Dewing, Georgina Isabella v St Lukes (Anglican Church in Australia) Association

[1999] TASSC 39

[1999] TASSC 39

PARTIES:  DEWING, Georgina Isabella

v
ST LUKES (ANGLICAN CHURCH IN AUSTRALIA) ASSOCIATION

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  1853/1995
DELIVERED:  1 April 1999
HEARING DATE/S:  18, 19, 23 - 26 February 1999
JUDGMENT OF:  Wright J

CATCHWORDS:

Employment Law - The contract of service - Rights, duties and liabilities as between employer and employee - Liability of employer for injury to employee at common law - Safe system of work - Plaintiff injured back whilst adjusting unco-operative geriatric patient in bed, assisted by supervisor - Whether nursing home vicariously liable for supervisor's failure to use lifting straps - Whether plaintiff guilty of contributory negligence.

Aust Dig Employment Law [32]

Torts - Negligence - Contributory negligence - Apportionment of responsibility and damages - Apportionment in particular situations and cases - Contributory negligence of employee - Employee failing to follow procedure and utilise lifting straps.

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, applied.
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Smith v Tamar Park Pty Ltd 52/1998, considered.
Aust Dig Torts [71]

REPRESENTATION:

Counsel:
             Plaintiff:  C H Hobbs
             Defendant:  C N Dockray
Solicitors:
             Plaintiff:  C H Hobbs
             Defendant:  C N Dockray

Judgment category classification:
Judgment ID Number:  [1999] TASSC 39
Number of pages:  19

Serial No 39/1999
File No 1853/1995

GEORGINA ISABELLA DEWING
v ST LUKES (ANGLICAN CHURCH IN AUSTRALIA) ASSOCIATION
(ACN 009 478 353) trading as BISHOP DAVIS COURT

REASONS FOR JUDGMENT  WRIGHT J

1 April 1999

1. The plaintiff claims damages for personal injury allegedly sustained on 24 November 1993 during the course of her employment as an enrolled nurse whilst working on night shift at the defendant's residential nursing home at Kingston.  The plaintiff, now aged 44 years, commenced her training as a nurse in 1972 and, after the completion of two years undergoing such training, she became qualified as an enrolled nurse (EN).  To become fully qualified as a registered nurse (RN), an additional year's training would have been necessary.  She obtained a casual position with Bishop Davies Court in 1991.  That became a permanent part-time position in June 1993.  She was employed on the night shift several days a week between 11pm and 7am.  At the relevant time, the nursing home was divided into two sections, namely McCallum and Argyle.  Generally speaking the plaintiff was rostered to work in the McCallum section with another employee.  A registered nurse, Marguerite Delphin, considerably older and more experienced than the plaintiff, worked in the Argyle Section with a nurse's aide.  There were, thus, four employees working during the night shift at the home and there was little, if anything, to distinguish between the nature of the work undertaken by Marguerite Delphin, on the one hand, and the plaintiff, on the other.  Marguerite Delphin, however, was sister-in-charge and night supervisor, and, as such, she had the general responsibility for the safe and efficient management of the premises during the night shift.  Bishop Davies Court at the time contained seventy-six or seventy-eight residents, most of whom were elderly and many of whom were bed ridden or wholly or partially immobile.  Many were wholly or partially handicapped by dementia.  There were one or two younger patients who had sustained severe trauma resulting in physical or mental handicap.  At this time, there were approximately thirty residents in the McCallum section and the balance were in Argyle.  All members of staff could be required to work in either section, but it is plain that the plaintiff regarded herself as being in charge of McCallum during the night shift and Mrs Delphin as being in charge of Argyle.  The other two employees engaged in the night shift were nurses' aides who had experience working with geriatrics.  Prior to 24 November 1993, at about 6am every morning, it was the practice for the night shift staff to awaken and prepare the residents for hand over to the day shift staff at 7am at which time, or soon thereafter, they would be provided with breakfast.

1. On the night in question, Mrs Delphin informed the plaintiff that she had permission to start this routine at 5am, rather than 6am.  The plaintiff had been absent from work for the two previous evenings and had not previously heard of this variation.  The plaintiff was annoyed that the routine was being changed, although it was made clear to her that this was being done so that Mrs Delphin could more conveniently attend to other duties which required her attention between 6am and 7am.  The plaintiff considered that it would be unfair to the residents to have them sitting up for about two hours awaiting their breakfast.  However, the evidence does not suggest there was any argument or direct confrontation between the two women over the issue.

1. The plaintiff went with Mrs Delphin to a ward called the Garden Room in the Argyle section.  Whether she did this as the result of a direction or order from Mrs Delphin is not clear.  The Garden Room contained nine residents and was divided into three sections.  In one of these sections was Mr Cecil Farmer, an elderly gentlemen aged about 93 years, who was unable to communicate with staff and was confined to his bed unless seated in a nearby armchair during the day.  He required total care and was unable to attend to any of his personal or other needs.  Although not violent, he was unco-operative if being moved and could stiffen his body to resist if attempts were made to change his position.  This is clear from his personal records which were in evidence, and also the evidence of members of staff of Bishop Davies Court who were called to give evidence during the course of the trial. 

1. The plaintiff said that she was unaware of this propensity by Mr Farmer, but in view of the length of his residence at Bishop Davies Court and the general nature of her duties, I have some doubt about this.  However, I do accept the plaintiff's denial of familiarity with the details of Mr Farmer's care plan which was contained with his personal records in a folder which was probably adjacent to his bed at the relevant time.  That personal material contains no precise information as to Mr Farmer's weight in 1993, but it was estimated by the plaintiff to be around about eighty kilograms.  The care plan is a document compiled with input from carers and others recommending and specifying methods of care and procedures for dealing with individual residents.  It is updated and amended from time to time to accommodate changes in the resident's condition.  The bed which Mr Farmer was using was of a type commonly used in similar nursing establishments.  It was non-adjustable except for the head board which could be manually adjusted to enable the occupant to lie in a semi-recumbent position.  When fitted with a standard mattress, the upper surface of the mattress would have been approximately 660 millimetres above the height of the floor, the mattress itself being 140 millimetres deep.  According to the evidence of Mrs Delia Cole, who was the Director of Nursing at Bishop Davies Court in 1993, and who was called to give evidence on behalf of the defence, such beds are:

"…  acceptable beds and had been around for quite some time and well used within the industry.  I had used them in lots of places, they were called a standard nursing home bed, so - they were built to be of an average height for - a good working height for an average person and they hadn't ever caused problems for myself, personally, working with them. … you can move anybody, I think, safely in really any sized bed providing you're following good lifting practices."

1. The plaintiff said that at the time she went to assist Mrs Delphin in rousing and aiding Mr Farmer to sit up, she was aware that he had dementia and cardiac problems.  He was the first patient in the ward whom they approached.  He was in bed, apparently asleep in a curled up foetal position, lying upon his right hand side.  If facing the head of the bed, the plaintiff was standing on the right hand side of the bed and Marguerite Delphin was on the other side.  They rolled him over onto his back and Mrs Delphin said something to the effect of, "Cecil we're going to sit you up".  Mr Farmer's care plan contained several entries suggesting that because of his tendency "to become more rigid when any treatment or care is being carried out" he should be attended to with "slow calm handling" with explanations "before commencing procedures".  The blanket was rolled back and the plaintiff took Mr Farmer's catheter drainage bag and put it on the bed so that it would not pull free as he was moved about.  The plaintiff and Mrs Delphin then commenced to perform a cradle lift to place him in a seated position in the bed.  The plaintiff described a cradle lift as a standard lift in which two nurses, one standing on each side of the bed, join hands across the back of the patient's upper thigh, usually gripping each other's wrists in the process, then with legs apart, the other arm is slid under the patient's back at about shoulder level, arms are linked, the patient is told that a lift is about to take place, the nurses count together "1, 2, 3" and on the third count, lift the patient back up against a pile of pillows towards the head of the bed.  Apparently this lift is fairly easily accomplished if the patient is co-operative and not overweight.  The patient will bend slightly in the middle and thus be in a semi-seated position on the nurses' clasped hands as the lift takes place.

