Fleming v South Australian Housing Trust
[2011] SADC 49
•13 April 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
FLEMING v SOUTH AUSTRALIAN HOUSING TRUST
[2011] SADC 49
Judgment of His Honour Judge David Smith
13 April 2011
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT
Personal injuries – common law claim in negligence – in 1999 when plaintiff was 10 years old she sustained laceration to the Achilles tendon of her right foot when it became ensnared under the uncapped galvanised iron gate of the defendant’s house property – liability admitted – assessment of damages at common law – plaintiff claimed to be suffering from permanent ongoing pain and disability including an impairment of past and future earning capacity – contention that claimed level of disability not commensurate with injury – discussion of onus of proof and causation – plaintiff without explanation failed to adduce evidence from operating surgeon and local general medical practitioner – discussion of the application of the rule in Jones v Dunkel.
Held: plaintiff had failed to discharge onus of proving that the injury caused the level of disability claimed and in particular an entitlement to an allowance for past and future loss of earnings – assessment pain and suffering including interest $15,840, gratuitous care $2,520 including interest, medical expenses $887.25, total award including interest $19,247.25.
Hawkins v Clayton (1988) 164 CLR 535; Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1; Footner v Broken Hill Associated Smelters Pty Ltd (1983) 33 SASR 58; Wardley v WA (1992) 175 CLR 514; Payne v Parker [1976] 1 NSWLR 191; Spence v Demasi (1988) 48 SASR 536; Hall v Foong (1995) 65 SASR 281; Sellers v Adelaide Petroleum (1994) 179 CLR 332; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720; Dahl v Grice [1981] VR 513; Van Zanen v Farr [1964-5] NSWR 843; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; O’Donnell v Reichard [1975] VR 916; Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347, considered.
FLEMING v SOUTH AUSTRALIAN HOUSING TRUST
[2011] SADC 49
On the 19 December 1999 the plaintiff, who was then 10 years of age, lacerated the Achilles tendon of her right foot when, in the course of closing the galvanised iron gate of the family home in Port Pirie, her right foot became trapped between the ground and the sharp bottom edge of the gate. The South Australian Housing Trust (“Trust”) was the landlord of the premises. The plaintiff was immediately admitted to the Port Pirie Hospital where the lacerated tendon was repaired. She was discharged the next day in a low leg plaster.
The surgery was apparently successful and in due course, after the Christmas holidays, the plaintiff returned to school.
On the 25 October 2007, approximately eight years after the injury occurred, the plaintiff instituted this common law negligence action against the defendant in which she claims damages for personal injuries.[1] The negligence or breach of duty alleged against the defendant is the installing at the house of a galvanised iron gate without protective capping on its bottom edge. The defendant admitted liability and so this matter is an assessment of damages.
[1] The plaintiff’s cause of action is in tort and so by a combination of s 35(c) and s 36(1) of the Limitation of Actions Act 1936 (SA) she had three years from the accrual of her action to institute proceedings. Damage being the gist of an action in the tort of negligence, the cause of action accrued when the plaintiff suffered damage (see Hawkins v Clayton (1988) 164 CLR 535 per Gaudron J at 599; Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1; Footner v Broken Hill Associated Smelters Pty Ltd (1983) 33 SASR 58; Wardley v WA (1992) 175 CLR 514). But the damage was suffered by the plaintiff when she was an infant. And so perforce of s 45(1) of the said Act she had three years from the time of attaining her majority in which to institute the action. Accordingly, she had until 16 April 2010 in which to institute this action.
The plaintiff claims that in the course of years since the injury she has suffered with pain in her right foot which has prevented her from walking appreciable distances, caused her to limp, precluded her from engaging in sports and recreational activities and precluded her from work which involves lengthy periods of standing. The defendant does not accept that such a level of disability could have been caused by the injury.
The primary issue is whether the plaintiff has proved that the admitted breach of duty of care by the defendant has caused the extensive consequential disabilities claimed by her.
Credibility and Reliability
In the plaintiff’s case oral evidence was led from:
·Crystal Fleming, plaintiff;
·Dianne Ruth O’Connor, plaintiff’s mother;
·Wayne Robert Fleming, plaintiff’s father;
·Travis Johns, plaintiff’s brother;
·Aivi Vo, physiotherapist; and
·Mr Adrian Munyard, orthopaedic surgeon.
Further, there were a number of documents tendered by consent. Without any explanation the plaintiff did not call either Dr Stewart, the surgeon who performed the repair of the tendon, or the local general medical practitioner, Dr Frederick Lau, who was the family doctor and whom the plaintiff consulted from time to time over the years following the injury. The hospital notes and the records from Dr Lau’s clinic were tendered by consent.[2]
[2] See hospital notes Exhibit P5 and Dr Lau’s practice notes Exhibit P2.
