Da Silva v Fiocco Hopkins Nash
[2005] WADC 37
•3 MARCH 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DA SILVA -v- FIOCCO HOPKINS NASH & ANOR [2005] WADC 37
CORAM: MAZZA DCJ
HEARD: 20-24 SEPTEMBER 2004
DELIVERED : 3 MARCH 2005
FILE NO/S: CIV 2294 of 2002
BETWEEN: DOMATILA DA SILVA
Plaintiff
AND
FIOCCO HOPKINS NASH
First DefendantHAMMOND WORTHINGTON
Second Defendant
Catchwords:
Tort and contract - Solicitors negligence - Failure to pursue action against plaintiff's former employer - Loss of chance - Assessment of damages
Legislation:
Workers' Compensation and Rehabilitation Act 1981
Result:
Damages awarded to plaintiff
Representation:
Counsel:
Plaintiff: Ms A M Schoombee
First Defendant : No appearance
Second Defendant : Mr T Lampropoulos
Solicitors:
Plaintiff: Gibson & Gibson
First Defendant : Not applicable
Second Defendant : Pynt & Partners
Case(s) referred to in judgment(s):
Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120
Baker & Anor v Crittenden, unreported; FCt SCt of NSW; BC9505067; 17 July 1995
BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294
Brasser v Graham & Graham [1985] WAR 180
Cartledge & Ors v E Jopling & Sons Ltd [1963] AC 758
Girrawheen Tavern v Joseph [2003] WASCA 244
Gore v Montague Mining Pty Ltd [2000] FCA 1214
Guest v NRMA Insurance Ltd [2002] WADC 115
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hendrie v Rusli [2000] WASCA 249
Instant Nominees Pty Ltd v Redman & Ors [1987] WAR 218
Jobling v Associated Dairies Ltd [1982] AC 794
Johnson v Perez (1988) 166 CLR 351
K B Hutcherson Pty Ltd v Correia (1995) 183 CLR 50
Kitchen v RAF Association & Ors [1958] 2 All ER 241
Lawson v Flavell [2001] WASCA 272
The Corner Butcher Shop v Dattilo, unreported; Compensation Magistrate's Ct of WA; Library No 1400; 16 March 2004
Thomas v Arimco Mining Pty Ltd & Anor (2000) 24 SR (WA) 142
Tutunkoff v Thiele (1975) 11 SASR 148
Case(s) also cited:
Hunt v Multiplex Constructions Pty Ltd [2000] WADC 175
Belcher v Austal Ships Pty Ltd [2002] WADC 259
Rasmussen v Kilpatrick Green Holdings Ltd, unreported; Compensation Magistrate's Ct of WA; Library No 1120; 23 January 2001
MAZZA DCJ:
Introduction
The plaintiff is a Portuguese born woman who was the client of the first and then second defendant, both of whom are firms of solicitors. She consulted each of the defendants with respect to injuries she said she had received whilst working as an ironing lady for her former employer, Nell Gray Fashions Pty Ltd ("Nell Gray Fashions"). She alleges that each of the defendants undertook to pursue a claim in negligence against Nell Gray Fashions on her behalf. However, allegedly due to the negligence of the defendants, her claim was not pursued. It is common ground that the claim cannot now be pursued because it is statute barred.
By writ of summons dated 13 August 2002 the plaintiff sued the first and second defendants claiming damages against each of them in both contract and tort. The plaintiff alleged that as a result of the defendants' negligence she was deprived of the chance of obtaining damages against Nell Gray Fashions.
Prior to trial the plaintiff discontinued her claim against the first defendant. The trial before me is to determine the plaintiff's claim against the second defendant only.
The second defendant does not deny that it was retained by the plaintiff but denies that it was negligent and denies any liability in either contract or tort. Further, the second defendant says that the plaintiff's case against Nell Gray Fashions was foredoomed to fail because:
(a)by the time it was retained, the 6 year limitation period had expired;
(b)the plaintiff would not have established negligence against her former employer;
(c)even if she had established negligence against her former employer she would not have recovered damages because she would not have established that she had suffered a disability of not less than 16 per cent as required by s 93E(3) of the Workers' Compensation and Rehabilitation Act 1981 ("WCR Act").
The issues to be determined
Both parties have invited me to determine a substantial number of factual and legal issues. However, the case boils down to the following issues:
1.Was the second defendant negligent in its conduct of the plaintiff's claim against her former employer?
2.If so, has the plaintiff suffered any loss?
3.If the plaintiff has suffered loss, how is that loss quantified?
The course of the proceedings
The plaintiff presented her case over a period of three sitting days. At the conclusion of the plaintiff's case, Mr Lampropoulos, on behalf of the second defendant, submitted that there was no case to answer. I heard submissions from both parties and then put the second defendant to its election as to whether it would call evidence before I ruled on the submission: BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294 per Kennedy J at [7]. Mr Lampropoulos elected to call no evidence. Counsel then made their closing submissions to me which were both helpful and comprehensive.
THE EVIDENCE
The evidence of the plaintiff and her daughter Susana Martins
The plaintiff's evidence
The plaintiff gave evidence via an interpreter.
The plaintiff was born in Portugal on 17 February 1954. She is right handed. Her formal education ceased when she was 12 years of age. After that she commenced work sewing children's clothes and making gift boxes. She also worked as a counter assistant in an army personnel shop. The only experience that she had with a cash register was while she was working in Portugal.
In January 1985, at the age of 31, the plaintiff came to Australia and has lived in this country ever since. Her first job in Australia was working at Joyce Brothers putting springs in beds. After that she found employment with a fashion house, Skid Rose, where she worked on an overlock machine for two years. She then worked for a packaging firm filling bags of sugar and rice.
She started work for Nell Gray Fashions in 1990 and ceased work with that company in 1996. During the whole of her time with Nell Gray Fashions her salary was $318 per week net (as to this, the figure given at T57 is a misprint).
According to the plaintiff, Nell Gray Fashions was a small clothing manufacturing firm which produced, amongst other things, hospital uniforms, boutique fashions for local designers and T‑shirts. The atmosphere was similar to that of a "big family" and she enjoyed working there. Her boss was Allan Beckingham and her work was mainly supervised by a woman who was identified in the evidence only as Anna.
The plaintiff's initial duties involved her operating an overlock machine which was used to make hospital uniforms. She continued in this role until towards the end of 1992 when she was asked to take on some ironing duties. Initially this was envisaged as being temporary but, in January 1993, she was asked to perform ironing duties on a permanent basis. The worker who was her supervisor in the ironing section of the firm was identified in the evidence only by the name of Donna.
The plaintiff testified that the iron that was provided by her employer was too small for her right hand and was very heavy. The plaintiff also had to constantly press a steam button on the iron. She described the ironing board that she used as bigger and heavier than a normal ironing board.
On the floor, under the ironing board, was a pedal that operated a suction mechanism. This mechanism sucked the material that the plaintiff was ironing to the ironing board, evidently for the purpose of making ironing easier. The plaintiff found that the effect of the suction was to make the iron "heavier". By this I thought she meant that the suction required her to work harder to push the iron over the ironing board. The iron was not installed with a balancer. A balancer is a mechanism which will be described later in the evidence but, in broad terms, it is a device attached to the iron the purpose of which seems to be to allow the operator to perform his or her duties with less effort. A balancer was not apparently available to her to use.
The plaintiff said that the garments which were waiting to be ironed were on a large table. Either the plaintiff or the supervisor named Donna went to the table, took the garments and then put them in a trolley near the plaintiff's ironing board. This would occur three or four times per day and each time would take two or three minutes. The plaintiff would then iron the items which had been placed in a trolley.
