Harris v Coles Supermarkets Australia Pty Ltd
[2017] ACTSC 81
•6 April 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Harris v Coles Supermarkets Australia Pty Ltd |
Citation: | [2017] ACTSC 81 |
Hearing Dates: | 13-16 February; 1-2 March 2017 |
DecisionDate: | 6 April 2017 |
Before: | Ashford AJ |
Decision: | Verdict and Judgment for the Plaintiff |
Catchwords: | Damages – Personal Injury – General Damages – Past Economic Loss – Future Economic Loss – Past Medical Expenses – Future Medical Expenses – Past Domestic Care – Future Care – Costs |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44 |
Cases Cited: | Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 Cowie v Gungahlin Veterinary Services Pty Ltd [2016] ACTSC 311 Penrith City Council v Parks [2004] NSWCA 201 Vincent v Woolworths Ltd [2016] NSWCA 40; Aust Torts Reports 82-262 |
Parties: | Nicole Marie Harris (Plaintiff) Coles Supermarkets Australia Pty Ltd (Defendant) |
Representation: | Counsel Mr M Cranitch SC with Mr S Hausfeld (Plaintiff) Mr R Cavanagh SC (Defendant) |
| Solicitors Blumers Personal Injury Lawyers (Plaintiff) Moray & Agnew Lawyers (Defendant) | |
File Number: | SC 521 of 2011 |
ASHFORD AJ:
The Claim
By statement of claim issued on 21 July 2011 the plaintiff seeks damages of the defendant as the result of injury suffered by her in the course of her employment with the defendant on 7 December 2009.
On that day she was performing her duties at the defendant's premises at Tuggeranong. Her duties that day were on “presentation”, which involved utilising what is known as a “safety step”. As she was stepping down from that step and placing her foot in the middle step, her right ankle rolled and she fell, suffering injury to her right hip, right ankle, right knee and right shoulder, and she claims that as a result she suffered injury and loss.
The statement of claim notes, inter alia:-
Paragraph 4: At all material times the defendant knew, or ought to have known, that if it did not provide adequate training to the plaintiff and a safe work environment, the plaintiff would be exposed to a risk of injury.
Paragraph 7: The particulars of negligence and breach of duty of care included failing to provide any or adequate training to the plaintiff on how to climb safely up and down the step.
In its reply to the plaintiff's request for particulars, the defendant states the plaintiff to have been provided with induction training on safe work practices, including use of the safety step, reading an induction booklet and watching training videos.
The Issues
In its defence filed 22 February 2012, the defendant admits the plaintiff suffered injury to her right ankle when stepping down from a step in the course of her employment with the defendant on 7 December 2009, but does not admit any other loss or damage and says there was no breach of the duty of care or that it was negligent as alleged or that it failed to provide a safe system of work and adequate training. As well, the defendant says there was a failure by the plaintiff to take care for her own safety and disputes any ongoing incapacity or disability the plaintiff may have is as a result of any negligence on the part of the defendant.
The plaintiff's credit is also placed in issue, as is the need for care and any ongoing economic loss.
Background
The plaintiff is a young woman of 34 years of age. She lives with her partner and two children. As a child she apparently suffered from some juvenile arthritis at about age eight to 10 and she attended physiotherapy for that condition, but said she had no need for ongoing treatment. She left school after Year 10 at age 16 and thereafter engaged in a variety of employments: working in a sandwich shop, a takeaway business, and she worked with her father in a food van, which was the job she had begun whilst at school.
Her first child was born in 2001 and she ceased work at that time. Her second child was born in 2004. In 2006 she resumed some employment working in a bottle shop in the evenings. Her partner minded the children. She finished that job in 2009 and engaged in a cleaning job for a short period of time. She described herself as being fit and well at that time and engaging with her family in many activities such as camping, dirt bike riding and attending at water skiing, although not as a participant.
She had suffered a number of injuries including injury to her right ankle and right knee, in a fall at home in December 2003 and in October 2008 she had injured her left knee and left hip and ankle in a motorbike accident. She was treated with physiotherapy and medication for those events and it does not appear there was any ongoing sequela.
Employment With The Defendant
In November 2009, the plaintiff applied for employment with the defendant. She was offered work on a part-time basis commencing on 11 November 2009. On that day she attended at the defendant's premises and met with a Christine Carpenter, a store manager. She said she was given some papers to sign, but she was not given any booklets to read, nor did she see any video instruction. In cross-examination she agreed there had been a training day at Gungahlin where she had attended with another new employee, Daniel, and other employees from other stores.
The plaintiff had difficulty in recalling the exact nature of the training day, other than using butcher's paper and whiteboard markers and being asked to answer questions to work out solutions to problems. She frankly admitted that her memory of any training in 2009 was not as fresh now as it would have been then. She initialled a number of sheets of paper but could not recall much instruction being given.