In the defendant’s case there was one witness only, namely the orthopaedic surgeon Mr David Marshall. There was documentary evidence tendered by consent, in the defendant’s case, and in particular the defendant’s counsel showed and tendered film taken of the plaintiff.[3]
[3] Film taken 23.05.08, 24.05.08 and 17.06.08 DVD Exhibit D2. Film taken 15.04.08, 16.04.08 and 18.04.08 DVD Exhibit D3.
The defendant’s counsel, Ms Davison, did not suggest that either the plaintiff or the family members, who gave evidence in support of her, told lies or even consciously exaggerated. Rather, the submission was that, as the plaintiff had grown up, she was induced to believe that she was more disabled then she really was (363). That is the extent to which the credibility and reliability of the plaintiff’s evidence and her witnesses is in issue. I agree that neither the plaintiff, nor those of her family who gave evidence, deliberately exaggerated.
Both the orthopaedic surgeons, Messrs Munyard and Marshall, agreed that following the surgery the lacerated tendon healed without obvious problems. Neither of them could find any objective medical support for the consequential difficulties claimed by the plaintiff. They then parted company. Mr Munyard accepted the plaintiff’s subjective complaints and based on that decided she was disabled. Mr Marshall, in the end, decided that the plaintiff was not permanently disabled as she claimed.
I will deal with these issues of credibility and reliability as I traverse the evidence and make the necessary findings.
The Circumstances
The following narrative of events constitutes my findings. Much of what follows is uncontroversial. I will make findings in relation to matters of controversy later.
The plaintiff was born on the 16 April 1989. She was the sixth of seven children of Dianne O’Connor. She was brought up in Port Pirie primarily by her mother, Ms O’Connor. Her father, Wayne Fleming, had an “... on and off ...” de facto relationship with Ms O’Connor (277). However, he maintained cordial contact with Ms O’Connor and their two children.
The plaintiff attended Airdale Primary School in Risdon Park. She was an able student and participated enthusiastically in school activities. She played netball. She also enjoyed camping and fishing which she did with her father.
As at December 1999 she had completed year 4 and was living with her mother and some of her siblings in the Trust house at 18 Hackett Street, Port Pirie.
On the day before the accident, namely the 18 December 1999, a contractor, employed by the Trust, erected a new double swing gate at the entrance of the driveway to the house. The gates were constructed of galvanised iron and did not have a protecting capping on the bottom edge.[4] On the 19 December 1999, on instructions from her mother, the plaintiff and her sister, Rebecca, took some rubbish to the rubbish bin, which was apparently outside the gate. As the plaintiff closed the gate behind her, her right heel became ensnared between the bottom edge of the gate and the ground. As a result, she suffered a deep cut to her right heel which lacerated the Achilles tendon of her right foot (22, 311; see also hospital notes Exhibit P5).
[4] See photographs Exhibits P3 and P4.
She was taken immediately by both parents to the Port Pirie Hospital where, under anaesthetic, the laceration was explored and the tendon repaired by suturing. Doctor Stewart performed the surgery. The plaintiff was upset and distressed and so Ms O’Connor stayed overnight in the hospital to reassure her. On the following day the plaintiff was discharged home with a plaster on her low right leg and foot. She was provided with crutches.[5] The crutches proved to be uncomfortable and accordingly Ms O’Connor procured a wheelchair and used it to assist her with moving the plaintiff about for three or four weeks (30, 213, 222). On the 19 January 2000, at the hospital, the first plaster was removed and replaced with another equipped with a heel.[6] That plaster was removed at the hospital on the 17 February 2000.[7] By this time the plaintiff was back at school.
[5] See Hospital records Exhibit P5; see also 27, 28, 212 and 213.
[6] See GP's notes p 3 Exhibit P2; see also 28-30 and 218.
[7] See GP's notes as above; see also 32, 219.
Ms O’Connor cared for the plaintiff at home during this period when she was in plaster. In particular, Ms O’Connor assisted the plaintiff with bathing, dressing, going to the toilet and moving around generally (213-218).
The plaintiff’s evidence as to her wellbeing in the years immediately following the injury was, perhaps understandably, vague and uncertain. Prompted by her counsel she first claimed that immediately after the surgery her right foot was painful, throbbed and was disabling (27-41). But then in the course of cross-examination she accepted that she could not recall what happened after the second plaster came off (73 lines 1-27). Further, she erroneously asserted that she had been hospitalised following the surgery for “... around a week ...” (26, 67). When challenged she claimed that she relied upon what her mother had told her (68). Ms O’Connor disagreed that she had told her daughter that (234).
Ms O’Connor’s evidence was that, from the time of the injury onward, the plaintiff had been irretrievably disabled. The following extracts from her evidence bear out that conviction:
Q.How long was it that you had to help her when she came out of the second lot of plaster, when you said you were rubbing and massaging her. Did you notice she improved over time, her ability to walk and look after herself.
A.Yeah. Because it was an Achilles, I knew that things were never going to be the same for Crystal, you know, she’d never be the same again. I knew straightaway that she would never be able to play netball and we just knew that everything was over for her then, for her sport and that.