1. Mr Farmer, however, did not respond as co-operative patients might be expected to.  He resisted and stiffened and pushed himself back.  He also stiffened his arms.  The plaintiff said that when this stiffening and resistance occurred, there was a " momentum to go up the bed, the top half of me sort of kept going and with him stiffening and my bottom half was braced and so it stayed there and it was like being pulled sideways with a bit of a twist".  She said that in this process she suffered pain across the lower back across the top of her buttocks, she lent against the wall and complained to Mrs Delphin that she had been injured.  The pain caused her back to ache but it was not excruciating so she was able to finish most of her round on McCallum before the end of her shift, at which time she filled out an incident report and the day supervisor, who was coming on duty, Mrs Leanne Castles, advised her to see a doctor.

1. The plaintiff said that prior to commencing to lift Mr Farmer, the method of doing so had not been discussed between herself and Mrs Delphin.  She said that she simply followed Mrs Delphin's lead and could see from Mrs Delphin's actions that she was intending to perform a cradle lift.  The plaintiff said that she herself perceived no risk in doing this and she assumed Mrs Delphin was following the prescribed care plan for Mr Farmer.  The plaintiff said that she assumed Mrs Delphin was familiar with that care plan, although it was not specifically consulted that morning in her presence, because of Mrs Delphin's presumed long association with him in the Argyle section.

1. The only witness to give evidence of the procedures adopted to lift Mr Farmer that morning, was the plaintiff herself.  Mr Farmer has since died and, in any event, would not have been a competent witness.  Mrs Delphin was called neither by the plaintiff nor by the defendant.  There was no evidence to suggest that she was unavailable to give evidence if required.  Each side submitted that it would be appropriate to draw adverse inferences against the other by reason of that party's failure to call Mrs Delphin. 

1. Although not clear from the statement of claim and the particulars supplied, the plaintiff's case as opened and refined during the course of the trial, suggested that there had been negligence on the part of the defendant causing injury to the plaintiff's lower back, arising from Mrs Delphin's failure to comply with Mr Farmer's nursing care plan by not using blue lifting straps or other devices when she initiated the lift.  Alternatively, it was claimed that there was an unsafe system of work in that the non-adjustable bed provided was unsuitable for its purpose and Mr Farmer should have been provided with an adjustable bed which could have been used to place him in a seated position without the necessity for a manual lift. 

1. The case was pleaded much more broadly than this and with much less precision, but the plaintiff's success or failure depends, I think, upon her capacity to establish one or other, or both, of these suggested breaches of duty as a causative factor in the occurrence of her lower back injury.  The blue straps mentioned consist of a pair of thick blue plastic belts approximately one foot wide by two foot six inches long, with hand holds cut out at each end.  The thickness of these straps was not mentioned during the course of the evidence but, having regard to the purpose for which they are designed, I imagine they must be about a quarter of an inch thick, otherwise they would be unable to hold the weight of a patient.  I will review the evidence in relation to the use of such straps in more detail shortly, but it is sufficient to say at the present time that such straps are and were used extensively in the nursing home environment for the purpose of moving disabled residents about in their beds.

1. It was not clear to me when I read the papers, including the statement of claim and particulars, preparatory to the trial, that the plaintiff would be alleging that the defendant was vicariously liable for the negligence of Marguerite Delphin.  That such an allegation would be made became clearer when the case was opened and as the evidence was led.  Mr Dockray, counsel for the defence, made no objection to the receipt of this evidence by the Court, although he did show some resistance to the plaintiff's application, made towards the end of the trial, to add further particulars under par10(e) of the statement of claim in the following terms:

"And further the Plaintiff says the Defendant's servant or agent Marguerite Delphin as night supervisor and person in charge failed to implement supervise and enforce safe lifting procedure and in particular directions detailed in the care plan of the said Cecil Farmer"

I allowed the amendment so sought, but note that this is the only direct allegation in the  pleadings of fault on the part of Mrs Delphin.  In short, this is the only basis as to which Mrs Delphin's negligence has been put forward as a ground for holding the defendant to be vicariously liable.  All other allegations in the statement of claim suggest that the plaintiff is asserting primary liability against the defendant for failure to provide a safe system of work.  These matters appear to me to be relevant to the question of whether or not any adverse inference can be drawn one way or the other from Mrs Delphin's absence from the witness box.

1. Mr Hobbs, counsel for the plaintiff, submitted that as fault was being alleged against Mrs Delphin, it was not surprising that she was not called as a witness by his client.  Mr Dockray submitted that as it was plain that the plaintiff's account of the relevant incident was under serious challenge, and, in particular, her claim that she had sustained an injury as a consequence of lifting Mr Farmer, it might have been expected that she would call Mrs Delphin who had signed a report to her superiors confirming the plaintiff's claim to have been injured at work.  I should perhaps mention that it was plain to me from the form and content of some of the questions put by Mr Dockray to the plaintiff in the witness box in which it was suggested to her that some of the things which occurred in the Garden Room were other than as she had described them, that either he or those instructing him, had had access to Mrs Delphin prior to or during the course of the trial.  I say this because it was not suggested at any stage that either Mr Staples or Ms Leahy, the other two employees on duty on the night shift, were present at the relevant time and it appears to me unlikely in the extreme that Mr Dockray's instructions could have come from any of the nursing home residents.

1. All in all, I am not prepared to conclude that any adverse inference should be drawn against either the plaintiff or the defendant for failure to call Mrs Delphin.  The simple fact is that she has not been called and I therefore do not have the benefit of her evidence and, although the plaintiff's evidence as to the relevant occurrence has not been directly corroborated, neither has it been contradicted.  It is, I think, appropriate to say at this juncture that generally I accept the plaintiff's account of the way in which, and the circumstances in which, Mr Farmer was moved in his bed on 23 November 1993.

1. As I have mentioned, the plaintiff was challenged in her claim that this incident caused an injury to her back.  Evidence was called by the defence from the two nursing aides who were on duty with the plaintiff and Mrs Delphin during the relevant night shift.  Mr Malcolm Staples, an extended care assistant, who was employed by Bishop Davies Court between 1988 and 1994, said that on the evening of 23 November 1993, he had observed the plaintiff showing signs of discomfort and fidgitiness before 5am.  He said she did not seem to be "quite as jolly as she [usually] was", she was "fidgety and not her usual self", "She seemed to have problems getting up sometimes, off the chair", "She didn’t seem to the  have the normal gait" and "didn’t walk as quickly and she didn’t seem to be getting around as normal."  He said that the plaintiff had said nothing to him that night about any injury which she might have suffered at work.

1. Mr Staples also gave evidence as to the practices and procedures required at Bishop Davies Court as to the use of blue lifting straps.  I find his evidence as to these matters, which I will refer to in more detail later, to be generally acceptable, but I am not prepared to accept his evidence as to his observations of the plaintiff on 23/24 November for two reasons.  In the first place, he conceded that he had not been asked to recall the events of the relevant night until approximately 18 February 1999 and, secondly, it is quite apparent from the consistent responses that he gave during the course of cross-examination, that he had no real recollection of any of the events of the night in question.  Time and again, although asked to concentrate on what actually occurred, he prefaced his responses by saying, "we would have done this" or, "we would have done that".  He also conceded that although he thought the plaintiff was not her normal self, "I just put it down to she was possibly tired or something."  Although given every opportunity to do so, he did not suggest that the plaintiff had given a clear manifestation of back pain or other injury.  Even if Mr Staples' observed behaviour of the plaintiff in the terms in which he described it, I would not be satisfied that it occurred prior to 5am.  If it occurred after that time, it would, of course, be consistent with and supportive of the plaintiff's case.

1. Christine Leahy, another extended care assistant, was also on duty on the evening of 23 November 1993.  She has been employed by Bishop Davies Court for approximately eleven years.  She said that on that evening she observed the plaintiff moving slower than normal.  She said the plaintiff was "jittery".  She said that she observed the plaintiff using the arms of the chairs to raise herself when getting in and out of chairs.  She said that prior to 5am the following morning, the plaintiff had said nothing about her back being sore.  She did, however, say that the plaintiff complained about a sore back at round about 6am.  "She said that her back was sore.  I said my back was sore.  And we continued to do the other residents and that was the extent [of the conversation]."