Her first shift was on 13 November 2009. She attended the Tuggeranong store, along with Daniel. She said the store manager, Dave Lehmann, greeted them and the plaintiff said that whilst they were in the tea room she was handed some forms to sign. She said she asked about some of the items listed on the forms and was told to “just initial it” as she was needed on the floor and it would be “sorted out later”. She commenced work doing shifts of four hours four to five evenings per week.
On Wednesdays she was required to work on what is called “presentation” which she described as utilising two employees to work along the aisles straightening stock, removing empty boxes and the like. She said she had watched her co-worker, whom she described as a small, petite Asian lady, using the safety step. She said the safety step was used to get up and down to the stock shelving, and then the safety step was kicked further along the aisle and the process was then repeated.
A safety step from the Coles store was tendered and was identified as being similar to that used by the plaintiff. It is yellow in colour and some 370 millimetres high. It has four equal sides, with an intermediate stepping place on each of the four sides, which is triangular in shape and 180 millimetres from the ground.
The Accident
On 7 December 2009, the plaintiff was at work. She was required to do presentation work that day. This was about the third time she had done that task. In the course of performing this work, the plaintiff said she had gone to step off the safety step. She stepped to the right and placed her right foot in the mid triangular step, with her toe inwards pointing into the cut out sections, doing that, in her words, “for stability”. Her right ankle rolled and she fell to the floor onto her right side, hitting the floor firstly with her right hip then right ankle and shoulder. A customer came to her assistance and she sat on the floor for a while, then got up and reported to her manager Dave. She rested for the rest of the shift and then went home.
The plaintiff described having observed her co-worker, the small Asian lady, use the safety step and said she had followed the process used by that lady of stepping onto the step, straightening the merchandise and then coming down off the step, kicking the step along and getting back on and repeating the process. She did not see this lady getting off the back of the step.
In cross‑examination the plaintiff acknowledged she had initialled a form indicating she had received training in use of the safety step. The form indicates many items for training, including matters such as use of an electric pallet jack, a compactor and other work utilities. The plaintiff gave evidence she had initialled the form but had not been trained in all of those things, including in use of the safety step. She was sure she had not seen any videos as part of her training. She could remember doing the team building exercises and being told how to deal with disgruntled customers.
She denied she had ever been instructed to dismount from the safety step by stepping off backwards. She also said she stepped onto the step from the side, sometimes into the top of the safety step and sometimes by using the little cut out bit. She was asked if she thought the most obvious way to get onto the step was to simply face the step and step up, to which she replied, "It had all sides so I thought it was fine to use it on all sides."
The plaintiff was off work for a period and then returned to work performing lighter duties in January 2010. She was paid workers compensation and this continues. The plaintiff said the pain in her shoulder and ankle improved, but she continued to experience stabbing pain in her right hip. She consulted her general practitioner Dr Serafim and was referred to an orthopaedic surgeon, Dr Burns. She had physiotherapy and was prescribed pain medication. She continued working on and off on lighter duties to 14 August 2010.
On 16 August 2010, she underwent a right hip arthroscopy at the hands of Dr Burns. She did not then return to work, except for a short trial of work in the cash office. She continued to see Dr Burns and her general practitioner. Because of right hip problems, she utilised crutches for a period and then a walking stick. A further right hip arthroscopy was performed by Dr Burns in March 2012. In the meantime, she had received a variety of treatments, including physiotherapy, pain medications, cortisone injections and the like. She was seen by numerous doctors, including an occupational physician and a psychologist.
In July 2012, she was referred to Professor Smith, an orthopaedic surgeon. An aspiration of her right hip was performed in November 2012, with no relief of pain. It appears this situation continued until May 2015 when Professor Smith performed a right total hip replacement. The plaintiff is of the opinion this procedure has been successful in that the sharp, stabbing pain she had previously experienced has been alleviated, although the scar area remains sensitive and aching. She continues to utilise a walking-stick, as she has a fear of falling. She continues to take some medication for pain and for depression. She has ceased physiotherapy. Her sleeping has improved.
The plaintiff says she has increased her activity at home, but remains unable to perform some household tasks previously performed by her. She says she is unable to sit or stand for long periods and cannot drive a motor vehicle for a long period.
Daniel Alonso was called by the defendant. He commenced employment with the defendant at the same time as the plaintiff and he attended the induction with her. He agreed he had undergone some training and induction before starting work, and he thought the induction took most of the day. He could not recall the name of the lady who had conducted the training; nor did he have any specific recollection of the training provided, nor what documents he had been shown.
He had no specific recollection of any training in respect of the safety step. In utilising the safety step he said he would just step onto the top part, he never used the middle part and he would then step back when stepping off. He had no recollection of seeing anyone use the mid-triangular step to get down. In cross‑examination he agreed he had no recollection of initialling the forms, but agreed that his initials were on those forms. He could not recall if the date or other details had been filled in when initialled by him.
