| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CRAIGIE -v- FLUOR DANIEL PTY LTD & ANOR [2003] WADC 254 CORAM : MULLER DCJ HEARD : 10-14 NOVEMBER 2003 DELIVERED : 27 NOVEMBER 2003 FILE NO/S : CIV 4711 of 1999 BETWEEN : ROCHELLE CRAIGIE Plaintiff
AND
FLUOR DANIEL PTY LTD
First Defendant
AUSCO BUILDING SYSTEMS PTY LTD
Second Defendant
Catchwords: Negligence - Liability of first defendant as occupier of residential unit for injury suffered by a contract cleaner - Plaintiff lacerated finger while cleaning laundry trough - Liability of second defendant as supplier and installer of laundry trough - Nature and extent of plaintiff's injury - Whether plaintiff permanently incapacitated from cleaning on mining sites - Assessment of damages for past and future economic loss
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Legislation:
Occupiers' Liability Act 1985 (WA)
Result: Judgment for plaintiff in the sum of $350,115 Representation:
Counsel:
Plaintiff : Mr M D Cuerden
First Defendant : Mr D Wallace
Second Defendant : Mr D Wallace
Solicitors:
Plaintiff : Griffiths & Godecke
First Defendant : Downings Legal
Second Defendant : Downings Legal
Case(s) referred to in judgment(s):
Australia Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Australian Postal Corporation v Gallard [2000] NSWCA 316
Fox v Wood (1981) 148 CLR 438
Hackshaw v Shaw (1984) 155 CLR 614
Martin v Thorn Lighting Industries Pty Ltd [1978] WAR 10
Wheat v E Lacon & Co Ltd (1966) AC 552
Case(s) also cited:
Bowen v Tutte (1999) Aust Torts Reports 81-043
Chapman v Hearse (1961) 106 CLR 112
Gant v Fleay & Anor, unreported; FCt SCt of WA; Library No 960381C; 18 July 1996
Jones v Bartlett (2000) 205 CLR 166
March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
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Watson v George (1953) 89 CLR 409
Watts v Rake (1960) 108 CLR 158
Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139
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1 MULLER DCJ: The plaintiff, who was born on 23 December 1964 and is now aged 39, was injured in the course of her employment at the Yandi Junction Mine Site located approximately 130 kilometres north east of Newman. The mine site was occupied by workers involved in the establishment of an iron ore mine owned and operated by Hamersley Iron. In January 1998 Hamersley Iron had contracted with a company named P & O Catering and Services Pty Ltd to provide the cleaning and catering services at the Yandi Junction Mine Site. The plaintiff, who was an employee of P & O Catering and Services Pty Ltd, severed a nerve in her finger when cleaning a stainless steel laundry tub in a residential unit at the mine site. As a consequence of her injury she has claimed damages against both the first and second defendants. Each defendant has denied liability for the plaintiff's injury.
Involvement of first and second defendants at the mine site 2 At the beginning of 1995 Hamersley Iron was investigating the feasibility of establishing and operating an iron ore mine in the Pilbara region. On 15 December 1995 Hamersley entered into a contract with the first defendant to undertake what was described as a definitive engineering study of the proposed mine. The agreement went on to provide that, if the project went ahead, the first defendant would, at the request of Hamersley, undertake the design, construction and commissioning of the new mine. 3 On 20 October 1997 Hamersley and the first defendant entered into what was described as a Deed of Variation. In this deed the parties acknowledged that the first defendant had completed the definitive engineering study contemplated by the earlier agreement and that Hamersley had requested the first defendant to undertake the design, construction and commissioning of the mine in accordance with the terms of the contract. Construction began in September 1997. 4 In December 1997 Hamersley Iron Pty Ltd contracted with the second defendant, then known as James Hardie Building Systems Pty Ltd, to perform certain works at the mine camps including the Yandi Junction Mine Site. Following this agreement the first defendant, in its capacity as the engineering and project manager, corresponded with Hamersley Iron and arranged for certain variations to the original contract including the provision of accommodation units for senior personnel at the three mining camps. One of these units was intended to accommodate the first defendant's employee, Mr W Jackson, at the Yandi Junction Mine Site.
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This was the accommodation unit in which the plaintiff sustained her injury. 5 Following the decision to provide this accommodation unit at the Yandi Junction Mine Site documents tendered in evidence at the trial revealed that the second defendant arranged for the plumbing and other fittings and fixtures to be installed in the accommodation unit. A purchase order issued by the second defendant dated 25 February 1998 and addressed to Tradelink WA discloses that the second defendant ordered three 45 litre stainless steel troughs for installation in the accommodation units at the three mining camps. A second purchase order from the second defendant dated 25 February 1998 addressed to K & M Pring Pty Ltd reveals that the second defendant arranged for the plumbing to be installed in the residential units. In the second defendant's answers to the plaintiff's interrogatories dated 23 October 2003 the second defendant admitted that it arranged for the supply of the stainless steel trough in the unit in which the plaintiff was injured but did not install it. In a further answer in the same document the second defendant said it was unable to state from its records when the supply of the trough took place but believed it to be some time after 25 February 1998. Later, during the course of the defendants' case, evidence was given by two employees of the second defendant that the residential units at the mining site were assembled at the second defendant's factory and that the plumbing and laundry troughs were supplied by Tradelink and installed in the residential units at the second defendant's factory by a contractor named K Pring who worked on a full-time basis at the second defendant's business premises. 6 After the units had been assembled, and the fixtures and fittings installed, an inspection was undertaken at the second defendant's factory to ensure that the finished product complied with the plans. 7 It was against this background that the plaintiff mounted her claim against each defendant. In the amended statement of claim the plaintiff pleaded as follows:
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5. The First Defendant was the occupier of the premises and the Plaintiff was the person entering the premises within the terms of the Occupiers' Liability Act 1985 (WA). 6. The Second defendant contracted with the First Defendant to supply and maintain accommodation units at the said Mine Site Village and the stainless steel laundry tub referred to in paragraph 4 hereof was contained in an accommodation unit so supplied. 7. The said accident was caused or contributed to by the negligence and/or breach of statutory duty of the First defendant, its servants or agents.
Particulars of Negligence and/or Breach of Statutory Duty
(a) failing to ensure that the stainless steel tub would be cleaned from time to time and failing to ensure that is (sic) surface was smooth and free of a jagged metal edge; (b) knowing that the stainless steel tub would be cleaned from time to time and failing to ensure that its surface was smooth and free of a jagged metal edge; (c) exposing the Plaintiff to a danger or a trap and a foreseeable risk of injury; (d) failing to extend such care as was reasonable in all the circumstances to ensure that the Plaintiff would not be injured whilst cleaning the laundry tub; (e) failing to discharge the duty of care to see that the Plaintiff was safe in using the said premises contrary to s 5(1) of the Occupiers' Liability Act 1985 (WA). 8. Further, or in the alternative, the said accident was caused or contributed to by the negligence and/or breach of statutory duty of the Second defendant its servants or agents.
