in or about September 1996."
The defendant's counsel correctly submitted that the onus of demonstrating that the disc prolapse was caused by a fall at work on 21 August 1996 was upon the plaintiff and submits that at the very least an equally plausible cause for the disc prolapse was an injury suffered in the netball game on 21 August 1996 or the netball game in September 1996, or indeed, some other event given the degenerative condition of the disc.
I accept the plaintiff's evidence as to how the incident occurred and that she had immediate problems, supported as that latter evidence is by the evidence of Mr Benfield. There was some dispute between counsel as to whether defence counsel had challenged Benfield's evidence, he did: see Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1. Notwithstanding that I thought Benfield was an impressive young man, his relationship with the plaintiff is over and he had no reason to lie.
When the plaintiff saw the physiotherapist on 26 August 1996 she told him that she had fallen awkwardly on 21 August 1996. She also told him that she had played netball that evening but did not report any incident during the game. The physiotherapist told her to make a worker's compensation claim, obviously on the basis that the injury had occurred at work and referred her to her general practitioner Dr Ward. In those circumstances, even if she were dishonest, she would hardly then go to her doctor and tell him she had tripped at basketball: the doctor's notes to which I referred earlier must be wrong.
Naturally the fact that the plaintiff honestly and perhaps reasonably believes that her injury was caused at work is not the end of the matter. I am also referred to the fact that in Mr Meredith's report he says, "… the next day Ms Butler had developed central low back pain but no leg pain". Further, in his report of 31 July 1997, Dr Ward says that she had no pain initially but the next day experienced pain in the right low back. That report was done from the notes to which I have already referred and those notes indicate complaint of more restriction and pain on the left than the right. I accept what the plaintiff has to say about when and where she suffered pain and as I say, that is supported by the evidence of Benfield. The plaintiff fell onto her left side and there was no incident at netball.
While the medical experts agree that disc injury can be brought on by people moving in bed, particularly where there is such degeneration as the plaintiff has, the fact remains that she had a substantial fall on 21 August 1996; she says that she had pain subsequently and that she immediately complained to Benfield; Benfield agrees that that is so; no incident occurred at netball and in any event netball is not a contact sport. In all of those circumstances it is more probable than not that she sustained the injury when she fell at work.
There is also a submission that the injury could have been sustained at some later time. By 26 August 1996 the plaintiff was consulting her physiotherapist who was sufficiently concerned to refer her to her general practitioner who was equally sufficiently concerned to order that she have two weeks away from work and when she returned to work she returned with a lumbar support. Furthermore, the hieroglyphics contained in Dr Ward's notes which he explained when he gave evidence, indicate that when he examined her on 26 August 1996 there was restriction on straight leg raising with pain radiating into the left leg which is consistent with being discogenic pain. In those circumstances again the probabilities are that the injury had already been sustained prior to any later netball match.
In par7 of the defence the defendant pleads:
"Further and in the alternative, if the plaintiff has suffered the injuries and required the medical and hospital treatment particularised in the statement of claim (which is denied) then the defendant states that the same is not due to the negligence of the defendant but is due to the pre-existing condition affecting the plaintiff's lumbar spine resulting in left‑hand‑sided symptomatology and/or in the alternative is due to a back injury or injuries suffered by the plaintiff during her participation in netball in or about 1985 and/or February 1996 and/or the evening of 21 August 1996."

History of back pain

The plaintiff conceded that she has had prior bouts of back pain. Part of her answers to interrogatories were tendered and they were as follows:
"ANSWER
2.1I have a vague recollection of experiencing some low back pain whilst playing netball in about 1984 but such pain was short lived and I did not consult a medical practitioner in respect thereof.
2.2I experienced a bout of mid back and neck pain in April 1994 which was short lived and resulted in me consulting Dr Gary Ward on 26th April 1994, I cannot recall any particular event which caused such pain.
2.3I experienced a short lived bout of low back pain in May 1995 which resulted in my consulting Dr Gary Ward on 30th May 1995. I cannot recall any particular event which caused such pain.
2.4.1On or about 28th February 1996 whilst playing netball, I experienced sharp pain between my shoulder blades. At about that time I also developed some low back pain with some pain radiating to the calf of my left leg which I attributed to lifting plates of salad into chiller compartments at work where the system required me to lift the plates with arms extended and leaning forward with my back bent to place them in the chiller.
2.6I did not experience low back pain or symptoms radiating to either leg in the period between early April 1996 and 21st August 1996."
She conceded that since 1996 she has seen a number of doctors and she has told them that she had prior back pain but not that she saw Mr Tiller in 1984, and that was because she did not remember it.
