Dight v Papal
[1987] TASSC 123
•9 December 1987
Serial No B53/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Dight v Papal [1987] TASSC 123; B53/1987
PARTIES: DIGHT, Vicki May
v
PAPAL, Brenda Gail
FILE NO/S: 3309/1984
DELIVERED ON: 9 December 1987
JUDGMENT OF: Underwood J
Judgment Number: B53/1987
Number of paragraphs: 32
Serial No B53/1987
List "B"
File No 3309/1984
VICKI MAY DIGHT v BRENDA GAIL PAPAL
REASONS FOR JUDGMENT UNDERWOOD J
9 December 1987
On 18th June 1984, the plaintiff was injured when a car in which she was travelling as a passenger, left the road and rolled over. At the time of the accident she was on a working holiday in Western Australia. The car was registered under the provisions of the Traffic Act 1925 (Tas). Proceedings for damages for negligence were instituted in this Court. The defendant, who was driving at the time of the accident, submitted to the jurisdiction and admitted liability.
The plaintiff, born on 31st January 1958, was 26 years old at the time of the accident. She was employed as a croupier at the Launceston Casino. In early June that year, she took her annual holidays and some unpaid leave of absence to go to Western Australia on a working holiday. She was due to return to the Casino in early October 1984.
The undisputed medical evidence was that the plaintiff suffered a compression fracture of the body of the first lumbar vertebra, ligamentus damage to the acromio–clavicular joint and extensive bruising. She was taken to a country hospital in Western Australia where she remained as an in–patient for three days. The plaintiff then discharged herself and went to Perth where she consulted a general practitioner and was given physiotherapy. Shortly after, she flew back to Tasmania and stayed with her parents in Hobart. There, she again consulted a general practitioner and underwent further physiotherapy. In October 1984, she returned to her flat in Launceston and resumed her employment at the Casino.
During the first few months after the accident, the plaintiff suffered considerable pain in her back and shoulder which necessitated the use of prescribed analgesics and anti–inflammatory drugs. The compression fracture of the body of the first lumbar vertebra was described as minor, but nonetheless, productive of pain in and about the affected area. During the months immediately following the accident, the unhealed, fractured body of L1 was itself a source of pain to the plaintiff. This has now healed satisfactorily and, the orthopaedic opinion is that since healing, it is unlikely to have been a source of pain. However, the compression fracture resulted in a permanent deformity to the body of L1. This deformity has produced some minor mal–alignment of the spine in the area of the damaged bone. The mal–alignment poses added strain to the disc above and below the vertebra. Use of the spine, particularly by prolonged bending or stooping effects this strain and produces symptoms of backache. Depending upon the extent and degree of stress, soft tissue in the area of the affected part has a tendency to become inflamed and thereby exacerbate the symptoms of backache.
Sometime in 1985, after the fracture healed, the plaintiff's condition stabilized. She said, and I accept, that since then her back has "neither got worse nor better". Her disability is permanent. Sitting still or standing for lengthy periods causes backache which is relieved by rest, physiotherapy or occasional resort to analgesics and anti–inflammatory drugs. Prolonged stooping or stretching causes backache. Lifting heavy objects causes backache. If these activities are avoided the plaintiff is substantially free of pain and discomfort in the lumbar spine.
The shoulder disability is also permanent. But fortunately, not of great significance. There is some slight prominence of, and a little tenderness, at the acromio–clavicular joint. The range of movement in the joint is slightly diminished but the plaintiff is basically free of symptoms in the shoulder except when using her arms extended above the shoulders.
No future treatment is indicated for either condition apart from occasional physiotherapy and the use of analgesics and anti–inflammatory drugs when the occasion demands. The injuries and their permanent sequelae have affected, and will continue to affect, the plaintiff's enjoyment of the amenities of life. The defendant does not dispute this. There has been a diminution in the plaintiff's[i] earning capacity in that she is precluded from following those occupations which will cause backache. The defendant does not dispute this. The real issue between the parties on this assessment is the plaintiff's claim that the injury to her back has, in the circumstances, permanently deprived her of earning income in what was described in the evidence, as "the Casino industry" and that deprivation has been and will continue to be productive of financial loss. The defendant says that the injury to the back has not permanently deprived the plaintiff from earning income in the Casino industry or, if she is now so deprived that deprivation arose out of a failure in 1985, on the part of the plaintiff, to mitigate her loss.
In order to deal with this issue it is necessary to describe the employment history of the plaintiff since she returned to work after the accident, the nature of employment in the Casino industry and the opportunities for such employment during 1985.