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Particulars of Negligence and/or Breach of Statutory Duty (a) failing to ensure that the stainless steel tub in the bathroom was free of the jagged metal edge; (b) knowing that the stainless steel tub would be cleaned from time to time, failing to ensure that its surface was smooth and free of a jagged metal edge; (c) exposing the Plaintiff to a danger or a trap and a foreseeable risk of injury; (d) failing to extend such care as was reasonable in all the circumstances to ensure that the Plaintiff would not be injured whilst cleaning the laundry tub; (e) failing to ensure that the laundry tub was fit and safe for the purpose of which it was designed; (f) failing to undertake a proper and diligent inspection of the laundry tub prior to its supply to the First Defendant; (g) failing to bring to the attention of the First Defendant, its servants or agents and/or the Plaintiff the fact that the laundry tub had a sharp protruding metal edge. 9. As a result of the accident the Plaintiff has sustained a laceration to the right little finger which divided the ulnar site digital nerve." 8 Both the first and second defendant denied that the plaintiff was injured as alleged or that either had been negligent in the manner claimed by the plaintiff. In its amended defence the first defendant alleged that, if there was an accident at all, it was not a consequence of the breach of any duty of care owed by it to the plaintiff because the existence of the jagged metal edge on the stainless steel trough upon which the plaintiff injured her hand was not apparent on a reasonable inspection and the first defendant and its employees were unaware of the danger, if it existed at all, prior to the date of the accident. Furthermore, it was alleged that if the first defendant were negligent the plaintiff had cause or contributed to her
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alleged injury by her own negligence and had also failed to mitigate her damages. 9 The second defendant, apart from its admission that it had arranged for the supply of the stainless steel trough as explained earlier, relied on precisely the same particulars of defence as the first defendant.
Plaintiff's employment history 10 The plaintiff was born in New Zealand on 23 December 1964. She completed Form 5 at school which is the equivalent of Year 10 in Australia. She left school at the age of 16 with no formal educational qualifications. On leaving school she was employed as a bank teller for three years before moving to Sydney where she worked for Myer for another three year period. After this she returned to New Zealand where she did seasonable work picking fruit and then found employment doing cooking and kitchen work. 11 In January 1996 she left New Zealand for Western Australia. Her purpose in coming to Western Australia was to find full time work in the mining industry. She applied for a job with P & O Catering and Services Pty Ltd as a utility worker. Her employer provided catering and cleaning services to various mine sites. 12 The plaintiff was given a permanent position and in January 1996 was sent to work at a gold mine near Norseman. She was originally rostered to work four weeks at a time with one week off. This system later changed to two weeks on and two off. She was required to work a seven day week. After working for approximately 10 months at the mine site near Norseman she decided to change her status to one of casual employment which would enable her to work at other sites, including construction sites, where she expected to earn a higher wage. As a casual worker she continued to do what she described as utility work at 14-16 different locations. She worked according to a roster and her hours varied from site to site. At some locations she was required to work between 9-12 hours a day for seven days a week. At other locations she was required to work even longer hours. She said she usually worked for periods of 3-5 weeks before taking a rostered week off. Her average working shift was approximately 10 hours. 13 In 1998 the plaintiff fell ill. She did not work between 22 February 1998-3 May 1998 and received a Newstart Allowance during this period. Following her return to work in May 1998 she went to work
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at a mine site named "Sunrise Dam" for approximately two weeks. Both at this time and earlier she had pressed her employer for work on what she described as a construction site where wage rates were higher. At the end of May 1998 P & O Catering and Services Pty Ltd offered her a position at the Yandi Junction Mine Site. Her first pay voucher from this work is dated 31 May 1998. Her work at the Yandi Junction Mine Site involved cleaning rooms and working in the site shop and kitchen. She was required to work between 4.00 am-4.00 pm seven days a week. Her roster required her to work for six weeks before taking one week off. The accident to the plaintiff occurred less than two months after she began work at the mine site.
Circumstances of accident 14 On the morning of the accident on 17 July 1998 the plaintiff began work later than usual at 8.30 am. She had been instructed by the head housekeeper to do what she described as detailed cleaning of three accommodation units in G Block. The three accommodation units were occupied by what the plaintiff described as the mine manager and two other senior mine employees. She said she worked on her own cleaning the mine manager's house leaving the bathroom/laundry until last. Although she had cleaned the house before she had never had to do the bathroom. The bathroom/laundry comprised a hand basin, toilet, shower and a stainless steel laundry trough. The plaintiff, who was wearing gloves made of what she described as soft plastic, began cleaning the stainless steel trough with a cloth. She noticed a stain on the surface of the trough and tried to remove it. While she was wiping the stain she said she caught her hand under what she described as the "rim part" at the top right hand corner of the front of the basin. She said she felt a sharp pain and noticed blood flowing down her arm from her right glove. She went to her trolley, removed her glove and put a towel over the cut on the little finger of her right hand. When she removed the towel the blood continued to flow and she felt a dull ache in her hand. She left the accommodation unit and made her way immediately to what she described as the medical centre where she was treated by a medical assistant or nurse. Her wound was bandaged and she said she returned immediately to her room. Realising she would be unable to work she left the mine site that night and returned to Perth. She saw her general practitioner on the morning of Monday 20 July 1998. 15 The plaintiff's account of how she sustained her injury was challenged in cross-examination. It was suggested to her that she had not
