Daniels v Hobart Corporation

[1989] TASSC 121

Serial No B43/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Daniels v Hobart Corporation [1989] TASSC 121; B43/1989

PARTIES:  DANIELS
  v
  HOBART CORPORATION

FILE NO:  WC 84/1983
DELIVERED ON:  19 October 1989
JUDGMENT OF:  Cox J

Judgment Number:  B43/1989
Number of paragraphs:  16

Serial No B43/1989
File No WC 84/1983

DANIELS v HOBART CORPORATION

REASONS FOR JUDGMENT  COX J

19 October 1989

1. The plaintiff seeks weekly payments of workers' compensation and a number of hospital and medical expenses in respect of injury allegedly sustained by her by accident arising out of and in the course of her employment with the defendant as a labourer at its Wayne Avenue seedling nursery in 1978.

1. The plaintiff, then a girl of nearly 19 years of age, commenced working for the defendant in February 1978. She had left school at the age of 15 years and had worked as a shop assistant at two different department stores and as a nurses' aide at the St. John's Park Hospital. These jobs had been interspersed with quite long periods of unemployment. From the commencement of her employment with the defendant she was employed with a small group of young women at the nursery, their work being supervised by a leading hand Mr Rankin. Her work had included digging, hoeing, mixing soil, spreading compost, taking cuttings and planting seedlings.

1. In June 1978 she was off work for approximately three weeks in circumstances then recognised by her employer as justifying the payment of workers' compensation. There is a dispute as to the precise circumstances. According to the plaintiff she was, on the 13 June 1978, required by Mr Rankin to move some loam in a wheelbarrow up an incline in the nursery complex. Finding the soil wet and heavy she complained that the task was too heavy and the path too steep, but her complaints were in effect brushed aside. As she wheeled the barrow towards her destination she felt a severe pain in the lower back and legs. She lost control of the barrow and fell with it onto the ground where she lay in considerable pain for a few minutes before walking up to the lunch shed where Mr Rankin and her co–workers were preparing to knock off, it being then late afternoon, and told them what had happened. They had helped her to sit down, put a box under her legs and one of them had telephoned her boyfriend James Kerr who had come and taken her home. To have made such a telephone call the caller would have had to walk some 400 yards to a public telephone as none was available at the nursery.

1. That night she was in a lot of pain which was unrelieved by painkillers, and the following day she went to the Royal Hobart Hospital where she was given a medical certificate to the effect that she was unfit for work for one week, and physiotherapy and bed rest were ordered. She was off work for a further two weeks and saw Mr W B Law at the orthopaedic clinic. He advised the fitting of a plaster cast from neck to hip for a period of six weeks and made arrangements for her admission to hospital for this purpose, but she failed to keep the appointment. She likewise failed to keep a second appointment he made for this purpose at Calvary Hospital shortly thereafter.

1. On the 15 June 1978 she filled in a claim for workers' compensation answering the printed question "How did accident happen?" with the words "Cannot specify this, but probably excerted (sic) myself pushing wheelbarrow loads" and the immediately following question "Why did accident happen?" with "Apparent over excersion (sic)". At the end of about three weeks (in respect of which she was paid weekly payments of workers' compensation) she returned to work. She said that she was given light duties mainly in the potting shed where she could sit for much of the time and that she remained on light duties for some months. She said she was, during this time, always in pain and received treatment by way of acupuncture and physiotherapy, such treatment being paid for by her boyfriend. A doctor also prescribed painkillers. Prior to the wheelbarrow incident she had been fit and active and had frequently engaged in dancing, cycling and surfing, but after it she had to give up all these activities.

1. After about six months she said Mr Rankin asked her to resume her normal duties. She did so but found the heavier ones painful and she could only do them slowly and intermittently. She was able at times to swap duties with some of the other staff but this was frowned on by Mr Rankin. However, on a couple of days a week she would have to do heavy duties and would be reduced to tears and exhausted by the end of the day. She had started a horticultural course at night school in 1978 and completed that first year with distinction but in the following year gave it up because her back was too painful. In February 1980 she resigned her job for the same reason. A few months later, having been unemployed in the meantime, she went to North Queensland. She endeavoured to procure work as a barmaid without success and then formed a relationship with a man, living with him on a boat. She returned to Tasmania in late 1980 or early 1981 and resumed a de facto relationship with a Mr Brown who is the father of her daughter born in April 1982. In the second half of 1983 the three of them returned to Townsville in Queensland where Mr Brown continued to contribute to her support and she received a supporting mother's benefit. She said she also tried to undertake a modelling course but could not wear high heeled shoes and could not cope with dancing and parading on the catwalk. She and Mr Brown separated in 1985 and the plaintiff went with her daughter to Cairns. She said she did not attempt to work there and formed a relationship with another man (Kim) shortly after arriving there. In 1986 she returned with the child to Tasmania for a few months, went to Melbourne with a girlfriend at Christmas 1986 seeking employment, but getting none returned to Cairns and resumed the relationship with Kim. The child was brought up to Queensland but by May 1987 the plaintiff left Kim and returned with the child to Tasmania.

