Ibrahim v Myer Queensland Stores Limited
[1996] QSC 116
•10 July 1996
IN THE SUPREME COURT
OF QUEENSLAND
No. 1844 of 1989
Brisbane
Before Justice Byrne
[Ibrahim v. Myer Queensland Stores Limited]
BETWEEN:
SAMEHA IBRAHIM
Plaintiff
AND:
MYER QUEENSLAND STORES LIMITED
Defendant
REASONS FOR JUDGMENT - BYRNE J.
Judgment delivered : 10/07/1996
CATCHWORDS: NEGLIGENCE - occupier's liability - trip on step at shopping centre - whether negligence involved in construction or retention of step.
DAMAGES - personal injury - multiple complaints.
Counsel:J.W. Greenwood Q.C. for the plaintiff
J.A. Griffin Q.C., and C. Newton for the defendant
Solicitors:Georgeson & Company for the plaintiff
Michell Sillar Nicholsons for the defendant
Hearing Dates: 7 - 11 August, 20 - 24, 27 - 30 November, 1, 4, 5 & 8 December 1995
IN THE SUPREME COURT
OF QUEENSLAND
No. 1844 of 1989
Brisbane
Before Justice Byrne
[Ibrahim v. Myer Queensland Stores Limited]
BETWEEN:
SAMEHA IBRAHIM
Plaintiff
AND:
MYER QUEENSLAND STORES LIMITED
Defendant
REASONS FOR JUDGMENT - BYRNE J.
Judgment delivered : 10/07/1996.
At about 8.30 a.m. on 20 May 1985, at Chermside Shopping Centre, the plaintiff walked from a carpark towards the South Mall entrance, diagonally traversing a bitumen-surfaced, zebra crossing. As she approached the entrance, the plaintiff saw the Centre Manager, Mr Fogg, talking to Mr Tucker, who in earlier years had worked at the Centre. The two men were standing on the raised, tiled footpath outside the South Mall doorway, close to the top of a ramp which inclined from the footpath to the road. The plaintiff recognised Mr Tucker and, as she kept walking, held out her hand to him. Preoccupied with greeting Mr Tucker, looking at him and not where she was going, the plaintiff tripped[1] on a concrete step at the base of the ramp. She stumbled and fell. Her right hand and her buttocks hit a hard surface. She contends that the fall was the fault of the defendant, which owns and operates the Centre. In essence, her case is that the ramp was unsafe because of the step.
It was an ordinary ramp. Over the years, such ramps had been built in large numbers. They were known as pram ramps, in recognition of their function in permitting people with prams to pass between footpath and road without confronting vertical kerbing. Many steps of similar height and configuration to the one on which the plaintiff tripped can still be found in Brisbane.
To an attentive pedestrian, the ramp posed no risk. It was in an open, well-lit area, and there were ample visual cues alerting people to it. In contrast to the road's bitumen surface and the different appearance of the tiled footpath, the ramp was made of concrete. Its gradual incline also contrasted with the adjacent flat footpath and vertical kerbing, making it easy to recognise. The step was located at the ramp base at the point of transition to the zebra crossing. It was about 2 inches high and plain to see. The plaintiff herself was acquainted with it. She conducted a retail fruit and vegetable shop at the Centre from mid-1978 until December 1979, and from November 1981. She had negotiated the ramp countless times without mishap. On trading days, visitors in their thousands used the ramp. None of the witnesses who had worked at the Centre had ever seen or heard of anyone falling at it or at any of the several other identical ramps there, and no record exists of such an event. But if the ramp had been built without the step, almost certainly the plaintiff would not have tripped that day.