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cut her finger on the edge of the laundry trough as she alleged. It was also suggested she had given conflicting accounts in the past as to how she had sustained the injury. Her attention was drawn to par 4 of her statement of claim in which it was alleged that she sustained a laceration to her right little finger when it struck the jagged metal edge protruding from the stainless steel laundry tub. This allegation, it was suggested, conflicted significantly with an answer the plaintiff gave to interrogatories administered by the defendant in which she said, among other things, that she cut her small finger on the "unsealed rim of a basin" and that the accident occurred when she wiped the front side of the basin with her right hand and caught the unsealed rim of the basin with her little finger. While conceding that the bathroom/laundry did contain a wash basin the plaintiff denied any conflict between her statement of claim and the answer she gave to the interrogatory administered by the defendant. I am inclined to agree that, while in each instance she may have described the incident in a different way, and used different terminology, she was referring to one and the same incident involving the stainless steel laundry trough. It is true that in her answers to interrogatories she repeatedly referred to the "unsealed rim of a basin". I accept her explanation that she used the expression "basin" to mean the laundry trough and was not referring to what she described as the porcelain hand basin in the same room. I am also satisfied there is no significant difference in her description of what part of the trough she cut her finger on. Her reference in her statement of claim to the "jagged metal edge protruding from the stainless steel laundry tub" is, in my view, quite consistent with her description in her answers to interrogatories of the "unsealed rim of the basin". 16 The plaintiff's assertion that she cut her finger on the laundry trough was supported by the evidence of John Da Silva. At the time he was employed as a chef at the Yandi Junction Mining Site and on 17 July 1998 saw what he described as a trail of blood on the ground leading to the mine manager's house. Out of curiosity he followed the trail and saw a cleaner's trolley outside the house. He noticed a glove on the trolley with blood on it. The witness entered the house and followed the trail to the bathroom/laundry. He noticed blood smeared along what he described as the approximately one inch high lip at the front of the trough over a distance of approximately 1-1/2-2 feet extending as far as the front right hand corner of the trough. In describing the laundry trough he said it had a front lip that turned at right angles to the front of the trough. The lip was approximately one inch in depth. He said the lip did not fold back under itself at a second right angle leaving a jagged edge exposed. He
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also noticed a gap at the point where the front lip joined the right hand side lip. The edges of the lip where the gap was were sharp and jagged. While the jagged edge of the lower part of the lip running along the front of the sink was not visible, and the witness had to run his hand along it in order to feel the exposed edge, he said the gap between the front and right hand lips was noticeable. About three days later Mr Da Silver said he had to return to the mine manager's house and noticed that the front lip and the bottom edge and right hand corner of the front of the trough had been covered in masking tape. 17 The defendants led evidence to contradict the testimony of the plaintiff and John Da Silva. Winston Jackson, the construction manager for the first defendant, confirmed that he was living in the accommodation unit at the time of the plaintiff's accident. As the construction manager at the mining site he was able to say that the second defendant had hired the accommodation unit to Hamersley Iron. He said he had occupied the unit for at least several weeks before the accident. His description of the bathroom/laundry was different to that of the plaintiff and Da Silva. While he confirmed that the laundry trough was made of stainless steel and was bracketed to the wall he said the wash basin, which was located at the opposite end of the bathroom, was also made of stainless steel and not, as the plaintiff and Da Silva had alleged, of porcelain or china. In describing the stainless steel trough he said the front lip extended outwards before turning downwards at right angles and then turning back on itself slightly towards the trough. This description, of course, was different to that given by Da Silva. In cross-examination, however, Mr Jackson conceded that he had never inspected the laundry tub and that the drawings he prepared that were introduced into evidence simply reflected his own perception of a typical laundry tub to be found in any domestic residence. Given that admission I have no hesitation in preferring the description of the stainless steel trough given by John Da Silva who, unlike Mr Winston Jackson, actually inspected the stainless steel trough and felt the jagged and sharp edges. 18 The defendants did not rely principally on the evidence of Winston Jackson. Their denial of the plaintiff's allegations was based primarily on the testimony of Anthony Wheeler, a civil engineer employed by the first defendant, who had been the area superintendent at the construction site at the time of the accident. The day after the plaintiff was injured Anthony Wheeler said he was asked by the construction manager, Winston Jackson, to inspect the bathroom/laundry and take steps to remedy any defect or problem that might exist. He said he inspected both the wash hand basin and the laundry tub which were both standard
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stainless steel items. Both the laundry tub and the wash hand basin were supported on brackets on the wall. He said both the laundry tub and the wash hand basin were standard pressed metal basins made from stainless steel with a front vertical face and a horizontal return edge beneath the bowl. His examination revealed there were no joins or welded sections on the top of either sink. He said both front corners of both of the sinks were welded and there were no gaps in the metal. Significantly he said there were no visible sharp edges on the top or corners of either the wash hand basin or the laundry tub. His inspection revealed that the return edge on both units was squared off and not sharp. 19 This evidence, of course, conflicted substantially with the description given by the plaintiff's witness, John Da Silva. In evaluating the evidence of these two witnesses, and endeavouring to resolve this conflict, I have attached significant weight to the fact that John Da Silva actually saw blood on the stainless steel trough and focused all his attention on that unit. He did not even examine the wash hand basin because he saw no need to do so. 20 That was not the case with the defendant's witness, Anthony Wheeler. When he was asked by the construction manager to examine the bathroom he assumed that the plaintiff had injured herself on the wash hand basin and not the stainless steel laundry trough. He conceded in cross-examination that it was the wash hand basin, and not the stainless steel laundry tub, that was the principal focus of his investigation. This immediately raises the question whether his examination of the stainless steel laundry trough was as thorough as it might have been. 21 Another factor that has caused me to view Anthony Wheeler's evidence with some caution is the discrepancy between his findings and those of an investigation undertaken by employees of P & O Catering & Services Pty Ltd contained in what is described as an Incident Hazard Report. Part of this report was tendered in evidence pursuant to s 79C of the Evidence Act. The investigation was obviously initiated by the first defendant because the report was made in a document bearing the name of the first defendant. The results of the investigation were also referred to senior employees of the first defendant who have signed the report acknowledging its contents and confirming that the remedial actions suggested in the report would assist in preventing a recurrence of what had happened. Whilst I accept that the Incident Hazard Report should be treated with caution because the relevant entries are necessarily hearsay but were received into evidence by way of statutory exception I still believe it is significant that the investigation undertaken by employees of