1. The plaintiff had agreed in cross-examination that she may have been exhibiting some signs of discomfort earlier in the evening, but she said that any such signs were attributable to her being irritated by her three co-workers all smoking cigarettes in her presence while they were assembled in the lounge room that evening.  Mr Staples denied that they had ever been assembled in this way in the lounge room, but this claim was contradicted by Mrs Leahy.  I am unprepared to make a finding adverse to the plaintiff on the basis of the evidence of these two witnesses and, on the basis of the evidence presented at the trial, I am affirmatively satisfied that the back injury of which the plaintiff complains, and which has given rise to these proceedings, was sustained by her on the evening of 23 November 1993 in the manner which she described. The written incident report provided by Mrs Delphin soon after that event provides substantial confirmation of the plaintiff's account.  In my opinion, the report can be relied upon for this purpose, notwithstanding the absence of Mrs Delphin from the witness box.

1. I should also say that I am far from satisfied that the defendant was negligent in failing to provide Mr Farmer with one of the more modern adjustable beds which are now used almost exclusively at Bishop Davies Court and which were available in 1993.  Some patients at Bishop Davies Court were provided with such beds at that time.  Those who received the beds were assessed on the basis of relative priorities and there is nothing in the evidence which suggests to me that there was anything wrong with that system.  The defendant organisation was and is a charitable organisation and is heavily dependent upon Government funding.  It would obviously be a very heavy expense to replace seventy-six standard, non-adjustable beds with the adjustable kind all at one time, and I consider the plaintiff's contention that this should have been done to be unreasonable.  If supplied with a custom mattress, the cost of each adjustable bed would be $1,228, that is a total expenditure in excess of $93,000, according to the evidence of Mr Peter Woolford who gave evidence for the plaintiff.  Allowing for a mattress thickness of 100 millimetres, the bed can be adjusted between an extreme low of 485 millimetres and to a height of 787 millimetres above floor level.  The evidence satisfies me that the ability to raise and lower the mattress level in the bed has two obvious advantages.  If taken to the lowest level, patients at risk of falling out of bed due to erratic or abnormal behaviour, are less likely to injure themselves in the process.  Secondly, an ability to adjust the height of the mattress above the floor would enable very tall or very short members of staff to adjust the bed to a more comfortable (and safe) working height if required to move a patient in the bed or from the bed to some other place.  The evidence of Mrs Cole, Mrs Castle and, to a lesser extent, Mr Staples, satisfied me that there is no significant advantage in using the adjustable, rather than the non-adjustable bed, if the lifting operation is performed by staff members of average height.  I would regard the plaintiff as falling within this category.  I cannot regard the non-adjustable bed in which Mr Farmer was resting at the time the plaintiff sustained her injury, as being at an inappropriate or unsafe height from the floor so as to constitute a breach of duty by the defendant to its employees.

1. It was also plain from the evidence of Mrs Cole and Mrs Castles, that if a patient using an adjustable bed is raised to a sitting position by the mechanical operation of the back rest, it is nonetheless necessary to manually adjust the patient in the bed to prevent him or her remaining in an uncomfortable position and I am also satisfied that to make an adjustment of this kind, it would be necessary for staff members to perform a lift not significantly different, in terms of the stresses and strains created thereby, from the lift in which the plaintiff was engaged at the time her back was injured.  I am therefore quite unable to find that the defendant has breached a duty of care to the plaintiff in providing Mr Farmer with a non-adjustable bed at the relevant time and requiring the plaintiff to assist in moving him to a sitting position in that bed.  I should also say that contrary to some of the allegations contained in the statement of claim, it is quite clear that it would have been impracticable for the defendant to have provided, or the plaintiff to have used, any mechanical lifting devices of the kind illustrated in some of the literature which seem to be designed primarily for the purpose of moving patients completely out of bed and transporting them to another place within the institution.  No doubt, the futility of pursuing such an argument became evident as the trial progressed and Mr Hobbs did not persist with it.

1. The evidence satisfies me that there was a pair of blue lifting straps available in both sections of Bishop Davies Court at the relevant time.  Such lifting straps were normally carried on a trolley used by members of staff as they moved about the wards attending to the patients.  No clear evidence was given as to the location of the set of lifting straps used in the Argyle Section at the time of the plaintiff's mishap.  The evidence satisfies me that the administration of Bishop Davies Court made it clear to all staff members, including the plaintiff, that each patient within the institution, was to be dealt with as provided in the patient care plan prepared in respect of that patient.  Mr Farmer's patient care plan clearly provided that if he were to be moved within his bed, that process must be accomplished by two staff members using blue lifting straps.  The relevant entry says, "All lifts and transfers to be made with 2 staff and lifting machine or 2 staff and blue straps when in bed".

1. The plaintiff said that she merely followed the lead of Mrs Delphin whom she assumed was familiar with Mr Farmer's care plan and was therefore acting in accordance with it.  I have considerable difficulty in accepting this assertion by the plaintiff; other employees of Bishop Davies Court gave evidence that use of blue lifting straps for patients such as Mr Farmer was common practice within the institution, and I infer that it was only in a few cases, generally involving patients with different disabilities or physical characteristics from those exhibited by Mr Farmer and other dementia sufferers, that blue lifting straps were not specified for use.  If the plaintiff had been a more junior employee, with less experience than she had, the claim which she made that she was unaware of the necessity of using the straps may have carried greater weight.  It is true that some nursing care plans were not as accessible as they might have been and a perusal of Mr Farmer's nursing care plan shows that it is not as clear as it might have been, particularly if hurried consultation was necessary, but this does not detract from the fact that reliance on such plans was insisted upon by the defendant and that the equipment for carrying the plan into effect was readily available to the plaintiff.  There was no suggestion by the plaintiff that she was confused by care plans in general, although it is obvious that a coding system may have been of help in interpretation in some circumstances.  However, the plan was not consulted either by Mrs Delphin or the plaintiff, so any lack of clarity in the document is of no real relevance.

1. It was suggested by Mr Hobbs on the basis of Australian standards and regulations which were referred to, that it may have been appropriate to have three employees assisting with the lift of Mr Farmer, but I do not accept this.  This was a very different case from Smith v Tamar Park Pty Ltd 52/1998 in which I was the trial judge (confirmed on appeal sub nom,Tamar Park Pty Ltd v Smith [1999] TASSC 16). If the plaintiff and Mrs Delphin had been using blue lifting straps to move Mr Farmer, it is probable that the plaintiff would not have been injured, in my opinion. I say this because with blue lifting straps applied in the manner described, the plaintiff would have had a more upright stance because her arms would not have been locked with Mrs Delphin's arms beneath the patient. I also think it likely that Mr Farmer, in stiffening as he did, would have slid across the straps, rather than stressing the arms of the two nurses, as he appears to have done. These comments, of course, impinge, not only upon the question of whether or not the defendant breached its duty of care to the plaintiff, but also whether or not the plaintiff failed to take obvious steps to avoid exposing herself to unnecessary risk.

1. I am satisfied that the defendant had in place appropriate policies and procedures regarding the blue lifting straps.  I am also satisfied that the management team of the defendant took appropriate steps from time to time to enforce those policies or procedures if they became aware of any breach.  I am satisfied that the use of the blue lifting straps would probably have obviated any real risk of injury to the plaintiff as she was moving Mr Farmer.  I am satisfied that the plaintiff was aware that Mr Farmer was the type of patient who should be moved in the bed only with the use of two lifting straps, notwithstanding that she was not aware of the detail of his personal care plan.

1. This seems to me to leave only one potential basis upon which the plaintiff may succeed.  As pointed out above, the plaintiff has alleged vicarious liability on the defendant as the result of the negligence of Mrs Delphin.  I have found that Mrs Delphin initiated the lift of Mr Farmer which resulted in the plaintiff's injury.  I am satisfied that Mrs Delphin must have been fully aware that Mr Farmer should not be moved without use of blue lifting straps.  That she did not do so is plain.  Her reason for not doing so has never been explained.  Perhaps she was tired or was in a hurry or anxious to be available for the other duties at the end of her shift to which I have already referred.  Whatever the reason, I think she was plainly negligent.  She was in a position of superiority to the plaintiff.  She was older and more experienced than the plaintiff.  She took the lead in the lifting procedure.  True, it is, that the plaintiff could have remonstrated with her, but she did not do so.  The plaintiff conceded that she was angry at the time.  Although there was no great disparity between the roles of the two women during the practical fulfilment of their night time duties, Mrs Delphin's superior position as sister-in-charge and night supervisor allowed her to dictate to the plaintiff what she should do and how they should operate as a team.  Although she did not verbally communicate an intention to carry out a cradle lift, she started to perform such a lift, and that she intended to do so is borne out by what then followed.  The Argyle Ward was principally her domain and she instructed the plaintiff to assist her in the Garden Room.

