Helen Zurek v Strasburger Enterprises (Properties) Pty Limited (ACN 002 913 911)
[2010] ACTSC 128
•20 October 2010
HELEN ZUREK v STRASBURGER ENTERPRISES (PROPERTIES) PTY LIMITED (ACN 002 913 911) [2010] ACTSC 128 (20 October 2010)
EX TEMPORE
No. SC 148 of 2009
Judge: Ryan J
Supreme Court of the Australian Capital Territory
Date: 20th October 2010.
IN THE SUPREME COURT OF THE )
) No. SC 148 of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
BETWEEN:HELEN ZUREK
Plaintiff
AND:STRASBURGER ENTERPRISES (PROPERTIES) PTY LIMITED (ACN 002 913 911)
Defendant
ORDER
Judge: Ryan J
Date: 20th October 2010.
Place: Canberra
THE COURT ORDERS THAT:
There be judgment for the plaintiff in the sum of $84,729.20.
The defendant pay the plaintiff interest at the rate of 4% per annum for seven years on the sum of $30,000 being a component of the judgment sum.
The defendant pay the plaintiff’s costs taxed as between party by party up to 24 April 2009, and thereafter on an indemnity basis.
IN THE SUPREME COURT OF THE )
) No. SC 148of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:HELEN ZUREK
Plaintiff
AND:STRASBURGER ENTERPRISES (PROPERTIES) PTY LIMITED (ACN 002 913 911)
Defendant
Judge: Ryan J
Date: 20th October 2010.
Place: Canberra
REASONS FOR JUDGMENT
On 14 March 2000, the plaintiff, Ms Helen Maxine Zurek refuelled her car at the Mobile Service Station at the corner of Daly Street in Canberra Avenue, Fyshwick, in the Australian Capital Territory. After completing the refuelling, she went to the Quix Food Store which is attached to the service station, intending to pay for the fuel. She entered through a double-swing door, one panel of which was hinged on the left and the other on the right. The panel on the left was fixed shut at the time so Ms Zurek pushed the right-hand panel inwards and entered the shop by that means. Upon entry, she turned left to proceed to where the cash register was located and tripped over an object sustaining injuries to her left knee and right arm.
Upon regaining her feet, the plaintiff noticed that she had fallen over a carton containing 18 cans of Coca Cola. She acknowledged, under cross-examination, that the carton had been brightly coloured red and white and about 20 centimetres in height by about 50 centimetres long. At the time of the fall, she had been carrying only her car keys and wallet. Immediately after the incident, the cash register attendant named “Michelle”, asked the plaintiff whether she was all right and whether she had fallen over the “Coke” carton. The plaintiff replied that she had, but was all right. As she was leaving the store to return to her car, the plaintiff noticed that her left knee was cut and bleeding. As she drove away from the service station, she experienced pain and discomfort in the region of her left knee but continued on to the Narrabundah Primary School where she was to collect her youngest son. As she entered the school ground, she was noticed by a friend, Mrs Seiler, to be very shaken and pale and carrying her right arm as if in extreme pain. Mrs Seiler noticed that there was blood on the plaintiff’s knee. Forming the view that the plaintiff was unfit to drive any further, Mrs Seiler drove her to the Narrabundah Health Centre where, because her general practitioner, Dr Greenman, was absent, she consulted another member of the practice, Dr Ho. Dr Ho referred her to the Royal Canberra Hospital and, after taking the plaintiff home, Mrs Seiler arranged for her own husband to take Ms Zurek to hospital. There, the abrasions and cut to her left knee were cleaned and dressed and she was advised to rest and apply ice to her left knee and keep it elevated.
Less than a week after the accident, the plaintiff delivered a hand-written note dated 20 March 2000 to a person whom she identified as “the manager” of the Quix Food Store. That note was in these terms;
On Tuesday 14 March, at approximately 2.45 pm, I entered Quix, subsequently falling over a case of Coke which was in the doorway. The attendant asked me if I was alright which I said I was. As it turned out, I wasn’t. I ended up at the doctor’s then on to casualty for x-rays. I’ve damaged my left knee, and hurt my left ankle, bruised arm and leg. I’ve been back to doctor’s twice with another visit this week.