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P & O Catering & Services Pty Ltd revealed what were described as sharp edges on the underneath rim of the laundry basin in G Block. The recommended corrective action was the installation of silastic covering to all corners and sharp edges to all stainless steel basins. These observations, which as I have said were accepted by senior officers of the first defendant, conflict substantially with the evidence of Anthony Wheeler. 22 The absence of any sharp or jagged edges or gaps was not the only point on which the evidence of Anthony Wheeler conflicted with that of the plaintiff's witness, John Da Silva. Mr Wheeler's description of the lip of the stainless steel trough also differed from the description given by Da Silva. Mr Wheeler said the horizontal lip was about 10 millimetres in width and that both the front and left lips had been welded together at the right corner. He was unable to see any gap in the join. 23 I was also unable to reconcile Da Silva's description of finding the bottom edge and corner of the lip covered with masking tape three days after the accident with Wheeler's evidence that silastic covering was only applied to the bathroom sink. What is clear is that Da Silva saw what appeared to be masking tape on the underside and corner of the laundry trough rim approximately three days after the accident. Wheeler did not see this but noticed the silastic covering on the rim of the hand basin. What is not clear however, is when Wheeler made this observation. It may have been after Da Silva saw the masking tape. I am really unable to reconcile this conflict but in the end probably little turns on it. 24 Faced with these conflicts I prefer the evidence of John Da Silva. In my view he was an impressive witness. While he had no official role to play in the investigation he obviously was extremely concerned about what had happened to the plaintiff and demonstrated by his evidence that he had made a very careful inspection of the stainless steel trough which he knew from his own observations had been the point where the accident occurred. I also accept his testimony that the lip of the trough was as he described it and that the edge was sharp and jagged. I also accept his assertion that there was a gap between the front and right hand lip at the point where they joined at the right corner. While I prefer his description of the sink to that given by Anthony Wheeler I do not mean to cast any aspersions on Mr Wheeler's integrity or honesty. I believe he was simply mistaken. His mistake, in my view, probably arose because of his uncertainty as to where the plaintiff had injured herself. Acting on the assumption that she had injured herself on the hand basin he obviously – as he admitted – focused upon that unit rather than the stainless steel
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trough. His concentration on the wrong unit may explain the differences between his observations and those of the plaintiff's witness, John Da Silva. 25 During the trial a statement made by one Gavin John Younger was tendered in evidence by the defence pursuant to s 79C of the Evidence Act. The maker of the statement was employed on the site as the catering/cleaning supervisor at the time of the plaintiff's accident. In this statement Gavin Younger asserted that, immediately after the plaintiff had cut her finger, she took him to the unit and indicated that she had cut her finger on the small stainless steel hand basin in the bathroom. In his statement Younger asserts there was no obvious defect or sharp edge on which the plaintiff could have cut her finger and, while he noticed some drops of blood of the floor of the unit, he did not see any blood on the sink itself. 26 I am not prepared to accept the contents of Younger's statement in preference to the evidence of the plaintiff and Da Silva. What the plaintiff allegedly showed Younger as to where she cut her hand is markedly different from her evidence in this Court. What Younger claims to have seen, or not to have seen, is also substantially inconsistent with the evidence of Da Silva. On issues as critical as this I find I am quite unable to accept the contents of Younger's statement in preference to the sworn testimony of the plaintiff and Da Silva particularly as Younger appears to have signed the Incident and Hazard Report acknowledging the existence of sharp edges on the underneath rim of the laundry trough. 27 I found the evidence of the plaintiff to be satisfactory. She definitely cut her finger in the bathroom and, in my view, she had nothing to gain by giving false or misleading testimony as to where she cut it. She gave a straightforward account of how the accident occurred and I certainly gained the impression that she was truthful and gave as accurate an account as she could. Her evidence was substantially confirmed by Da Silva whom, as I have already said, was also a satisfactory witness. I am satisfied on the evidence as a whole that the plaintiff has proved to the required standard that she cut her finger while cleaning the stainless steel laundry trough in the manner in which she said she did. 28 Another area in which the plaintiff's evidence was challenged was in her description of the extent of her disability. It was suggested that she had consistently exaggerated the degree of her disability and that she was capable of flexing and extending the fingers in her right hand to a significantly greater degree than she had consistently demonstrated to her
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surgeon, Mr Craig Smith. The plaintiff disagreed categorically with this suggestion. While she emphasised she had no difficulty in holding a cigarette between her permanently flexed index and middle fingers, and could perform other functions with her disabled hand, she denied any suggestion that she had consistently exaggerated the degree of her disability or that she could extend her fingers to a much greater extent than she would have others believe. I will return to this challenge to the plaintiff's credibility when I deal with the medical evidence.
Effect of plaintiff's injury 29 After seeing her general practitioner on 20 July 1998 the plaintiff was referred to Mr Craig Smith who was a hand specialist. She underwent surgery following which she had her hand put in plaster and wore a sling. She remained in Perth for two to three days and then returned to Yandi Junction Mine Site on light duties. These involved checking rooms, working in the bar and in the site shop. Since her dominant hand had been injured she found she was only able to write with difficulty and also found it difficult to serve drinks in the bar using only her left hand. She had no movement at all in her right hand at this stage. 30 Three weeks later her plaster was removed by Mr Smith and she returned to Yandi Junction Mine Site for a second time on light duties. These were the same as on the first occasion. Arrangements had been made for her to receive hand therapy in Newman but nothing came of this. After two weeks the plaintiff found it too difficult to continue with light duties and returned to Perth. 31 On her return to Perth she underwent occupational hand therapy and physiotherapy. Her specialist arranged for splints to be made and she was required to wear them for a certain number of hours a day and then take them off and exercise her hand. She said she complied with these directions. 32 During this time the plaintiff saw a Dr Duncan Anderson who performed three nerve blocks upon her. The plaintiff was unable to say whether this treatment assisted her in any way. She also saw an orthopaedic surgeon, Mr Michael Halliday, and underwent treatment for depression in early 1999 from a Mr Runciman. 33 Apart from the two occasions on which she returned to the Yandi Junction Mine Site to do light work the plaintiff has not worked since the accident. She did undergo several work trials at the Head Office of
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P & O Catering and Services Pty Ltd and also at the Sheraton Hotel and with an employment agency. These trials, however, were largely unsuccessful. 34 In an attempt to better herself the plaintiff completed a 20 hour computing course at Tuart College in August 1992 and another course focusing on opportunities for women. She also began but did not complete a bookkeeping course which she found too difficult. 35 At the beginning of 2003 the plaintiff applied for at least four positions at various lunch bars and other food outlets. Apart from one food outlet which offered her eight hours' work a week the other potential employers turned down her applications. The plaintiff rejected the offer made by the one food outlet because the number of working hours and the wage offered did not make the position financially viable.