HIS HONOUR
Q.Why did you take that view, because it was a laceration of the Achilles that was repaired.
A.Even at home, when she’d try and do a lot of things at home, her stretching, it was always hurting her.
Q.But she never went to the doctor for it.
A.There was no more that the doctor could do for her. We’d done all we could do. When I ended up taking her back to her doctor, they ended up referring us to the physio.
Q.But that’s in recent years, isn’t it.
A.Yeah.
Q.I’m going back to soon after the accident. Why did you take such a pessimistic view back then.
A.Well, we knew she wouldn’t be able to play her netball. She lost confidence in herself too. She tried to do a lot of things – fishing and things like that, walking for a long time, she just couldn’t do it.
Q.Yet she never went – in the early teenage years when she was living at home with you – to the doctor and you never said ‘This is not good enough, we need to get her medical assistance and fix it up’.
A.I was taking her back to Dr Lau, her doctor, and he referred us to Mr Munyard and he just reckons there was nothing he could do, so we were put in charge of Mr Munyard from then on, instead of Dr Lau.
...............
A.When Crystal asked about getting some work experience at the Central Hotel, as being a waitress or being in the kitchen, I knew that it was going to be flat out for her to be able to do this, because of me being in there for three years and knowing what you have to do in the hotel, as in being a waitress. In that hotel you had to do everything; you had to do dishes, waitressing, cleaning, food preparation. It was a lot of standing.
(220-221, 228-229 emphasis added)
The medical records from the practice of Dr Lau do not support Ms O’Connor’s evidence that she was taking the plaintiff back to Dr Lau. The first mention of the tendon injury, after the surgery, in Dr Lau’s notes, is recorded as being on the 1 November 2000 – almost a year after the injury, when in conjunction with another complaint, the doctor, whom I assume is Dr Lau, recorded as follows:
... still sl (?) sore over Achilles tendon – leave alone
Thereafter there is no record of complaints concerning the tendon injury until the 7 May 2002 when the plaintiff and her mother consulted Dr Suleman.
In 2002 the plaintiff was in year 7 at Airdale Primary School. According to her and her mother, her foot was painful and precluded her from active participation in school sports. In particular, she agreed with her counsel’s suggestion that by the time she first saw Mr Munyard (ie May 2002) she had stopped sport at school because it hurt her foot. Her mother confirmed that (225).
On the 7 May 2002, as indicated, the plaintiff and her mother saw Dr Suleman at the General Practice Clinic. His note of the attendance reads as follows:
... injury to A tendon years ago new problems again – Mr Munyard ...
Dr Suleman referred the plaintiff to the orthopaedic surgeon Mr Munyard who visited Port Pirie.
The plaintiff and her mother saw Mr Munyard, for the first time, on the 24 May 2002. Save for the loss of a little dorsi flexion and some tenderness on compression of the tendon, the physical examination of the plaintiff by Mr Munyard was normal. For instance, the plaintiff was able to stand and walk on her heels and toes. She was able to squat and hop on either leg without difficulties and she had well developed calves on both legs.[8] Further, Mr Munyard did not detect any limp despite looking for it. He said there was no complaint to him of a limp. The only complaint was of pain (171). In a report back to the referring doctor Mr Munyard said, inter alia, “... I am not quite sure what is going on, but I have sent her off for an ultrasound of her tendon Achilles and will review her with this ...” The ultrasound was carried out on the 3 June 2002 (see Exhibit P8). However, the plaintiff and her mother did not return to Mr Munyard as arranged (166). Indeed it was not until almost four years later on the 23 February 2006 that the plaintiff and her mother presented again to Mr Munyard and that, it appears, was arranged by the plaintiff’s solicitors. The ultrasound report did not disclose anything which would account for the level of pain and disability claimed by the plaintiff. Mr Munyard said that he recommended that an MRI be done in a further effort to discover any adverse pathology. However, that was not followed up.[9] He saw the plaintiff on two further occasions, namely 2 April 2008 and 30 April 2009 and reported on her (see Exhibit P6).
[8] See 161; see also report 1 March 2006 Exhibit P6.
[9] See 167; see also report 3 April 2008 Exhibit P6.
In 2003 the plaintiff commenced secondary schooling at the John Pirie Secondary School. She was in year 8. Her problems of foot pain and restrictions continued. She did not take up sports like netball (43, 44). She was clearly not a keen student though her school reports show that she was an adequate scholar. For instance, in 2003 she was absent a total of 28 days. Concern over absences is a recurring comment by her teachers in her school reports (see Exhibit P1; 88‑96). She did not seek to ascribe her absences to problems with her foot. Indeed, she said that, of all the days off from high school, only about two were due to pain and problems with her right foot (91).