1. Having regard to the duties upon which both women were engaged, I infer that the blue lifting straps were close at hand.  In failing to use them, or direct the plaintiff to use them in the lift being undertaken, I am satisfied that Mrs Delphin was in breach of duty to the plaintiff and for this casual act of negligence, her employer, the defendant, is accordingly liable.  It should have been obvious to Mrs Delphin that there was a real risk of injury, both to herself and the plaintiff in adopting the procedure which she followed.  That risk could have been avoided or minimised by the use of the blue lifting straps.  As I have already observed, if the blue lifting straps had been used, it is unlikely that the plaintiff would have sustained the injury which she did.  I am satisfied that on this basis the plaintiff succeeds in her action. 

1. I turn therefore, to the question of contributory negligence.  I have already reviewed some of the factors relating to this part of the case in discussing the use and availability of the blue lifting straps.  Although subject to the direction and control of Mrs Delphin, the plaintiff had had sufficient experience to know that blue lifting straps should have been used on a patient like Mr Farmer.  If she had not been so angry with Mrs Delphin regarding the change of procedure which she had implemented, I think the plaintiff would have reminded her of the necessity to use such lifting straps.  In the circumstances, this would not have been an act of insubordination or arrogance on her part, but simply an exercise in common sense.  The plaintiff was an articulate and intelligent witness.  Nurses of her standing and capabilities were plainly relied upon by the defendant to supply input for the structuring of nursing care plans.  The activity in which she was engaged was not complicated and her involvement in it was not brought about by misjudgment due to its repetitive nature.  Had she been engaged upon the same task with a nursing aide, rather than Mrs Delphin, she would have been responsible for instructing that aide to use lifting straps and she should have done so.  I am satisfied that whether or not she was actually aware of the procedures specified in Mr Farmer's care plan, her experience at Bishop Davies Court would have alerted her to the practical certainty that blue lifting straps were required in the circumstances.

1. I agree with Mr Dockray that there was a high degree of contributory negligence.  In saying this, I am aware of the observations of Mason, Wilson and Dawson JJ at 310 in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, of the unanimous High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, and my own comments in Smith v Tamar Park Pty Ltd 52/1998.  I assess the plaintiff's contributory negligence at 35 per cent.

1. Soon after leaving work on 24 November 1993, the plaintiff consulted Dr Jennifer Williams, who referred her to Kaye Amery at the Channel Physiotherapy and Sports Injury Clinic.  In a report dated 23 November 1994, Mrs Amery describes the plaintiff as presenting "with severe acute low back pain along both sides of the spine at the lumbar level, described as burning pain on the left".  Initial treatment consisted of ice packs, local ultra sound and gentle exercise.  Over the next week, the plaintiff developed a left leg ache into the calf muscle and the acute pain became less severe, but more constant, localised to the left side of the spine.  The plaintiff returned to work on 17 December 1993 on light duties but, after only 2½ hours, had to leave again as her legs started aching.  The initial treatment was resumed and a TENS machine was utilised.  The plaintiff was also started on a pool exercise regime, but the back pain persisted. 

1. On 18 January 1994, the plaintiff consulted her family general practitioner, Dr Timothy Begbie.  In his report dated 21 November 1994, Dr Begbie describes the plaintiff's condition on the initial consultation and her subsequent history in the following terms:

"On this first visit she appeared to be in extreme pain and was very uncomfortable, either sitting or standing.  She had very limited lumbo-sacral spine movements and pain was elicited in all directions of movement with significant muscle spasm being evident.  She had limited straight leg raising but no other neurological signs.  On the assumption that she may have had a significant disc prolapse I organised admission to St Helens Hospital and investigation and consultation with Mr Andrew Hunn, Neurosurgeon.

A CT scan of her lumbar spine had been done on the 6th December, 1993 before she saw me.  The CT showed some minor generalised bulge of the L5/S1 disc and some mild facet joint hypertrophy at this level. (see enclosed).  In order to clarify this we then proceeded to a MRI scan of the lumbar spine on the 20th January, 1994.  This confirmed some minimal disc bulge at L5/S1 level but did not show any significant nerve root compression to account for her leg pain.  On the basis of this and his clinical findings, Mr Hunn did not feel that disc prolapse was the problem and consequently recommended conservative management.  He did suggest that there may be a place for a facet joint block but felt that the conservative management of acupuncture and Feldenkrais techniques was extremely appropriate. He also recommended home help to avoid stressing her lower back.

Mrs Dewing made little improvement whilst in hospital over the course of a week and she was discharged home after investigations and consultation were complete.  In that time she also underwent some Feldenkrais exercises with Dr de Burgh which gave temporary but no permanent relief.

Subsequently, Mrs Dewing saw Dr Stewart Graham, Rheumatologist to whom she had been previously referred by Dr Jenny Williams.  I do not have a copy of his letter to Dr Williams but I did discuss the patient with him by phone on the 18th February, 1994.  I was concerned that a facet block, whilst theoretically a reasonable approach, may in this patient aggravate rather than relieve her pain.  This was an impression that I've gained from a number of features of her clinical presentation and Dr Graham did agree with me that at this stage a facet block was unlikely to help and may even contribute to the problem.

At this point after discussions with Dr Graham and the Director of Nursing, Mrs Delia Cole at Bishop Davies Court and also after discussions with the patient it appeared that early rehabilitation was most appropriate in getting her to be functional again.  This process was undertaken over the latter part of February and through all of March under the supervision of the Director of Nursing but in April Mrs Dewing was referred to Ms Sophia Oddsson a senior rehabilitation consultant, by Mr Max Noble of TGIO Insurance for vocational rehabilitation.

On the 18th May when Mrs Dewing came to see me she was in more pain than I had seen her the previous few weeks.  She stated that her pain had been stirred up by a physical examination with Dr Graham and that the swimming which she was undertaking at that stage seemed to be aggravating the pain also.  In addition she had begun to increase her duties at work and the simple act of changing a sheet and a pad on the bed had resulted in increased pain.  At this stage I put her off work again temporarily but in fact this has continued to be the case to the present day.

After much discussion, and with considerable reservations on my part, a facet block was undertaken at St Johns Hospital on Monday the 30th May, 1994 to try and improve her pain management.  When I reviewed her on the 1st June, she was extremely tearful and upset and depressed because of the outcome.  Over the ensuing weeks it appeared that the facet block bad given no benefit but perhaps slightly aggravated the whole problem."

1. Between 21 November 1994 and 9 September 1997 when Dr Begbie supplied a further report, the plaintiff saw him on approximately eighty occasions, as well as his attending her on some twenty occasions whilst she was hospitalised for treatment.  Dr Begbie described the plaintiff's progress in that report of 9 September 1997 in the following terms:

"(a) Since last report Georgina has continued to suffer almost constant pain in her low back with radiation to her hips and legs.  The radiation is more often to the right leg and the associated symptoms vary.  She tends to get pain in her hips when she is walking and later, after exercise, shooting pains in her legs.  She experiences periods of depression which are directly related to her chronic pain.  Her sexual relationships with her husband are severely limited and on the few occasions that intercourse does occur she usually suffers with severe pain afterwards.

Her mental state has fluctuated over the time since the last report.  At times she has been extremely depressed and quite suicidal.  She has required medication and counselling.  This has been done mainly by Maurice Gourlay but she was also seen by Dr Lawrence McCafferty, Consultant Psychiatrist.  Following her participation in the pain management programme at the Royal North Shore Hospital her mood was much more buoyant as she had begun to understand the problem and accept some of her symptoms, but on her last visit (1/9/97) she was unfortunately despondent and depressed again because of the ongoing nature of the pain.  On that occasion she described severe sleep disturbance, failure of enjoyment with almost all activities (albeit these are very limited), inability to be useful in any way much at all and a feeling of being worn out with trying to cope with the pain.  On this last visit she stated that the exercises that she had learnt in the pain programme were not helping much at present and, although she was continuing to walk up to one kilometre per day, she did still suffer a lot of pain thereafter.