Mr Tiller was not called to give evidence but by consent three of his reports were tendered in evidence. On 25 May 2000 he reported that the results of x‑rays at the time (ie July 1993) showed that the overall alignment of the lumbar spine was normal although there was some anterior narrowing of the disc space at the L4/5 level. The other disc spaces were preserved and no other bone or joint abnormality was seen. He further went on to say:
"The diagnosis at the time made by me was one of discogenic pain at L5/S1 without a spondylolysis or a spondylolisthesis, there being no evidence haematologically or radiologically of infection. Initially I was somewhat concerned she might have an L5/S1 discitis.
At the time I felt it wise for the patient to diminish her sporting activities and to consider swimming in a heated pool as a form of exercise.
The patient was last seen by me on 13 October 1983 when I suggested she be reviewed in a further three months but the patient did not return for follow-up."
So far as the suggestion that she diminish her sporting activities, in his report of 4 August 1983 to the plaintiff's then general practitioner, Mr Tiller said:
"I also suggested to this young lady, with her father present, that she look at reducing her sporting commitments for the moment and I will see her in approximately two weeks time."
And in his report of 1 September 1983 he said:
"I have not arranged for her to commence any specific treatment as such at the present time, other than she should stay off sport and of course, should look at swimming in a heated pool, if this is in any way possible."

Given that the plaintiff was only 12, it could hardly be said that this was a direction she give up sport. Nevertheless I accept her evidence that it was subsequent to that that she ceased to play sport for a while and took a greater interest, whilst she was in high school, in music and whilst she could not remember Mr Tiller's advice, that may have been the reason why, on reflection, she did that.
On 14 October 1998 the plaintiff's general practitioner, Dr Ward, reported as to her history as follows:
"She first attended for symptoms related to her spine on 26/4/94 when she presented with 'aching neck and back'. She was tender in the thoracic spine consistent with minor facet joint dysfunction and responded to facet joint mobilisation.
She next presented with a 'sore back' on 30/5/95 with pain radiating to both legs but no paraesthesia. Lumbar spine movements were limited, consistent with facet joint dysfunction and she was prescribed NSAID's and physiotherapy.
Her next visit to me was on 29/02/96 with interscapular thoracic spine pain and lumbar spine pain radiating to the left calf and limited straight leg raise on the left. She was referred for physiotherapy.
When next seen on 26/6/96 for another problem her pain appears to have settled.
The next presentation was 26/8/96 following a fall at work on 21/8/96."
He went on to say that in relation to the final accident CT scans and an x‑ray were performed on 7 October 1996 and she was then referred to the neurosurgeon, Mr Paul Bannan.
So far as the physiotherapist, Mr Meredith, is concerned, he was the physiotherapist to whom she was referred early in the year, that is, some months before the accident. In his report of 7 May 1999 he does record that she attended on three occasions in March 1996 for physiotherapy and on two occasions in very early April 1996, and then was not seen again until after the accident in August 1996. He went on to say:
"… Ms Butler first attended these rooms on 25th March 1996, complaining of two months left-sided 'sciatica', which she reported had developed during a course of chiropractic treatment for low back pain. The pain extended down the posteriolateral aspect of the left leg, being worse in the calf where the pain was described as being near constant. Pins and needles were reported over the plantar aspect of the second/fifth metatarsal head. The symptoms were aggravated by dressing, work duties (at Claremont Fresh Markets), wearing flat shoes and sitting. The symptoms were eased by lying supine with hip flexion, high heels and standing. At presentation Ms Butler was not reporting any lower back symptoms. Ms Butler gave a past history of low back pain for as long as she could remember and intermittent twinges of left leg pain."
I will in fact deal with the plaintiff's pre-existing condition again when I am assessing damages, but at this stage it seems to me that there is no basis for saying that the plaintiff's injury was caused by a pre‑existing condition and not by the defendant's negligence. The plaintiff had no problems for four months prior to slipping on the bin lid and she then had problems and returned to the physiotherapist and then to her medical practitioner. In those circumstances, and given the medical evidence of Messrs Bannan and Slinger, to which I will refer later, there is no basis for saying that her condition now was initiated by a pre-existing condition. Of course, the defendant must take the plaintiff as it finds her: see also Purkess v Crittenden (1965) 114 CLR 164.
For all these reasons I find that the defendant is liable in negligence to the plaintiff. Since contributory negligence is no longer an issue it is not necessary for me to go on to consider the contract issue.

Assessment of damages

The plaintiff was born on 1 January 1971 and is now 29 but was 25 years of age at the time of the accident. She came to Western Australia with her parents when she was about five, attended John XXIII School and completed her TEE in 1988.
She had commenced working part time from when she was 14 years of age in restaurants and generally worked on holidays and on weekends during the year. In addition, she played tennis, netball and sport at primary school but by the time she got to high school she found herself on reflection, to have spent more of her time in music than in games.