The plaintiff was required to iron 10 uniforms per hour or 80 uniforms per day. She was given a log book to note her work. In fact, the plaintiff said that she ironed between 100 to 120 hospital uniforms and other items per day. She did more than the minimum requirement because her English was not good and she would rather work than spend time attempting to talk with her co‑workers. The plaintiff said that ironing boutique dresses was more complicated than ironing hospital uniforms.
The plaintiff testified that she worked the following hours from Monday to Thursday inclusive. She commenced at 7.30 am and worked until 9 am. She then had a 15 minute break. Work resumed at 9.15 am and went through to midday. At midday she had a half hour lunch break. The plaintiff resumed work at 12.30 pm and worked until 2 pm when there was a 10 minute break. From 2.10 pm the plaintiff worked until 4.15 pm at which time she went home. Friday was a shorter working day in that she went home at 1 pm.
The plaintiff said that there was no system in place to allow her more regular breaks from working and although she was able to do work other than ironing such as overlocking, sewing, button‑holing and folding T‑shirts, which work was being performed elsewhere on the factory floor, she was not asked to perform these jobs during the period she was ironing.
It was not long after the plaintiff began ironing that she started to feel discomfort in her right hand and up her right arm. This feeling ceased when she stopped ironing. The plaintiff told both Donna and Anna about this. Their response, according to the plaintiff, was to the effect that she would get used to it.
At the end of 1993, perhaps October or November, the plaintiff began feeling numbness as well as discomfort in her right hand. She coped with this by shaking her arm until the numbness went away and then she continued ironing. The numbness did not persist when she went home. She testified that she told Donna about the numbness but nothing was done about it. The plaintiff continued to perform her ironing duties.
In October 1994 the plaintiff started to feel, in addition to discomfort and numbness, pins and needles in her right hand, especially when she held the iron. The discomfort, numbness and pins and needles were felt by the plaintiff at work but only the discomfort continued after work.
However, on the night of 18 November 1994, things, according to the plaintiff, turned for the worse. On that night she woke up feeling pain in her hand. The pain was accompanied by numbness and pins and needles up to her elbow. She said she had never felt pain like that before. Later that day she went to work and told Donna what had happened. As a result, she was relieved her of ironing duties and asked her to fold nighties. After 18 November 1994 the plaintiff did not return to ironing duties.
On 3 December 1994 the plaintiff went to see her general practitioner, Dr Angela Chew. Dr Chew prescribed analgesic pain relief and certified her unfit to work for 15 days. Notwithstanding this, the plaintiff's symptoms continued in her hand and arm. The plaintiff testified that she felt constant pain up to her elbow and three of the fingers on her right hand were "stuck" to the point where she had to use her other hand to open them.
In April 1995 Dr Chew referred her to a rheumatologist, Dr Hayes. Dr Hayes arranged for her wrist to be operated on by Mr Allen. The purpose of the operation was to effect a carpal tunnel release. This operation took place, I was later told, on 28 July 1995.
The carpal tunnel release alleviated the symptom of pins and needles for a while but the plaintiff said that she continued to feel pain in her arm. This pain got worse and extended to her right shoulder. She could not recall, she said, precisely when she first experienced pain in her right shoulder but it was some time after the carpal tunnel release. (Dr Hayes later said that she complained to him of pain in her neck and right shoulder at an earlier point in time on 8 May 1995.)
In time, after the carpal tunnel release, the plaintiff also began to feel pain to her right upper neck behind her ear and halfway up her head. She described this sensation as if there was a string pulling behind her ear.
In order to cope with the pain, she was prescribed various pain killers and medication to help her sleep. She had to rely on her children and husband to do the housework after 3 December 1994, and she was unable to pursue her hobbies. She did not work during the whole of the year 1995. Her inability to perform her household duties, hobbies and work caused her to become, as she described it, depressed.
Between January and August 1996 she went back to work at Nell Gray Fashions, working two and a half hours per day, three days per week. On those days she operated what was described as a button sewing machine and an overlock machine. The plaintiff said that because she had to constantly move her right hand when performing work on those machines she experienced pain.
Eventually, she was presented with a letter from her employer dated 16 August 1996 in which she was told that as she was unable to perform ironing duties, a position was no longer available for her. Her employment ceased from that day.
Although I was not told precisely when the plaintiff commenced receiving workers' compensation, it seems that payments began shortly after her initial visit to Dr Chew on 3 December 1995.
The plaintiff was paid workers' compensation after her employment with Nell Gray Fashions was terminated. She, through her workers' compensation insurer, attended upon a rehabilitation provider who found the plaintiff unpaid work in a coffee shop, working two and a half hours per day for three days per week to test her capabilities. Unfortunately, this employment did not last long because she found the duties of cutting vegetables, peeling potatoes and preparing salad caused her pain in her arm, hand and shoulder which she was unable to cope with.
The plaintiff testified that the rehabilitation provider also arranged for her to attend English classes. She attended a total of 10 weeks instruction. The plaintiff said that her already limited understanding of English was not greatly improved by the classes. She attributed this to her depressed psychological state.
Mr Jeffries, an orthopaedic surgeon, operated on her right shoulder in an attempt to alleviate her shoulder and neck symptoms. I was later told this occurred on 29 January 1998. The plaintiff said that her neck and shoulder symptoms did not improve after that operation.
In 1999 the plaintiff received a letter from her workers' compensation insurer with a proposal for settlement. Her first port of call was her union. Her union referred her to the first defendant for advice on the proposal.
In August 1999 the plaintiff had her first consultation with Ms Sharon Wong, an employed solicitor of the first defendant. The plaintiff said that she went to this initial meeting and all meetings with lawyers accompanied by her daughter, Susana Martins, who acted as an interpreter and gave her moral support.
The plaintiff said that she took some papers with her including the settlement offer. She said that she signed an authority allowing the first defendant to obtain paperwork, including medical reports. The authority which she signed is exhibit 4. The authority has the following handwritten words on it: "… my injury caused during the course of my employment from approximately June 1992 to 18 November 1994." The plaintiff denied signing the authority with those handwritten words on it. I do not think anything turns on this point.
She said that at this first meeting she advised Ms Wong that she worked a 38 hour week ironing. She said that she told her about the difficulties that she had holding the iron, and with the suction system attached to the ironing board. She said that she told Ms Wong that she had informed her boss and her supervisors of her symptoms. The plaintiff said that Ms Wong told her that she would look into the case and see her again.
The plaintiff and Ms Wong met again in Fremantle in November 1999. By that time Ms Wong had received a number of medical reports. According to the plaintiff, Ms Wong advised her that she had a good case against Nell Gray Fashions in negligence. She said that Ms Wong advised her of the six year limitation period which, Ms Wong told her, would expire in the year 2000. Ms Wong also apparently told the plaintiff that changes in the law meant that in order to bring a claim against Nell Gray Fashions she would need to establish that she had suffered a 16 per cent disability. Doubtless this was a reference to s 93E(3) and s 93E(4) of the WCR Act which became operative in October 1999.
The plaintiff said that there was some discussion about a settlement proposal made by the workers' compensation insurers in the sum of $28,000. The plaintiff said that Ms Wong advised her not to accept that offer.
The plaintiff said that on 17 November 1999 she signed an authority (exhibit 6) addressed to the first defendant in the following terms:
"Meeting with Mrs Da Silva and Susannah (her daughter) 17.11.99
Mrs Da Silva instructs us to attempt to bring a C L [common law] claim for her accident of 18 November 1994 and try to seek an election registration that her accident disability is more than 16%".
The plaintiff said that her understanding was that the first defendant wanted to proceed with her case and that they would look after it. She understood that the limitation period ran out in the year 2000, and that she thought that the first defendant would get the case before a court in time.