The process of her pain, the requirements of trying to manage it and its effect on her mood, have all caused ongoing strains in the family and marital situation.  She is only able to perform a limited number of household functions and therefore the burden of much of what she had done prior to the accident has fallen on her two children Emily and James and on her husband Steven, who is already overloaded with the family business.  She is unable to participate much in the family business and she is unable to tend the garden and to establish new areas of garden as had been intended.

Due to her enforced inactivity her weight has increased quite markedly over the past few years.

She has suffered various complications due to her treatment in particular a form of giant urticaria which developed in about October '95 as a consequence of some of the medication she was taking.  She also developed a urinary tract infection in May '95 following a bladder involvement after an epidural injection for her pain.  This required some ongoing care and investigation.

(b)  Since last report there have been various treatments and procedures undertaken.  At the time of last report she was attending physiotherapy and hydrotherapy and having a trial of some acupuncture.  On 2nd December 1994 she had a motor vehicle accident on her way to physiotherapy which flared her back pain to some degree although in the overall scheme of things I do not think it has made a lot of difference.  She had a break from physiotherapy in January '95 and appeared to get less in the way of exacerbations of pain which had been occurring following her treatment. Physiotherapy was subsequently ceased and only gentle hydrotherapy was continued.  This was also the advice of Mr Andrew Hunn whom she saw at that time.

She has seen and been assessed by Dr Hilton Francis, Consultant Rheumatologist in April '95 and his letter dated 18th April 1995 concluded that she appeared to have a nocieptive problem arising at the L5-S1 level on the right hand side.  He organised further investigations to look at the exit foramen of the nerve root on that side. Further investigations showed no significant abnormality. He concluded on clinical grounds that she still had a mechanical problem at this level but that there were no apparent grounds for surgery.  In conclusion he suggested that pain management strategies were the best option and he gave her a letter of introduction to the Pain Management Unit at Rehabilitation Tasmania.  He also suggested that there was some chance that a lumbar epidural with steroids could decrease her pain and for this reason gave her a letter of introduction to Dr Robert Paton, Consultant Anaesthetist.

A letter from Rehabilitation Tasmania dated 30th May 1995 from the Medical Director, Hilton Francis, noted that Georgina was working with Psychologist, Maurice Gourlay, and he also noted 'that she is still quite disabled physically and emotionally as a consequence of her injury'.  A further letter from Rehabilitation Tasmania, 7th June 1995, noted the patient was discharged from physiotherapy and hydrotherapy.

A letter from Maurice Gourlay, Clinical Psychologist, 26th May 1995 requested that I (Dr Begbie) organise a referral for Georgina to Dr Lawrence McCafferty.  This was as a consequence of his testing and assessment process which indicated very severe depressive symptoms.

A letter dated 23rd June 1995 from Rehabilitation Tasmania gave the opinion of the Occupational Therapist and the Physiotherapist that the patient would benefit from the Pain Management Unit's four week residential programme. This residential programme did not eventuate for Georgina, I understand because of funding disputes and the political situation with regard to the Pain Management Unit at that time.  A report from Dr Hilton Francis dated 23rd June 1995 noted limited relief from a lumbar epidural recently given by Dr Paton and his letter concludes that with regard to her home situation 'she is currently feeling a total failure'.  In October on 8th and 12th, she presented to St Helen's after hours emergency department because of her giant urticaria and was treated there with steroids and Promethazine intra-muscularly.  She was subsequently referred to Dr Andrew Jevtic, Consultant Dermatologist for his opinion on the matter.

A letter from Dr Francis from the Pain Management Unit dated 9th February 1996 noted ongoing problems with her medication and in particular the allergic responses she was getting which were making her life even more miserable.  He noted the ongoing delays from TGIO with regard to the pain programme and hoped to have her in the programme by 15th April 1996.  Unfortunately shortly after this the Pain Management Unit at Rehabilitation Tasmania was disbanded, but Dr Francis still believed, as did I, that Georgina needed to attend a pain management programme.

A letter dated 29th May 1996 from Dr Lawrence McCafferty noted that he was working together with Steven and Georgina on their relationship difficulties.  These difficulties had developed largely as a consequence of her prolonged pain.

I note also my copy of a letter dated 3rd October 1996, that Mr Noble wrote to the Pain Clinic at the Royal North Shore Hospital requesting assessment with a view to treatment for Georgina in their programme.

A letter from the Pain Management Unit Royal North Shore Hospital dated 20/12/96 from Philippe Mavrocordatos (Registrar) noted that Georgina's assessment had taken place and that an activation programme was recommended by the Physiotherapist. A psychological assessment noted her frustration, hopelessness and depression and recommended the ADAPT programme to help with this with prior mood stabilisation.  Plan of treatment was that the patient needed good strong psychological support via the ADAPT programme especially.  It suggested the patient may benefit from a medial branch block before being placed in the pain programme in 1997 and referral to Dr Michael Jackson was suggested.

A progress report from the Pain Management Unit dated 18th April 1997 noted that on discharge Georgina had ceased all medication and had reduced alcohol intake to appropriate amount ie, it was no longer being used for pain relief.  They recommended she avoid recommencement of medications, to continue physical upgrading, to return to the psychologist (Mr M Gourlay), to help maintain programme gains and to focus on the strategies recommended in the ADAPT programme.  There was implicit in the agreement that she did not undergo Other treatments for a period of six months and that if needed any ongoing medical management be supervised by Dr Hilton Francis, (in co-operation with the GP).

During the period of time from the last report to her discharge from the Pain Management Unit she was on the following medications either regularly or intermittently -

Zoloft, Normison, Valium, Xanax, Panadol, Naprosyn, Tagamet, Teldane, Fortral, (orally) and Promethazine by injection.

Recently she has had some more acupuncture which has given some degree of temporary relief.  She is not having physiotherapy or hydrotherapy.

Her admissions to St Helen's Private Hospital since last report were the following -

12/10/95	-19/10/95	no procedure performed (conservative treatment)
19/12/96	-23/12/96	epidural infusion
17/1/97	-23/1/97	epidural infusion
7/3/97	-10/3/97	epidural infusion
18/3/97	(1 day)	lumbar facet block

Her admissions to Calvary Hospital over the period were -

27/3/95	-1/4/95	conservative treatment only
16/5/95	-24/5/95	lumbar epidural
10/6/95	-27/6/95	lumbar epidural
27/7/95	-25/8/95	conservative treatment - no procedure
1/3/96	-11/3/96	lumbar epidural
19/4/96	-5/5/96	conservative treatment - bone scan performed
18/10/96	-23/10/96	epidural infusion

At the Royal North Shore Hospital she undertook the ADAPT programme in the Pain Management Unit which is an intensive day patient pain management treatment programme combining cognitive behavioural therapy with a physical upgrading programme.  The main focus of this programme is to help the patient develop effective pain management strategies.  She undertook this from April 1st to April 18th 1997."

1. In his third report dated 5 December 1997, Dr Begbie expressed concern about the risk of suicide consequent upon an episode of severe exacerbation of pain which resulted in the plaintiff being admitted to St Helen's Hospital on 13 October 1997 where she remained for about five days.  During this time, she had an epidural infusion performed by Dr Robert Paton, consultant anaesthetist.  Following her discharge, the plaintiff saw Mr Hunn, a neurosurgeon, who discussed the plaintiff's ongoing management with Dr Begbie, including the possibility of facet joint diagnostic blocks and the prospect of spinal fusion.  The plaintiff, however, was adamant that she would not undergo a spinal fusion procedure.