The plaintiff began work with the Launceston Casino when it opened in May 1982. Before starting, she took a training course for croupiers. She remained with the Launceston Casino until going on holiday to Western Australia approximately two and a half years later. She worked as a croupier for all the games played at the Casino. I am satisfied that the plaintiff was an industrious and competent employee and held in high regard by her employer. I am also satisfied that the plaintiff was ambitious and keen to advance herself in the Casino industry.
After her return to work on the 1st October 1984 she said, and I accept, that the bending and stretching over the tables caused her back to ache so much that she could not continue. After two weeks, her sympathetic employer permitted her to work as an acting inspector supervising, what she agreed with learned counsel for the defendant, were the two most boring games played at the Casino. The plaintiff said that even working as an inspector caused her "great difficulties" and that she was advised by her medical practitioner that she should find other employment. In December 1984 she applied for a position advertised by the State Public Service to work with Tasbureau in its Melbourne office. The plaintiff knew that some considerable time would elapse before the result of her application would be known and accordingly took a job in Hobart as a car rental hostess with Hertz Rent–A–Car. She left the employ of the Launceston Casino on 30th December 1984 and commenced with Hertz Rent–A–Car on 3rd January 1985. The work with Hertz was a full time job, delivering cars and working in the various offices conducted by the company. In March 1985, while still employed by Hertz Rent–A–Car, the plaintiff was notified that her application to join Tasbureau had been successful. Accordingly, on the 2nd May 1985 she left Hertz Rent–A–Car and on 13th of that month, took up her employment with Tasbureau. She has remained with Tasbureau since that date, working firstly in the Melbourne office and then in the Canberra office. She is shortly due to transfer to the Sydney office.
The plaintiff claims that the earnings of a croupier and an inspector in a Casino are more than the amount she is capable of earning in her present job or any other job which does not impose unwarranted strain on her back. I find that, at the date of trial, the plaintiffs potential nett income as an inspector at the Launceston Casino is approximately $2500 net per annum more than her actual nett income in her present employment.
The Launceston Casino, in common with other lawful Australian Casinos, employs croupiers, inspectors, pit bosses, shift managers and managers. A croupier works five shifts a week each of approximately eight and a half hours. He or she spins the wheel, rolls the dice or deals the cards depending upon the nature of the game. He or she calculates, collects and pays the bets and generally conducts the game in his or her charge. Each hour, a croupier takes a fifteen minute break and in addition, a thirty minute unpaid meal break each shift. The work involves a high level of concentration and bending and stretching over the tables. The degree of bending and stretching depends upon the nature of the game.
An inspector works the same shifts and takes the same breaks as a croupier. An inspector supervises the game, ensures that the rules are obeyed, settles any disputes, keeps a rough record of the money taken at the table and makes notes of any substantial or unusual gambling activity. At the Launceston Casino, an inspector performs his or her duties from a strategically placed high chair or, at the whim of the inspector, from a standing position near the chair. There is one inspector for every game except in the case of black jack where one inspector supervises two tables. Inspectors earn more money than croupiers. Experienced and competent croupiers can expect promotion to the position of inspector when a vacancy occurs.
A pit boss works the same shifts under the same conditions as a croupier and an inspector. A pit boss supervises a number of games and the work of the croupiers and inspectors at those games. He or she is expected to be skilled in public relations. As the manager of the Launceston Casino put it, the pit boss is expected to ensure that a punter had an enjoyable evening even if he has just lost the family inheritance! Pit bosses are appointed from those inspectors who have the requisite skills and the right aptitude for the job.
A shift manager is the person who has the immediate responsibility for the whole of the gaming room during a particular shift. He or she is responsible to the assistant manager of the Casino. The ultimate responsibility for the whole of the Casino operation lies with the manager.
Expert medical evidence was given by three orthopaedic surgeons; Mr Westh of Melbourne, and Messrs Binns and Morgan from Hobart and Launceston respectively. There was little conflict between these witnesses concerning the capacity of the plaintiff to work as a croupier and an inspector. I prefer and rely upon the evidence of Mr Morgan on this question to that of the other two medical practitioners. I do so because Mr Morgan visited the Launceston Casino, saw the croupiers and inspectors at work and had the nature of their duties fully explained to him by the manager before he gave his evidence. I find that the stretching and bending associated with the work of a full time croupier was, and always will be, beyond the plaintiff's capacity. I find that even though an inspector at the Launceston Casino is able to move at will from a sitting to a standing position, as at the end of 1984, this work was also beyond the plaintiff by reason of her back injury. This was probably due to the fact that discomfort was then originating from the fracture site itself as well as the area immediately surrounding it. Consequently, I am satisfied that the plaintiff resigned from her employment with the Casino at the end of 1984 because her injuries prevented her from carrying out the work. In her application for the job with Tasbureau the plaintiff made no mention of her disability and stated that she wanted to give up working night shift and resume office work with regular hours. However, I accept the plaintiff's explanation that this statement was not correct but was made in the realization that if she stated that a back disability had caused her to give up casino work she would not even be given an interview for the job.