On 22 November 1999 the first defendant sent the plaintiff a letter. This letter enclosed correspondence received by the first defendant from the solicitors acting for Nell Gray Fashions, Crisp & Partners, making an offer to settle her workers' compensation claim. The letter asked the plaintiff to get in contact with it as soon as possible. The plaintiff said that she authorised her daughter to telephone the first defendant on her behalf. The plaintiff said that she told her daughter to reject the offer. The plaintiff said that she understood that if she had accepted the offer Nell Gray Fashions would no longer be responsible to pay her anything.
In exhibit 10 at p 22 there is a note evidently written by Ms Wong in the following terms:
"Their answer is still the same
No, said I need to think ab [about] neg [negative] implications.
SMW 26.11.99"
The plaintiff said that some time after her second meeting with Ms Wong she received a letter requesting her to see Dr Crocker. The evidence revealed that Dr Crocker was a doctor retained by the solicitors for Nell Gray Fashions to assess her degree of disability. The plaintiff said that she saw Dr Crocker in February 2000.
In June 2000 the plaintiff said that, accompanied by her daughter, she went to see Mr Fiocco at his office. By this time, Ms Wong had left the first defendant. Mr Fiocco was a partner of the first defendant. Mr Fiocco told the plaintiff that he would be conducting the plaintiff's case from then on. The plaintiff said that Mr Fiocco discussed the upcoming limitation period and told her common law action would have to be commenced before the end of 2000. She told him that she was going into hospital at the end of June 2000 and would not be contactable for a period of time. Mr Fiocco was apparently unconcerned by this and told her that he would arrange for another appointment in four weeks. According to the plaintiff, at no stage during this meeting did Mr Fiocco say that she had no case against her former employer.
The plaintiff recalled that she received a letter from the first defendant saying that the firm was going to merge with the second defendant. This letter, which was dated 23 June 2000, enclosed an authority which the plaintiff signed, allowing the second defendant to take over the conduct of her case. That letter (exhibit 10, p 32) informs the plaintiff that as from 1 July 2000 the second defendant would be acting for the plaintiff. The plaintiff signed an authority allowing the second defendant to take over the conduct of her case.
The plaintiff received a letter from the second defendant dated 26 September 2000 which was written by Mr Fiocco on behalf of the second defendant (exhibit 10, p 38). The terms of that letter are as follows, omitting the formal parts:
"I refer to your recent enquiry regarding the progress of your workers' compensation claim.
As you instructed, I approached the solicitor for your employer to discuss with them the possibility of an informal conference with a view to settling your claim. They confirmed with us that they have been instructed by their client not to pursue an informal conference and to close their file. They also advise that any further dealings in this matter will have to be directed to the insurer Allianz directly. Of course, your workers' compensation payments will continue.
As you are also aware, I have been attempting to progress a negligence claim against your employer. However, as I explained at the conference at my office with yourself and members of your family, since the changes to the Law made on 5 October 1999, a negligence claim cannot be brought against your employer unless you have a permanent disability of at least 16%. At present, I have filed documents indicating that your percentage disability is at least 17% but that is being disputed by the insurance company. In particular, the insurance company is disputing that your right shoulder problems are as a result of a work related injury.
The dispute as to the level of your percentage disability has been referred to WorkCover and you will be aware that a preliminary hearing which was scheduled for February was adjourned.
I was aware that you were undergoing a hysterectomy operation in late June and I was awaiting your recovery before I proceeded with your claim.
I will now re‑list the preliminary review in order that the question of the level of your disability can be determined with a view to establishing liability for negligence against your employer."
I observe that the plaintiff gave no evidence that she had instructed the second defendant to discuss with her former employer's solicitors the possibility of an informal conference in an attempt to settle her claim. However, the plaintiff took no issue with the contents of the letter and I accept that such an instruction was given to Mr Fiocco.
The next contact the plaintiff had with the second defendant was, according to her, in July 2001. I note that by then, on any argument before me, the limitation period had expired. On this occasion the plaintiff, again accompanied by her daughter Susana, met with Mr Fiocco. According to the plaintiff Mr Fiocco's manner was rude and unpleasant. She said that he told her that her case was "a lost cause" and that if she wanted to proceed she should look for another lawyer. The plaintiff said that she did not recall a lot of the conversation because most of the talk was done between her daughter and Mr Fiocco.
The plaintiff testified that in 2001 she was approached by a friend who needed someone to assist in cleaning the Rockingham court house. The plaintiff agreed to this proposal. She worked as a cleaner at the Rockingham court house for one and a half hours per day, five days per week for a period of about a year. The only duties that she could perform were dusting tables and bathroom vanities. Her daughter, who accompanied her to work, did the heavier work of vacuuming and mopping. This employment ceased when her daughter became unable to continue assisting the plaintiff. Since that time she has not been in the paid workforce.
The plaintiff gave evidence as to how her injuries affected her life. She said that since November 1994 she has experienced constant pain in her right hand and arm. Since 1995 she has experienced constant pain in her right shoulder and neck. The plaintiff has undergone an array of treatments including surgery and various forms of analgesia. According to her, the changes in her life have been profound. She is unable to work due to her injuries. She can perform only a limited range of household chores and relies on her daughter, Susana, to perform the vacuuming and ironing. Although she can cook for herself she finds it difficult to cut vegetables. She cannot pursue her hobbies of sewing, crocheting, cross stitch, knitting and mat making. She describes herself as being, before her injuries, very active. She said that she now feels unworthy and generally very bad.
Susana Martins
Ms Martins is the plaintiff's daughter. She said that she accompanied her mother to all her appointments with Ms Wong and Mr Fiocco. She acted as an interpreter at those meetings. Ms Martins also translated documents for her mother.
Ms Martins' evidence as to what occurred at the meetings with Ms Wong and Mr Fiocco is consistent with that of her mother. Ms Martins had, in my opinion, a somewhat better grasp of detail than the plaintiff as to what occurred at the meetings. This is because she was the person speaking directly to the lawyers. According to Ms Martins, Ms Wong said that the plaintiff had a good case against her former employer in negligence and that her mother would be able to establish a degree of disability greater than 16 per cent.
In her examination‑in‑chief at T242, Ms Martins said this about the plaintiff's meeting with Mr Fiocco in June 2000:
"And did Mr Fiocco express any opinion with regard to the case against the employer?‑‑‑Yes, Mr Fiocco said that it looked very promising and he was confident with the case and also that mum wouldn't have a problem showing the 17 per cent disability because he believed that mum had a 17 per cent disability, just pure fact that she had the 10 per cent from one doctor on the shoulder and another 10 per cent on the wrist and he was saying that you could – even though you cannot sum it up and say it's 20 per cent but it would come up to above 16 and definitely 17 per cent."
Ms Martins confirmed her mother's evidence as to the ways that her injuries have curtailed her life.
My assessment of the credibility of the plaintiff and Ms Martins
Because the second defendant elected not to call any evidence I have not heard any account of events contrary to that of the plaintiff. Of course, this factor by itself, does not mean that I automatically accept what I have been told by the plaintiff. I have carefully observed the plaintiff give her evidence and I have been favourably impressed by her demeanour. More importantly, having compared her evidence with that of her daughter and with the expert medical practitioners who have been called to give evidence, she has been largely consistent in the way that she has reported events and her symptoms. Where there are inconsistencies, in my opinion they are of no significance. No evidence has been presented which suggested the plaintiff has in any way exaggerated her symptoms or the effects that her injuries have had on her previously full and active life. No medical practitioner raised any doubt as to her veracity or consistency when she related her symptoms to each of them. Her testimony was not shaken by cross‑examination.