The medical evidence 36 Following her return to Perth immediately after the injury the plaintiff saw her general practitioner, Dr Maysa Abu Laban. Dr Laban managed the treatment of her hand in conjunction with the specialist, Mr Craig Smith. In her evidence Dr Abu Laban emphasised that the loss of function in the plaintiff's right hand was a major disability which, in her opinion, precluded the plaintiff from returning to work as a cleaner at a mine site. Dr Abu Laban also treated the plaintiff for the pain and discomfort she experienced as a consequence of her injury. This treatment consisted of laser therapy which, according to Dr Abu Laban, alleviated the plaintiff's pain and discomfort to an appreciable degree. 37 Apart from her physical injury Dr Abu Laban also diagnosed the plaintiff on 31 January 2000 as suffering with severe depression secondary to her work related accident. In her view the plaintiff's depression was caused by her permanent loss of her employment at the mine site and the break-up of a personal relationship some months after her injury. She referred the plaintiff to a clinical psychologist for treatment and prescribed anti-depressant medication which the plaintiff only discontinued at the beginning of 2003. Dr Abu Laban conceded that the plaintiff was doing very well at present in overcoming her state of depression. 38 Mr Stephen Runciman was the clinical psychologist to whom the plaintiff was referred for treatment. In a series of reports he described how he assessed the plaintiff as suffering from moderate depression
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consequent upon her work injury on 17 July 1998. In his view her depression was compounded by the death of her father and the break-up of her relationship following the accident. Mr Runciman participated in a number of psycho therapy sessions with the plaintiff and noted that she made a positive response to that treatment. Her state of depression diminished to the point where, in his most recent report dated 3 November 2003 he was able to say that ongoing psychological treatment is no longer warranted although he believes that the loss of function in her hand is likely to be a cause of some degree of stress throughout her life. 39 As I said earlier Mr Craig Smith, a specialist in hand and wrist surgery, was the treating specialist who attended to the plaintiff immediately after the accident and continued to review her until medical treatment ceased. When he initially examined her on 21 July 1998 he observed that her right little finger had a reduced range of motion and reduced sensation. Believing she had sustained a nerve injury he explored the right little finger surgically and found that the ulnar side digital nerve had been divided. The nerve was repaired, her wounds closed and her hand placed in a plaster back slab. When the plaster was removed her wound was found to have healed well. Mr Smith advised her on this occasion and on numerous other occasions to undergo hand therapy and to exercise her fingers regularly. 40 In a report dated 26 August 1998 Mr Smith commented that the plaintiff held her hand in a very unusual position. He observed that she held all her fingers in a claw like position despite the fact that only one finger had been operated on. He concluded that her post-operative progression was poor and tentatively concluded that she had developed a degree of reflex sympathetic dystrophy. Given this suspicion he referred her to a pain specialist for stellate ganglion block treatment. 41 As the months went by the plaintiff's condition did not improve. Regular examinations by Mr Smith revealed that her hand still lacked a degree of extension and flexion. With time she was found to have improved extension, especially in the middle finger, but still lacked extension in the ring and little fingers. 42 Twelve months after her injury little had changed. While the plaintiff's hand had been placed in splints, and she had been advised to remove the splints in order to undergo therapy and exercise her hand regularly before replacing them, Mr Smith reached the conclusion that her condition had improved as much as it was going to and decided to stop the splint treatment. At about this stage the plaintiff's lack of flexion, and
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particularly extension, in her little finger, middle ringer and ring finger led him to conclude that she had a combined long term permanent disability equating to 24 per cent of the function of her right hand. 43 Under cross-examination Mr Smith conceded that the injury was a relatively minor one and that in most cases he would have expected the patient to have regained a full range of hand functions within five weeks. This was not the case here. He believed the most probable explanation for the plaintiff's failure to respond to surgery in the normal way was twofold: first she may have had a small degree of reflex sympathetic dystrophy following the operation that led to her hand becoming swollen, stiff and painful; second, she did have significant signs and symptoms pointing towards a psychological component to her problem. In his view it was probably these two components, particularly the psychological factor, that led to her abnormal posturing and manner of holding her hand following the operation. 44 It was suggested to the specialist that the plaintiff had exaggerated her symptoms and was able to flex and extend her fingers to a far greater extent than she had demonstrated at the various consultations in his surgery. When shown a surveillance video tape of the plaintiff's movements Mr Smith conceded that she probably was capable of actively extending at least her index and middle finger to the same extent as those two fingers could passively be extended at consultations in his surgery. He emphasised, however, that the plaintiff still had a degree of stiffness of the fingers and that her little finger remained locked in the position it was in and was incapable of further active extension. Whilst Mr Smith conceded he found it difficult to understand the lack of function in the plaintiff's right hand he was adamant that she had a degree of disability that precluded her from returning to her pre-accident employment as a cleaner on a mine site. In his view work of that nature would exacerbate the pain in her hand and, given the restriction of movement in her fingers, particularly her little finger, would largely be beyond her capability. 45 It was expressly put to Mr Smith in cross-examination that the plaintiff had a significant, if not full, range of hand movement and that she was a malingerer. Mr Smith dealt with this suggestion by saying that while the plaintiff probably had the ability to extend some of her fingers to a greater degree than she appeared to be able to do he preferred to categorise her inability in terms of psychological overlay rather than a deliberate and conscious decision consistent with malingering.
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46 Dr Keith Grainger, a specialist in neurology, was called as a witness by the first and second defendants. He saw the plaintiff in October 1992 when she told him she was unable to open her hand. At that initial examination – and the only one he undertook of the plaintiff – he thought it possible that the little finger on her right hand had an organic disability because he was unable to straighten it. He also suspected, but was by no means convinced, that the first to the fourth fingers may also have had changes in the flexor tendons producing permanent contractures and flexion of the fingers. He was confident, however, that there was no room for a finding of reflex sympathetic dystrophy because the literature he had access to did not support this type of condition following an ulnar nerve lesion. Furthermore he concluded that the symptoms of alteration of colour, oedema and sweating were consistent, not only with reflex sympathetic dystrophy, but also with the non-use by the plaintiff of her hand. Following this consultation Dr Grainger also believed that the plaintiff's condition was due to what he described as an "hysterical reaction" unrelated to any organic underlying cause.
47 When shown the surveillance video tapes Dr Grainger changed his opinion. Given the manner in which he saw the plaintiff moving her hand on the video tape he concluded she did not have any organic disability and the lack of any distress or pain in carrying out the movements shown on the video reinforced his earlier view that there was no evidence of ongoing sympathetic reflex dystrophy. 48 It is significant that Dr Grainger's initial impressions following his only consultation with the plaintiff and before he saw the surveillance video were, to a large extent, consistent with those of Mr Craig Smith. Allowing for their difference of opinion as to whether a reflex sympathetic dystrophy was a component of the plaintiff's condition both specialists agreed that her problem had a significant psychological component. Mr Smith referred to this possibly being a significant causative factor while Dr Grainger expressed the same view in similar terms but referred to the plaintiff's condition as an "hysterical reaction". 49 Whatever the aetiology of the plaintiff's injury might have been the critical question I have to decide is whether she is disabled to the extent that she claims to be. Subject to the minor qualifications I referred to earlier Mr Craig Smith was of the view that she was permanently disabled. The only qualification he added, after viewing the surveillance tapes, was that the plaintiff could probably extend her index and middle finger to a greater degree than she had demonstrated during his consultations with her. But that was as far as he was prepared to go.