He was shown a sheet marked SWP16. He agreed that if he had been instructed to always use the middle step, that was something he had not done and he said he would kick it along the aisles. That sheet, SWP016, or Safe Work Practices 016, relates to use of the safety step by employees and outlines the procedure to be followed in respect of its use. It notes inter alia:
Always use the safety step to access items above shoulder height. Always use a ladder if you cannot safely reach items from the safety step.
Always position the safety step close to the working area, allowing enough room to carry the item in front of you. Use the halfway step (where available) to ascend or descend the safety steps.
Always step down backwards from the safety step; never step forwards or sideways.
The defendant's training video encompassing many work practices to be followed was also tendered. This included an extremely short demonstration, being several seconds only, of use of the safety step. It portrayed a male person stepping onto the top of the step, with no utilisation of the intermediate step at all. There was no demonstration at all of how to step off. This video, of course, is not in accord with the instruction in SWP016 in respect of the use of the halfway step, and is in fact contradictory in its instructions.
The plaintiff called evidence of Louise Whitby, a workplace safety expert, and her reports were tendered. She had the opportunity of inspecting the defendant's work site where the plaintiff was injured. She sighted a safety step, which had been tendered.
She recorded a history that on 7 December 2009, the plaintiff was at work and attending to the presentation work. She was utilising the safety step and as she went to step down she stepped with her right foot and missed connecting with the intermediate step on the right side, her foot slipped downwards on the plastic frame and rolled inwards, causing the plaintiff to overbalance and fall to the ground, onto her right side.
Ms Whitby noted there to be no Australian standard for step-stools, but she noted these to be a common device used in supermarkets to enable workers to reach high levels of shelving. The top platform height was noted at 370 millimetres and the intermediate step at 180 millimetres, and she noted there were usually high-friction strips on the top platform and on the steps.
Ms Whitby identified key issues with safety steps to include:-
1. No handrail to support the user stepping onto or off the step;
2. She thought the recessed step to be a trip hazard, in that the user had to lift or roll the foot clear and then lift the leg to clear the platform edge;
3. The user could not see the ledge below when dismounting; and
4. The platform was narrow.
She recorded the plaintiff to have adopted a practice of positioning the step close to the shelving and mounting it from the side having observed others doing this, and that on dismounting she would step down with her right foot leading and place it on the intermediate step, but that on 7 December 2009 her right foot had bypassed the ledge and hit the frame (which Ms Whitby described as a misstep) and as she had no handhold, a fall was inevitable. She recorded the plaintiff to have told her she had no training in use of the step.
In her opinion the risk of the plaintiff falling could have been eliminated by the defendant by provision of an alternate step with a handrail, and also braking castors.
Mark Dohrmann, Ergonomist, prepared a report of 27 February 2013 for the defendant and he gave evidence.
He said the obvious way of stepping onto this step was by “approaching it straight-on and using the intermediate step, and then going to the top step on the same side”. In getting down he said to “use a single side one foot at a time, coming backwards”.
Whilst noting there to be no handhold, he thought there was nothing to prevent a person steadying themselves momentarily by placing a hand on the shelf in front whilst descending, although such use would depend on whether the shelving was substantial or flimsy. He agreed there to be inherent dangers in stepping off the step.
An analysis of incidents involving use of the safety step at Coles stores across Australia was tendered. This was set out in a spreadsheet and covers the years 2004 to 2009, 385 incidents are noted. On perusal of the spreadsheet, a wide variety of incidents are set out with a description of the incident and any injuries sustained. All of these are very brief and very imprecise.
There is a section headed “Severity” which notes if incidents were classified as minor, moderate, major, or not specified. It is not known who made the decision as to how the classification was made in respect of either the incident or the injuries sustained. Some of the incidents relate to injuries stepping off the safety step, however it is all so imprecise as to be of little utility, other than to demonstrate that this step does cause problems for some of the workers and injury has resulted from its use.
Ms Whitby perused the spreadsheet. She analysed that some 47 per cent of the incidents involved persons getting down from the step. Mr Dohrmann agreed that this was a significant percentage and he opined that on those statistics a risk analysis was warranted. Such an analysis apparently identified use of the safety step as a medium risk in ascending or descending the step. The risk assessment was apparently done in respect of Coles stores as well as other merchandisers.
One of the recommendations from the risk assessment was that there should be training and supervision, to always use the halfway step, and consideration to be given to use a different step design, including steps or handrails. SWP016 of course advises line managers are responsible for ensuring team members are trained in safe work practices and in respect of the safety step, to use the halfway step when available to ascend or descend.
