Haley v Mackay Regional Health Authority
[1997] QSC 108
•6 June 1997
IN THE SUPREME COURT
OF QUEENSLAND
No 156 of 1995
Mackay District Registry
Before the Hon. Justice Williams
[Haley v. Mackay Regional Health Authority]
BETWEEN:
DEBRA KATHLEEN HALEY
(Plaintiff)
AND:
MACKAY REGIONAL HEALTH AUTHORITY
(Defendant)
REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered 06/06/1997
CATCHWORDS: PERSONAL INJURY - master and servant - plaintiff injured lifting and turning elderly patient - liability admitted - former nurse - ability to retrain - pain management therapy - judgment for plaintiff for $142,719.49.
Counsel:P Land for plaintiff
Dowling for defendant
Solicitors:Vincent Morris Associates for plaintiff
Peter Searles & Associates for defendant
Hearing Date: 19 May 1997
IN THE SUPREME COURT
OF QUEENSLAND
No 156 of 1995
Mackay District Registry
[Haley v. Mackay Regional Health Authority]
BETWEEN:
DEBRA KATHLEEN HALEY
(Plaintiff)
AND:
MACKAY REGIONAL HEALTH AUTHORITY
(Defendant)
REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered 06/06/1997
The plaintiff claims damages for personal injuries caused in the course of her employment with the defendant. On 27 February 1995 she was employed by the defendant as an enrolled nurse at the Mackay Base Hospital. On that day she was lifting and turning an elderly male patient when she experienced a tearing sensation in her lumbar region followed by pain and an inability to straighten her back. Thereafter she has continued to experience problems with her back.
At the trial the defendant admitted liability and only quantum of damages was in issue. It was agreed that the plaintiff had incurred special damages amounting to $7,202.04 and that no interest should be allowed thereon. It was also agreed that pre-trial economic loss was $47,974. Thought interest was not agreed I will allow $1,950; that is calculated after making allowance for payments received by way of workers' compensation and social security payments. Further, it was agreed that to date of trial superannuation contributions lost by the plaintiff amounted to $2,820. If she had remained employed as an enrolled nurse by the defendant her average current net weekly wage would have been $463. The Fox v. Wood factor is $4,871.55.
The plaintiff was born on 8 May 1960 making her 35 when injured and now 37. After leaving school she worked at various jobs including machinist and process worker before undertaking training as a nurse. She became a qualified enrolled nurse in Victoria in 1982. Her work as a nurse was interrupted by her marriage and the birth of her daughter in 1985. That marriage ended in divorce in 1987 and she has custody of her daughter who is now aged 12. She was largely responsible for her daughter's maintenance and after the breakdown of the marriage took what work she could find in the Victorian country where she resided.
In 1992 she moved to Mackay and ultimately obtained employment as an enrolled nurse. She also completed a course in office studies. She worked long hours to enable her to meet her financial commitments which included her daughter's maintenance and paying off a house in Victoria.
She was off work from February 1995 until she undertook a "work assessment course" at the Mackay Hospital in July 1995. She undertook light duties but continued to experience pain. After about a fortnight the pain was such she was unable to continue. She returned to the work assessment scheme at the hospital in September 1995 working at first only a few hours a day. That continued until November when she was able to resume full time work as an enrolled nurse.
On 1 January 1996 she experienced sudden sharp pain in her back whilst helping a patient in the shower. She was forced to take a couple of days off work. On return to work the pain continued and she ceased work on 19 January 1996. She was on Workers' Compensation from January to April 1996 during which time she undertook a rehabilitation course designed to strengthen her back muscles. Reluctantly the plaintiff concluded she could not return to work as a nurse. I am satisfied that the plaintiff had a real liking for the work of a nurse and was upset by the thought she could no longer do that work.
She worked as a casual administration officer at the hospital for a short period but it did not lead to an offer of a permanent position. She found it increasingly difficult to get suitable employment in the Mackay region and for a variety of reasons returned with her daughter to live in Victoria.
She has been unsuccessful in obtaining employment near Castlemaine where she has her home. In the course of preparation for trial she was interviewed by a psychologist in Bendigo, Judy McAdam. In the course of that interview Mrs McAdam referred to a number of courses in public health and other health related areas available at colleges in Victoria. The plaintiff showed interest in them and during her evidence it was obvious that the plaintiff had a genuine interest in doing such a course in order to obtain employment.
I am satisfied that the plaintiff will in due course obtain satisfying employment returning her an income comparable with her earnings as an enrolled nurse. But it may be some years before that position is reached if only because she may have to study for some two or three years. Once she obtains such employment it should last for most of the balance of her normal working life; she may well have to stop work a few years earlier than normal because of her back condition.
Evidence was led by the defendant to the effect that enrolled nurses, primarily because of the heavy work involved, do not generally work as such beyond age 50. But Mrs Ryan who gave that evidence also said that enrolled nurses over 50 look for work as respite carers and in situations where shiftwork was not involved. The evidence overall does not suggest that work ceases for such people at age 50. Rather they move to positions where the work is lighter, such as positions with groups of medical practitioners.
It is not unrealistic to speak in terms of the plaintiff being deprived of about five years of her future working life. If she decided to go ahead with a course and was successful three years approximately of that would be in the immediate future while she was studying to obtain qualifications and the balance would be at the end of her working life. If she did not study the probability is that over the balance of her working life she would lose some five years because of her back condition. In that latter scenario she would be taking what work she could get which would probably return less than the $463 net she could earn as an enrolled nurse.
In the circumstances it is not possible to calculate future economic loss with any degree of precision. Given the parameters referred to I assess future economic loss in the sum of $75,000.
It remains to determine the amount for pain and suffering and loss of amenities.
Doctors White, Boys, Cook and Coroneos all speak of her suffering a musculo-ligamentous strain of her lower back. There is no specific disc injury. Each of those doctors also broadly considers that the pain and discomfort is likely to persist for the rest of her life, that there is a potential for re-inflammation, that she is only fit for light to medium work, and that she is not exaggerating her symptoms.
Both psychologists, Mrs Britton and Mrs McAdam, consider that the pain and discomfort have precipitated depression. That is also in part due to the fact that the plaintiff has not been able to find suitable satisfying work. Both recommend pain management therapy. I accept that evidence though I am not satisfied the plaintiff is suffering from a somatoform pain disorder. I will allow $1,200 as the cost of pain management therapy.
Taking all the above into account I assess damages for pain and suffering and loss of amenities in the sum of $35,000.
My award can therefore be summarised as follows:-
Pain and suffering and loss of amenities $35,000.00
Interest $600.00
Special damages $7,202.04
Past economic loss $47,974.00
Interest $1,950.00
Lost superannuation contribution $2,820.00
Future economic loss $75,000.00
Cost of future treatment $1,200.00
Fox v. Wood $4,871.55
TOTAL: $176,617.59
From that has to be deducted the amount of $33,898.10 repayable to the Workers' Compensation Board, leaving a balance of $142,719.49.
There will therefore be judgment for the plaintiff for $142,719.49 with costs to be taxed on the appropriate District Court scale.
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