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Dr Grainger, on the other hand, was convinced by the surveillance tapes that the plaintiff was a malingerer. He based this opinion upon two observations: first, her hand movements as shown on the surveillance tapes which led him to believe she did not have an organic disability; second, the absence of any distress or pain in doing what she did which reinforced his earlier view that there was no evidence of ongoing reflex sympathetic dystrophy. He expressed the view that the radical change between the plaintiff's presentation to him in October 2002 when she claimed to have a non-functioning hand and the hand movements she demonstrated she was capable of on the surveillance video tape was so great as to point towards her being a malingerer. 50 I had the opportunity of seeing the surveillance video tape played in court during the trial. I did not find it easy to focus on the plaintiff's right hand or to observe the detailed movements of her hand. What I saw did not lead me to doubt the genuineness of her claim. Holding a cup of coffee, smoking a cigarette and using part of her right hand to push herself out of a chair were not actions which, in my view, required a substantial extension of the little finger, or even the index and middle fingers, to achieve. Certainly Mr Craig Smith saw nothing in those movements to cause him to doubt the genuineness of the plaintiff's disability. What he did attach significance to was her act of smoking a cigarette which led him to believe she had a greater extension in her index and middle fingers than she had earlier demonstrated. But that was all. Even her action in pulling a mobile rubbish bin did not seem to concern him. 51 I prefer the evidence of the hand specialist, Craig Smith, to that of the neurologist, Dr Grainger. Mr Smith was the treating specialist who saw the plaintiff on numerous occasions over a considerable period and was, in my view, in the best position to assess her genuineness. Dr Grainger, on the other hand, only saw her once and seems to have been heavily influenced by the plaintiff's alleged original assertion during his consultation with her in October 2002 that she could not open her hand which led him to believe that her hand was "useless". Unlike Mr Smith he did not measure the degree to which she could flex and extend her fingers and this, in my view, might have led him to conclude that what he saw on the surveillance video was so different to what he remembered at the consultation in October 2002 that the plaintiff could not possibly be genuine. On reviewing the medical evidence, and relying also on my own assessment of the plaintiff as a witness, I find that she did suffer a permanent disability of her right hand to the degree described by the surgeon, Craig Smith.
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Liability of first defendant
52 While not formally admitted by the first defendant it was never seriously contested that the first defendant was an occupier of the premises within the meaning of s 2 of the Occupiers' Liability Act 1985. In Wheat v E Lacon & Co Ltd (1966) AC 552 the expression "occupier" in the Occupiers' Liability Act, 1957 (UK) was described as: "simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully onto the premises." 53 In Australia Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 the High Court confirmed that the duty of care owed by an occupier under the relevant legislation and the duty of care owed under the common law was the same. In reaching this conclusion the High Court adopted the statement of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 622 as follows: "It is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff." In deciding whether the first defendant owed the plaintiff a duty of care the first question I have to resolve is whether the existence of the danger due to the state of the premises was known, or ought reasonably to have been known, by the first defendant. I have already made the point that the jagged and sharp unsealed lip of the stainless steel trough could only have been detected upon inspection. It was not, as the witness Da Silva acknowledged, apparent from a visual examination. Counsel for the plaintiff submitted that, even though the dangerous nature of the lip was not apparent on a visual examination, the first defendant ought reasonably to have inspected the trough for the purpose of discovering unsuspected defects. In support of this submission counsel drew a distinction between commercial and residential premises and submitted that the accommodation unit was essentially a commercial building rather than a private residence. On that basis counsel maintained that the first
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defendant had a clear duty to inspect its premises for unsuspected defects: Australian Postal Corporation v Gallard [2000] NSWCA 316. I am unable to accept that submission. The authority relied upon is, in my view, clearly distinguishable. The property involved in that decision was a public ramp over which large numbers of people passed daily. That was not the case with the manager's residential unit. It was his private accommodation and, according to his evidence, only invitees and cleaners had access to it. 54 I do not believe much turns on the distinction between private and commercial premises. While the sharp edge at the bottom end of the lip was not visible and could only be found on inspection the same could not be said for the gap in the right hand corner of the sink. This gap, as I have already indicated, was visible. The edges of the rim on either side of the gap were, according to Da Silva, ragged and sharp. The first defendant as the occupier ought reasonably to have been aware of this dangerous defect and should have appreciated that the trough, if used in a regular fashion, including being cleaned, would pose a real danger to the user. 55 What is more the visible gap at the corner of the trough should have put the occupier on notice of the possibility of other dangers and led the occupier to carry out a thorough inspection of the unit which would have led to the discovery of the sharp and jagged edges of the underneath of the rim. 56 Given these findings I am satisfied the first defendant owed the plaintiff a duty of care and that it failed to take reasonable measures to rectify the danger and protect the plaintiff from the risk of the type of injury she suffered.
Liability of second defendant 57 The second defendant not only arranged for the supply of the laundry trough but also arranged for its installation in the accommodation unit at its own factory. As the supplier the second defendant was under a duty to inspect the unit and its fixtures and fittings for anything that might constitute a real danger. The extent of this duty is commented upon in Fleming's "The Law of Torts" 9th ed 1998 at 546-547: "The responsibility laid upon manufactures by Donogue v Stevenson has been progressively extended to makers of component parts integrated into a final product by someone else, Evans v Triplex Glass [1936] 1 All ER 283 at 286
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(windscreen) to repairers, Haseldine v Daw [1941] 2 KB 343; Jull v Wilson [1968] NZLR 88; Godrey's v Ryles [1962] SASR 33 (but the repairer may well have been justified in relying on an intermediate examination) erectors, Brown v Cottrill (1934) 51 TLR 21, assemblers, Stennett v Hanock [1939] 2 All ER 578; Howard v Furness Houlder [1936] 2 All ER 781; Malfroot v Noxal (1935) 51 TLR 551, even to building contractors who render (even complete failure to repair, as distinct from negligent execution of repair may be a source of tort liability, at least when there is an implied representation that it has been carried out and the article rendered harmless) a chattel, house or structure (above, p 524) dangerous. Beyond that, reasonable care demands from those handling or distributing goods some measure of inspection to detect defects in the creation of which they may not have had a hand at all. The maker of a beverage, for instance, owes a duty to inspect the bottles he uses, Hart v Dominion Stores (1968) 67 DLR (2d) 675; Adelaide Chemical Co v Carlyle (194) 64 LR 514 (unsuitable container) even if this need not be nearly as exacting as the tests for flaws required from the bottle manufacturer, since to demand more would be needlessly wasteful and often impracticable. Similarly, people who loan out equipment White v John Warwick [1953] 1 WLR 185; Godfrey's v Ryles [1962] SASR 33 must carry on a reasonable system of maintenance and inspection to minimise the risk of injury to likely users, such as dock workers operating a rented truck Sullivan v Gallagher [1959] SC 243 or using slings furnished by stevedores for the purpose of their common task of unloading a ship Oliver v Saddler [1929] AC 584." 58 The second defendant never contended that any such inspection was undertaken. The only evidence adduced on behalf of the second defendant demonstrated that an inspection was done to ensure that the finished unit complied with the plans. That was clearly not enough. Where, as in this case, there was, as I have found, a real and detectable danger that resulted in injury to the plaintiff the second defendant, in order to avoid liability, has to demonstrate that it exercised reasonable care to ensure that no such danger existed. Martin v Thorn Lighting Industries Pty Ltd [1978] WAR 10. The second defendant failed to carry out this duty and must also be liable to the plaintiff for the injury she suffered.