The defendant's induction package is lengthy and it covers many matters of employment, courtesy, health and safety issues, and the use of a great deal of equipment. Many of the items initialled by the plaintiff appear irrelevant to her job, although she did recall “Dave” demonstrating to her use of the garbage compactor. She said she had no idea how to use items such as an electric pallet jack, which is one of the items she had initialled. She maintained she had never been shown in her induction or training how to use the safety step, but had merely followed another employee, and how that employee had been using the step.
SWPO16 notes the line manager is responsible for training workers in use of the step. Mr Dohrmann was in agreement that management should supervise workers and see that safe work practices were being followed, and if workers were using the step in a manner not prescribed, then management should discourage the practice and correct it, because of the inherent dangers in stepping off to the side.
Sections 42, 43 and 44 of Civil Law (Wrongs) Act 2002 (ACT) apply.
S42 Standards of Care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position, who is in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43 Precautions against risk—general principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity creating the risk of harm.
44 Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
For the plaintiff to succeed in her claim, she must establish:
(1) the risk of harm was reasonably foreseeable;
(2) the risk was not insignificant;
(3) there were reasonable steps, which a person in the position of the defendant would have taken, to prevent the accident.
In submissions, senior counsel for the defendant submitted the risk of harm was reasonably foreseeable, agreeing that people can hurt themselves by stepping down from a step or a ladder, or the like. He agreed the risk to be not insignificant, relying in part on the decision of Vincent v Woolworths Ltd [2016] NSWCA 40; Aust Torts Reports 82-262. In that case, a merchandiser suffered injury when she stepped back off a safety step, into a trolley being pushed by a customer as it was passing behind her, and she fell.
The plaintiff in that claim did not succeed. The Court of Appeal held the primary judge did not err in finding the risk to be a risk of some appreciable personal injury, nor did he err in declining to find the risk of harm was not insignificant, however the Court held that a reasonable person in the defendant’s position would not have taken precautions in relation to such risk of harm as existed, and evidence of common supermarket practice was relevant.
The defendant in the present case submits this safety step is used by major supermarkets throughout Australia, and this is an obvious piece of equipment, on which it is submitted, no real training is required.
In Cowie v Gungahlin Veterinary Services Pty Ltd [2016] ACTSC 311, Mossop AJ, as he then was, dismissed an appeal from an injured worker who suffered injury, falling from a stepladder which had three steps, and which she had used many times before. Mossop AJ accepted the task performed by the plaintiff was an everyday or common task, which did not require formal training, and the fact there were other alternatives to the ladder did not render the defendant liable.
Senior counsel for the plaintiff submits there is clearly a foreseeable risk in use of the safety step, and this is demonstrated by the spreadsheet, which sets out some 350 incidents using the step, 47 per cent of which involved stepping off the step. As well, it is submitted the step carries risks if not used in the manner in which the Safe Work Practices mandate. As previously noted, there are inconsistencies in the Safe Work Practices document, and also in the video demonstration, which appear contrary to each other.
Mr Alonzo gave evidence of not using the intermediate step, although SWP16 states to always use that step when available, and he said he had received some training, he thought, in the use of the step. The plaintiff’s counsel submits that both experts agreed the manner of use of the safety step by the plaintiff was dangerous.
The plaintiff’s evidence was that her method of use of the step was not as a result of any training, but of observation of a fellow employee. It seems clear the plaintiff did attend an induction when she began work with the defendant. She was certain she had seen no video of use of the safety step, and I accept that evidence. The training video, which I sighted, had a very short, seconds only, demonstration of a worker stepping onto the step, without use of the intermediate step, and it did not demonstrate getting off, at all. Indeed, I watched the video twice, missing that part entirely on the first viewing, as it was so brief and unremarkable.
In respect of the other training, there is a large collection of documents which are said to be part of the induction. The plaintiff said she had no recollection of sighting anything in respect of the safety step, although she agreed she had initialled the document as having received instruction.
I am satisfied the risk of harm was reasonably foreseeable, and the risk was not insignificant, noting the risk assessment documents and also the Safe Work Practice recommendations, as well as the documentation of injuries sustained.
Insofar as the evidence of the ergonomic experts is concerned, both of them were of the opinion the use of the step in the manner adopted by the plaintiff was unsafe as the use of the sideways step was considered unsafe by both of them.
The risk assessment undertaken by the defendant indicated there was a likelihood of accidents, and that it was the responsibility of the line manager to ensure all relevant team managers were trained in safe use of the step. The instruction included to never stand on the edges, and to always step backwards from the safety step and never to step forwards or sideways.
The plaintiff performed the particular presentation job on Wednesdays only, along with another worker, the petite Asian lady. It seems the plaintiff had performed this task for about three shifts only.
It seems trite to say that this is an ordinary piece of equipment, and in use in very many supermarkets. In the ordinary, everyday observation of this step, it would appear its use is commonplace, yet there have clearly been many incidents involving its use, such that a risk assessment was thought necessary and was done, although it does not seem that the recommendations were followed through.