When she completed her TEE her marks were sufficient to obtain her admission to an Arts/Law course, because at that time it was necessary to do the first year of an Arts course and get sufficiently high marks before transferring into Law. Instead of going straight to university, she deferred for 12 months and completed a Sheraton's Skill Course and commenced work at the Sheraton as a waitress; she then went to the eastern states and worked at Thredbo Ski Resort, earning enough money to buy herself a car. She drove to Cairns and did a scuba diving course and also did some hiking. Throughout this time she had no physical problems at all.
In 1990 she completed the first year of her Arts course at the University of Western Australia and her marks were sufficient to enable her to commenced at the Law School in 1991. During these 1990/1991 university holidays she went scuba diving in Fiji and as a result of being scratched by coral contracted a blood disorder. She was admitted to hospital and was very ill from February to about May 1991 and as a result of that the law course had to be deferred until the following year. She commenced her law degree in 1992 and completed that degree in 1995.
During the time she was at university, she worked part time as a waitress and also set up a small business of her own called "Creative Catering" doing functions and any other work that was available to her.
While still at university and in August 1995, she applied for articles at a number of places and at one of them in particular, "Halperin Fleming and Meertens", she was told that she was their second choice and if they determined to take a second articled clerk they would give her the work.
At the end of 1995 she commenced work at "Claremont Fresh", initially working casual hours and slowly the hours were increased. In about January 1996 Mr Mulcahy asked her if she would manage the deli and they would pay her $30,000 per annum. At this stage she had not heard from the firm of solicitors, articled clerks were being paid $15,000 and she committed herself to stay at "Claremont Fresh" for 12 months. It was made clear to her that if she took the job she should make such a commitment.
Subsequent to making that commitment she received a telephone call from Mr Fleming saying that she could have a job as an articled clerk but she told him she had committed herself to this job for a period of 12 months but would like to commence articles at the end of that 12 months and would make contact then and she believed that at the end of the year she would commence articles with Halperin Fleming and Meertens. Mr Fleming was not called to give evidence. The plaintiff's father has a substantial family law practice but she did not wish to do her articles with him because she wanted to establish herself independently and did not want to be confined to Family Court work.
Sitting, reaching the wrong way, vacuuming and gardening, causes pain and during the course of her evidence she stood most of the time because sitting for more than 20 minutes causes her pain, however, she can walk without any difficulty, and swim.
Activities that she enjoyed prior to the accident, such as scuba diving, skiing, hiking, netball, tennis and jogging, she can no longer do but she does work out in a gym regularly.
She did try working with her father for a few months but she found sitting difficult. Further, she decided that she wished to make her own way and in November 1997 she obtained unpaid work with a legal practitioner, Mr David Price. She worked with Mr Price from November 1997 to April 1998. Mr Price has a general litigation practice. She started working two hours per day and worked up to four or five hours per day. She saw clients, went to court and sat with a barrister, did clerical work and delivered documents. She noticed that if she had to sit in any one place for any length of time her back would get very sore. On one occasion she went to the Racing Appeals Tribunal and had to get up and go for a walk because she could not sit. By the end she was doing mainly deliveries and was taking up office space. She was not being paid and there was a discussion with Mr Price as to whether she could do her articles part time over a period of two years. Mr Price enquired from the Legal Practice Board and they said that that would be acceptable, but he then said that it was not satisfactory to him, that he wanted someone working with him full time, which she was not able to do because it was causing too much pain in her back.
Mr Price gave evidence and confirmed that she approached him for work and worked with him for several months. She was not paid and she was an assistant and had her own office. He could not remember exactly how many hours she did. She did research, made phone calls, served documents, and he did recall that at least once she went to the Racing Appeals Tribunal and it was apparent that she was having physical difficulties. He further confirmed that he told her he needed someone full time.
Then the plaintiff's new boyfriend obtained work in New South Wales and she joined him there. She endeavoured to get legal work there but only got one interview and on that interview she was told that she needed to attend the College of Law in New South Wales. The fee for it then was $4,800 and she did not have the money.
She then obtained a waitressing job at "Doyles Seafood Restaurant" and worked for about five weeks, four hours a day. Part of this restaurant was outdoors and on one shift she was asked to carry tables and chairs outside. She told them that she could not do that because of her back injury and she was given no more work.
She then obtained work at "Jo Jo's" for five weeks doing 20 hours per week but the plates were very heavy and she ended up with a very sore back and required further physiotherapy.
She now suffers with depression. She is tearful and cannot cope and during the course of her evidence was on occasions weepy. She said she feels down all the time, does not want to get out of bed, does not feel useful and her mood was really low by the end of 1999. She returned to Western Australia on one occasion to see medical practitioners and her general practitioner put her on anti‑depressants, eventually she saw a psychiatrist in mid‑2000 and is still taking anti‑depressants, and is also taking sleeping tablets and analgesics.
Her plan was to do articles and become a lawyer and she had always planned to have two children in her early thirties and then continue with work. Now her ambition is to get back to the way she was and to work part time as a lawyer. Her plan is to go to the College of Law, but she cannot afford it. She does not believe that she could work full time but she could do five to six hours per day.