The plaintiff struck me as being compliant with the medical advice that she was given in terms of her treatment. She was willing to undertake a work trial and language classes in an attempt to get her back into the workforce. She undertook, as best she could, the cleaning work at the Rockingham court house. I am satisfied that the plaintiff has done everything that she can to improve her health and to explore ways of alternative employment but without success.
The evidence of the plaintiff as to her dealings with both Ms Wong and Mr Fiocco was consistent with that of her daughter and was also consistent with the documentary evidence in the form of notes taken by Ms Wong and correspondence she received from both Ms Wong and Mr Fiocco.
I accept the plaintiff's version of events as to:
(a)her duties, work hours and the system of work in which she engaged during her employment with Nell Gray Fashions;
(b)the onset of her symptoms of discomfort, numbness, pins and needles and pain in her right hand, arm, shoulder and neck;
(c)the dates upon which she first experienced the symptoms referred to in (b);
(d)the effects that these symptoms have had upon her economically and in terms of her enjoyment of life;
(e)the treatment undertaken by her to alleviate her injuries;
(f)the manner in which she retrained to get back into the workforce;
(g)her work at the Rockingham court house;
(h)her account of what was said in the meetings with both Ms Wong and Mr Fiocco.
I was favourably impressed by the evidence of Ms Martins. She appeared to me to be accurate, honest and thoughtful.
The expert evidence
I heard oral testimony from and received into evidence reports prepared by two specialist medical practitioners, Dr Hayes, a rheumatologist and Mr Jeffries, an orthopaedic surgeon. In addition, medical notes, a first medical certificate and a report prepared by Dr Chew and four reports prepared by a surgeon, Mr Allen were tendered by consent without either medical practitioner being called to give oral evidence.
This was not all the medical evidence which was put before me. Attached to the plaintiff's Referral of Question of Degree of Disability form (known as a Form 22) which was filed by Ms Wong with WorkCover were two reports, one from Dr Alan Home, a consultant in occupational medicine, and a further report from Mr Jeffries. Further, in the plaintiff's book of documents (exhibit 10) was a report prepared by Mr Andrew Crocker, a surgeon.
The plaintiff also called an ergonomist, Jennifer Miller.
Documents from Dr Chew
Of the documents received into evidence from Dr Chew the only one of any real assistance was a report written by her and addressed to MMI Insurance Group dated 28 April 1995. That report confirmed the plaintiff's testimony that she attended upon Dr Chew complaining of pain in her right hand, wrist and elbow. The reference in that report to the plaintiff having those symptoms since 18 February 1994 is a misprint since the progress notes refer to the date as being 18 November 1994. The date of 18 November 1994 is consistent with the plaintiff's testimony. The plaintiff did not, according to Dr Chew, positively respond to rest, anti‑inflammatory drugs and occupational therapy. As a result she referred the plaintiff to Dr Hayes.
There seems to be nothing controversial in the documents from Dr Chew and I accept the matters of fact outlined above.
Evidence of Dr Hayes
Dr Hayes is a consultant physician in rheumatology. He commenced private practice in 1983 and has been a physician in that field since then.
Dr Hayes first saw the plaintiff on 4 April 1995 and after that he saw the plaintiff on 10 occasions up to 16 September 1996. He did not see the plaintiff again until 2004 in preparation for this trial.
I allowed into evidence the reports prepared by Dr Hayes dated 6 April 1995, 16 May 1995, 26 June 1995, 6 September 1995, 23 October 1995, 19 January 1996, 20 March 1996 and 25 September 1996. These reports can be found in exhibit 12 at pp 9 – 22.
I refused to admit into evidence two other reports prepared by Dr Hayes dated 2 March 2004 and 30 August 2004. I did not allow these reports into evidence because they had been provided to the second defendant's legal advisors shortly before the commencement of this trial in circumstances where the second defendant had, in my opinion, no reasonable opportunity to deal with their contents.
In evidence, Dr Hayes said that the plaintiff initially complained to him of pain and pins and needles in her right hand which spread over the flexor aspect of the right forearm as far as the elbow. He specifically noted that the plaintiff did not complain of neck or shoulder symptoms.
His diagnosis, as to the injury to her right hand, wrist and lower arm was right median nerve irritation accompanied by symptoms of paraesthesia suggestive of nerve compression. Dr Hayes' opinion is that these conditions were caused by the plaintiff's work as an ironing lady. His diagnosis and opinion as to the cause of these conditions were consistent throughout 1995 and 1996.
In his evidence, Dr Hayes explained the difference between nerve compression and irritation and set out the different sensations that they cause: (T186)
"Nerve compression means that there is a delay in the conduction of nerve impulses and this in turn produces symptoms in the hand most commonly called paraesthesia or pins and needles. That tends to be an intermittent phenomenon. With carpal tunnel syndrome there is simply nerve compression. You don't get nerve irritation. With nerve irritation the nerve is tender to touch and you may get extenuation of tenderness along the nerve trunk in the forearm together with altered sensation in the palm of the hand and the patient's symptoms are there 24 hours a day, whereas with carpal tunnel it's – the symptoms are intermittent with intermittent numbness and pins and needles which may occur every second day, or once a week, or may wake them at night. It's not there all the time."
Dr Hayes said that what is known as carpal tunnel syndrome are the symptoms which are caused by the compression of the nerve through the carpal tunnel. These symptoms may be relieved by surgery at the carpal tunnel which is designed to release the compression. This procedure which is called a carpal tunnel release only relieves nerve compression, it does not relieve the pain caused by nerve irritation. According to Dr Hayes once a person has nerve irritation nothing alleviates it.
In Dr Hayes's report dated 25 September 1996 he expressed the view that the carpal tunnel syndrome suffered by the plaintiff was work related because:
"… she was ironing 8 hours a day for 5 days a week using a heavy iron. Pressure of the handle of the iron on the carpal tunnel and extending the wrist in this manner would be more than enough to explain her condition." (Exhibit 12, p 20.)
As to the nerve irritation which caused the pain, in his report dated 19 January 1996, Dr Hayes said that was "most likely due to a traction neuropathy of the median nerve at the wrist." When asked to explain that statement in his evidence he said at T193:
"… you know, the big question is, why do these people develop nerve irritation in the first place, and it is well known that a sudden stretching of the nerve can trigger off the process of nerve irritation and often it's just a minor thing they do which happens to stretch the median nerve and that can trigger off this whole pain process."
Nowhere does Dr Hayes precisely say what it is about the plaintiff's work with her former employer which would bring about this traction neuropathy. Having said this, I think it is likely, had he been asked, that he would have referred to the plaintiff's repetitive ironing activities as being a ready explanation for the irritation.
As to the plaintiff's shoulder and neck pain, Dr Hayes was first told about this pain by the plaintiff on 8 May 1995. Dr Hayes' diagnosis of this complaint has not been consistent, unlike his diagnosis of the plaintiff's hand, wrist and lower arm complaints.
Initially, Dr Hayes diagnosed the injury as rotator cuff tendonitis. Later he linked the plaintiff's neck, right shoulder and upper limb pain in what he described as a right‑sided cervico‑brachial regional pain syndrome (also known as repetitive strain injury). Later he resiled from this diagnosis and reverted to his initial diagnosis of rotator cuff tendonitis as being the cause of the plaintiff's shoulder pain. Certainly this was his view in his report of 25 September 1996.
As to the plaintiff's neck pain, Dr Hayes said in his report dated 25 September 1996 that he thought that this was most likely to be as a result of degenerative changes in the plaintiff's neck. Dr Hayes was of the opinion that neither the rotator cuff tendonitis nor the neck pain were work related.