In determining the question of whether there were reasonable steps the defendant could have taken to prevent the accident, the main thrust of the plaintiff’s submissions is that the plaintiff was not trained, or not properly trained, in the use of that step. And in any event, there was no supervision of her use of the step, to ensure its safe use by her.
The plaintiff submits that both experts agree the manner of use of the safety step by the plaintiff was dangerous and it was the plaintiff's evidence she had followed the practice of the fellow employees. She had performed the presentation on three or four shifts only. It is submitted that there was a failure by the defendant to observe and supervise the plaintiff and to ensure she had been properly trained in the appropriate use of the step.
It seems to me from the evidence there was a large volume of material given to new employees at induction. Some was relevant to the job to be performed and some was probably peripheral or even irrelevant. Neither the plaintiff nor Mr Alonso had much recollection of what happened at the induction. Various items were initialled, although it seems clear the plaintiff had little comprehension of what many of the tasks involved. She and Mr Alonso both attended on the same day, yet the countersigning of their documentation was done on different days, which may indicate a slipshod method of completion of the form.
Calling a step a safety step does not make it so. At first blush, this seems a straightforward item in common use, yet the defendant's spreadsheet indicates 47 per cent of accidents using the step occurred in getting down from the step. The method of classification of injuries is cursory. However, it was thought necessary to do a risk assessment, as I have previously noted. As I have also previously noted, recommendations were made, including supervision and training in the use of the step. There is nothing in the evidence which would suggest to me that there was ever any supervision of the plaintiff and her use of the step, such as telling her not to step off sideways or to always step off backwards, and there is no clarification of the contradictory information shown in the short video and in SWPO16.
This is not an exercise in hindsight. This is not a dangerous step, per se, but this was an accident the defendant, as an employer, should have and could have avoided by proper supervision and training of the plaintiff and other employees.
This claim can be distinguished from Vincent (supra) in that whilst there was also use of a safety step in that case, the plaintiff agreed she had been given a demonstration by her employer as to how to use that step and to be careful in getting up and down and she collided with a shopping trolley when getting down. Whilst the initial judge found there to be a reasonably foreseeable risk of harm, there was a very low probability of the collision with a trolley and therefore the plaintiff had not proved the risk to be not insignificant.
I am satisfied on the balance of probabilities that the plaintiff has established liability on the part of the defendant and has met the provisions of the Civil Law (Wrongs) Act 2002. I do not accept there to have been the requisite training in the use of the step and there appears to have been no supervision or monitoring of the plaintiff in the performance of her work whilst using the step.
Contributory Negligence
The defendant has raised the issue of contributory negligence and submits that any verdict obtained by the plaintiff should be reduced for contributory negligence, submitting that the plaintiff adopted a method which exposed her to injury without ever being asked or instructed to do so and her method of stepping down was not merely inadvertent but was her choice.
The plaintiff submits contributory negligence does not apply, saying a worker performing a routine task would not normally be found contributorily negligent unless the act was performed in disregard of a directive, the consequences of which had been pointed out by the defendant.
In circumstances where I have found the defendant did not supervise or train the plaintiff in the use of the safety step, I accept the plaintiff's submission and I find the plaintiff did not use the step in disregard of any directive by the defendant and therefore I make no finding that she was contributorily negligent.
Medical Reporting
In submissions, the defendant accepts the plaintiff suffered injury to her right hip on 7 December 2009 when she fell at the defendant's premises and accepts that treatment for her right hip by way of arthroscopy on two occasions and the subsequent right hip replacement were related to that fall.
The plaintiff came under the care of Professor Smith, an orthopaedic surgeon. His reports were tendered and he gave evidence by telephone. He began treating the plaintiff on referral from Dr Burns in about August 2012. He thought the plaintiff to have arthritis of the right hip.
On the history obtained by him that the plaintiff had no right hip pain prior to her fall, he thought there to be a causal relationship between the fall and the necessity for her hip operation and subsequent replacement. In terms of the fall, he thought there was a fair amount of energy transference in hitting the ground. He thought post the fall, imaging studies revealed a labral tear which required surgery by Dr Burns and he thought this a well-established pathway to developing arthritis.
He performed the hip replacement in May 2015 and at operation found a full thickness chondral loss on both the femoral head and acetabular sides of the joint with a really marked synovitis. He thought her long‑term prognosis satisfactory but she may well require one, and possibly two further hip replacements. He thought her best suited to a sedentary occupation and thought her not able to work standing all day. In respect of the plaintiff's continuing use of a stick, he did not encourage such use but thought that muscle weakness and lack of confidence, with residual pain, prompted her continuing use.
A video of the plaintiff which was taken on 21 October 2016 and 31 October 2016 was shown to the court and this was also seen by Professor Smith and other doctors. The plaintiff’s use of a stick was raised as a credit issue by the defendant, with a submission being made that she did not require the stick and was capable of walking quite normally. The plaintiff disagreed with this proposition, saying she required the stick for stability. As well as the video shown, a memory stick was tendered of further footage, which I viewed.