Medical evidence

The radiologist's report of 7 October 1996 is:
"At the L4/5 level the bony spinal canal and exit foramena are adequate. There is a left-sided disc protrusion best seen on scans 16 to 19. Although this is mainly below the level of the emerging nerve root it may be causing some displacement and compression of the nerve root. There is no evidence of displacement or compression of the right emerging nerve root.
At the L5/S1 level there is a small posterior disc bulge. There is minor narrowing of the left exit foramen due to osteophytic lipping on the facet joint but there is no evidence of displacement or compression of the emerging nerve roots.
CONCLUSION:
A left disc protrusion at the L4/5 level which may be causing some displacement and compression of the emerging nerve root."
Mr Paul Bannan confirmed that he performed a discectomy on the plaintiff on 12 October 1996 and in evidence he said that:
"At the operation we found the nerve root and under the nerve root there was what we call a sequented fragment of disc which is a piece of disc that has broken off from the disc itself and travelled down under the nerve. It was caught under the nerve, crushing the nerve against the bone, and we removed the disc fragment, decompressed the nerve and removed some more disc fragments from the L4-5 disc." (T204).
Mr Bannan's initial reports were quite hopeful although he did say that she was initially unfit to work in a clerical position but subsequently said that he thought her prognosis was good, however, that did not last. In his report of 8 August 1997 he said:
"Ms Butler's present symptoms are of pain in the back after prolonged sitting and standing. There is limited forward bending and extension due to back pain. I consider these symptoms to be due to pain arising from her degenerated disc at L4/5. These symptoms would be exacerbated by heavy lifting or forward bending. …
…
…
It is highly likely that Ms Butler will be able to manage the duties of a law clerk and, as mentioned, she is doing her articles which is a more sedentary occupation. I do expect her to have a long and gainful employment in the legal profession. She may have some restrictions in her ability to lift and carry heavy legal files but I am sure she can work around this."
Subsequently, the plaintiff complained of discogenic back pain to Mr Bannan and he thought that she should try a facet joint block at L4/5 bilaterally but I did not hear anything about that. Certainly, by 23 March 1999 Mr Bannan was saying that he did not believe that she would be able to cope with full time work as a law clerk because of the sitting and standing requirements and the lifting of files. He thought she could work part time as a waitress for about 20 hours per week.
He said that the cause of her symptoms was the degeneration in the L4/5 disc with irritation of the L5 nerve root. He further said that she could have a small tear in the disc at L4/5 and it is known that annular tears can irritate the nerve due to a chemical irritation and cause some referred pain in the buttocks and thighs.
In his report of 26 May 2000 he said:
"In summary, I believe this young lady had a pre‑existing degeneration at the L4/5 segment which was previously symptomatic. She re-injured herself at work on 21/8/96, suffering a significant disc protrusion and had surgery to decompress the nerve root which has been successful. She is left with symptomatic mechanical back pain from her degenerate segment which may require surgical treatment in the future. There is a 5‑10 per cent chance she may need a lumbar fusion or artificial disc placement if her back pain worsens after her pregnancies."
Then in his report of 30 August 2000 Mr Bannan answered certain questions put to him by the defendant as follows:
"I do not believe that this woman has the ability to work in a job that involves any repetitive heavy lifting or bending because of her discogenic back pain arising from her left L4/5 segment.
I believe her incapacity for heavy lifting is likely to be permanent. It is possible that she may be able to return to work as a lawyer, a more sedentary occupation.
I would agree that Ms Butler probably has the ability to work as an articled clerk or law clerk in a part-time capacity. I think she should work up to a full-time working week but should be able to work between three and five hours per day up to five days per week.
I have read the accompanying report from Labournet [this was not tendered in evidence] dated 3/5/2000 and I agree that Ms Butler should be able to work as a solicitor or law clerk in a part-time capacity. Her exact hours would depend on her level of symptoms but I think she should be able to work at least 25 hours per week."
Mr Slinger a spinal surgeon saw the plaintiff on 29 May 2000 and reported on 30 May 2000:
"I would not have thought [the plaintiff] is fit to return to work as an article clerk or solicitor in view of the prolonged sitting required whilst attending court but she would be fit to work as an outside clerk and in respect to insurance claims officer, if that allowed her to sit or stand at her discretion as with other general office duties whilst work as a waitress it appears to have been an aggravating factor and is best to be avoided. I believe that she is fit to return to alternate employment which would include retail sales, consult operator, light store person, general office duties, or receptionist, emphasising the need for such employment to allow her to sit or stand at her discretion. …"
Mr Schaeffer a consultant neurosurgeon called by the defendant assessed the plaintiff on 19 January 2000. In his opinion she is capable from a physical point of view of working full time in a sedentary occupation such as a lawyer. In saying that he did not deny that from time to time she would have a mild to moderate degree of intermittent physical discomfort particularly under conditions of undue physical stress or undue loading of the spine.