1. When she next saw Dr Begbie on 16 January 1998, the plaintiff had undergone a facet block in December the previous year.  At the L5/S1 site on the right hand side, however, she had experienced no long term benefit.  Dr Begbie's report of 24 December 1998 continues as follows:

"The next consultation was on 13th February where she stated that she was managing her pain well with Panadol and Valium and the occasional use of Fortral.  On 27th February she reported that she had a denervation procedure at L4 and L5 on Tuesday 17th February and this had flared her pain considerably such that she needed Fortral fourth hourly for three or four days.  Following that period she was gradually able to decrease her analgesic requirements and resume using Valium and Panadol.  She stated subsequently there was no effect on the shooting pain in her leg but that the pain in her right buttock and hip area appeared to be reducing.  There was some further discussion about her lack of social life due to her pain and the effects that it was having on her domestic situation.  She stated that she felt there was nothing to look forward to in life.  However, she was not suicidal.

I did not then see her until lst June when she stated that she was overall somewhat happier although her pain situation had not changed significantly.  She once again felt that she was managing her pain better.  She was, however, drinking two or three glasses of alcohol per night which was a little above her normal consumption and she appeared to be doing this mainly for pain control.

I next saw her on 24th August when we had a long discussion about the effects of her pain and how this interacted with dealing with normal day to day stresses within the family etc.  She also discussed the effect of the ongoing litigation and how it interacted with her chronic pain.  She discussed also her frustration and boredom and the limitations of her financial dependency.  She was now in a well established pattern of dealing with her pain by preventative action, ie resting, pacing herself, avoiding certain tasks and also by the judicious use of simple analgesics plus Valium and Fortral from time to time.

Her next visit on 21st September was for her annual check up and we did not discuss pain matters in detail on that occasion.  I did not then see her until 17th December, shortly after receiving your request.

On this occasion she stated there had been no real change in her pain over the last few months.  The pain was still located in her lower back, her right buttock and thigh with intermittent sharp shooting pains in her right leg as far as her ankle. The shooting pains in her leg occur with movement and the pains around her hip are more pronounced with lying down.  She is most comfortable in a sitting position provided she does not sit for too long and she finds she needs to constantly change position.  As to activities of daily living she is able to do some minor household chores such as cooking and part of her washing but most of this is shared with other family, members.  She currently has no outside paid help.  Emily, her daughter helps a lot in the home and her sister, Debbie, often comes to help.  Her current medication is the following :

Valium at a frequency of about 2 to 3 per week, similarly for Fortral 2 to 3 per week and Panadol 4 to 6 per day.

Her mood ranged from good control of her pain to frustration and anger at times at the ongoing nature and the unresolved difficulties.  Her sleep is usually disturbed each night by pain when she turns or moves.  She feels she is maintaining the status quo but often cannot complete jobs which she would like achieve.  Most of her day is spent in domestic and family matters."

1. Dr Begbie's opinion, confirmed upon his giving evidence during the trial, is that the plaintiff has an established chronic pain syndrome which shows little sign of improving, notwithstanding that various interventions may have produced some marginal and, in some cases, temporary results.  He observed that one of the greatest improvements had resulted from the plaintiff's attendance at the pain management programme in Sydney and her ability to deal more effectively with her pain as a consequence.  Dr Begbie was firmly of the opinion that the plaintiff is totally and permanently disabled from gainful employment in those areas to which she was suited by study, training and experience.  He estimated that she would require ongoing support with general practitioner and specialist consultations, as well as psychological counselling in the years to come, albeit with substantially reduced frequency.  However, he made it clear that the plaintiff's requirements for less counselling and medical advice will not mean that she has regained lost function or that her pain has improved, but rather that she is coping better with the pain and its day to day management.  In his report of 9 September 1997, Dr Begbie concluded with the following observations:

"The unspoken question often in the legal process is 'how genuine is this patient's pain?'  Prior to her injury Georgie had a good employment record and was a reliable worker.  She has suffered some major crises in her life in the past and recovered well from them. Since her accident she has endured numerous treatments, hospitalisations, investigations, interventions, not to mention the stresses of the legal process and she has co-operated by and large in every aspect of her management programme.  The disruption to her life is major and her employment prospects are minimal. The disruption to her family is very significant but of course not measurable in any finite terms."

These observations remain as valid today as they were at the time that they were made. 

1. The views expressed by Dr Begbie were similarly expressed by Dr Hilton Francis, a consultant rheumatologist, who also provided reports and gave oral evidence.  He, too, concluded that the plaintiff was totally and permanently incapacitated from returning to the work force. Dr Stuart Graham, another consultant rheumatologist, expressed similar opinions.  Dr Francis expressed the view that although radiological and other investigative procedures, such as MRI scanning and CT scanning, had failed to show any surgically correctable cause for her pain, the plaintiff has clear evidence of chronic pain emanating from some form of damage in the L5/S1 area of the spine.  Investigations revealed no abnormality within the disc or nerve root compression as to which Dr Francis said, "The negative investigations purely excluded a surgical option and significant disc pathology.  They did not detract from the clinical assessment which was entirely consistent with the clinical presentation."

1. The defence called evidence from Dr Andreas Ernst, a specialist occupational physician, who examined the plaintiff on 16 February 1996, but has had no ongoing contact with the plaintiff since that time.  Dr Ernst's proof of evidence, which was put in evidence, tended to suggest the presence of a functional element in the plaintiff's complaint of symptoms and he also suggested that with a conclusion of litigation, the symptoms are likely to diminish.  This led him to predict a reasonably optimistic future for the plaintiff.  He said:

"I predict, the post resolution of her litigation, that she will re-organise her life successfully. Future vocational options for her could include working as a receptionist/nurse in a private doctor's surgery or similar.  Because of Mrs Dewing's long history of perceived disability it would be wise if the initial phase of Mrs Dewing's return to work be on a part time basis with a gradual increase of working hours to full time.  I predict that the process should be capable of being commenced within 12 months of the resolution of her litigation, and that it could take up to 3 years to lead to normal full time employment from a physical and mental perspective."

1. Both Dr Begbie and Dr Francis were critical of these views, observing (inter alia) that Dr Ernst appeared to misconceive both the nature and outcome of the pain management programme which the plaintiff attended in Sydney.

1. Having regard to the unremitting misery which the plaintiff has endured over the last 4½ years, notwithstanding her conscientious attempts to find relief from her chronic pain, and the telling criticisms of Dr Ernst's opinions expressed in Dr Begbie's report dated 28 January 1999, I have little difficulty in rejecting the opinions expressed by Dr Ernst in those areas in which he is in conflict with the plaintiff's medical witnesses.

1. Dr Michael Nicholas, co-ordinator of the plaintiff's care whilst she was a patient at the Royal North Shore Hospital in Sydney, gave useful and instructive evidence as to the nature and parameters of the pain management programme in which she participated.  The evidence which he gave clearly indicated that a substantial number of those attending such programmes are able to manage their pain thereafter to a degree which enables them to return to gainful employment.  However, Dr Nicholas was unable to express any such opinion in respect of the plaintiff and did not profess to do so.  It was suggested by defence counsel that the plaintiff would probably be suitable for some form of sedentary work in the future, such as tele-marketing which apparently consists of making telephone contact with prospective customers and conducting surveys with their co-operation on behalf of commercial enterprises.  I have little doubt that the plaintiff has sufficient intelligence to be able to learn whatever skills might be necessary for this form of work, but there was a dearth of evidence as to the availability of employment of this kind and I really have no evidence upon which I could assess the prospect of the plaintiff participating in such work in future.  Having carefully considered the medical evidence, the plaintiff's evidence as to her attempts to rehabilitate herself, and taking account of the notoriously difficult state of the current labour market, and the unemployment levels in this country, I regard it as unlikely in the extreme that the plaintiff will be able to secure paid employment in the years to come.  In my opinion, she is totally and permanently disabled from productive work and her damages in respect of lost earning capacity should be assessed accordingly.  In reaching this conclusion, I have also taken into account the views expressed by Maurice Gourlay, a clinical psychologist, who has had a long and supportive association with the plaintiff since her injury and Anitra Wilson, a functional capacity evaluator, who performed various test procedures and evaluations with the plaintiff in October 1998 to determine her current functional ability and work capacity.