The initial video depicted the plaintiff at the time of attending medical appointments in Sydney and portrayed her walking into a hotel foyer, walking slowly and utilising her stick. On 31 October 2016, she was seen with her partner and driving a motor vehicle. She got in and out of the vehicle and sat on the back tray of the vehicle for a period of time. She used the stick in her left hand and seemed to use it for support at times.
As noted, the plaintiff's credit has been placed in issue in respect of using the stick and whether it was necessary, with the submission being made that she was able to walk normally. Nothing on the video seen by me appeared to me to contradict the plaintiff's evidence. She used the stick. She walked slowly. She limped at times. The extra footage on the memory stick showed the plaintiff walking very slowly and with a limp and sitting for an extended period of time.
Dr Ross Whittaker is a consultant rheumatologist who saw the plaintiff on 21 October 2016 at the request of the defendant. His report was tendered and he gave evidence by telephone link. In his opinion, the plaintiff's need for a hip operation was not as a result of the injury at work, saying that a labral tear would not occur as a result of a fall but he thought she had longstanding pathology. The defendant did not press this opinion and accepts the arthroscopy and hip replacement surgery were related to the injury at work.
Dr Whittaker opined the plaintiff to be exaggerating her level of complaint and disability and he thought her fit for a wide range of duties. He sighted a small portion of the video and he thought her to walk well and then become reliant on the stick. Dr Whittaker thought the plaintiff to be using this stick more as an accessory than as a walking aid. He thought her fit to perform a wide range of duties both seated and standing.
He was caustic in his criticism of other medical practitioners who have provided reports in respect of the plaintiff.
I thought his commentary quite inappropriate and unprofessional and quite uncalled for and I have little regard for the opinions he has advanced in this claim, preferring other medical opinion where it is in conflict with his.
Dr Stubbs is an orthopaedic surgeon who saw the plaintiff on a number of occasions. His reports were tendered and he also gave evidence by telephone. He noted the plaintiff to have juvenile arthritis as a child. He thought the fall described was an unusual but not impossible cause of a labral tear. Following right hip replacement surgery, he thought the plaintiff protective of her right hip. He found no wasting of the right leg, but did not check for buttock wasting. He did not believe her to need to use a stick and thought in the video seen she did not use it properly. He thought her fit to perform work such as process work, light cleaning, office work, but he thought constant walking may be a problem. He thought there to be no restriction on her capacity to perform household tasks. He agreed her to have a chronic pain disorder.
The plaintiff called evidence of Dr Champion and his reports were tendered. He gave evidence by telephone link. He is a specialist rheumatologist. He saw the video of the plaintiff and he found no inconsistency in the plaintiff's presentation and his examination of the plaintiff. He recorded her to suffer a dull ache in the hip in the area of the scar, quite different from the stabbing pain prior to surgery. He thought her to have a chronic regional pain disorder and thought her unfit for work and to require help in domestic tasks. He thought rehabilitation, however, was warranted.
The plaintiff tendered reporting of Sam Van Meurs, a psychologist. In his opinion, the plaintiff suffers from anxiety and depression and whilst she is improving, she still has some anxiety and may benefit from some sessions with a psychologist. Dr J. McMahon is a psychologist who saw the plaintiff for the defendant and he provided two reports. At last examination he recorded her to have pain in the right outer hip, which was a dull ache hypersensitive to touch. He agreed her to have a chronic pain disorder fit for a trial of work. There was also reporting of Dr D. McGrath, who is a specialist musculoskeletal and occupational pain physician. He provided two reports. As of June 2016 he thought the plaintiff only fit for seated work and not fit for her pre-injury duties. He agreed she may need future hip surgery.
General Damages
On the medical evidence as noted I am satisfied and accept the plaintiff to have suffered a right labral tear as a result of injury with the defendant and to have required subsequent treatment, including arthroscopy on two occasions, pain medication, radiological investigations and ultimately right hip replacement surgery. She has also required some psychological treatment.
The plaintiff is presently a young woman of 34 years of age. From the medical reporting it seems clear she will require at least one, and possibly two, future hip replacements. Her probable life span is a further 54.34 years. I accept the plaintiff also suffered injury to her right ankle, right knee and right shoulder in the subject fall and it appears she has largely recovered from the effects of those injuries, to the extent she suffers only an occasional twinge in her ankle but nothing of any note. I accept her to have some continuing pain in the area of scarring from surgery, for which she utilises medication.
I also accept that her continuing use of the stick is something she feels necessary, even if not strictly necessary in the opinion of her treating doctors. She clearly limps at times and I accept she feels more secure when using the stick. There was nothing in the video shown which to my mind was inconsistent in its use and, as Professor Smith opined, she does have some muscle weakness and lack of confidence with residual pain and, thus, uses the stick.