Mr Harper an occupational physician to whom the plaintiff was referred by her own solicitors said in his report of 26 May 2000:
"[the plaintiff] feels she would be capable of part time work with restrictions as an articled clerk. I feel that returning to the workforce on a part time basis could be of considerable therapeutic benefit to her depression but the combination of her back pain and depressive symptoms reduce her employability to a very considerable degree and increase her risk of failure if she is in an inappropriate job. Consequently I am of the view that her present work capacity is very low and should not be overestimated for risk of exposing her to further disappointments. At present I feel she is incapacitated to work as a solicitor, shop assistant or waitress. She could do some articled clerking work and some other clerical work within the limit of restrictions. Restrictions are to avoid prolonged sitting, stressful situations, lifting, carrying and stooping."
In evidence Mr Harper said that he expected the plaintiff to have an ongoing reduction in her capacity to practice law but not one which precluded her from working on a part time basis. In cross‑examination the following exchange took place:
"If you accept that Ms Butler can stand for as long as she wants and can sit for up to twenty minutes at time before she has to get up and move around, then it is a lot easier to comprehend that she could do work as a lawyer isn't it? --- Not for me, no. I think that the fact that someone has got pain is – it is important to acknowledge the presence of pain and the effect that has on one's concentration and tolerance of remaining at work throughout the day and the inconvenience and the general disruptive effect of having to stand after twenty minutes of sitting is an intrusion into one's capacity to maintain one thought and continue it and the continuity of work, so my interpretation of her symptoms is that they do intrude and they are invasive into her capacity to practice." (T189)
Dr Andrew Marsden is an occupational physician to whom the plaintiff was referred by the defendant. In his view she did have a capacity to work in a legal office.
Shortly before the trial Dr Marsden had attended at the offices of the defendant's solicitors where he spoke to two lawyers one of whom had been qualified for about six years and the other for about two years and he gave some evidence as to what he observed and that evidence was:
"All right. Well, that's that case, but coming back to this case, have you recently taken the time and trouble to actually observe what a junior solicitor does in the course of a day's practise? ‑‑‑ Yes. I attended Messrs Pullinger Redhead and Steward on 18 September, this Monday, at about 4 o'clock in the afternoon, and I was asked to meet two young lady lawyers one of whom has been qualified, I understood for about 6 years, and the other one was qualified for a year or so.
All right? --- And I observed and talked to the first one, the more qualified one, for about 20 minutes, 30 minutes or so, discussing what her day involved, how she managed, and looked at the layout of her work area, which was very good, with a computer system, swivel desk, three-quarter angled desk, so she could have a writing area. Obviously she had lots of filing systems, lever arch files, which she would refer to from time to time, and she described her working day.
Well, leaving out what she told you, which of course is inadmissible, but concentrating just on what you observed these two ladies doing ---? --- Yes. Well, the second person I saw, she was doing more – she described it as more junior work, and in fact she was preparing discovery documents for a major commercial case and her role was to collect documents and make sure they were the correct documents and originals and then proof them, photocopy them and work at her desk doing all that.
In the period of time that you have seen the plaintiff, over your three visits, from 14 August 1998 through to 4 September this year, have you noticed any improvement in her condition, her physical condition? --- Yes, I have, in that when she was first seen she had reduced straight leg raising, she had reduced calf circumference of about 1 and a half centimetres; that's a muscle supplied by the relevant nerve that was interfered with.
Yes? --- And if you interfere with a nerve, then the muscle will shrink down, and indeed it had done so when I first saw her. The second time I saw her, this muscle had improved and by the time I saw her for the last time, the two calf muscles were of equal circumference and so the muscle had recovered, which would be an expected reaction. So that was a main change, and that's quite important, really, because that is a sign that the nerve has been released and is working again, which is what you want to see.
Yes? --- Her reflexes are brisk and equal, particularly at the ankles. Initially I thought that the left one was down a bit, but in fact it wasn't. When you remove all cerebral override by getting a patient to kneel in the chair and come behind them and tap the ankles, then there was a perfectly normal equal reaction which is the best way of testing that reflex.
All right. I think you are also aware that the plaintiff at the moment is showing some signs of a depressive state? --- Yes.
Well, taking into account what you have observed in your three consultations with her, taking into account the improvement that you have noted in her physical condition, taking into account your understanding of what is required of someone working as a junior solicitor, do you think that she could work in that area of work? --- Yes.
And do you think that she would be able to do that on a full‑time basis? --- I think in all fairness, and the way one would run the rehabilitation, I would run her through a gradually increasing rehabilitation program, but the ultimate would be full‑time work, and I think she would get there. I think, initially there is no doubt she may go back to work, say 4 hours a day, but gradually build it up over a month or so, just as in other cases, but I think ultimately, yes, I think she would be able to work full‑time as a solicitor.