The ramp, which was built in late 1977 or early 1978, should not have been constructed with the step. The only surviving construction drawing makes no provision for it. That omission accords with the Brisbane City Council's design for a standard pram ramp at the time. Presumably, the step was provided because the tradesmen who made the ramp were familiar with such steps. The step had once been a standard feature of pram ramps in Brisbane. The Council's October 1966 design required a 2 inch step at the ramp base. Despite its utility in containing water within the channel abutting the kerb, the step was eventually removed from the local authority's standard profile. The design was amended sometime between about July 1971 and 4 January 1976 to show a flush joining at the base. The change apparently resulted from a desire to facilitate access by the handicapped, especially by those in wheelchairs. There is no reason to suppose that the Council regarded the step as hazardous.[2]
Although it conflicted with Council requirements, the idea of the step accorded with the views of other organisations. As design choices in building construction often involve compromises, this is not surprising. Elimination of the step promoted wheelchair access, but it had a potential to disadvantage the blind. Sometimes its absence might have adversely impacted on drainage. An Australian Standard applicable when the ramp was constructed, and when the plaintiff tripped, required a step no more than 25 mm high.
A 1968 Australian Standard concerning access by the disabled proposed that kerb crossing ramps be provided, no doubt to facilitate passage of wheelchairs. The recommendation was accompanied by a note indicating that a step of 1 inch may be necessary where the gutter carried large quantities of water. A revised Standard, AS 1428-1977, issued 9 years later was based on a report prepared by the Australian Council for Rehabilitation of the Disabled. The 1977 version required the profile of kerb ramps to be such that "the kerb shall be dropped to a level not more than 25 mm above the adjacent roadway". The accompanying note identified the advantages of the vertical step: "This retains the kerb as a gutter and demarcation line between pedestrian and vehicular services. The continuation of the kerb at the edge of the walkway acts as a signal for the blind". The Standard was again revised in 1988, this time to eliminate the step. It seems that by 1988 other tactile indicators, unknown in Australia in 1985, had become available. The Queensland Main Roads Department imposed requirements for pram ramps for places under its authority.[3] As with the Standard, in 1985 these called for a 25 mm step: a requirement retained until 1991.
Even though the composition, profile and location of the step conformed with the Standard, and the step was clearly visible, the plaintiff contends that its presence bespeaks a failure to make the Centre as safe as reasonable skill and care might have made it.[4]
The reasonable operator and occupier of a large shopping complex[5] takes account of the possibility that some of the hundreds of thousands of people who visit annually will occasionally walk about careless of their own safety.[6] The inadvertent will trip over things, and people do not always watch where they are walking for lots of reasons: among them, local distractions. Some of those who trip will fall. And there is an appreciable, evident risk of "serious injury as the result of falling or slipping".[7] So there was a risk that a visitor who, like the plaintiff, failed to exercise ordinary care, would fall at the step and sustain injury. In individual instances, the risk of harm from tripping on the step must have seemed tiny. But millions of pedestrian movements over the South Mall entrance ramp should have been anticipated over the Centre's economic life. The sheer volume of expected visits involved a recognisable risk of serious injury eventually occurring to a pedestrian inadvertently oblivious to the step. Such a prospect was not "far-fetched or fanciful".[8]
What should have been the response to that reasonably foreseeable risk? Did reasonable care require that the ramp be built without the step, or that before 20 May 1985 something be done to get rid of it? The answer involves "balancing the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which may exist".[9]
The ramp could easily have complied with Council requirements; and it is not suggested that it would have cost more to build with the step than without it. Shoppers with trolleys and people in wheelchairs stood to benefit from the absence of a step, as indeed they did when later on the defendant placed in-fill into the channelling to make a smooth transition between road and ramp. The drainage advantage afforded by the step was not significant. As it happens, there is a slight slope from the kerb near the South Mall entrance away to the carpark where stormwater flowed to gully pits. Perhaps other, not too expensive, means of alerting the blind might have been used, although tactile indicators now sometimes found in heavily trafficked places were not available in Australia by 1985. These considerations tend to suggest that the step should not have been built. There were, however, "conflicting responsibilities", although the decision to do away with the step reveals that they were not paramount concerns. The step conformed[10] essentially[11] with the Australian Standard on Access by the Disabled. It gave warning to the blind. And it assisted in drainage in heavy downpours.