1. Here the plaintiff commenced an escort agency selling her sexual favours and those of three other prostitutes. She also performed some strip tease acts. The business was not a success because of the hostile attitude of a rival organisation and she returned yet again to Queensland after a few months. In late April 1988 she came back to Tasmania and commenced another escort agency operating in much the same way but this time so successfully that the plaintiff received, and still receives, a substantial income from her activities and those of her employees.

1. The plaintiff claims that ever since the wheelbarrow incident she has experienced extensive pain. For the first two years after her resignation her symptoms continued at the same level as those which had forced it, but they then improved, although that still left her suffering medium back pain. She said she still suffers back pain every day, although some days are worse than others. She has had a number of spontaneous bouts of pain which have on occasion required hospital treatment. At present her discomfort is more pronounced in the upper body, in the neck and arms.

1. The defendant challenges the plaintiff's reliability and honesty. All three co–workers who were alleged by the plaintiff to have been in the lunch hut when she came in complaining of an accident with the wheelbarrow and asserting that she was in severe pain were called as witnesses and said they had no recollection of any such incident or of the plaintiff being taken home by her boyfriend. None of them had any recollection of her having advanced back pain as the reason for her resignation. Admittedly it is a long time ago and one of them had no recollection of her having the time off on compensation which she undoubtedly did have. But it is remarkable that none of them confirmed the circumstantial account given by the plaintiff of a specific accident, nor has any recollection of later complaints of back pain. Mr Rankin found her unmotivated and not a willing worker, but did not recall any incidents of disablement from work due to back pain other than the period following 13 June 1978. He said the plaintiff had told him she had suffered from a bad back while at school and also while working for a previous employer. But she denied any such conversations and the officer in charge of records at St. John's Park Hospital, the institution put to the plaintiff in cross–examination as the place mentioned by her to Mr Rankin, could find no instance of the plaintiff having time off work there for back pain and I find that she had no pre–existing back condition.

1. Her own report to her employer, as I have said, does not allege a particular incident and when she first consulted a solicitor over four years after the one she now relies on, his letter of the 13 December 1982 claimed that she had sustained accidental injury to her back when moving a full wheelbarrow of loam up a hill near the potting shed about the middle of 1978 "one morning". James Kerr, the boyfriend who is alleged to have come and taken her home on the day of the accident had no recollection of doing so, although he did confirm that she complained of pain as the result of an accident at work and that during 1978 there was a change in her lifestyle, especially in her leisure pursuits.

1. By and large I am not prepared to rely on the plaintiff's own evidence unless it is corroborated. In addition to the matters I have mentioned which throw doubt on the consistency of her version of events I found her evasive about some of her evidence (admittedly this related in part to the frequency of her own acts of prostitution, the extent of which she would be naturally tempted to play down) and her complaints as to the kind, frequency and severity of her pain were unconvincing. Mr Law said that on examination he found variable and conflicting signs while Mr Bye, her specialist, when told of her ability to perform strip tease acts for an hour or more said he had some difficulty reconciling that fact with her complaints of back pain. Dr Freeman, a specialist physician who examined her on behalf of the defendant's insurer on the 31 March 1983 found her physically normal on that day and said she had no physical signs and he could see no organic or physical reasons why she could not work. He also was unable to elicit a specific history of what had precipitated the original pain, notwithstanding that he "taxed her at some length because obviously it was important".

1. I do not accept that the incident with the wheelbarrow occurred as she described it. Nevertheless, I note that her previous attendances on the Royal Hobart Hospital had been relatively frequent and for all manner of fairly trivial matters and as she is not recorded as ever having previously complained of back problems I find that prior to her visit there on the 14 June 1978 she had not suffered any such problems. I accept, as indeed did the defendant when she claimed workers' compensation in June 1978, that she did sustain injury to her back as the result of the strenuous labouring work she performed in the course of her employment. I find that on the 13 June 1978, as the result of wheeling a heavy wheelbarrow, hoeing, digging or other heavy work, she sustained some damage, probably to her ligaments which by night time was sufficiently distressing to require medical attention the following day and cause Mr Law to recommend the fairly drastic remedy of applying a plaster jacket for several weeks.