In the almost four years between the referral to Mr Munyard on the 7 May 2002 to the return to him on the 23 February 2006, neither the plaintiff nor her mother, on her behalf, complained to, or sought help from, the family’s medical practice in relation to the claimed continuing pain and disability arising from the tendon injury, even though the plaintiff, presumably with her mother, in the course of that time attended the practice on three occasions in respect of other problems (see records Exhibit P2). When asked about this lack of complaint, the plaintiff said that she relieved the pain with “warm packs, panadol and rest” (74). Ms O’Connor explained that no approaches were made to the doctors about the Achilles problem because Dr Lau had said nothing could be done (221).
The second period during which the plaintiff failed to seek medical help for the pain and disability is in reality longer than between the first two visits to Mr Munyard (ie between 24 May 2002 and 23 February 2006) because the appointment with Mr Munyard, on the 23 February 2006, was a medico-legal appointment arranged by the plaintiff’s solicitors, not a referral from the plaintiff’s general medical practitioner seeking specialist assistance for treatment. The general practice records show that appointments with Dr Lau concerning the painful Achilles tendon resumed on respectively the 21 April 2009, the 1 May 2009 and the 8 May 2009. Accordingly, the real period during which no medical assistance was sought for the tendon injury was from May 2002 to April 2009. So there was effectively a seven year lull between the complaint to Dr Suleman in May 2002, which provoked the referral to Mr Munyard, and the resumed consultations with Dr Lau commencing in April 2009.
In August 2004 the plaintiff worked for about a month at McDonalds in Port Pirie (45-46; see also letter from McDonalds Exhibit P9). She complained that the safety shoes she had to wear, rubbed on the scar and thereby caused pain. She said that the long periods of standing caused her to arrive home after a shift exhausted in pain and with her foot throbbing. She did not return to McDonalds (47).
The plaintiff continued at secondary school. The school reports disclose that she did engage, to some extent, in sporting activities. In April 2006, when in year 11, the term 1 report refers to her showing “... on occasions that she was capable of demonstrating sound volleyball skills ...” (see Exhibit P1). She acknowledged playing volleyball and also engaging in archery and throwing a javelin (96-100). In the many reports from the John Pirie Secondary School, there is not a single allusion to the plaintiff suffering from any physical disability. Apart from subjects like Physical Education, there were subjects which required the plaintiff to work in a kitchen and in a laboratory. She must have been standing up in those lessons for appreciable times. Nonetheless, there is no hint of impairment by any of the reporting teachers.
In May 2006, when the plaintiff was in year 11, she “tried” working at the Central Hotel in Port Pirie. She said that she went there as a work experience student (48, 51). According to her, her brother Travis Johns was the manager (48). She said in evidence that working at the hotel was an alternative to her chosen career of nursing if nursing turned out not to be an option (48). She said that she found that she was unable to do the work of a waitress and nor was she able to work as a kitchen hand (50). She said in particular that “... my brother tried to get me to do a little bit of waitressing, but that was too much …” (50). The work experience lasted only four days. Each day was a shift of six hours. The plaintiff said that at the end of each day her foot throbbed (51).
Travis Johns started work at the Central Hotel in October 2006 (266, 274). He agreed he was not working at the hotel at the time of the plaintiff’s work experience there (267, 275). Therefore he could not have given her instruction nor observed her performance. After the plaintiff had completed her work experience, the owner of the hotel, Pauline Cowey, offered her a job.[10] However, Travis Johns was asked by Ms O’Connor to write the letter Exhibit D4 (275), which, as can be seen, in a poorly expressed way, asserts, that by reason of the plaintiff’s foot injury, she would not be able to perform the necessary work at the hotel. Mr Johns agreed that he wrote the letter at Ms O’Connor’s request within two or three weeks of taking up the job in the hotel and gave it to her (274, 275). In the letter, he fails to disclose that he was not there at the time of his sister’s work experience and nor does he reveal that he was her brother. Finally, he did not inform the owner of the hotel, his employer, that he had written the letter (274, 276).
[10] 275, 276; see also letter from the hotel Exhibit D4.
It was not urged upon me that I should take a sinister view of this, nor would I. I accept that, like his mother, Travis Johns, considered that his sister was seriously disabled and that he was doing her a service. He said “... I knew that she wouldn’t be suited for that type of work, not with her injury ...” (273). I regard it as evidence showing the conviction, held by the family, that the plaintiff had a serious disability. It has limited evidentiary value beyond that. It was tendered in the defendant’s case no doubt for the purpose of demonstrating the lengths to which the family were prepared to go to support the plaintiff’s claim.
In 2007 the plaintiff was in year 12. She was then living with her mother and younger sister Kyla at 291 Senate Road (239). As indicated, she wanted to become a nurse and she chose her subjects from year 10 onward with that in mind (52, 53). However, her year 12 results were not good enough to secure university entrance which was required for admission to a nursing course (79). Strangely the plaintiff was unaware that she had to secure university entrance in order to be admitted to nursing (80). However, there were obviously other distractions in her life in 2007. She had developed a relationship with one Anthony Dow (58). She was permitted to stay over at his house on weekends (231, 232). She became pregnant but miscarried on 18 December 2007 (58).