In his report of 25 September 1996 he said that the shoulder injury was not work related because it did not manifest itself until, as he stated, late April 1995. In addition the plaintiff had a type 3 acromion which predisposes her to rotator cuff tendonitis. Further, the condition frequently develops in women in their 40's, the same age bracket as the plaintiff.
In his report of 25 September 1996, Dr Hayes assessed the right median nerve compression and irritation as "a 10% loss of the effective use of the dominant right hand and forearm for the next 5 years." He expressed the hope in the report that "by the end of this period her pain level will have eased significantly and she will have better use of the hand". In the same report he assessed the plaintiff's right shoulder as having a 10 per cent disability, although this was not, in his opinion, work related.
Dr Hayes, when he saw the plaintiff in March 2004, noted that there was in fact no improvement in her symptoms as he had hoped in his report of 25 September 1996.
To summarise, Dr Hayes was of the opinion that there are two conditions related to the plaintiff's right hand, wrist and lower arm namely, carpal tunnel syndrome which manifests itself in paraesthesia and nerve irritation which manifests itself in pain. According to Dr Hayes both conditions were work related.
As to the injury to the right shoulder and neck, Dr Hayes' ultimate diagnosis, at least prior to him later seeing the plaintiff in 2004, was rotator cuff tendonitis to the right shoulder. As to the cause of this condition the last report issued by him prior to 2004 was that the injury was not work related.
Dr Hayes' evidence as to the injuries to the plaintiff's right hand, wrist and lower arm being as a result of both carpal tunnel syndrome and nerve irritation was clear and comprehensible and was not, as it turned out, in any real dispute. I accept this evidence. His evidence as to the cause of the carpal tunnel syndrome was also clear and comprehensible and acceptable to me. His evidence as to the cause of the plaintiff's nerve irritation was not as explicit as it could have been but was sufficient to enable me to conclude it was caused by her ironing work.
As to the injury to the plaintiff's right shoulder, I accept Dr Hayes' evidence that the plaintiff suffered from rotator cuff tendonitis. The cause of this condition was the subject of more evidence than Dr Hayes' testimony and will be dealt with by me later.
Reports of Mr Allen
Dr Hayes referred the plaintiff to Mr Allen who was the surgeon who performed the carpal tunnel release. The reports written by Mr Allen which were admitted into evidence were dated 13 July 1995, 24 August 1995, 1 September 1995 and 22 September 1995.
Mr Allen noted in his first report that the plaintiff complained that she had "developed a gradual onset of pain in the palm of the right hand in November, 1994 whilst at work". He agreed that a right carpal tunnel release was required. He said that this should improve the paraesthesia but may not relieve her pain further proximally. The plaintiff agreed to this treatment on that basis.
It is apparent that Mr Allen operated on the plaintiff on 28 July 1995. He noted in his report dated 24 August 1995 that the surgery revealed: "the carpal ligament was found to be very tight and beneath it the median nerve was quite flattened".
In his report of 22 September 1995 he noted that the plaintiff still experienced pain and stiffness at the right wrist.
There was nothing controversial in Mr Allen's reports and I accept their contents.
Evidence of Mr Anthony Jeffries
Mr Jeffries is an orthopaedic surgeon with a particular expertise in hand and upper limb surgery. In all, Mr Jeffries prepared eight reports dated 1 November 1996, 9 December 1997, 15 April 1998, 2 June 1998, 9 September 1998, 23 February 1999, 20 April 1999 and 11 May 1999. The first seven of these reports are to be found in exhibit 12 between pp 47 and 55 and the last report is to be found as part of exhibit 2, the Form 22.
Although Mr Jeffries in both his reports and his evidence refers to the plaintiff's hand symptoms it is evident that the focus of his concern was with the pain that the plaintiff felt in her right shoulder and neck.
As to the plaintiff's shoulder injury, his diagnosis was the same as that of Dr Hayes, namely rotator cuff tendonitis in the right shoulder. That diagnosis remained constant throughout his reports and in his evidence.
Initially the condition was treated with a range of therapies including physiotherapy and later, cortisone injections. These measures had no positive effect and so Mr Jeffries performed an arthroscopic acromioplasty on 29 January 1998.
Mr Jeffries said that this procedure has a high success rate of between 85 and 90 per cent with recovery occurring usually within 12 months of the procedure. However, the plaintiff did not recover as expected and the pain in her shoulder remained more than a year after the operation.
In April 1999 an MRI revealed inflammation within the rotator cuff. By May 1999, when Mr Jeffries wrote his final report, he thought that there was little more that could be done for the plaintiff. His hope was that the plaintiff's right shoulder injury would settle in time.
In his report dated 20 April 1999 Mr Jeffries expressed the opinion that the plaintiff would not return to her previous employment "at least in the short term". In his report of 11 May 1999 the qualification of "at least in the short term" was omitted. It seems from this that Mr Jeffries did not consider her to be fit, as at May 1999, to return to her pre‑accident work of ironing. He did express the view that she may have some capacity to do some light sedentary work that did not involve repetitious use of her right upper limb, particularly overhead.
As to the cause of the plaintiff's rotator cuff tendonitis, in his initial report dated 1 November 1996, Mr Jeffries was "very doubtful" that the plaintiff's shoulder condition was caused by her employment. The reason behind this opinion was that the symptoms in the right shoulder did not develop until after she had stopped working. However, in time, that view changed. In his report dated 9 September 1998 Mr Jeffries thought that the injury had been caused by "repetitive abduction and rotational movements of the shoulder".
In his evidence Mr Jeffries was asked what had caused him to change his opinion as to the cause of the plaintiff's right rotator cuff tendonitis. He explained that the change of opinion resulted from a better understanding of the plaintiff's symptomology which had developed over the period of time that he was consulted by her.
Although lengthy, it is worthwhile quoting from Mr Jeffries' evidence on this point at T81:
"… Well, there are a number of factors in that. The first time I saw her I perhaps didn't appreciate how much ironing she was doing, and in seeing her a number of times, you gain a bit more history, and so with that added history I felt that it was quite repetitive work and quite long hours. She – or anybody who is ironing tends to have their arms slightly abducted and internally rotated and it's a repetitive back and forward movement, so I felt that was consistent. She had good clinical signs of rotator cuff tendonitis. She did have these other complaints of pins and needles, odd sensations in the arm, pain down the arm and so on, and some people who have rotator cuff tendonitis have so‑called dysaesthetic symptoms which are odd neurological symptoms; might fall into the general sort of description of carpal tunnel like symptoms. You can of course have a combination of having carpal tunnel and having dysaesthetic symptoms from rotator cuff tendonitis, so there are a number of factors there and I thought it was a reasonable conclusion at the end of the day. There was no other obvious cause. She's obviously not a sporting sort of person, she wasn't doing a lot of other repetitive activities such as swimming or something which can cause rotator cuff tendonitis; that was the only activity which I assumed she was previously unaccustomed to doing that she suddenly – well, she undertook of a fairly prolonged repetitive sort of nature."
Mr Jeffries had not seen the plaintiff since 1999 and he was perplexed when told that the plaintiff's shoulder symptoms continue up to date. In evidence, he could give no ready explanation for this in the absence of further examination and assessment by him.
In my opinion, Mr Jeffries' diagnosis of the plaintiff's right shoulder injury as being rotator cuff tendonitis is correct and is consistent with the diagnosis of Dr Hayes. I was somewhat attracted to Mr Jeffries' reasoning which attributed the injury to the plaintiff's work as an ironing lady. Essentially, Mr Jeffries developed a good understanding of the plaintiff's ironing duties and in particular the effect of repetitive movement and the way the arm slightly abducts and internally rotates strikes me as being a good reason why the plaintiff may have developed rotator cuff tendonitis especially as she was not engaged in any other repetitive activity which can bring the condition on.