And when do you think that might happen? --- In terms of what, when would she be fully - well, if she goes back to work and tries.
Yes, when do you think she might be - doing the best you can, when do you think she might be able to return to full‑time work, first as an articled clerk and then as a solicitor? --- I think it would probably be 3 months after she starts, if she were to start straightaway." (T253 ‑ 254)

It is my finding that the plaintiff is permanently physically unfit to perform any sort of manual work. For all practical purposes that means she is unfit to work as a waitress or in a catering situation. I know that Dr Marsden thought she could work in a managerial position but at her age and at her level in most of such jobs even a manager is expected to pitch in and help with physical work from time to time.
The claim for economic loss is not made on the basis that she has lost that capacity because of course the plaintiff is capable of earning more money as a lawyer. The plaintiff concedes that she could work as a lawyer but she does not agree that she could work full time as a lawyer and her claim is made on the basis that she would only be able to work part time as a lawyer.
I am not satisfied on the probabilities that simply looking at her physical capacity she is only capable of working part time as a lawyer.
When Mr Bannan first reported in relation to this matter he was really quite hopeful and it will be recalled that he said "I do expect her to have a long and gainful employment in the legal profession. She may have some restrictions in her ability to lift and carry heavy legal files but I am sure she can work around this." Subsequently of course he believed that she had greater incapacity than he had at first realised and in his report of 30 August 2000 said that she had the ability to work part time but then went on to say "I think she should work up to a full time working week but should be able to work between three and five hours per day up to five days per week".
Mr Slinger said that prolonged sitting would not be possible for the plaintiff and I do accept that but he appeared to think that that was all that was available to her as a legal practitioner and I do not accept that. He did go on to say that she needs an employer who will allow her to sit or stand at her discretion. It would seem to me that in most areas of legal work she could do that. I accept the evidence of Dr Marsden that she could work full time after a rehabilitation process.
I am aware of the fact that in 1977 she worked for Mr Price and had considerably difficulties but it has to be taken into account that that was only 12 months after her operation and a good deal of time has passed since then. The plaintiff is only very young and I am told that she works out on a regular basis at a gym and in those circumstances it would seem to me that, given time to gradually reintegrate herself into working in the law with a rehabilitation programme of the nature referred to by Dr Marsden with perhaps a little longer time than he would allow, that she could work full time. I would also add that so far as Mr Price is concerned it was never explained to my satisfaction why it was necessary for the plaintiff to work for Mr Price for six months without any pay whatsoever, particularly in the circumstances where she could have completed half of her articles in that time with her father.
The claim for past loss of earning capacity in the plaintiff's schedule commences from 1997 to the date of trial and I am prepared to find that the plaintiff was largely unfit for full time work during that period of time and given Mr Price's evidence that unless she had a very understanding employer, and most employers may have found that not commercially viable, she would not have been fit for work at that time. On that basis I am prepared to start by assessing her loss of earning capacity as an articled clerk and legal practitioner from 1997 to approximately June 2001.
The plaintiff's physical condition at present is complicated by her depressed state. She has seen two consultant psychiatrists, both of whom were called to give evidence for her. The defendant did not call a psychiatrist to give evidence.
The plaintiff was referred to Dr Febbo by her solicitors and was seen by him on 30 May and 6 June 2000. It was not explained to me why it was that she was then referred to Dr Proud but it may be, from something he said in his evidence, that he has worked with her general practitioner on a number of occasions and that it was her general practitioner who referred her to Dr Proud who saw her on 14 August 2000 which of course is just shortly after she saw Dr Febbo. Both psychiatrists were of the view that the plaintiff was significantly depressed and I accept that without hesitation and she certainly gave every indication of that during the time that she gave evidence. It does seem that there was a difference between the evidence of Dr Febbo and Dr Proud in that to put it in lay terms Dr Febbo appeared to be more hopeful for the future than Dr Proud. In fairness to each of the psychiatrists neither of them was given an adequate opportunity to comment on the opinion of the other psychiatrist and it may be merely a matter of degree. However, in the event that it is not, I prefer the evidence of Dr Febbo to that of Dr Proud. I say that because Dr Proud appeared to be under the impression that the plaintiff had been depressed since August 1996 and that does not accord with the evidence. He further was of the view that she had failed to respond to psychiatric treatment. It may well be that she had failed to respond but what he may not have realised, because she had to some extent been put on the right track by Dr Febbo by the time Dr Proud saw her, was that the plaintiff had not been complying in the strict sense of the word with earlier antidepressant medication. When I say "complying" I do not intend that to be a criticism of the plaintiff. What Dr Febbo discovered was that she had not received treatment in a consistent fashion. If antidepressants are taken intermittently not only is that not helpful but sometimes it can make the situation worse because there are withdrawal symptoms in between stopping and recommencing the medication. Indeed when Dr Febbo saw her he was sufficiently concerned that he made contact with her general practitioner and he does not normally do that. He was aware that her past use of anti‑depressant medication was on two occasions, the first time around November 1999 when she took it for six weeks and the second time a few months prior to his consultation with her and then she took a small dose which did not appear to assist her.