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Contributory negligence
59 In their defence both defendants pleaded contributory negligence by the plaintiff. The major factor relied upon by both defendants was the plaintiff's alleged failure to wear protective gloves. The only evidence to suggest she was not wearing protective gloves came in the form of a proof of evidence of one Gavin John Younger that was tendered in evidence pursuant to s 79C of the Evidence Act. In that statement the witness claimed that following the plaintiff's injury he examined a pair of rubber gloves on the plaintiff's cleaning trolley and found that the gloves were intact and uncut. When he asked her how she had cut her finger without damaging her gloves she allegedly told the witness that she had not been wearing the gloves at the time of the accident. In deciding what weight, if any, I can attach to that statement I must contrast it with the direct evidence of the plaintiff and John Da Silva whom, as I have already said, saw a blood stained glove on the cleaner's trolley when he entered the unit. Given this direct evidence, and the observations I have already made as to the evidence of both Da Silva and the plaintiff, I have no hesitation in accepting that testimony in preference to the statement tendered under the relevant provisions of the Evidence Act. 60 I am not satisfied the defendant has proved contributory negligence on the part of the plaintiff.
Failure to mitigate 61 In their defence both defendants pleaded that the plaintiff had failed to mitigate her damages by failing to follow the advice given to her by her medical practitioner to exercise her right hand and to hold her hand in a particular manner following surgery. This allegation was never proved by the defendant. In her evidence the plaintiff said she did try to exercise her hand regularly and that she followed the advice given to her by her medical practitioner. Her evidence on this issue was never contradicted. What evidence there is on this issue points to the plaintiff having done, or at least tried to do, what was required of her.
Loss of earning capacity 62 In the light of the findings I have made it follows that the plaintiff has suffered an immediate loss of capacity to earn the income she was paid as a cleaner on a mining site. Having accepted the evidence of the surgeon, Mr Craig Smith, I am satisfied that the plaintiff will not be able to return to her former occupation. She does, however, retain a capacity
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to earn an income in other areas of work. In his report dated 24 November 2000 Mr Smith concluded that her range of alternative employment included gatekeeper, cinema attendant, public relations person, sales assistant (depending upon the area) or social worker. These were simply examples of the kind of employment he believed the plaintiff could engage in. He also emphasised that her hand was going to remain as it was and that she would have a degree of long term permanent disability. Given this loss of capacity three questions have to be determined: first, what damages the plaintiff is entitled to for her loss to the date of trial; second, what the measure of damages ought to be from the date of trial to the age of 45 when she said she intended to stop working on the mines; and finally, what measure of damages, if any, is appropriate between the ages of 45 and 65.
Loss to date of trial 63 I am satisfied that the plaintiff's injury precluded her from working at all between the date of the accident and 24 November 2000. I have selected that date because of the opinion expressed by Mr Craig Smith in his report of that date that the plaintiff was fit to return to work in other forms of occupation from that time. The defendant led evidence through Professor Charles Mulvey of the potential earnings and the availability of employment of certain classes of employees including sales assistants, general clerks, kitchen hands and cooks in Perth since 1998. While the employment growth for kitchen hands in future years is expected to be slight, and such employees have a relatively low proportion of full-time jobs, job prospects for kitchen hands are considered to be average because of the high turnover of staff which generates a number of vacancies. The outlook for employment for cooks is considered to be good as are the prospects for sales persons and general clerks. 64 Counsel for the defendants suggested that the plaintiff would be capable of filling a clerical or sales position immediately. Given her past experience, however, I believe it would be more realistic to expect the plaintiff to find a job as a kitchen hand or cook. I realise that counsel for the plaintiff disagrees with this assessment. In his submission the fact that the plaintiff applied for work as a kitchen hand was not evidence of her capacity for such work because she never succeeded in getting such a job and did not know if she could do it. I am unable to accept this submission. It is true the plaintiff said she probably would be unable to work in a kitchen on a mine site because the physical demands were heavy and involved chopping, cutting, scrubbing and lifting weights.
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Such demands are quite different from the work involved in a small food outlet. The fact that the plaintiff actually applied for full time positions as a counter hand/cook with four different food outlets is convincing evidence of her belief that she was able to do that type of work. I think it is far more realistic to base her retained earning capacity on kitchen hand work as opposed to work as a sales assistant. I say this because there is no evidence that the plaintiff has been trained for such a position whereas her previous experience on mine sites has qualified her for immediate employment in a food outlet. I should add that, according to Professor Mulvey's figures, there is little difference between the annual gross income of a kitchen hand and that of a sales person. As to the availability of positions for kitchen hands, Professor Mulvey's report indicates that employment growth in this area is expected to be slight and that kitchen hands have a relatively low proportion of full-time jobs. His report also refers to the job outlook website of the Commonwealth Department of Employment and Workplace Relations which apparently describes job prospects for kitchen hands as average. In his concluding paragraph Professor Mulvey expresses the opinion that there is presently, and has been since 1998, a steady demand for kitchen hands in the Perth metropolitan area and in regional Western Australia. In his evidence Professor Mulvey confirmed that a high turnover of staff in this area generates a number of vacancies and that a suitable person could have expected to find work within a reasonable period of time since 1998. I have little doubt that the plaintiff, with her background and work record, is a suitable person for this type of work and that she could, perhaps with some degree of patience and perseverance, have found work within this area. According to Professor Mulvey's report the gross average weekly earnings of a 39 year old kitchen hand is at present $564 per week or $29,407 per annum (net $23,660). 65 Accepting, as I do, that the plaintiff was totally incapacitated for work from 17 July 1998 until 24 November 2000 her past loss is as follows: (a) Loss to the end of 1998 as calculated by the plaintiff (par 10 plaintiff's schedule of loss) = $22,470. (b) Loss from end of 1998 until November 2000 (1 year and 11 months) at $33,984 net per annum = $65,136 (par 11A of the plaintiff's schedule of loss). (c) Loss of capacity to work as kitchen hand from November 2000 to 24 November 2003. In this regard the
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66 On these figures the plaintiff's loss of earnings to the date of trial are as follows:
$22,470 $65,136 $30,972 $10,000 $22,500 Total $151,078 67 I was told by counsel that no interest on past loss is payable because of the amount the plaintiff has received in workers' compensation payments.