Based upon the evidence of Mr Morgan, I find that by 1985, the plaintiff had sufficiently recovered from her injuries to be capable of working as an inspector at the Launceston Casino. This work involves no bending or stretching. The ability to sit or stand at will and the hourly break of fifteen minutes, would prevent the plaintiff suffering from disabling symptoms. The plaintiff does not[ii] accept that this is the case but contends in the alternative that, having been compelled to leave the industry at the end of 1984, she can no longer return to it as an inspector without first working again for a period of time as a croupier and, that her injury precludes her from doing this. The defendant maintains that, if the plaintiff's injuries forced her out of the industry at the end of 1984, and work as a croupier is now physically beyond her, for reasons which I will refer to, there was ample opportunity for her to return to Casino work as an inspector without first working as a croupier during 1985. Her failure to take such work, the defendant contends, amounted to a failure to act reasonably to mitigate her loss.
Until the end of 1985, legal Casino operations were only permitted in Tasmania and the Northern Territory. During 1984 and 1985, large Casinos were being built in Queensland, South Australia and Western Australia. All three Casinos opened at the end of 1985. The opening of these new Casinos created an unprecedented demand for trained and experienced staff. Quite a number of the employees from the Launceston and Hobart Casinos were recruited to the new establishments. The demand for staff during 1985 was such that, during this period, the plaintiff could have resumed work in the Casino industry as an inspector without first working as a croupier. With the passage of time and the training of new staff, the demand abated so that now, the opportunity for work as an inspector without first working as a croupier is no longer available to the plaintiff.
The plaintiff, a single woman, was not adverse to working in any part of Australia. I find that even at the end of 1984, she was considering returning to Casino work as an inspector. At that time, before leaving the Launceston Casino, she enquired of the owners of the proposed Jupiter Casino in Queensland about the possibility of working there as an inspector when the Casino opened at the end of 1985. In February 1985 she was interviewed in Hobart for a job as an inspector at the Queensland Casino. By letter dated 26th March 1985 she was offered such a job at the Jupiter Casino to start about the end of that year. She was then working for Hertz Rent–A–Car. She did nothing about this offer. She said she did nothing "because at the time I was still suffering considerable pain. I thought that at a later stage I could still take up that option" and because, "at that stage, they were still debating as to the salary for staff".
About this time, the plaintiff was consulting Mr Binns. He expressed the view that work as an inspector could cause backache but that opinion was based upon his understanding that the work of an inspector required the plaintiff to remain seated in the same position for lengthy periods of time. In evidence, assuming that an inspector could sit or stand at will, Mr Binns said he had no opinion about her fitness to do this work from a medical point of view. He said:
"I really don't hold the view that she is medically unfit to do any job. I hold the view that it is reasonable that she should have some pain if she sits or is standing still for some time and how much pain she is prepared to put up with decides as to whether (sic) she wants to stay at the Casino or do something else".
At the end of 1985, towards the end of the period of unprecedented demand for trained staff, the plaintiff contacted the manager of the Launceston Casino and asked him if there was a job for her as an inspector. She was immediately offered such a job but, according to her, she said "I would consult my doctors and see and I was still having trouble but I would certainly be keen on getting back."
There was no evidence that this matter was taken any further. By the time that offer was made the plaintiff had been employed by Tasbureau in its Melbourne office for approximately six months. She was able to manage the work with occasional discomfort. I find that the plaintiff did not consult her doctors with respect to her capacity to take the offered job at the Launceston Casino. Whether this was because she found working in the travel industry satisfying and the attractions of Casino work had diminished with the passage of time, I do not know. Throughout her evidence, the plaintiff maintained that she really enjoyed Casino work and always wanted to return to it. She volunteered that she felt bitter about the accident because it forced her to stop working in the Casino. I have some reservations about that claim, for it is somewhat at odds with the plaintiff's actions during 1985. I find that, in the light of the medical evidence, had the plaintiff properly sought medical advice at the end of 1985 she would have learnt that she was no longer medically unfit for the work of an inspector at the Launceston Casino. She first consulted Dr Westh on the 16th December 1985 and although the plaintiff said she thought she asked him about her ability to work as an inspector, I accept Dr Westh's evidence that she did not.