She was hospitalised in connection with the miscarriage. The hospital records indicate that the plaintiff and/or her mother provided a history of the plaintiff’s suffering with asthma but omitted to mention the claimed ongoing pain problems associated with the tendon injury. Moreover, the hospital records indicate that either the plaintiff or her mother described the plaintiff’s lifestyle at the time of admission as “… active … walks a lot” (see hospital records Exhibit P5). The plaintiff disagreed that she said that she walked a lot (135, 136). Much the same had occurred earlier, in 2004, when the plaintiff attended the hospital reporting chest pain upon moving furniture. There was a history provided of asthma but no mention of any Achilles tendon problem (139).
At the end of 2007, following her miscarriage, the plaintiff made very little effort to procure work (81-84).
Undaunted by the miscarriage the plaintiff became pregnant in 2008 and on 13 December 2008 gave birth to a daughter, Melanie (59).
In early 2008 the focus of activity then became this litigation. Having been referred by her solicitors, the plaintiff saw Mr Munyard for the third time on 2 April 2008. There was a further review on 30 April 2009 (see Exhibit P4). She was also examined on 17 June 2008, at the request of the defendant’s solicitors, by Mr David Marshall (see Exhibit D1). Further, she was put under surveillance and was filmed on six occasions between 15 April 2008 and 17 June 2008 (see two DVDs Exhibit D3). Then in 2009, as I have indicated, there were three attendances upon Dr Lau at which the plaintiff complained of her Achilles tendon injury (ie 21 April 2009, 1 May 2009, and 8 May 2009; see also practice notes Exhibit P2).
The following is a summary of what the evidence discloses in respect of attendances by the plaintiff on medical practitioners for treatment as opposed to medico-legal assessment for the Achilles tendon:
·1 November 200 attendance upon Dr Lau;
·7 May 2002 attendance upon Dr Suleman;
·24 May 2002 attendance upon Mr Munyard on referral by Dr Suleman;
·21 April 2009, 1 May 2009 and 8 May 2009 attendances upon Dr Lau.
In early 2009 the plaintiff and Melanie moved into a rented house at 48 Joffre Street Port Pirie (13). Mr Dow did not move in there but, according to the plaintiff, he has been an attentive father (58). The plaintiff was living there at the time of trial and was unemployed and presumably living on social security benefits.
As to the future the plaintiff said that “I am a stay at home mum at the moment, but when my daughter gets a little bit older I’d like to still become a nurse …” (53). Later in her evidence she said that when the baby is “... about two years old …” she would like to get an office job and would therefore have to learn computer skills for which she would have to undertake training at TAFE (64). She said she would hope to get such a job in Port Pirie or close by (66).
I turn to the medical testimony.
Mr Munyard’s evidence (151-178) and his three medical reports (Exhibit P6) demonstrate that he searched for a medical explanation for the plaintiff’s ongoing pain and disability. He agreed that in the normal course one would expect a full recovery from this sort of injury (162). He confirmed that apart from a loss of “... a bit of ...” dorsi flexion there were no abnormalities detected on examination and none of significance disclosed in the ultrasound report (166). However, relying primarily upon her complaints (163), he decided that she had a permanent residual disability in her right lower leg of 10 per cent of the function of the leg below the knee (see report Exhibit P6). He said the disability precluded her from participating freely in sport and recreational activities and also precluded her from working in other than sedentary employments (172).
Mr Marshall said that there was no medical explanation for the plaintiff’s complaints of ongoing pain and loss of function (see 307, 351; see also reports Exhibit D1). He said that the plaintiff’s symptoms were “unusual … and do not fit …” (341). However, initially he accepted the plaintiff’s subjective complaints and decided that the plaintiff had “… 10 per cent impairment of her lower limb function at or below the knee …” (see report 19 June 2008 at p4 Exhibit D1). He suggested that a course of rehabilitation would improve the plaintiff’s symptoms and he concluded his earliest opinion by indicating that her prognosis was favourable.
Then in his further report of 2 July 2008 his opinion became less sympathetic to the plaintiff. He said, inter alia:
As intimated in my initial report, I see no reason why she should not return to at least sedentary duties. However, if a vigorous programme of stretching was arranged and this stretching programme was prolonged into a regular home programme, which was supervised, then I see no reason why she should not return to almost full and normal activities. In favour of this premise, is that she has normal calf contour, she does not have a deformity and in my view, she does not have a limp and is able to perform normal activities, such as hopping. Her only disability is the inability to squat.
It is therefore my further opinion that with due diligence in regard to appropriate rehabilitation, there is no reason why she should not return to almost full and normal activities, which would include pursuing a nursing career.
(See Exhibit D1).