The plaintiff appended her name, address and telephone number to that note.
The X-ray report from the hospital radiology service discloses that in respect of an X-ray of the plaintiff’s left ankle, “No fracture is seen. The ankle mortise is intact.” and in respect of the left knee, “No joint effusion or fracture is seen. Alignment is normal.” Dr Greenman, after noting the plaintiff’s original consultation with Dr Ho, reported on 7 August 2000 that:
I had first seen her on 17/3/2000. On 21/3/2000, the condition was improving, following her painful left knee, she had had another injury. This had involved pain to her right arm.
Since then, she had recurrent effusions, giving way and locking in her left knee. She had medical line (joint) tenderness and a positive McMurrays that suggested a meniscal injury.
I understand that both her right arm and her left knee require further treatment from her surgeons. She is presently unfit to continue working. Thus her prognosis at this stage is poor.
The plaintiff also received specialist medical treatment from Mr Peter Morris, an orthopaedic surgeon who reported on 24 July, after he had undertaken a diagnostic arthroscopy of the plaintiff’s left knee;
Overall, this lady fell over a case of Coca Cola at a service station on 14 March 2000 and landed heavily on her left knee. I think it is likely that this aggravated her patello-femoral articulation, causing knee pain and vastus medialis weakening. As the vastus medialis weakened then it produced some increased lateral patella-tracking with further knee pain and effusions. There appears to be no internal damage to the knee related to this fall and apart from exercises to strengthen the vastus medialis, I do not believe that Mrs Zurek requires any other specific treatment. Mrs Zurek will be limited in activities that require her to squat or climb stairs because of her patello-femoral discomfort, but apart from that, she should be suitable for all normal duties.
In an earlier report dated 31 May 2000, Mr Morris had recommended:
As far as Mrs Zurek’s arm is concerned, I suggested to her that she ask you [Dr Greenman, the general practitioner] to refer her to one of the upper limb surgeons so that they can assess properly her rotator cuff and elbow pain that she experiences now.
As a result of that recommendation, the plaintiff was seen by another orthopaedic surgeon, Dr Kevin Woods who, on 21 December 2000, recited the history of the plaintiff’s fall and continued in his report:
Since the fall, she has had continuous pain in her right shoulder, arm and elbow which is worse with changes in the weather, worse at night and worse during various activities. It is also associated, at times, with weakness in the hand. She had no paraesthesia in the hand. She has had treatment with pain killers only.
Examination was unremarkable. She had a full range of motion of her shoulder, elbow and wrist and normal power of her shoulder, elbow and wrist. There were no localising signs and no neurological signs. She had some X-rays of her shoulder and elbow that were unremarkable. We sent her for a course of physiotherapy, some soft tissue stretches and neural mobilisations and, hopefully, this will settle her down.
A more detailed report on the plaintiff’s condition was provided on 14 August 2001 by Dr G G Griffith who propounded the following diagnosis:
At the time of the fall, [the plaintiff] suffered:
1.severe contusive injury to the anterior aspect of the left knee (patello-femoral contusion);
2.proximally directed forces with major ligamentous sprain in the right acromioclavicular joint;
musculoligamentous sprain, cervico-dorsal region, right shoulder
nervous shock
laceration left knee (superficial).
The sequelae noted by the same specialist were;
1. persistent left knee arthralgia (largely resolved);
2. persisting right acromioclavicular arthralgia;
3.irritative neuropathy right ulnar nerve (without neurological signs); and
4.right lateral epicondylitis.
Under the hearing, “Prognosis” Dr Griffith predicted:
The prognosis is good with resolution of these symptoms. Her problems have not been specifically addressed other than by a policy of observation and minimal intervention. A targeted therapeutic program is much more liable to be successful in relieving them.