In his report of 15 June 2000 Dr Febbo says:
"To turn now to Ms Butler's psychiatric state. She described significant distress and frustration prior to her moving to Sydney. After moving to Sydney she developed a number of depressive symptoms in the context of her continuing physical symptoms and incapacity and the difficulties she experienced in obtaining work either in the legal area or as a waitress. Obtaining work as a waitress was made more difficult when she disclosed that she had had an operation and, even when she was able to find work, she found that [she] was unable to physically cope with waitressing.
I also note that there is considerable stress related to the compensation/litigation process and to her current financial situation.
By the time of my review Ms Butler was suffering from a major depression of marked severity. The extent of the deterioration in mental state has been described in detail in the body of the report.
In my opinion Ms Butler requires intensive and assertive psychiatric treatment in order to address the impairment in her mental state. She has already had treatment with Cipramil on two occasions and it would be appropriate for her to commence on another antidepressant. I have discussed with her the need for treatment and have attempted to recontact her to ensure that she has embarked on treatment. In my view her mental state is such that the input of a consultant psychiatrist is warranted.
I have also discussed my recommendations with Ms Butler's general practitioner Dr Ward.
In terms of prognosis, it is my view that there can still be significant improvement in Ms Butler's mental state. This will occur with psychiatric treatment and with the removal of financial stresses and the stresses related to the compensation/litigation process. Having said this, however, the chronic nature of her physical condition is such that she will remain at risk of a future deterioration in her mental state with the development of significant depressive symptoms. She thus may need additional input from a psychiatrist in the future.
Certainly an improvement in her mental state now would be associated with a significant increase in her chances of making a psychological adjustment to her current situation."
Later in the body of that report he went on to say that it was his view that her continuing physical symptoms, incapacity and inability to make a return to the workforce had been the significant factor in the deterioration of her mental state. But now with improvement in her mental state he would expect her to make a psychosocial adjustment to her physical condition. In the long term he said:
"Well, in my view it would be likely that there would be significant improvement and that would be achieved through the use of antidepressant medication. In addition - and what became clear during the course of my consultation was that there was considerable stress related to the compensation/litigation process and as this process is now coming to closure, I would expect that the removal of that stress would be associated with improvement so, in my view, there will be improvement. To what point she is left with residual symptoms is a little bit unclear." (T194)
In evidence Dr Febbo said that he would think that she would need to see a consultant psychiatrist in a period over six to 12 months, the visits would start at being quite frequent and then gradually decrease and by that he meant starting at fortnightly going to monthly, six weekly and then every two months. The AMA fee for that is $200 for an hour and $150 to $160 for a consultation between 30 and 45 minutes and he thought the consultations would be a mixture of hourly and half hourly consultations and during that time the medication could be adjusted.
He thought that there would be an improvement and that the improvement would take place over the course of a few months and then it would depend on response to medication.
I have already started the assessment of the plaintiff's loss of earning capacity as being until the middle of 2001, but it seems to me that, given her depressed state, given the amount of time she has had away from the law now, that that should be taken on a little further and in the circumstances I am prepared to assess her loss as a complete loss of capacity to work until December 2001.
To fix a basis for an assessment of her loss plaintiff's counsel called a partner in a mid‑sized legal firm to obtain information as to payment of solicitors. In 1997 they employed an articled clerk and paid $15,000 per annum exclusive of superannuation. In 2001 they will be paying an articled clerk $27,000 per annum. The articled clerk who was paid $15,000 per annum in January 1997 continued to work with them, his rate of pay increased in February 1998 to $32,500, in June 1998 to $38,500, in July 1999 to $45,000, then in July 2000 to $60,000. They are currently paying $67,000 for a fourth year solicitor, that fourth year solicitor is also an associate.
There was some objection from the defence in relation to these figures being taken into account but the reality is that it was well within the power of the defence to call evidence to dispute those figures. Not that it was ever suggested, or would be suggested, that the partner was being less than frank with the Court but if it was thought that these figures were out of proportion to "the going rate" in the profession, then one would have thought that it would be a very easy matter for the defence to put that evidence before the Court and they did not do so.
In the partner's evidence he gave evidence of some additional increases in salary in the half year which I have not referred to, however, when the plaintiff's solicitor came to prepare a schedule of past loss of earning capacity, he has taken an average for the years and it seems to me that that was a fair way to approach the matter. In 1997 he has said that her loss is $15,000 gross, $12,760 net; in 1998 $36,000, $27,000 net; 1999 $42,000 gross, $30,400 net; January 2000 to 18 September 2000 $37,000, $26,988 net; the total net salary is $97,148 and the lost superannuation on that is $7,820. To that I have added a further $6,747 and $518 for the three months to December.