There were choices to be made and a range of factors available to be evaluated. Balancing the material considerations, in my opinion it has not been established that an absence of reasonable care inhered in the initial inclusion of the step.
The next issue is whether the omission to eliminate the step after it was built demonstrates less than reasonable care. The step retained its relevant attributes in May 1985, and the factors mentioned in considering whether its construction amounted to negligence are also germane in this context. Additional matters intrude.
Between its construction and the accident, the step could have been eliminated for less than $200 by putting an inclined bitumen strip at the ramp base. This was actually done after the plaintiff's accident. Pram ramps throughout the Centre were progressively modified to obviate difficulties in taking a line of empty shopping trolleys back inside and, perhaps, because of problems encountered by shoppers in pushing loaded trolleys to their cars. That method of overcoming the step was not criticised; nor was a better way suggested. However, the evidence of Dr Jenkins, an engineer and safety expert, shows that placing bitumen at the base exposed a potential to create other hazards. He says:
[1]I reject the plaintiff's testimony that she put her foot in or on string just before she tripped. Mr Tucker's account, which receives support from testimony of Mr Catania and Mr Fogg, shows that there was no string or other debris nearby. In this important respect, her story is a concoction. Yet the plaintiff did fall at the ramp and, all considered, there is an adequate foundation in the evidence, especially that of Mr Tucker, for a conclusion that it is more probable than not that she tripped on the step.
[2]An architect, Mr Williams, conjectured that the Council may have removed the step because it was perceived as a danger. The evidence does not sustain this view. Incidentally, it is not suggested that any contravention of building regulations evinced by the step gives rise to a cause of action for breach of statutory duty.
[3]which did not extend to the Centre.
[4]The plaintiff controlled, and worked for, Sameha Pty Ltd, which was both the lessee of the shop premises and the operator of the business. It will be assumed that the defendant owed her the duty due to a contractual entrant, although this is doubtful because the plaintiff tripped at a place open to the public free of charge: Morawski v. State Rail Authority (NSW) (1988) 14 NSWLR 374; cf. Harris v. Northern Sandblasting Pty Ltd (1995) Aust. Torts Reports § 81-365. That duty is to make the premises as safe as reasonable skill and care can make them: Stannus v. Graham (1994) Aust. Torts Reports § 81-293, at 61,562; Calin v. The Greater Union Organisation Pty Ltd (1991) 173 CLR 33, 38. On this approach, the defendant cannot avoid liability merely by establishing, as in fact it has, that the ramp was built by a reputable, independent contractor: Voli v. Inglewood Shire Council (1963) 110 CLR 74, 95-96.
[5]cf. Calin at 40-41; The Uniting Church of Australia Property Trust v. Dobell, CA 145 of 1995, 14 November 1995, per Thomas and Dowsett JJ at 6, 8. In Brady v. Girvan Bros Pty Ltd (1986) 7 NSWLR 241, Kirby P, at 246, spoke of the "high level of safety" to be expected of such occupiers. See also J.G. Fleming, The Law of Torts, 8th ed. (1992), p. 455.
[6]cf. Bus v. Sydney City Council (1989) 167 CLR 78, 90; Benton v. Tea Tree Plaza Nominees Pty Ltd (1995) 64 SASR 494, 511; Dailly v. Spot-On Investments Pty Ltd (1995) Aust. Torts Reports § 81-363, at 62,708.
[7]Miletic v. Capital Territory Health Commission (1995) 69 ALJR 675, 676-677.
[8]The Council of the Shire of Wyong v. Shirt (1980) 146 CLR 40, 47.
[9]Miletic at 677; cf. The Uniting Church of Australia Property Trust v. Dobell ibid; Jaenke v. Hinton (1995) Aust. Torts Reports § 81-368.