1. The plaintiff and her husband have been married since 1980.  They have two children, Emily born in 1982 and James born in September 1983.  The family lives on a semi-rural property at Tinderbox from which Steven Dewing, the plaintiff's husband, operates a wholesale whole food fruit and nut business, exporting to interstate customers.  For two years when the children were in primary school, the plaintiff undertook their education at home after obtaining the relevant dispensation from the Department of Education.  The plaintiff had been previously married and had a disabled child, Alison, as a result of that marriage.  Alison suffers from spina bifida and demanded a good deal of the plaintiff's time until she was placed in separate institutional care in about September 1992.  The plaintiff described her involvement with her family and children in terms which were later encapsulated by her husband when he gave evidence in the following words:

"Georgie was a very active person, energetic and active and even interactive with the children recreationally and I think you're aware that we were home schooling, or at least Georgie was home schooling.  It was a task that involved outdoor activities.  We were very orientated towards camping, bush walking, fishing, boating, that kind of thing … There were a lot of things that children sports minded in the summer at the beach, snorkelling and that kind of stuff, bike riding, Georgie would participate in that lots and was involved in other things too and other activities like art lessons or piano lessons that kind of thing for the children."

I am in no doubt that before the accident the plaintiff was capable of vigorous participation in family activites and in assisting her husband developing their property at Tinderbox, including the formation of a garden.  She also gave casual assistance from time to time in the tasks associated with his business. 

1. As already mentioned, the plaintiff was working as an enrolled nurse at Bishop Davies Court.  She would have needed another two years' training to become entitled to registration as a registered nurse.  The plaintiff says that she always wanted to finish her training, but that ambition was thwarted when the nursing college moved from Hobart to Launceston.  However, she  rekindled her intention to continue her training at an alternative course which was later offered by the University of Tasmania, when the two children started high school.  She also said that after completing her qualification as a registered nurse, she had it in mind to study neo-natal intensive care and midwifery with a view to changing from night duty work to full time day duty.  She was anticipating commencing full time work on this basis early in 1998. 

1. The plaintiff described her history of treatment and developing despair following the accident in graphic terms which I have no reason to doubt.  Severe back pain is a debilitating condition, nearly always causing chronic depression and family upheaval, as well as disabling the sufferer from gainful and satisfying employment.  There is no need to give full details of the plaintiff's condition between the date of injury and trial.  It seems to me that it has been fairly and accurately reproduced in Dr Begbie's reports.  It is plain enough that the plaintiff's pain has responded temporarily from time to time after she has been admitted to hospital for the various treatments described but that any such relief has been short term and of limited value.  The plaintiff has had a constant regime of analgesics, anti-depressants, muscle relaxants and, from time to time, antihistamines for adverse drug reaction.  In hospital, she has been provided with narcotic pain suppressants which appear to have provided an oasis of euphoria and relief in an otherwise dismal and pessimistic world.  The plaintiff regularly consults Maurice Gourlay for psychological support and counselling and for pain and grief management and for the depression which has been consequent upon her loss of enjoyment of life, career opportunities and the curtailment of family activities.  The plaintiff described her feelings of depression in the following terms:

"You just feel hopeless and like you're in a black hole and then it gets really bad and you just seem to be in this little closed world of your own surrounded by your pain and all the negative bad stuff that happens to you.  It's just awful, it's all black and heavy and you can't see any positive things at all. … If you wake up and you've had a really bad night like unable to sleep because of the pain you toss and turn and that makes you angry and frustrated."

1. The plaintiff acknowledged that since attending the Royal North Shore Pain Management Clinic in April 1997, she feels chronically depressed only about 25 per cent of the time at the present, rather than 100 per cent of the time as she did before.  The plaintiff said that having attended the Sydney Programme, she now found:

"Basically I think I am accepting the fact that I've got pain and that what I do increases the pain and I've learnt to pace myself and implement a coping strategy plan. … Well you just do little bits at a time and like you get up and I'd get the kids to school then I'd go back to bed and have a lie down and a cup of tea and then I'd get up and I might tidy the kitchen then I'd do a few stretches you know stretch my arms and legs and shoulders and well you can do that while you're standing at the sink or talking on the phone or in shower and then you just do small parts little bits and you have a rest."

And she went on to describe how she would progress through the normal day, performing small feats of physical activity, interspersed with periods of rest and relaxation to avoid exacerbation of her pain level.

1. The plaintiff says that she suffers from constant pain and described it in the following terms:

"It is a dull ache across the base of my back into my buttocks and then a sharper pain that goes into my bottom and shooting pains that shoot down my leg into my foot.  On my right leg it goes right to my ankle and into my foot but on my left side it only goes down to my knee. … Sometimes I get a lot of pain into my pelvic floor - right underneath and up here into my hip."

The plaintiff said that the pain is constantly present, but it varies in intensity.  She said that she would rate the pain of childbirth at 9 on a scale of 1 - 10.  She said that the pain that she now experiences in the low back is sometimes up as high as 8 on the same scale and is generally between 3 and 7.  She said that exercise increases the pain and it is relieved or decreased by medication and rest.  She said that a denervation procedure undertaken by Dr Paton in February 1998 had not provided any significant relief and although she had been told that it could be repeated after about six months, she decided in view of the lack of any real benefit not to have it repeated.  The plaintiff described how her weight had increased from fifty-five kilograms to sixty-seven kilograms, due, no doubt, to her inactivity over the time since the accident occurred.  Asked by her counsel how her energy levels had changed since 24 November 1993, she said:

"I was on the go all the time.  I never stopped.  You know, I used to go to work, work with Steve, home, school, the kids, you know, drive buses, drive tractors, garden, build, sew, cook, entertain - all the time, never stopped.  So it's been a very difficult slowing down process for me, very frustrating and boring and I think that leads to making you more depressed. Well I try not to tell myself these things any more because it's not good to say them but you know I'm not the mother I used to be, I'm not the wife I used to be, I'm not the friend and partner I used to be to my husband and kids, I'm - you know I can't do much to help Steve and I don't feel like I'm a whole person.  I feel like I'm useless. But I have to try and not to think that."

She went on to describe how those things that she is able to do have to be undertaken far more slowly than previously and she described difficulties in sitting or standing for long periods of time.  These problems were apparent whilst she was in Court and I noted several times that she was standing or sitting in apparent discomfort.  I have no reason to think that this was just a charade for my benefit.  The plaintiff described how she requires assistance now for supermarket shopping, clothes laundering, vacuum cleaning and other household chores.  She no longer fully participates in family activities, such as boating, walking and cycling, although she undertakes walking about two kilometres three times per week for therapeutic purposes.  She will also go boating and fishing on a particularly calm day, but only for a short period of time.  She no longer swims or dances and her entertainment capacities are very limited.  She used to be particularly fond of sewing and she can still do this, but only to a limited extent.  It is plain that her relationship with her husband has suffered adversely.  The plaintiff has seen Dr McCafferty, a consultant psychiatrist on five or six occasions in company with her husband Steven for marriage counselling.  Their sexual relationship is limited and contrived and no longer affords her any pleasure.  All in all, I am satisfied that the plaintiff's lifestyle and enjoyment of life have undergone a radical transformation as a result of the accident.  She has a focused mental attitude towards her problems and I think that she will continue to cope in the years ahead with the intermittent assistance of medical and psychological counselling.  She is plainly unfit to do work of a kind that she has previously performed and I think she has almost totally lost her earning capacity.  Any vestige thereof that she may retain cannot be assessed in concrete terms and will be appropriately provided for by taking it into account as a contingency factor.

1. Defence counsel, Mr Dockray, conceded that the plaintiff had been totally incapacitated to the date of trial and on this basis submitted that her total loss of earnings, after taking account of workers compensation weekly payments already made, would therefore amount to $16,038.44 net.  Making a calculation in respect of the same period, Mr Hobbs, counsel for the plaintiff, produced a figure of $18,841.54 net.  I think that Mr Dockray's figures represent the more accurate calculation and I propose to adopt his figure and to allow $16,038.44 under this particular head. 