Then his report concluded:
I am of the opinion the fall was causally related to the conditions listed. The acromioclavicular joint is often overlooked a source of ongoing pain even when not subluxed. The description of the injury is entirely consistent with it suffering a severe ligamentous sprain applied to the coracoclavicular ligament and to the capsule and ligaments of the right acromioclavicular joint as her weight was transmitted into the shoulder following the fall in an uncontrolled fashion.
The plaintiff also saw a sports physician, Dr Charles Howse, who reported on 31 August 2001 that he had injected the plaintiff’s right AC joint, and concluded:
[T]his appears to have produced a reasonable improvement. Unfortunately she returned today having fallen over yesterday landing on her right elbow and aggravating her shoulder condition. Initially X-rays showed no signs of a fracture and I will rest the shoulder in a sling for the next week.
The most recent medical report furnished on behalf of the plaintiff is that of her current general practitioner, Dr Stephen Moulding, who reported under the heading “Recent history”:
Since the date of my last report in 2005 Ms Zurek has had ongoing trouble with repetitive duties with the arms. She cannot maintain doing vegetable preparation or drive long distances due to an inability to keep her right arm raised. The right hand has a weaker action and a weaker grip than usual, and the left shoulder habitually ‘freezes’ and feels like it strained. This is most likely due to compensatory overuse due to the weakness on the right side.
Under the heading “Current symptoms”, the same doctor noted:
Currently she still has pain in the right shoulder and arm as well as the left shoulder. There is decreased movement in both shoulders and weakness with loss of strength in the right arm and hand.
He then concluded:
It is totally likely that all symptoms and signs are due to the injury suffered on 14th March 2000.
And then as far as the future is concerned, Dr Moulding reported under the heading, “Treatment”:
Since 2005 the treatment has been mainly symptomatic. She has been taking regular paracetamol as well as some Naproxen (Naprosyn). Initially she had physiotherapy and massage, but she could not tolerate the latter due to the pain of the procedure.
Then under the heading, “Further treatment”:
The plan is to continue with analgesia and I also added some Anaprox, (a different form of Naproxen) as a trial. Ideally, massage to the right (and left) shoulder region would help but Ms Zurek is too tender for this. Otherwise I would continue with encouraging the use of both upper limbs.
Prognosis:
I am unsure re a favourable prognosis, as there is still significant disability 10 years after the event. The original injury to the knee has resolved so now it is only an ongoing disability, with the right, (as well as the left) arm. My opinion is that there will be ongoing pain and lack of ability to fully use the right arm.
The plaintiff gave her own account of the treatment which has been detailed in those medical reports, and she instanced various occasions of falls after the initial incident at the Quix Food Store. After one such fall, she sustained concussion, for which she was treated at the Calvary Hospital. Her evidence about another fall, on an occasion when she dropped a box of cheesecakes which she was carrying at a school fundraising event was corroborated by Mrs Seiler, who, it will be recalled, was the friend who assisted her after the original incident on 14 March 2000.
The plaintiff also repeated the claims that she had apparently made to Dr Moulding that long distance driving forces her to drive with her left hand on the steering wheel, but she is able to undertake driving for short distances in her present occupation as a carer in aged care facilities in the Australian Capital Territory. She also claimed to be limited in recreational activities, most of which are now centred on her nine grandchildren. She claimed to have no other recreational activities, although before the accident she had engaged in social tennis, occasional horse riding, and apparently competitive softball during a season which extended from March to October.