[10]As to conformity with practice, see Fleming, op cit, p. 120. As to the value of Australian Standards, see Chicco v. The Corporation of the City of Woodville (1990) Aust. Torts Reports § 81-028.
[11]The increased height perhaps disadvantaged the blind but it reduced the risk that sighted pedestrians might not notice the step: cf. Cains v. Mathers Shoes Pty Ltd, CA 7 of 1993, 1 June 1993, where Fitzgerald P and McPherson JA, speaking of a raised surface ranging in height from 19 mm at one end to 59 mm at the other, said (at 9): "it is common experience that a small but definite rise of the kind involved here is potentially more likely to cause stumbling or tripping than a substantial step that is easy to see". In any event, there is no reason to suppose that the accident might not have happened if the step had been 25 mm, rather than about 50 mm, high. So it is not to the point that the step was about twice the height proposed by the Standard.
"Depositing material in the channelling will block the water flow path and may cause pooling out onto the pedestrian crossing or onto the ramp. The material placed will also have rough edges, especially to either side, and although they are not in areas normally crossed by pedestrians may cause trips by anyone crossing the kerb at an angle. The element of compromise is present in all such facilities: the ramp itself represents a potential hazard to pedestrians walking along the footpath. The standards represent a compromise, attempting to allow for the needs as well as the safety of different groups of users, particularly the disabled."
These risks to public safety were not shown to be of less magnitude than the risk which eventuated in the accident.[12]
In the circumstances, it has not been proved that reasonable care required elimination of the step.
The existence of the step on 20 May 1985 is not shown to have involved a breach of a duty of care to the plaintiff. In my judgment, her case fails.
I turn to the assessment.
The plaintiff is now severely disabled and leads a miserable, painful existence. Back surgery since 1988 has failed, leaving her distressed and with markedly reduced mobility. She depends on drugs, including methadone, some of which have adversely affected her health. She has not worked for more than 8 years and will not work again. She believes that her woeful predicament is attributable to the fall.
The assessment is beset with difficulties. Some may be mentioned now. The experts disagree on whether her back problems are causally related to the accident. Next, the plaintiff's case relies heavily on her testimony, and it is often unreliable. Thirdly, her health concerns are remarkable. Since the fall, there have been well over a thousand attendances on medical practitioners. She has seen physicians, psychiatrists, rheumatologists, orthopaedic surgeons, a cardiologist, an urologist, a gynaecologist, a dermatologist, and general practitioners. Investigations, mostly radiological and pathological, must be numbered in the dozens. A broad consensus holds that her symptoms involve a significant psychological component. Beyond that, there is doubt about the causes of more than a few of them; and the complaints have touched almost every joint, as well as major organs, including heart, lung and kidney. Finally, no doctor was completely acquainted with her complaints, the investigations, her treatment, and the views of the others she has seen. There were partial insights into her health: snapshots from the perspective of the testifying and reporting practitioners. No doctor took an overview or attempted an analysis indicating which of the multitude of complaints might be related, directly or indirectly, to the fall.
The plaintiff was born in Palestine in 1945. She came to Australia with her husband and children in 1971. In partnership with her husband and brother, in 1974 she established a fruit and vegetable shop at Lutwyche Village. In 1975 the partnership took fruit shops at Kippa-Ring and Indooroopilly Shopping Town. An outlet opened at Brisbane City Plaza in 1976. Another shop at Indooroopilly was acquired in January 1977. By May 1977 the City Plaza and Kippa-Ring shops had been sold. In that month Sameha Pty Ltd became the trustee of the Ibrahim Family Trust. Thereafter Sameha Pty Ltd conducted some of the several shops she established. The Chermside business was started in 1978 and disposed of at the end of 1979. The company bought that store back in 1981. She ran a shop at Mt Ommaney for about a year from August 1979 and another at Mountain View for 18 months or so from late 1982. The Indooroopilly shops were sold in September 1982. The Chermside shop was her only business when the accident happened.