Whilst I am somewhat attracted to Mr Jeffries' reasoning, two matters associated with the issue of causation remain unresolved. The first is why the tendonitis would have manifested itself for the first time six months after the plaintiff ceased work as an ironing lady. Secondly, Dr Hayes' evidence that the plaintiff was susceptible to the condition because of her age and type 3 acromion were matters not raised with Mr Jeffries but were matters Dr Hayes thought were important.
It seems to me very likely that these issues would have been pursued at the notional trial of the plaintiff's action against her former employer.
In his report of 10 May 1999, Mr Jeffries assessed the plaintiff's disability in the following terms:
"I considered that this lady does have a permanent residual disability of her right shoulder which I have assessed as a 10% disability."
In cross‑examination, Mr Jeffries explained that the figure of 10 per cent included not only the shoulder but also the neck, arm, wrist and hand. In re‑examination, Mr Jeffries said that he did not make any assessment of the disability arising out of the carpal tunnel injury because he was not involved in the assessment or treatment of that injury.
It seems to me that when Mr Jeffries made the assessment of 10 per cent he was making a judgment of how much the rotator cuff tendonitis and its associated symptoms had impaired the whole of the plaintiff's right arm from shoulder to hand. It must be borne in mind that Mr Jeffries thought that some of the plaintiff's lower right arm symptoms may have been dysaesthetic symptoms related to the shoulder injury. In my opinion Mr Jeffries' assessment of a 10 per cent disability of the right arm did not include any assessment of disability of the right arm caused by the carpal tunnel syndrome and nerve irritation.
Report of Dr Alan Home
Dr Home's report dated 15 June 1999 was one of the reports attached to the plaintiff's Form 22. The contents of the report may be found in exhibit 10 between pp 45 and 50. It is evident from the report that Dr Home had seen the plaintiff on at least one occasion prior to 15 June 1999. After describing the plaintiff's right lower and upper arm symptoms he stated that the plaintiff's prognosis was "guarded". He said:
"There may be further symptom improvement at the right shoulder. The natural history for tendonitis complaints is for inflammation to resolve over time. This can take many months or years in some circumstances.
It is likely that she will be left with some discomfort at the right wrist following her previous carpal tunnel surgery. She has reported discomfort with vigorous right hand activities over a long period.
I believe that Mrs Da Silva will retain a capacity to undertake normal activity at bench height. She may have some difficulty with very strenuous gripping activities however I am certain that she can undertake cooking and bench height cleaning.
In my view, with suitable training she could perform clerical duties.
It is likely that motivational factors will lead to a clinical presentation of disability such as to prevent rehabilitation."
As to the cause of the plaintiff's injuries, Dr Home said:
"The worker's condition, that is carpal tunnel complaints and residual symptoms of intermittent paraesthesia in the right hand and some discomfort at the radial aspect of the right wrist with vigorous gripping activity, would relate to her accident in January 1994 (sic).
In my view there is no relationship between her right shoulder complaints and her ironing duties nor the onset of complaints in the cervical spine and her ironing duties."
Dr Home assessed her level of disability as being "10 per cent of the full and efficient use of the right upper limb below the elbow." (sic)
Dr Home's diagnoses as to the plaintiff's injuries in both her lower and upper right arm are consistent with the diagnoses of other doctors. As to the cause of the plaintiff's hand, wrist and lower right arm injuries, Dr Home is of the opinion that those injuries are work related. Dr Home's opinion as to the cause of the plaintiff's right shoulder complaints is that they are not work related but his reasons for this opinion are not apparent. As a result, I cannot give much weight to that opinion.
I do not accept Dr Home's view that the plaintiff with suitable training could perform clerical duties. It seems to me that this opinion ignores the plaintiff's lack of education, work, experience and English language skills.
As to Dr Home's opinion that "… motivational factors will lead to a clinical presentation of disability such as to prevent rehabilitation", it is not clear to me what is meant by "motivational factors". Based on what I have seen of the plaintiff I do not share Dr Home's opinion which I take to mean that the plaintiff is not motivated to undertake rehabilitation. With respect to Dr Home's opinion as to the percentage disability suffered by the plaintiff, I think that Dr Home's assessment relates to the plaintiff's hand, wrist and arm below the elbow and not the plaintiff's right shoulder.
Report of Mr Andrew Crocker
Mr Crocker's report, which can be found at exhibit 10 between pp27 and 30, concentrates on the plaintiff's hand, wrist and lower arm symptoms. Mr Crocker did not examine the plaintiff's right shoulder as he expressed no expertise in that area. Mr Crocker thought that the plaintiff's hand, wrist and lower arm injuries were work related and that she was not fit to return to her pre‑accident occupation as an ironing lady. He thought that she was unlikely to be employable "in anything other than a very part time capacity and with very limited physical capabilities" such as a driveway attendant, parking inspector or clerical assistant where no significant manual activity would be required. Mr Crocker agreed with Mr Home's assessment of the plaintiff's level of disability.
Mr Crocker's opinions as to the nature, cause and level of disability of the plaintiff's hand, wrist and lower right arm injuries are consistent with the other medical practitioners that I have already referred to and I accept his opinions on these matters. I accept his views that the plaintiff was not fit to return to her pre‑accident occupation and had a very limited residual incapacity. These views are borne out by the plaintiff's inability to work in any meaningful way since August 1996 and by the ongoing nature of her symptoms.
Evidence of Jennifer Miller
Jennifer Miller is an expert ergonomist. Her curriculum vitae which is set out in exhibit 8 indicates that she has considerable expertise and experience in the field. She provided the plaintiff's solicitors with a report dated 3 February 2004 which is exhibit 9.
I observe that it is evident from her report that the report is based in part on a worksite evaluation of Nell Gray Fashions carried out by an organisation called Combrook dated 27 June 1995. The plaintiff's counsel, Ms Schoombee, did not tender the Combrook report nor call its author. In her evidence Ms Miller said she did not rely upon the Combrook report to base her opinions. However, she did rely upon the information given to her by the plaintiff in an interview on 2 February 2004. It seems to me that the information given to Ms Miller by the plaintiff in that interview largely reflected the evidence that the plaintiff gave before me.
The thrust of Ms Miller's report is that the plaintiff's risk of developing an overuse injury is increased by the work methods adopted by the plaintiff's former employer. Ms Miller stated in her report and in her evidence that ironing for a period of 7½ hours per day for periods which were sometimes in excess of an hour and a half at a time caused fatigue in the muscles of the right hand and wrist. Ms Miller stated that the greater the muscle fatigue the greater the risk of injury.
According to Ms Miller the work of ironing requires the use of hand and wrist. The thumb is used in order to depress the steam button on the iron. Because most of the work is done by the hand and wrist it is those areas which are prone to overuse injury such as carpal tunnel syndrome. However, ironing can give rise to a risk of injury to the upper arm, shoulder and neck.
In Ms Miller's opinion the risk of injury could easily be reduced by having a worker perform a number of different tasks per day. For example, workers could rotate through a number of tasks such as ironing, button‑holing and collar fusion. Each of these tasks requires different muscle movement which alleviates excessive fatigue. The risk of injury could be further reduced by an employer providing frequent rest breaks of five minutes every hour.
Ms Miller also stated in both her report and in evidence that muscle fatigue could be reduced by the use of a balancer. She referred to the National Code of Practice for the Prevention of Occupational Overuse Syndrome which was published in June 1994. That code of practice recommends the use of a balancer.
Ms Miller gave evidence that a balancer is a device which is designed to counteract the effect of gravity. The balancer is suspended from a rotating arm above the ironing board. Whenever the iron is released by the operator the balancer causes the iron to return to a vertical position with the consequence of relieving the operator of constant downward pressure and movement of the arm. Ms Miller said that she seen such balancers at work in ironing stations in other workplaces although she had not used one herself.