Her evidence in this respect was challenged in submissions by Mr Morgan, of Counsel for the defendant, who pointed out that her assertions had not been corroborated by either of the lay witnesses who gave evidence on behalf of the plaintiff, namely Mrs Seiler, to whom I have all ready referred, and the plaintiff’s partner, Mr Fulton. However, I do not regard the absence of corroborative evidence of that kind as reflecting adversely on the plaintiff’s credit in these respects. Mr Fulton’s evidence was somewhat laconic and his lack of knowledge of the implications of the plaintiff’s injury may partly reflect the shift work which he has been required, during their relationship, to undertake at the Canberra Hyatt Hotel. However, both Mr Fulton and Mrs Seiler did corroborate the plaintiff’s evidence of the physical manifestations of her injury. Mr Fulton instanced that before the accident she had done most of the housework without difficulty and had no problems with driving. She now has problems peeling vegetables and her right arm and her shoulder still cause trouble with housework, some of which he has had to take over, although that was more pronounced in the months following the fall. Mrs Seiler gave evidence that, on social occasions when she has been able to observe the plaintiff, she has noticed that she has difficulty in trying to turn a key in a lock and in cutting meat with a knife. She has not had occasion to observe the plaintiff lifting objects since the suffering of the injury.
Counsel for the defendant did not dispute that the evidence was sufficient to support a finding of negligence on its part, but did contend that the Court should make a finding that the plaintiff has, by her own negligence, contributed to the injuries which she sustained on 14 March 2000.
Although the plaintiff under cross-examination could offer no explanation for not having seen the carton before she fell over it, I am not satisfied that her concession in that respect discharges the defendant’s onus of proving that she was guilty of contributory negligence. In my view, an entrant proceeding on what was apparently meant to be a thoroughfare, between the door of the shop and the cash register, could not necessarily be expected to observe and avoid a substantial obstacle placed just inside the doorway and apparently in the middle of the thoroughfare.
At worst, in my view, the plaintiff was guilty of no more than what Higgins J in Button v Melray Investments Pty Ltd [2000] ACTSC 20 at [66], citing authority in the High Court, called “mere heedlessness, inadvertence or error of judgement which does not, per se, constitute contributory negligence”.
There is in this case no claim for past or future economic loss. I have had the opportunity of observing the plaintiff in the witness box and conclude that, rather than tending to exaggerate the effects of her injury, she has borne them with reasonable stoicism. She readily conceded that some symptoms have resolved and I consider that her recent tendency to seek treatment only from her general practitioner evinces a resigned acceptance of the need to live with her residual disabilities rather than signifying that those disabilities have been exaggerated.
In the circumstances I regard an appropriate figure by way of award of general damages to be in the sum of $60,000. In respect of the claim invoking Griffiths v Kerkemeyer [(1977) 139 CLR 161], I consider that the plaintiff’s need for assistance was greatest immediately following the accident and during her rehabilitation from surgery. It is likely that her partner and her two children still living with her would have afforded assistance and will continue to do so irrespective of the past effects of her injuries. Accordingly, I allow the figure of $4,400 in respect of past assistance calculated at the rate of $22 per hour, and a further $5,000 at the rate of $25 per hour for future assistance.
Past medical expenses are agreed in the sum of $3,929.20. I consider that an appropriate cushion for the cost of past medications is $2,400 and a cushion for future medical consultations and medication should be provided in the sum of $9,000. That makes, on my calculations, a total award of $84,729.20
In the circumstances I think it is reasonable to allow interest on that component of general damages which is represented by the sum of $30,000 at the rate of 4% per annum for seven years.
The defendant should pay the plaintiff’s costs taxed as between party and party up to 24 April 2009 being the date of the order transferring the proceedings to this Court. Having regard to the defendant’s rejection of an offer contained in a Calderbank letter, [[1975] 3 All ER 333], the plaintiff’s costs incurred after that date should be taxed on an indemnity basis.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan
Associate:
Date: 11th November 2010.
Counsel for the Plaintiff : Dr S Hausfeld
Solicitor for the Plaintiff: Stacks, Compensation Solicitors
Counsel for the Defendant: Mr D Morgan
Solicitor for the Defendant: Goldrick Farrell Mullan
Date of hearing: 20 October 2010.
Date of judgment: 20 October 2010.
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