By the end of 1983, the plaintiff was in trouble. The Chermside shop was not profitable. Creditors were pressing, a judgment had been obtained, a bankruptcy notice had issued, fines for unpaid taxation had been incurred, and she had been summonsed on a complaint of failure to pay wages. Her financial worries were not eased by later, unhappy decisions to buy land, to guarantee her brother's obligations in respect of his fruit shop[13], and to become committed to new retail outlets.
Worrisome financial concerns coincided with health problems. Degeneration of her spine caused trouble, and life stresses influenced her perceptions of pain.
In July 1984 the plaintiff consulted a general practitioner, Dr Phun, complaining of pain in the lower back. Episodic pain persisted. In February 1985 she told another general practitioner, Dr Scally, of left lumbar vertebral pain and of pain in the left ankle and fibula. She was referred to a physiotherapist, Mr O'Brien, whose treatment of the lower back included traction.[14] On 9 April the plaintiff made a variety of complaints to Dr Phun. She was referred to Dr Toft, an orthopaedic specialist, who recorded complaints of low back pain, as well as pain in both ankles. In Dr Toft's opinion, degenerative changes were consistent with the intermittent back ache. On 12 April the plaintiff went to hospital for exploration of the left ankle.
When the plaintiff tripped, she attempted to break her fall with her right hand. In the impact, she injured her right shoulder. The lower back came under stress too. Soon after the fall, the plaintiff complained to Dr Scally of severe shoulder pain, telling him, his notes record, that she "fell onto right arm". No complaint of back pain was made. Pethidine was injected, no doubt because of her description of the severity of the pain. X-rays of the right wrist and shoulder showed no fracture. At about 3 p.m. Dr Scally injected more pethidine. Next day the plaintiff told Dr Scally that she still had shoulder pain. He gave her pethidine and suggested applying ice.
The plaintiff next sought medical attention a week later when she told Dr Scally of "reduced" shoulder pain. On this day, she made the first post-accident complaint of back pain. Dr Scally diagnosed strains of the shoulder and low back and sent the plaintiff to Mr O'Brien for physiotherapy. He treated her for shoulder and related neck complaints, not the back. Next day the plaintiff returned to Dr Scally with pain in the shoulder, right leg and back. He injected pethidine and sent her to hospital where she saw Dr Nave, an orthopaedic surgeon, who considered that she had sustained a soft tissue injury "with a significant amount of non organic component". While she was hospitalised, Mr O'Brien treated her shoulder daily. The plaintiff also mentioned lower back and neck pain to him. On 30 May he treated the back with ultrasound.
The plaintiff left hospital on 7 June. That day she saw Dr Scally and spoke of neck pain, which was treated by manipulation of the cervical spine. Next day another general practitioner prescribed valium and panadeine. That night she went to hospital complaining of right shoulder pain with cervical and lower lumbar radiation. X-rays revealed early, multilevel degenerative disc disease in the cervical area. Analgesics were prescribed, a sling was suggested, and a short course of the anti-inflammatory drug prednisone was recommended. The orthopaedic registrar, Dr Bulwinkle, anticipated that the pain would start to settle in 4 weeks but that the stiffness in the shoulder might take 6 months to resolve. His prognosis was overly optimistic.