1. As to future loss of earnings, which is nearly always the major component of a claim of this nature, Mr Hobbs has calculated the plaintiff's earning capacity on the basis that she would have qualified as a registered nurse, level 1, as from 1 January 1998, and has projected that forward with assumed annual increments to gross salary, but discounted at 7 per cent for present payment until the plaintiff's assumed date of retirement at age 65 years on 1 December 2019.  The figure thus claimed is $299,177.55.  Mr Dockray made a number of submissions as to this aspect of the claim.  Firstly, he submitted that the plaintiff's assertion that she would have gone on with her studies and achieved registered nurse qualification by 1998 should be rejected.  He pointed out that the plaintiff had always worked part time, she had made no attempt to upgrade her status between 1973 and 1998 while the nursing school was still located in Hobart, the family was reasonably comfortable financially with her working part time, and it was plain that she considered that her mothering duties towards her two young children were of paramount importance as evidenced by her having home schooled her children, participated in their school work as a teacher's aide, driven the school bus and having been involved in the children's extra curricular activities.  She also maintained a close relationship with her disabled daughter and she found part time night work at Bishop Davies Court very convenient and congenial.  It was close by and paid penalty rates which enabled her to pursue other interests during the day and yet still earn an income comparable with that which she could have earned had she been on full time day work as a registered nurse.  In short, Mr Dockray submitted there was virtually no financial incentive for her to undertake the training which she suggested and, in any event, he pointed out, the evidence suggested that there was no full time work likely to be available to her at Bishop Davies Court.  She would therefore have to seek employment in other institutions.  In other words, Mr Dockray submitted that in all probability she would have continued to exercise her earning capacity in the period after November 1993 in the same way as she had prior to that date.  Mr Dockray also submitted that there must be some doubt whether she would have continued working until 65 years of age, notwithstanding that the female pensionable age now stands at 65 years.

1. I think there is considerable weight in both of these submissions and I propose to assess the plaintiff's future loss of earning capacity on the basis of an assumed net income of $452 per week for a period of fifteen years, discounted by 7 per cent compound interest for present payment, viz, $222,384.  I think that this sum should be further discounted by 10 per cent to take account of the favourable and adverse contingencies which have been mentioned.  This produces a net figure of $200,145.60 which I will round off to $200,000.

1. The plaintiff has also claimed a loss of compulsory superannuation contributions which Commonwealth legislation requires to be made by employers on behalf of their employees.  A report by a consulting actuary, Mr B E Bendzulla, was submitted in evidence (Exhibit P16).  Some contributions were made by the defendant to the Hesta Superannuation Fund on the plaintiff's account until 8 May 1998 and the plaintiff's claim has been limited to the assumed period of her future employment after that date.  No criticism was made by defence counsel as to the data supplied by Mr Bendzulla or his calculations based upon that data, but it is obvious, having regard to the way in which I have approached the plaintiff's lost earning capacity for the future, that the sums which he has assessed must be modified to some extent.  Discounted at 7 per cent, the present value of future contributions was calculated at $32,443, assuming a retirement age of 60 years.  I have allowed loss of future earnings for fifteen years, ie, until age 59 and I have allowed for a weekly loss which is less than that used in Mr Bendzulla's assessment.  Accordingly, as he was not submitted for oral examination and I am not capable of performing the necessary calculations without actuarial assistance, I can do no better than to allow an approximation under this head, such approximation including a 10 per cent discount for contingencies, of course.  On this basis I allow $20,000.

1. The plaintiff has also claimed a number of items of damage which the defendant has not contested and, in some cases has contested only on a limited basis.  Those which have not been challenged or have been conceded I will include in the synopsis at the end of these reasons without further comment.

1. Under the heading of "future medical and associated expenses", the plaintiff claimed for general practitioner attendances, a sum of $4,534.11.  This was not contested by the defence, except as to contingencies.  The claim encompasses the whole of the plaintiff's life with an assumed expectancy of 38.5 years.  In my view, a contingency discount of 15 per cent should be applied.  I allow this claim at $3,854, and I allow the claim for specialist attendances ($1,476.60) at $1,255.  The third component of this item is for future hospitalisation at $8,523.90.  Defence counsel submitted that future hospitalisation is unlikely, but on the basis of Dr Begbie's evidence, I do not accept this.  The claim is not spread over the rest of the plaintiff's life ¾it is limited to the next five years, so a contingency discount seems to me to be inappropriate.  On the other hand, I am not completely satisfied that the frequency of admissions will be as claimed.  I will allow $7,500.  The claim for future physiotherapy is modest and is not disputed.  I allow $224.48 as claimed.  A claim has also been made for clinical psychologist attendances over the next two years.  Dr Francis' evidence that the plaintiff will have a diminishing need for such assistance does not persuade me that the sum claimed should be reduced.  I allow $936.96.  The total allowed under this heading is, therefore, $13,770.44.

1. The plaintiff's claim for future medical and pharmaceutical expenses was challenged on the limited basis that the evidence of Dr Francis suggested the likelihood of a diminishing need over time.  Counsel for the plaintiff referred to the plaintiff's evidence that she has already reduced medication.  In my opinion, some future reduction is likely and, in any event, the whole of life contingency discount of 15 per cent which I have adopted in respect of similar items of future expense, should be applied.  I allow $4,000.

1. A claim has been made for "future domestic service expenses".  Mr Dockray agreed that $15 per hour was a reasonable rate, but contested the need for such assistance for more than five years into the future.  Items of this kind are notoriously difficult to assess.  The sum claimed is based on four hours per week until death, a total of $42,852.  I propose to allow three hours per week, discounted by the whole of life contingency of 15 per cent, viz, $27,318.

1. Item 10 in the plaintiff's particulars of claim is for "future expenses to be incurred as a result of inability to pursue home sewing activity".  The stated basis of the claim is not entirely supported by the evidence, in my view, and I have great difficulty in accepting the proposition that a sum calculated on an assumed expense averaging $1,000 per annum for life should be provided.  $13,748.35 is claimed.  I allow $5,000.

1. Item 13 is a claim for "landscaping and associated expenses".  It is formulated thus:

"The residential property where the plaintiff and family reside was built on a 6 acre lot.  The domestic residence was established shortly prior to the plaintiff's injury.  However, the landscaping and establishment of the garden and maintenance thereof would have been substantially undertaken by her, but for her injury related symptoms and disabilities."

The plaintiff's gardening abilities are now substantially curtailed, but Mr Dockray's submissions at 583 - 584 of the transcript persuade me that the sum claimed under item 13 and item 14 "future expenses associated with garden maintenance" ($65,920.65) should not be allowed in full.  I will allow item 13 as claimed ($4,280) and item 14 on the basis submitted by Mr Dockray (which I think is fairly generous in any event) at $10,710.

1. Item 17 is a claim for reimbursement of the relevant tax component (agreed at 19 per cent) in the event of apportionment of liability in accordance with the principles discussed in Fox v Wood (1981) 148 CLR 438. Having regard to the method of assessment adopted and set out below, there is no need to make a separate calculation of this kind (see Huon Valley Council v Eaves [1999] TASSC 14).

1. I assess the plaintiff's damages in accordance with the following synopsis:

1	Pain, suffering and loss of amenities and enjoyment of life	$40,000.00
2	(a)       Lost earning capacity to date of trial (b)       Future loss of earning capacity (c)       Loss of employer's future superannuation contributions	$16,038.44 $200,000.00 $20,000.00
3	Past expenses associated with medical treatment	$750.00
4	Future medical and associated expenses	$13,770.44
5	Future medication and pharmaceutical expenses	$4,000.00
6	Future travelling expenses	$2,200.00
7	Past domestic service expenses	$2,080.00
8	Future domestic service expenses	$27,318.00
9	Past expenses incurred as a result of inability to pursue home sewing activity	$2,350.00
10	Future expenses to be incurred as a result of inability to pursue home sewing activity.	$5,000.00
11	Cost of chiropractic bed	$1,200.00
12	Home modifications	$200.00
13	Landscaping and associated expenses	$4,280.00
14	Future expenses associated with garden maintenance	$10,710.00
15	Health Insurance Commission reimbursement	$20.70
16	Workers compensation entitlements received: (a)   Medical expenses         $118,907.15 (b)   Gross weekly payments   $95,069.00   $213,976.15	$213,976.15
$563,893.73
Less 35 per cent contributory negligence	$197,362.80
$366,530.93
Less workers compensation payments	$213,976.15
$152,554.78

1. There will be judgment accordingly that the plaintiff recover against the defendant, $152,554.78.