Ms Miller testified that the Code of Practice sets out the steps that should be taken by management once workplace hazards had been identified either because of the introduction of new equipment or a complaint by a worker. When such a hazard was identified it was her opinion that the risk of injury should be assessed and then measures put into place to deal with that risk. In her opinion a complaint by a worker of discomfort such as the one apparently made by the plaintiff in this case to her supervisor should not have been dealt with by the response of "You'll get used to it". Rather, in her opinion, at the very least, the worker's supervisor should have enquired a couple of days after the complaint of discomfort whether the discomfort was continuing, and if it was the process of risk assessment should have begun. Ms Miller pointed out that WorkSafe WA was a government department which was able to put employers in touch with a qualified ergonomist who could assist and advise employers as to risk assessment and measures to deal with any actual risk. In cross‑examination, Mr Lampropoulos sought to suggest that the method by which the plaintiff went to a table and gathered items of clothing to iron and brought them over to the ironing table was a "natural" break. Ms Miller did not think that that was a sufficient break nor did she think that this constituted sufficient task variation.
As to the use of the balancer, Mr Lampropoulos suggested to her that the use of a balancer would require extra force because the operator would have to pull the iron downwards from its vertical position to keep it on the board. Although Ms Miller was not inclined to agree with this proposition she did not have, it seemed to me, sufficient knowledge of how the balancer actually worked or the degree of force that was required to keep it on the ironing board. Ms Miller defended the use of the balancer because it was part of the Code of Practice but she could not explain why it reduced muscle fatigue. In the end I was not left with a clear appreciation of how a balancer would have alleviated the plaintiff's risk of injury. However, overall, I found Ms Miller to be a compelling witness on the issues of the need for task variation and frequent rest breaks when an individual, such as the plaintiff, is involved in repetitive work such as ironing. On these issues I accept her evidence. I also accept her evidence as to how an employer should deal with a complaint that a worker is experiencing discomfort in his or her work.
Evidence of Sophie Burrows
Ms Burrows is a program manager at the Adult Migration Education Service. By reference to the records of that service she was able to confirm that in 1997 the plaintiff attended courses designed to improve her proficiency in English. In the result, the plaintiff was assessed as having survival proficiency of English in terms of speaking, listening and reading. This level of proficiency would allow her to manage basic everyday transactions but she would not be able to express herself or understand technical terms and concepts.
This evidence was not seriously in dispute. The plaintiff's limited proficiency in written and oral English both in 1997 and more lately would, in my opinion, diminish her ability to gain employment, leaving aside issues of age, education, training and her physical health. When I include those factors in addition to her lack of proficiency in English, I am driven to the view that the plaintiff's future employment prospects are virtually non‑existent.
Was the second defendant negligent?
The plaintiff's claim is cast in terms of both breach of contract and tort. In its amended defence the second defendant admitted that it owed the plaintiff a duty to exercise reasonable care in the performance of the retainer. While this admission related only to the plaintiff's claim for breach of contract it was not argued before me nor could it be cogently argued that the second defendant did not owe the plaintiff a duty of care in tort. In this case, the second defendant owed the plaintiff concurrent tortious and contractual duties. Ultimately, if damages are to be paid by the second defendant the measure of damages will be the same whether any breach of the second defendant's duty of care is founded in contract or tort.
The scope of the duty of care owed by the second defendant was to exercise proper skill, care, diligence and competence as solicitors acting in the best interests of the plaintiff in the pursuit of her claim against her former employer. Although the second defendant only commenced acting for the plaintiff on 1 July 2000, Mr Fiocco, who conducted the case on behalf of the second defendant, was already familiar with the matter having had the conduct of the claim when he was partner of the first defendant. By the time the second defendant took over the conduct of the action it seems to me that a course had been set to pursue the plaintiff's negligence claim against her former employer. Although no guarantee of success had been given to the plaintiff with respect to her claim, the evidence of the plaintiff and her daughter combined with the letter sent to the plaintiff by the second defendant dated 26 September 2000 strongly suggests that the second defendant was of the opinion that the plaintiff had a reasonable claim in negligence against her former employer. The letter dated 26 September 2000, on its face, recognises that two matters were in dispute, namely, whether the plaintiff could establish a permanent disability of at least 16 per cent and whether her right shoulder injury was as a result of her work. There is nothing in that letter nor in Mr Fiocco's contact with the plaintiff and her daughter which indicates that in the view of the second defendant those matters were insurmountable.
Section 93F is, to use the words of Viol DCJ in Guest v NRMA Insurance Ltd [2002] WADC 115, "devoid of any clear indication as to how the proportion is to be determined". In that case Viol DCJ favoured the view expressed by Murray J (with whom Pidgeon and Wallwork JJ agreed) in Hendrie v Rusli [2000] WASCA 249 where the Full Court was called upon to interpret s 3C(2) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) which restricts the amount of damages that can be awarded for a non‑pecuniary loss to a maximum amount which may only be awarded "in a most extreme case". At [18] his Honour said:
"In this Court in Wylde v Aristondo-Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997, Franklyn J, with whom Malcolm CJ and Kennedy J agreed, reviewed the law in relation to the application of s 3C and related provisions, which appear to have been inherited by this State from similar provisions in NSW. As a result his Honour relied heavily upon the decision of the Court of Appeal of NSW in Southgate v Waterford (1990) 21 NSWLR 427. It was accepted that the task was to find the right proportion between a most extreme case and the present. As to what might constitute a most extreme case, it was appreciated that a number of different types of cases of horrific injury involving extreme pain, loss of enjoyment of life, physical disability and the like might fall into that class. Paraplegia would certainly do so, particularly in a young person who might have an unaffected expectation of life and many years of disability and suffering ahead. As to how the right proportion is to be struck, appellate courts have simply reminded trial Judges that damages will continue to be awarded by reference to common law principles of assessment, and that there is, particularly in respect of non-economic loss, a wide measure of discretion."
The plaintiff provided me with a schedule setting out her loss under headings of past economic loss, interest on past economic loss, future economic loss and pre and post‑trial superannuation. The total amount claimed under all these headings is $293,778.05. The plaintiff's schedule of loss is Annexure A attached to these reasons. This schedule has been prepared on the basis that she has been totally and permanently incapacitated from work and is, of course, exclusive of general damages.
The amount claimed by the plaintiff by way of economic loss exceeds the Amount A. The schedule was tendered on behalf of the plaintiff to support her submission that at her notional trial a Judge would have found that her case was a most extreme case of disability of less than 30 per cent in degree.
There are, I think, some errors in the plaintiff's calculations and some other matters which were not taken into account which reduce the plaintiff's best case scenario claim, although those errors do not greatly affect the total amount of that claim.
In the plaintiff's schedule of loss past economic loss was calculated as follows:
July 1998‑July 2001 (156 weeks)
July 2001‑20 September 2002 (164 weeks)
320 weeks x $318 per week = $101,760
I am not sure why the schedule of loss chooses July 1998 as the commencement date of the plaintiff's past economic loss. Further, the period between July 2001 and 20 September 2002 is not 164 weeks, however, I think the year 2002 is a misprint and should be 2004 to accord with the commencement date of this trial. The plaintiff's calculation of past economic loss does not make any allowance for the work the plaintiff performed at the Rockingham court house in 2001. I have not been able to find anywhere in the evidence a precise statement of the period that she worked there. I have looked at the group certificate filed with plaintiff's income tax return for the year 2002 (exhibit 10, pp 92 – 98) but that only mentions a period between 4 April and 30 June 2002. In my opinion the claim for past economic loss should be reduced by say $4,000 for the part time work that the plaintiff did at Rockingham court house. After making that adjustment the plaintiff's claim for past economic loss should be $97,760.