Undoubtedly, the plaintiff is under a duty to mitigate the loss which flows from the tortiously caused diminution of her earning capacity. In this context, this means a duty to avoid some of the consequences of the tort, for the plaintiff cannot recover for avoidable loss. See McGregor on Damages (13th edn) para205. The classic authority for that proposition is British Westinghouse Electric & Manufacturing Company Limited v Underground Electric Railways Company of London Limited [1912] AC 673. In Watts v Rake (1960) 108 CLR 158, Dixon CJ said at p159:–
"If it appears satisfactorily that damage in a particular form or to a particular degree has been suffered by the plaintiff as a result of the wrong, but the defendant maintains that the plaintiff might have avoided or mitigated that consequence by adopting some course which it is reasonable for him to take, it seems clear enough that the law places upon the defendant the burden of proof upon the question whether, by the course suggested, the damage could have been so mitigated and upon the reasonableness of pursing[iii] that course."
See also, Adams v Ascot Iron Foundry (1968) 72 SR(NSW), 120 at p144.
I am satisfied to the requisite degree[iv] that the damage suffered as a result of the defendant's tort, being the difference between the income of an inspector and the income of the plaintiff in her present employment or, like income in similar employment, would have been avoided if, by the end of 1985, the plaintiff had taken the reasonable step of obtaining medical advice with respect to her fitness to work as an inspector and subsequently, had acted on that advice which I have found, would have been that she was fit for such work.
Accordingly, the plaintiff's damages for diminution of earning capacity are assessed upon the basis that, for a period of approximately twelve months after the end of December 1984 but not thereafter (subject to one qualification referred to later) the diminution in earning capacity was productive of financial loss by reason of her inability to earn income in the Casino industry. In addition, the plaintiff is entitled to damages upon the basis that her disability has reduced the value of her capital asset and that diminution in value may, in general terms, be productive of financial loss in the future.
This is not a case which calls for the assessment of damages under this head by resort to any mathematical calculations. It is a matter of judgment. The plaintiff says that she is able to manage her work with Tasbureau satisfactorily. It is general office work and includes some travelling to visit travel agents and holiday locations Tasbureau wish to promote. Provided she is able to move about freely, her back causes her little discomfort. Travelling long distances or standing still for lengthy periods or prolonged bending or stooping results in the onset of backache.
The plaintiff, who is obviously an intelligent and capable woman, has no special skills other than those necessary for general office work. She would appear to be good at public relations and there are few office jobs she would be unable to manage provided she was free to move about when she wanted to do.
The plaintiff intends to marry next year and plans to have a family but not until after a few years. Her present intention is to stop work until all her children are at school and thereafter, return to part time work. She had hoped that this part time work would be as a croupier. The manager of the Launceston Casino said that such part time work was available for married women. The plaintiff may well be able to do limited part time work as a croupier in the future. She did this whilst she was working for Hertz Rent–A–Car in early 1985 but said that it caused her back to ache. She said that she did it to maintain her level of skill and keep abreast of developments in the Casino industry. Her failure in 1985 to act reasonably in mitigation of her loss is not relevant in an assessment of her loss after the time she stops work to have a family. She is entitled to a modest figure to reflect the fact that the amount of part time work as a croupier she will be able to manage in later years will be curtailed by reason of her back injury. She will, of course, be able to return to office work but it is unlikely to be as remunerative as work as a croupier.
As the plaintiff was in full time employment during the twelve months after she left the Casino at the end of 1984 and in addition, for about half of that period worked on a part time basis, as a croupier at the Hobart Casino, her loss by reason of the inability to work full time in the Casino industry for that period is small. I assess it at $1,500. With respect to damages for the diminution of her earning capacity thereafter, I allow the sum of $6000 making a total allowance for damages for diminution of earning capacity in the sum of $7,500.
Since the accident the plaintiff has played but abandoned, indoor cricket and netball as these games caused her back to become painful. Some household tasks such as vacuuming cause her back to ache. Hanging out washing causes discomfort in the shoulder and lifting heavy objects results in back pain. Lifting and bending associated with the care of the children she plans to have, will cause her back to ache. Generally speaking, she will have to take care to avoid those tasks and leisure pursuits which are productive of symptoms. The presence, or threat of back–ache will constantly attend the plaintiff for the rest of her life. There will be occasional visits to doctors and physiotherapists and analgesics and anti–inflammatory drugs will be used when required. The plaintiff said that at the time of trial she used two scripts a year at a present annual cost of $54.
Taking into account all those factors, I assess the plaintiff's damages for pain and suffering and loss of amenities of life, both past and future, in the sum of $8,000.
The claim for special damages and economic loss up to the end of December 1984 has been satisfied by the Motor Accidents Insurance Board so that in result, there will be judgment for the plaintiff against the defendant for $15,500.
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