The defendant submits the plaintiff to be exaggerating her symptoms and submits the sum of $120,000 to be a fair assessment of general damages. The plaintiff's submission is of $250,000 as appropriate.
I did not believe the plaintiff to be other than straightforward in her evidence. As noted, there was no inconsistency in the video portrayals. She agreed her hip to be the area where pain continues and was frank in relation to the substantial recovery in respect of other areas of injury. She agreed the severe stabbing pain in her right hip had been alleviated by injury and she now complains of more of an aching pain.
Clearly, this has been a significant injury and the plaintiff will have continuing problems with her hip, leading almost inevitably to further hip replacement surgery in accordance with the medical opinions which have been tendered. Having considered all matters, I am of the opinion that damages for non economic loss should be the sum of $220,000 and I award interest on half that sum at 2 per cent equating to $2200, making a total of $222,200.
Past Economic Loss
The plaintiff assesses this at $257,732, together with superannuation at 11 per cent in the sum of $28,000 and interest on the past economic loss and superannuation at 7 per cent for an average of half the period since injury at $64,497, making a total of $350,229. The plaintiff makes that assessment based on 375 weeks since injury, average pre-injury net earnings of $400 per week. The plaintiff worked to 15 August 2010, averaging $76 net per week and making the assumption the plaintiff would have continued part-time work to 1 July 2011 when her youngest child had settled into school and making the further assumption the plaintiff would have taken up full-time work from 2 July 2011 and earned $778 net per week.
The defendant assesses past economic loss of $134,366.72 but makes no explanation of how that figure is arrived at.
The plaintiff gave evidence of working in various casual employments up to six months before starting with the defendant and said it had been her intention to work full time after the youngest child started primary school.
The plaintiff seemed to me to be a well motivated woman, who appears to have engaged in employment even when she was at school. I accept the plaintiff's submission in respect of her past economic loss and the figures whereby that amount was assessed and I award past economic loss in the sum of $350,229.
Future Economic Loss
The plaintiff assesses this on two bases: Firstly, of $727,297, being $778 per week times 1099.8 times .85 (less 15 per cent for vicissitudes) along with future loss of superannuation at 11 per cent in the sum of $80,000.
The plaintiff's alternate submission was made on the basis of an assumption the plaintiff had some recovery and retrains for sedentary work in three years' time, then an ongoing loss of $400 per week. This is $778 times three years in the sum of $116,544.40; $400 times 31 years deferred three years (less 15 per cent for vicissitudes) in the sum of $329,517.12, making a total of $446,061.52 with future loss of superannuation at 11 per cent in the sum of $49,066.77, which makes a grand total there of $495,128.29.
The defendant assesses this head of damages by way of a buffer with a 15 per cent reduction for vicissitudes at $85,000, and $7650 in respect of loss of superannuation, making a total of $92,650.
Counsel for the plaintiff submits the plaintiff has been keen to work and had she not been injured, she would now be engaging in full-time work. The plaintiff's partner is presently not working but is receiving compensation for a work injury. Her two children are at school. The plaintiff is not actively seeking employment and it is suggested she requires some retraining to enable her to return to the workforce.
She is apparently registered with an employment agency, but no work has been made available for her. She does not appear to be making great efforts at present, but thought perhaps later this year she may be able to engage in some work. It appears that some training may be required. Her doctors feel employment where she could sit or stand is the most suitable. She has previously worked in sales. It seems likely she has basic computer skills and maybe some training in that field might be of use.
Counsel for the defendant submits the plaintiff does not have an ongoing disability such as to preclude her from employment, noting she was a low income earner before injury and is capable of earning such income now and submits the evidence does not support the idea the plaintiff would be unable to work for the next 25 to 30 years, and thus any loss should be assessed by way of a buffer.
I consider the plaintiff to have some mobility issues which will likely continue and may deteriorate in the future and on the evidence lead to some future surgery. She is a young woman and in my view one who has the ability to engage in retraining into an occupation which would bring in some remuneration.
On the evidence before me, the plaintiff's claim for damages for future economic loss is difficult to assess in monetary terms. There are many imponderables which are incapable of precise calculation.
In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302, 16 February 2012, the Court considered that it is appropriate to award damages for future economic loss by way of a buffer when the impact of an injury upon economic benefit the plaintiff derived from exercising earning capacity after injury is difficult to determine.
In Penrith City Council v Parks [2004] NSWCA 201 at 5, Giles J said:
It is still open to assess damages by way of a so-called buffer. The occasion for a buffer is when the impact of the injury on the economic benefit from exercising earning capacity after injury is difficult to determine.