The plaintiff's claim for loss of superannuation prior to trial contains a calculation error. According to the schedule 8 per cent of $381 is $34.54 when in fact it should be $30.48. Once that correction is incorporated in the calculation the total amount of loss of superannuation benefits before trial was $3,664.45. Interest on the plaintiff's past economic loss from the date of issue of the writ to the date of judgment pursuant to s 32 of the Supreme Court Act 1935 according to the principles set out in Brasser v Graham& Graham [1985] WAR 180 and taking an interest rate of 6 per cent the total amount of interest on the plaintiff's past economic loss was $14,913.09.
As to the plaintiff's claim for future economic loss the total amount claimed is $165,932.40. From this figure the usual contingencies must be deducted. In my opinion that rate should be 6 per cent: Lawson v Flavell [2001] WASCA 272 per Miller J. After taking into account contingencies, the total amount of claimed future economic loss should be $155,976.46.
Once the various errors are taken into account it seems to me that the plaintiff's best case scenario claim for loss exclusive of general damages and leaving aside the statutory limitations was:
Past economic loss $97,760.00
Interest on past economic loss $14,913.06
Past superannuation $3,664.45
Future economic loss $155,976.46
Future superannuation $12,616.08
Total$284,930.08
No doubt at any notional trial the plaintiff's counsel would have argued that the amount of the plaintiff's loss, even leaving aside general damages, was substantial and justified the case being seen as a most extreme case of disability of less than 30 per cent in degree. Counsel would have further argued that the plaintiff's general damages would have also been substantial given the impact that the injuries have had upon her and the continuing impact that those injuries will have upon her life. In my opinion, had all issues been determined in the plaintiff's favour at the notional trial, the trial Judge would have found that the plaintiff had sustained significant past economic loss and a total destruction of her future earning capacity. I am also of the opinion that the trial Judge would have found that the injuries had substantially and adversely affected the plaintiff's life in general.
I now return to the provisions of s 93F of the WCR Act. Section 93F(1) requires a trial Judge to determine the amount of damages according to the severity of the disability. In my opinion the severity of the disability has to be gauged from the effects of that disability upon the plaintiff both in terms of economic and non‑economic loss. That judgment must be tempered by the legislative requirement that a court cannot award the maximum amount, Amount A, unless the case comes within the category of a most extreme case of disability of less than 30 per cent in degree. In my opinion, had all issues been determined in favour of the plaintiff, it is likely that a court would have decided that the plaintiff's case was one which could be fairly categorised as a most extreme case of disability of less than 30 per cent in degree. Taking the plaintiff's case as a whole, it seems to me that her working life has been devastated and that her enjoyment of life has been considerably diminished. The plaintiff appeared to me to be a person who enjoyed her work and had a full and active life at home. Her ability to work has been lost and she is unable to pursue the things which made her life worthwhile.
It follows from what I have said that if all issues had been determined in favour of the plaintiff the maximum amount of damages that she would have recovered would have been $132,482.85 being Amount A less her workers' compensation payments.
However, the plaintiff was by no means certain to have obtained a judgment against her former employer in the sum of $132,482.85. Whilst I think that there is a reasonable prospect that she would have satisfied a Review Officer that her disability was 16 per cent or more I do not think it can be said that that certainly would have happened. Further, on the evidence before me, I cannot say with any degree of certainty at all that her shoulder and neck injuries were attributable to the former employer's negligence. Both of these matters were important aspects of the plaintiff's case. If she had not succeeded before a Review Officer she would have not recovered any damages from her former employer. If a court found that the shoulder and neck injuries were not attributable to her former employer's negligence, her damages would have been substantially reduced. I think I should also take into account that the matter may have settled. This is a case in which a prudently advised plaintiff may well have settled taking into account the risks that she faced both before a Review Officer and then at any trial.
Although the plaintiff's case was not without its problems and risks, I do not think that it could be described as hopeless, indeed, in my view she had a reasonable case against her former employer. In all the circumstances of this case, and doing the best I can to estimate the value of the chance lost to the plaintiff by the second defendant's negligence, I conclude that the value of the chance lost to the plaintiff is $86,113.85 being 65 per cent of the maximum amount the plaintiff would have recovered had her action against her former employer been completely successful.
On 3 March 2005 counsel informed me that in addition to weekly payments and statutory allowances the plaintiff received another payment being $15,000. I was told that this payment was made to the plaintiff after her action had become statute barred. Both counsel told me it was appropriate to deduct this from the $86,113.85. Accordingly, the value of the plaintiff's lost chance is $71,113.85.
The plaintiff has claimed an amount of $1,225 being the legal costs that she incurred in instructing the second defendant to pursue a common law claim on her behalf. No evidence was placed before me as to the payment of this sum. In the absence of that evidence I am not prepared to allow this part of the plaintiff's claim.
Conclusion
I return to the questions which I posed in [5]. In my opinion the second defendant was negligent in its conduct of the plaintiff's claim against her former employer. As a result the plaintiff suffered loss in that she was deprived of the chance of establishing her personal injury claim against that employer. In my view the value of that lost chance was more than nominal and was in fact of substantial value.
In accordance with these reasons I order judgment in favour of the plaintiff against the second defendant in the sum of $71,113.85. I shall hear from counsel as to the precise form of the order and the appropriate order as to costs.
ANNEXURE
PLAINTIFF'S SCHEDULE OF LOSS FOR TRIAL
1At the time of the accident the Plaintiff was 41 years of age and was employed by Nell Gray Fashions earning approximately $318 nett per week.
2As a result of the accident, the Plaintiff was unfit for work for intermittent periods from 18 November 1994 to June 1998 and has been totally unfit for her pre accident duties from June 1998 to present. The Plaintiff was in receipt of workers' compensation payments and benefits pursuant to the Workers' Compensation and Rehabilitation Act 1981 for periods of unfitness and benefits pursuant to the Workers' Compensation and Rehabilitation Act.
3Past Economic Loss
July 1998 – July 2001 (156 weeks)
July 2001 – 20 September 2002 (164 weeks)
320 weeks x $318 per week = $101,760
Superannuation
8% of $381 gross per week = $34.54 x 102 = $3,523 less 30% management and administration costs = $2,466.10
9% of $381 gross per week = $34.29 x 62 weeks = $2,125.98 less 30% management and administration costs = $1,488.18
Total = $3,955.29
Interest on past economic loss ($105,714.28) – 6% per annum = $9,514.29
Total Past Economic loss = $101,760 + $3,955.29 + $9,514.29 = $115,229.57
4Future Economic Loss
Years to age 65 = 15
6% multiplier = 521.8
$318 nett per week x 521.8 = $165,932.40
Superannuation
9% of $381 gross per week = $34.54
$34.54 x 521.8 = $18,022.97
less 30% management and administration costs = $12,616.08
Total Future Economic Loss
$165,932.40 + $12,616.08 = $178,548.48
5The Plaintiff's disability is severe. The nature and extent of her economic and non‑economic loss equate to a most extreme case of a disability of less than 30% in degree and therefore, the Plaintiff would have been entitled to the maximum pursuant to Section 93F(1)(B).
6The maximum amount as at 1 July 2002 was $274,278. The total benefits paid pursuant to the Workers' Compensation and Rehabilitation Act = $156,795.15.
$274,278 ‑ $156,795.15 = $117,482.85
7In addition, the Plaintiff incurred legal costs in instructing the Defendant to pursue a common law claim on her behalf in the sum of $1,225.
5
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