Future loss of earning capacity to age 45 68 In her evidence the plaintiff said she would have continued to work at mine sites until about 45. This means she would have worked for another six years. The six per cent discount multiplier for six years to age 45 is 264. The difference between her wages at a production site of $36,520 net per annum and that of a kitchen hand at $23,660 net per annum is $12,860 net per annum or $247 net per week. Applying the weekly multiplier for a period of six years her future loss of earning capacity is:
$247 x 264 = $65,208 69 Allowance must also be made for the plaintiff's lost opportunity of obtaining work at a construction site. I have already found that the plaintiff's figure of $40,000 is too high. As I said earlier it is impossible to be precise in relation to this calculation and the best I can do is to make a reasonable allowance for this loss of opportunity. In my view adequate compensation for the value of the loss of opportunity over a six year period is $10,000 for the reasons I have already given.
$65,208 + $10,000 = $75,208 70 The plaintiff's total future loss of earning capacity to age 45 is therefore $75,208.
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Future loss of earning capacity from age 45 to age 65
71 The plaintiff said that after she left the cleaning industry she intended to operate a small business. While she would be physically able to carry on this type of work her permanent limitations are such that she would probably need some assistance in carrying out the more physically arduous tasks associated with any small business operation. Counsel for the defendant submitted that no award of damages ought to be made in respect of this future loss. It was suggested that the plaintiff's plans were too tenuous and that it would be speculative to award her damages for something as uncertain as this. I cannot agree with this submission. Having had the opportunity of seeing the plaintiff give evidence, and accepting the description of her as an industrious and excellent worker, I believe that, but for her disability, the probabilities favoured her continuing to work after age 45 in a small business of her own. Given this finding it would be reasonable to compensate the plaintiff for her future loss on the basis of her having to employ alternative labour for tasks she could not do herself. Counsel for the plaintiff submitted that an allowance of $12 per hour for 20 hours a week should be awarded. I believe that is excessive. In my assessment the amount of work that the plaintiff would be physically unable to do would be minimal and that an allowance of 10 hours a week at $12 per hour as a gross figure is more appropriate. Addition of the superannuation component calculated at nine per cent makes the total cost of employing alternative labour $131 gross per week. Any tax deduction on this figure is marginal and can be ignored. This loss, of course, will only be incurred six years in the future. Taking the 26 year multiplier for the whole of the period between the ages of 39 and 65 and deducting from that the multiplier for the next six years will result in reaching the appropriate multiplier for the period of 20 years commencing after this initial six year period. The six per cent discount multiplier for 26 years is 699. The six per cent discount multiplier for the next six years is 264.
699 – 264 = 435 435 x $131 = $56,985 Less 10% for negative contingencies = $51,287
Loss of amenities and enjoyment of life 72 In her evidence the plaintiff demonstrated how the little finger and ring finger on her right hand are permanently flexed or bent downwards.
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The first finger and index finger on that hand are also flexed or angled down but to a lesser extent. The plaintiff is unable to raise or straighten any of those four fingers on her right hand. The most she can do is push the index finger and the middle finger into a semi straight position. She cannot do that with the little finger and the ring finger. 73 This disability has affected her daily life to a quite significant extent. She is able to use her right hand to perform household duties to a limited extent. She can hold a cup or glass, iron with her right hand and carry out her day to day chores. There are, however, limitations to the extent to which she can use that hand. She can only iron for one and a half hours before she has to stop. Her capacity to use her right hand for general household duties, such as making beds and scrubbing and cleaning, is limited to three to four hours. Heavy lifting or repetitive use results in her hand aching and the pain radiating up her right arm. This pain in her hand and arm can persist for up to an hour. 74 Her capacity to grip items with her right hand has also been adversely affected. She has a lack of feeling in her right little finger which has reduced her capacity to grip items. She said she would be unable to resume work on a mine site because she could no longer make 150 beds a day, scrub, pick up heavy linen bags, unload trucks or do many of the other arduous duties she was required to perform. Even kitchen work on a mine site would not be open to her. She claimed that work in the kitchen was very demanding and involved chopping, cutting, scrubbing and lifting heavy items which she is no longer able to do. 75 Her social life has also been adversely affected. She was a keen netballer but is no longer able to play the sport at all. She also enjoyed swimming but finds that she is no longer able to maintain her balance in the water because of her inability to use her right hand in the proper way. She is still able to garden subject to the limitations on repetitive use of her right hand. 76 The plaintiff is no longer receiving medical treatment or taking any medication. She originally took medication for pain relief but later underwent laser therapy treatment in 2002. Her last laser treatment was in April 2003. She has ceased taking anti-depressant medication. 77 Taking all these factors into account I would award the plaintiff the sum of $30,000 in non-pecuniary damages.
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Loss of superannuation benefits
Loss 1 January 1999 to 30 November 2000 78 $43,376 (plaintiff's annualised wage under the first Yandi production agreement) at 9% less 30% = $5,237.
Loss 1 December 2001 to 3 November 2002 79 $43,376 - $29,407 (retained capacity based on gross annual earnings of kitchenhand) at 9% for 2 years less 30% = $1,760.
Loss 1 December 2002 to 30 November 2003-11-19 80 Nil – The plaintiff's earning base of $26,583 under the second Yandi production agreement is less then the plaintiff's retained capacity of $29,407. 81 Total loss of superannuation = $6,997.
Special damages 82 The plaintiff has claimed $35,545.24 in special damages. The defendants contest liability for the total amount of special damages claimed by the plaintiff arguing that her injury has been complicated by other factors for which neither defendant should be liable. I am unable to accept that submission. While the plaintiff's reaction to the injury and the surgery that followed was unexpected and unusual the fact remains that the defendants must take the plaintiff as they find her. See Luntz "Assessment of Damages" par 2.2.1 and par 2.2.2. I do not believe there is any justification for discounting any award for special damages as counsel for the defendant has suggested I ought to do. 83 I award the plaintiff the full amount of $35,545.24 for special damages.
Future medical expenses 84 There was no evidence that the plaintiff would need further treatment for her disability and, in the absence of such evidence, I am not prepared to make an award under this heading.
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Summary of award
Loss of income to date of trial $151,078 Future loss of earning capacity $126,495 Loss of superannuation benefits $ 6,997 General damages $ 30,000 Special damages $ 35,545 Total $350,115 |