By the time Mr Marshall gave evidence his view had hardened even more. He had seen the films a week beforehand (318). He said that despite the view of the physiotherapist to the effect that physiotherapy was not likely to be beneficial, he would recommend muscle conditioning and stretching and rehabilitation generally (331). Throughout his cross-examination Mr Marshall emphasized that he could not relate the plaintiff’s degree of pain and resultant disability to “… her almost normal, 99 per cent normal physical examination” (340). As to his view the following exchange took place with cross examining counsel:
Q.Well, if she tells his Honour that she did try working in a position where she was standing up working at a McDonald’s store, serving customers and the like and that caused an increase in her pain, would that be the sort of evidence that you’d look for.
A.Well, see I don’t understand that. I mean, to me if she has got chronic pain, she should have been seeing a pain clinic, number one. Two, I she’s got chronic pain she should have some evidence, physical evidence, of the chronic regional pain syndrome, which she has none, absolutely none. There is no tenderness, there’s no disuse –
Q.If she said she’d tried to work but couldn’t because the pain after time, that would not be sufficient evidence for you.
A.But that doesn’t provide me with a diagnosis of chronic regional pain syndrome.
Q.That wouldn’t be sufficient evidence.
A.There are 11 factors in diagnosing chronic regional pain. She has absolutely zero, other than her complaint.
(346)
I will make concluded findings about this difference of medical opinion in due course.
The films taken of the plaintiff show her standing and walking normally. In particular the film taken in Adelaide on 17 June 2008, which was the day she was examined by Mr Marshall, lasts approximately 20 minutes. As counsel for the plaintiff rightly emphasised, it is not continuous, but the plaintiff is seen on her feet for that time and there is no sign of any discomfort let alone a limp.
As to her overall residual disabilities, the plaintiff said that by reason of her tendon injury:
·She is unable to walk beyond “… round about 20 minutes …” without problems of aching (21, 22 and 78).
·If she persists walking after 20 minutes then she will develop a limp (78).
·She finds it hard to run (21).
·Squatting causes a pulling of the tendon which hurts (55, 57).
·The operation scar is sensitive to cold and painful if knocked or rubbed (38, 48, 62).
·She is incapable of work such as that which she experienced at McDonalds and the Central Hotel because of the onset of pain. In general terms she regarded herself as incapable of any café style work and work on a process line because of the onset of disabling pain after standing or walking about for sustained periods (53-56).
·She was, and still is, unable to participate in sport such as netball (62).
·She is unable to go fishing and camping and riding motorcycles with the freedom she experienced before because “… my foot hurts …” (20, 62).
The above findings as to what the evidence discloses leaves unresolved the causation issue and in particular what disabilities have been proven to have resulted from the injury.
I turn first to some applicable legal principles.
Rule in Jones v Dunkel
As I have indicated, without explanation, the plaintiff did not adduce evidence from either Drs Stewart or Lau apart from what emerged from the hospital and practice records. Both Messrs Munyard and Marshall had reports from both. The rule in Jones v Dunkel[11] should be applied. It is but an articulation of what common sense dictates in weighing up evidence and inferences arising there from.
[11] (1959) 101 CLR 298.
The rule in Jones v Dunkel[12] is that “… the unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence may, not must, in appropriate circumstance lead to an inference that the uncalled evidence would not have assisted that party’s case …” (see Cross on Evidence[13]).
[12] (1959) 101 CLR 298.
[13] 3rd Aust ed 1986 at 35, 36.
The circumstances which lead to the inference are:
·that evidence was not tendered which was within the power of one of the parties, as opposed to the other, to tender and that further it was expected and natural for that party to produce it (see Payne v Parker[14]; Spence v Demasi[15]); and
·that the uncalled evidence would have had the capacity to elucidate or put a true complexion on a matter of controversy between the parties (see Payne v Parker (supra) per Glass JA at 201-2).
[14] [1976] 1 NSWLR 191 per Glass JA 201-2.
[15] (1988) 48 SASR 536 per Cox J at 547, 548.
In this case it would be expected that the plaintiff would adduce evidence from both doctors. Though they may have been available to both parties, having regard to the confidential relationship between the doctors and the plaintiff, it would be expected that they would be called in the plaintiff’s case. The defendant would have had to call them “on the blind”. Further, their evidence particularly that of Dr Lau, would have had the capacity to throw light on this issue here, namely whether or not the claimed incapacitating pain was caused by the injury.
I draw the inference that the uncalled evidence would not have assisted the plaintiff’s case.
Causation – Onus of Proof - Principles
The plaintiff bears the onus of proving, on the balance of probabilities, that the defendant’s breach of duty caused her injuries (see Hall v Foong[16]; see also Sellers v Adelaide Petroleum[17]). More particularly the onus is upon the plaintiff to establish on the balance of probabilities that a medical condition or disability, such as the disabling pain claimed in this case, was caused or materially contributed to, by the defendant’s wrongful conduct (see Tubemakers of Australia Ltd v Fernandez[18]; Dahl v Grice[19]; Van Zanen v Farr[20]; Seltsam Pty Ltd v McGuiness[21] and O’Donnell v Reichard[22]).
[16] (1995) 65 SASR 281 at 301.