1. After three weeks the plaintiff returned to work and continued for a further eight months without any time off for back problems. There were no light duties as such available to her, but she no doubt did avoid especially hard work perhaps thereby attracting Mr Rankin's unfavourable assessment of her and to some extent swapping chores with her colleagues. I do not accept that she was in severe or constant pain, although that kind of work was no doubt too strenuous for her to engage in without some repercussions, and she varied her leisure pursuits, curtailing the more active ones. If she had been forced to resign because of her pain I have no doubt she had sufficient self confidence to have made her colleagues and superiors well aware of the fact and to have claimed workers' compensation in the months following when she was unemployed, yet she did none of these things and made no claims for repayment or paramedical expenses incurred throughout that time. I am satisfied that she left work because she found it strenuous and did not wish to continue, but I am by no means satisfied that she left because she was disabled by her earlier injury or that she was thereby incapacitated for working in some other suitable employment.

1. Since that time it is well documented that she has had periodic bouts of back pain which have led to periods of bed rest and occasional hospitalization. Asked to explain the pathology of her condition Mr Bye said:–

"AMy concept of it would be that she strained some of the ligaments which support the discs in the vertebral bodies in the low part, somewhat akin to a ligament in the ankle. If you have basketballers who come down and strain or stretch their ligament in their ankle it is very easy for them. They don't have to be landing heavily playing basketball for their ankles to give way and cause pain because they get the joints going like that which causes pain and swelling. My concept in her back would be that some of the ligaments are not as tight or structurally sound as they should be so that if she moves awkwardly which puts stress on those joints which causes a little movement if you like in the joints in the back or straining some of the other ligaments which causes pain which then causes spasm which then causes the whole scenario to go on.

QSo there is no bony injury?

ANo, her x–rays are normal.

QWould not one expect a problem at that time to resolve itself with time?

AOne would expect that if one had a ligamentous injury as I am putting forward as time goes on it should resolve given good care and use of the back or the joint or if it is only a very minor problem. If it is a more major problem then one would expect radiological changes which one does not have.

QSo does the fact that Miss Daniels still complains of significant lower back pain is that somewhat inconsistent with your diagnosis?

AMy diagnosis of ligament strains?

QOf the nature of any ..

ANo, no, I don't think so. I think it is still quite reasonable to suppose that she's having back pain. In fact I have no doubts that on some of the occasions when I have seen her she's got muscles in spasm. So she's having back pain, though I am putting it forward that it's these ligaments being injured probably from the loam wheelbarrow incident of '79 or '78 which instituted it. I have no doubts that she's having back pain. It may be that her back pain perhaps could have been coming from a virus or someone hit her in the back or some other incident.

QYes?

ABut I'm listening to her and believing her story.

QRight.

AIn that initiating it.

QI was going to get back to that. Really your tying in her complaints of back pain with an incident involving the wheelbarrow is merely because you have been told of that incident and you are unaware of any other possible facts or incidents which may have been a cause?

AYes. Reviewing her casualty notes she has attended for many minor problems, none for back pain. If you go to the Royal because you've got warts then you'll probably go to the Royal because you've got back problems.

QYes.

AAnd she didn't come to the Royal at all until this one time?

QYes.

AAnd from then on there have been complaints fairly incessantly about her back being a problem.

QSo in tying in her complaints with back pain with the incident with the wheelbarrow you are totally dependent upon her credibility?

AOh yes, totally.

QCould it be that an injury of the type you believe she has could be caused not from any one sudden incident but, for example, a period of time in which someone undergoes heavy work or heavy physical activity?

AYes. I mean it would be reasonable to suppose that that could have happened with her. She's doing her wheelbarrowing and that just a little more stress at one time so its little insults adding up to one final thing which just tips the balance. Certainly."

1. The hospital records (none from Queensland were produced) indicate the following history subsequent to June 1978 – attendance at orthopaedic clinic for low back pain in the middle of 1979, a similar attendance in January 1980, and a lower spine x–ray in mid 1981, admission to hospital 13 August 1982 to 27 August 1982 for low back pain and further in–patient treatment from the 28 July 1986 to the 1 August 1986 for recurring back problems.

1. I accept that these occasional flare–ups of acute pain are, to use Mr Bye's words, an extension of the injury of 1978. I accept also that from time to time there may be occasions when she suffers not insignificant pain and discomfort, but of a degree of severity not warranting hospitalization. Nevertheless I reject the claim that the injury in 1978 caused a condition which has totally incapacitated her for work. There has been little evidence given as to any attempts to procure work save in Queensland as a barmaid which she said she could not do because of standing on cement floors, and modelling which I have mentioned. Until embarking on her present career she seems to have been content to adopt a lifestyle of living in a de facto relationship with a number of male protectors receiving social service benefits. I am not persuaded on the balance of probabilities that she has at any material times been incapacitated for work and I am affirmatively persuaded that she is not presently so incapacitated. In consequence she is not entitled to any weekly payments on the basis of incapacity. However there is a claim for some medical and hospital expenses and these should be met by the defendant as they are for treatment of a condition caused by the original work injury. I shall give the parties the opportunity to make submissions as to the proper amounts to be included in the judgment.