The plaintiff has been paid workers' compensation in the sum of $65,826 which will need to be repaid. I am told that the tax in relation to that is $15,911, that will need to be repaid and must be included in the damages.
Because she was paid $52,229 net, there is uncompensated past loss of $59,863. Interest on that at 3 per cent for three years is $5,400.36.
In addition to that she is entitled to a loss of earnings and of superannuation benefit for a further 12 months and I have calculated that at the rate of $60,000 per annum gross, being $43,420 for 12 months. In addition the calculation for superannuation on that is $6,360.
Further, I have allowed the plaintiff a further sum of $45,000 on the basis that simply allowing loss to December 2001 will allow her time to get back to full time work, but does not allow for what Mr Schaefer conceded when he said that from time to time, she would have a mild to moderate degree of intermittent physical discomfort, particularly under conditions of undue physical stress or undue loading of the spine. It seems to me that that could well lead to some difficulty and with work and some time away from work. Both counsel, at varying times, referred to me making a global award in relation to lost earning capacity and in dealing with it in the two ways in which I have, I have really done that but provided information as to the way in which I have made the calculations. As to the sum of $45,000, I have chosen 10 per cent of the calculation made by the plaintiff's counsel of her loss over a period of 35 years. In choosing 10 per cent, I have made a small allowance for adverse contingencies. The total for future loss is $94,780.
Given the plaintiff's prior medical history, it did occur to me that she may be more than usually susceptible to injury in some non‑compensible way, but after giving the matter considerable thought, it seems to me that I should accept the evidence of the operating surgeon in relation to this matter and, in cross‑examination, the following exchange took place:
"You have given some evidence about her prior history of lower back pain and your evidence is that that is indicative of degenerative changes at that level of her spine. Did those degenerative changes at the L4/5 level make her more susceptible to an injury of this kind? --- Yes. The fact that she had pre‑existing degeneration makes it more likely that she would have ruptured that disc because, I think, the disc was symptomatic pre‑dating her injury.
I appreciate your evidence that you cannot predict the cause of degenerative change and injury consequent upon that, but if she is more susceptible to this kind of injury, does that mean, Mr Bannan, that she is also more susceptible to suffering that kind of injury earlier than someone who does not have that kind of change? --- Well, then that is the difficult thing to predict, the natural history. I mean, that's an impossible question to answer. All we know is that she has a potential weakness in her back and often the weakness is exposed when there is some form of accident but, as you say, people can wake up with leg pain, but I can't tell you whether she would have had the disc protrusion 12 months, two years, five years or 10 years or whether indeed she would have ever ruptured the disc." (T213 ‑ 214)
The statutory allowances paid by the insurer under the Workers' Compensation & Rehabilitation Act amount to $22,971 and there are outstanding special damages of $1,454.
There is a claim for future pharmaceutical costs at $18,593 which is a lifetime supply of antidepressants, sleeping tablets, Mersyndol Forte and Panadeine Forte. In my view that is not justified, however, I have no doubt that the plaintiff will need antidepressants and sleeping tablets for some time to come and may from time to time need analgesics and accordingly I have allowed her $6,000 for that.
So far as her future medical expenses are concerned there is a claim for $40,440 and that includes psychiatric expenses of $10,000, reviews by her general practitioner at $910, fusion surgery deferred for 10 years at $35,000 using a multiplier of .558 at $19,530 and a global allowance for expenses at $10,000. In all the circumstances, given the evidence that I have, and given the chance that she may require fusion surgery and she certainly requires psychiatric assistance, I have allowed that sum at $34,000.
As to the plaintiff's loss of amenities, she suffered an extremely painful and debilitating accident which required surgery. She continues to have pain and difficulty in relation to that and, as a result of it, she has suffered and continues to suffer depression which will require ongoing treatment. Furthermore, at some time in the future, she may require a fusion. A whole range of the physical activities that she previously engaged in is now denied to her, in all the circumstances and according to the procedures laid down in s 3C Motor Vehicle (Third Party Insurance) Act, I assess her loss of amenities at $36,000 ~~and the amount then, after deduction of the threshold required by statute, is $31,500~~.
It follows that the plaintiff is entitled to an award as follows:
Past loss of earning capacity  $103,895.00
Past loss superannuation  $    8,338.00
Income tax on worker's compensation


paid  $ 15,911.00
Interest on uncompensated past loss  $    5,400.36
Future loss of earning capacity and


superannuation  $ 94,780.00
Statutory allowances  $ 22,971.00
Unpaid special damages  $    1,454.00
Future pharmaceutical costs  $    6,000.00
Future medical costs  $ 34,000.00
Loss of amenities  ~~$ 31,500.00~~   $ 36,000.00
~~$324,249.36~~   $328,749.36
These shall be deducted from the award and repaid to the employer the sum of the worker's compensation and statutory allowances, being $88,798.25.