I have therefore decided that the award of a buffer for future economic loss is appropriate. Such assessment calls for an intuitive approach, bearing in mind factors already noted, being her mobility issues, possible deterioration over time, her limited education and the need to engage in retraining and other imponderable factors and taking into account vicissitudes. I am prepared to assess a buffer of $220,000, inclusive of future superannuation and of interest.
PAST MEDICAL EXPENSES
The plaintiff submits the sum of $159,873.26 was paid as workers compensation and the defendant submits the sum to be $161,039.53. I am not aware why there is a difference in these sums, which I would have thought could have been agreed; however, I accept the defendant's figure as being more accurate and up to date and thus I award the sum of $161,039.53 for this head of damages.
FUTURE MEDICAL EXPENSES
The plaintiff assesses this at $114,625 as being the cost of two future hip replacements, deferred 20 years and 40 years, at $57,399.43, GP consultations and medications of $30 a week over the plaintiff's lifetime at $42,225, and future psychological treatment at $15,000.
The defendant assesses the cost of one hip replacement and medication at $35,000. Whether the plaintiff undergoes any future hip replacements is problematical. It seems likely she may have one at least.
At the present time she continues to see her general practitioner fairly regularly for provision of pain medication. She also sees a psychologist from time to time and it is suggested this may be beneficial for a further short period. She will need reviews by her orthopaedic surgeon and it seems Professor Smith does such reviews at about five-yearly intervals on hip replacement patients.
Again calculation of future costs is an imprecise one, taking into account many factors such as whether there will be a deterioration in the condition or not, whether she will require future operations and whether she will require continuing use of medication in the long term. It seems unlikely she will require psychological services for a long time. There are many imponderables as noted. Accordingly, I am prepared to assess this head of damages as a buffer in the total sum of $75,000.
Past Domestic Care
The plaintiff assesses this at two hours a day at $35 an hour for 375 weeks in the sum of $183,750 with interest on past care at 7 per cent for half the period. The defendant assesses one hour per day post each surgery, and then two hours per week from 16 August 2010 to 4 May 2015, being 245 weeks, and one hour per week from 4 August 2015 to 1 March 2017, in the total sum of $38,000.
The defendant submits the plaintiff's claim is overstated and I agree with that submission. The plaintiff did engage in some work up to August 2010. It is conceded she required some assistance in general care from time to time. It seems the plaintiff was able to attend to most of her own personal needs in dressing and the like. Her own evidence was that since surgery in 2010 she has been able to perform many domestic tasks slowly, including cooking and cleaning, sitting where possible, but without particular difficulty after the hip replacement operation and the period of recovery. She has continued in that fashion.
She drives a motor vehicle. Her children help with many tasks and in particular her daughter who is now aged 15. That young woman was a very well-presented and articulate young lady who has assisted her mother as needed, as well as attending school and her own engagements, as well as attending medical appointments with her mother in Sydney.
There is reporting from an occupational therapist, Ms Gracey, who saw the plaintiff for the defendant's solicitors and her report was tendered. The plaintiff also tendered a report of an Occupational Therapist, Danielle Bull. Neither of these reports was of much assistance to me, based on histories which were flawed and neither of them having much common ground.
I am more inclined to refer to the plaintiff's evidence and that of her daughter in that regard. In the end it seems to me the plaintiff was able to attend to many tasks without particular assistance and to that end I find the sum of $40,000 to be a realistic assessment of past care and reflective of the evidence and inclusive of interest.
Future Care
The plaintiff assesses this as one hour per day at $35 per hour in the sum of $344,837. The defendant assesses this for two hours a week for five years at $18,200. The plaintiff's submissions accept there to be some prospect of improvement and says one hour per day is practical in the future. Any hip replacement operation will require the plaintiff to need some more care.
The plaintiff points to her need for assistance in personal care matters such as shaving her legs. That is not a matter which I take into account as a necessity. The plaintiff can do most household tasks. Prior to injury her partner attended to matters outside, such as lawn and garden. He is not able to do that at the moment and the children do most of those things. The plaintiff does some of the cooking and cleaning, but most tasks are shared, as they appear to have been in the past.
Whilst I accept the plaintiff to require some assistance in some tasks of a heavier nature, these tasks appear to be shared by the family members, and clearly her daughter is engaged in many things outside the home as well.
I am prepared to assess a modest amount, as a buffer, in the sum of $20,000, noting all the factors, and all the imponderables.
Damages
General Damages
$ 222,200.00
Past Economic Loss
350,229.00
Future Economic Loss
220,000.00
Past Medical Expenses
161,039.53
Future Medical Expenses
75,000.00
Past Domestic Care
40,000.00
Future Care
20,000.00
TOTAL:
$ 1,088,468.53
Orders
Verdict and Judgment for the plaintiff in the sum of $1,088,468.53.
Defendant to pay plaintiff’s costs.
Liberty to apply in respect of any cost order.
| I certify that the preceding one-hundred-and-fifteen [115] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ashford. Associate: Date: |
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