[17] (1994) 179 CLR 332 at 355.
[18] (1976) 50 ALJR 720.
[19] [1981] VR 513 (FC).
[20] [1964-5] NSWR 843 (FC).
[21] (2000) 49 NSWLR 262.
[22] [1975] VR 916 (FC) at 930.
Findings
I find that the 10 year old plaintiff, on the evening of 19 December 1999, sustained a distressing injury to her right foot. She suddenly found herself hospitalised and the subject of surgery. Then throughout the holidays she was immobilised and hampered by a lower leg plaster.
She duly returned to school in February 2000 and by 17 February she was free of the plaster. As time wore on I accept that there would have been aching pain and tenderness in the heel area of her right foot.
The usual medical history of this sort of injury, given its uncomplicated repair, is substantial recovery. However, for more than a decade the plaintiff has claimed to be suffering from incapacitating pain. The question is whether the injury which occurred here could be responsible for such dire consequences. Causation issues such as this are usually determined by expert medical evidence, though ultimately it is for the finder of fact, whether it be a judge or a jury, to say whether the plaintiff’s condition was caused by the defendant’s negligence[23].
[23] See Dahl v Grice (supra).
The medical evidence is in conflict. Mr Munyard considered that the plaintiff was permanently disabled. Mr Marshall disagreed. I prefer the evidence of Mr Marshall where it is in conflict with that of Mr Munyard. I find that there probably was some residual aching, pain and tenderness at the site of the surgery, but not of the disabling dimension she has claimed. The evidence upon which I rely is as follows:
·The usual history of this injury, given its effective repair, is of substantial recovery and the laceration here was repaired without complication.
·There were no significant abnormalities found, on examination of the plaintiff, by both surgeons. In particular, apart from a small loss of dorsi flexion, the plaintiff had full function and, further, the ultrasound investigation revealed nothing untoward or at least nothing which would account for the ongoing disability.
·In the course of more than a decade there was a lack of consistent complaint by the plaintiff to her local general medical practitioner, such would be expected if the pain and disability was of the dimension claimed.
·The plaintiff did manage a month’s work at McDonalds, albeit that she complained of discomfort and pain. Beyond that and a short stint of work experience at the Central Hotel, the plaintiff has not tried any employment.
·Despite her evidence that she had withdrawn from sports at school, there is evidence in the school reports of the plaintiff playing volleyball and other strenuous sports at least by the time she was in year 11.
·There is no mention of the plaintiff suffering any physical disability in any of the many detailed school reports spanning the plaintiff’s high school years.
·The plaintiff complained of developing a limp after walking for “... round about 20 minutes ...” (78). However, apart from her family members who gave evidence there was no support for that assertion. She did not complain to Mr Munyard of a limp. Neither Mr Munyard nor Mr Marshall detected a limp. In the film taken of her there is neither a limp nor any discomfort evident.
Why then has the plaintiff claimed to be suffering from disabling pain and incapacity?
The possible answers are:
1.the claimed pain and incapacity does have an organic basis – though an extreme reaction, it nonetheless arises directly from the injury; or
2.whilst no organic cause can be detected the plaintiff’s claims are compensable because, as a result of the injury, she has developed a genuine psychological disorder sometimes referred to as a functional overlay, which in turn causes her to complain of pain and disability when the organic basis for it either does not, or no longer, exists; or
3.the claims are a false pretence, and with the assistance of some of her family members, she is malingering.
For reasons I have set out in [61] above, the injury itself does not account for the extensive disabilities claimed and so (1) is not the explanation.
As to (2), which is often discussed under the Egg Shell Skull Principle, there was neither evidence nor argument that such a psychological disorder might account for the disability. Some evidence specific to that would have had to be adduced to support such a finding (see Donjerkovic v Adelaide Steamship Industries Pty Ltd[24]; see Assessment of Damages for Personal Injury and Death[25]).
[24] (1980) 24 SASR 347.
[25] 4th ed Harold Luntz at [1.2.21], [1.9.2], [1.9.3], [1.9.20] and [2.2.1].
In respect of (3), I have made it clear that I regard the plaintiff, and her family member witnesses, as honest. In particular, I find that the plaintiff has not consciously exaggerated.
I consider that there is a fourth more likely answer and it begins with the plaintiff’s mother’s evidence that from the time of the injury “... we just knew that everything was over for her then, for her sport and that ...” (20). As the plaintiff grew up she would have been aware of that perception which spread to other family members such as her brother, Travis, and her father. She has been conditioned to present as disabled and in the course of time has modified her behaviour to conform with, in particular, her mother’s pessimistic conviction that she was disabled. As indicated, I am not prepared to find that she has done this deliberately. Rather, she has unconsciously exaggerated what she can and cannot do in compliance with that expectation. She was 10 when this began and as a growing child accepted the perception that she was disabled. In fact she was not so seriously disabled and, accordingly, it is not surprising that she did not play this disabled role consistently. For instance, she played some sport, worked for sometime at McDonalds and the Central Hotel, and responded normally when examined by Messrs Munyard and Marshall. I infer also that over the years she did not complain too much or too volubly. Hence the attendances for medical treatment are few and sporadic. Further, I would infer that she did not exhibit much by way of pain and disability in her years in high school because there is no hint of restriction in her detailed school reports.
Some of the above matters, when considered in isolation, are amenable to an answer but in all:
·the lack of any objective medical signs;
·the lack of any corroboration of disability outside the family and the opinion of Mr Munyard, dependant as it was, on the plaintiff’s “say so”;
·the lack of a consistent history of complaint; and
·the prospect that encouraged by her family the plaintiff has been unconsciously playing an injured role,
leads me to conclude that the plaintiff has not proved, on the balance of probabilities, that she is permanently disabled.
Accordingly, in terms of residual disabilities I accept that the plaintiff may have some low level aching and tenderness at the site of the surgery, from time to time, but that has not been proven to affect her past and future earning capacity nor establish any need for future treatment or care.
I now turn to the assessment of damages.
Assessment
Non-economic loss – pain and suffering
This was initially a frightening injury for the young plaintiff. Thereafter I accept that she may have been troubled by some sporadic low-level pain, aching and tenderness which should certainly resolve if and when she embarks on some fitness regime.
I do not accept that she has suffered any impairment of her past or future earning capacity.
The plaintiff is entitled to a modest allowance for pain, suffering and loss of enjoyment of the amenities of life. I award her $12,000 for the past and $3,000 for the future.
Interest on Non-Economic Loss
The plaintiff is entitled to pre-judgment interest on the past component of this loss (see s 39 of the District Court Act 1991). The period of the calculation is in the discretion of the Court. In this case, it should run from the date of institution of this action, namely the 25 October 2007 (see Wheeler v Page[26]). The appropriate interest rate is 4 per cent per annum (see MPB (SA) Pty Ltd v Gogic[27]). The allowance should be discounted to take account of the accumulation of the principal sum over the period of the calculation. Accordingly, the calculation (ie $12,000 x 4 per cent per annum x 3.5 years ÷ 2), results in an allowance of $840 for interest.
[26] (1982) 31 SASR 1.
[27] (1990-91) 171 CLR 657.
Economic Loss
I consider that the plaintiff is not entitled to any allowance for past or future economic loss. She has not proved that the injury has caused a loss of earning capacity.
Gratuitous Care
The plaintiff is entitled to recover in her damages an allowance for the care and attention provided for her by her mother in the eight weeks following the injury (see Griffith v Kerkemeyer[28]). The neglect of the defendant caused the need for the plaintiff’s mother to provide nursing care for her over and above the usual motherly care in that period. I have summarised what Ms O’Connor has done in my findings (see [18] above). Though this care was provided gratuitously the allowance for it must be calculated on an ordinary commercial basis (see Van Gervan v Fenton[29]). In the calculation which follows I have had regard to the rates for such care set out in Exhibit P10.
[28] (1977) 15 ALR 387.
[29] (1992) 175 CLR 327.
I allow $1,500 under this heading. It attracts interest on an ordinary commercial basis (see s 39 of the District Court Act and see also Marsland v Andjelic[30]). The rate of interest is the ordinary commercial rate as set out in the Third Schedule to the Rules, the average of which is 6.5 per cent over the period since the provision of the services. The calculation should run from the time of the provision of the services until judgment, that is, from December 1999 to April 2011. The calculation (ie $1,500 x 6.5 per cent per annum x 11.33 years) results in a “rounded up” allowance of $1,105.
[30] (1993) 32 NSWLR 649 at 653-4.
There is no basis to make any allowance under this heading for the future.
Past Medical Expenses
Special damages are agreed at a total of $387.25 (see Exhibit P11). I allow that sum. Those sums have not been paid (259) and, accordingly, there is no entitlement to interest thereon.
Future Medical Expenses
In accordance with the views of Mr Marshall, I conclude that by reason of the injury, notwithstanding its age, the plaintiff needs to undertake some physical rehabilitation program in order to regain some level of fitness. I allow $500 under this heading of loss. In my view there ought to have been a stint of physiotherapy undertaken soon after the plaintiff’s discharge from hospital. It is not clear whether that was done or not and I accept Mr Marshall’s view that it would be beneficial for the plaintiff to undertake a regime of exercising and stretching now. I add that it does not follow that I regard the plaintiff as unfit for work without it.
Conclusion
I set out a summary of the plaintiff’s entitlement in this action:
Non-Economic Loss – pain and suffering
Past $12,000
Future $3,000Interest $840
Economic Loss
Past nilFuture nil
Gratuitous care
Past $1,500
Future nil
Interest $1,105Medical expenses
Past $387.25
Future $500TOTAL $19,332.25
Therefore there will be judgment for the plaintiff against the defendant in the sum of $19,332.25 which includes interest. I will hear the parties as to costs and any further orders that are required.
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