On 10 June pethidine was injected by another practitioner. On 11 June the plaintiff saw Dr Scally twice. The first time she spoke of pain in the right shoulder, elbow and forearm, in the neck and in the lower back. Prednisone was prescribed. On the second occasion pethidine was injected after a complaint of severe shoulder pain. There were two attendances on Dr Scally the following day. The first saw complaints of pain "everywhere", including the lumbar spine. Dr Scally treated the back with massage and gentle manipulation. Morphine was injected; prednisone and other drugs were prescribed. On the second attendance, after complaining of considerable pain, the plaintiff received morphine. On the 13th she told Dr Scally that the pain had spread from the right side of the body to the left, intruding into the left knee and left arm. Dr Scally was puzzled, noting "Fibromyalgia syndrome"[15] as a possible explanation. He decided that there be "no more narcotics", as his records disclose. The plaintiff would not accept that deprivation. Later that day she called at an after-hours medical service to be injected with morphine. On 14 June she returned to Dr Scally "no better". Kenacort was injected. Three days later she received pethidine after complaining of pain throughout the back and right shoulder. Next day, with low back and shoulder pain, she saw another practitioner, who injected morphine. On 20 June she saw Dr Scally, with pain in the right shoulder, right elbow and neck. She asked for pethidine, which he refused. Next day she returned, speaking of pain in the right shoulder, neck, right elbow, right wrist joint, left acromio-clavicular joint, both knees, and the lumbar spine. Dr Scally prescribed valium and referred her to a rheumatologist, Dr W. Douglas.
She saw Dr Scally on 8 July with pain in the neck, shoulders and back. On 11 July she consulted Dr Douglas, who thought she had a rotator cuff injury that had progressed to periarthritis. He suspected that the neck and back pain had been induced through discomfort from the shoulder, disturbed sleep and abnormal posture. He thought the right arm should be in a sling by day. He referred the plaintiff to Mr O'Brien for "very gentle physiotherapy". On 16 July the plaintiff complained to Dr Scally of shoulder pain; she received injections of kenacort and decadron. On 18 July she told Dr Douglas that she was worse, with pain in the neck, shoulder, and low back. Examination caused him to revise his original assessment. Dr Douglas found a full range of passive movements and, with encouragement, a full range of active movement of the shoulder. There was no muscle wasting and no tenderness of the joint, and he could not produce pain on external rotation of the shoulder. He suggested continuation of physiotherapy. On 22 July the plaintiff saw Dr Phun but did not complain of back pain. The same day she saw Dr Scally to mention pain in the right wrist, and to receive a valium injection. Almost a month passed before the plaintiff next consulted a medical practitioner. On 19 August Dr Scally was told of pain in the right shoulder, right neck, right arm and lower back, but his examination revealed a full range of movement of the right shoulder. Kenacort was injected into the rotator cuff. Mogadon was prescribed to help her sleep.
Three months had elapsed since the accident, and the plaintiff had things to attend to. In August she opened a shop at Beenleigh. In September Morayfield became the site of another of her fruit and vegetable ventures.[16] She then managed three shops. The plaintiff saw Dr Scally on 3 and 24 September with pain in the right shoulder, right neck, right arm and lower back. Kenacort and pethidine were injected on the 3rd.
By early October the plaintiff had become upset by news that her father's death was imminent. She saw Dr Scally three times on 4 October. First she complained of "unbelievable pain", relating it to the cervical spine. She came back for pethidine with "increased pain". She saw Dr Douglas on 9 October. He noted a "definite click" at 90 degrees of abduction of the shoulder and suggested she see an upper limb surgeon. On the 12th, 14th and 19th Dr Scally injected valium after complaints of pain in the neck and knees, but not the back. In November she saw Dr Scally on the 7th, 18th, 19th, and 22nd. There were no complaints of back pain. On the 22nd, with neck pain, she obtained pethidine injections from Dr Scally and another practitioner. Dr Millroy, an orthopaedic surgeon consulted at the end of November, thought "the pain that the shoulder has caused seems to be extraordinary" and arranged for an arthrogram, which was normal. In December 1985 Dr Millroy reported that he was "at a loss to explain the extreme pain she complains about in the shoulder region". In December the plaintiff did not seek any treatment. The lull did not portend any long term resolution.
On 6 January 1986 the plaintiff told Dr Scally that she had experienced pain in her right shoulder and arm for four days, and received decadron and pethidine. On 10 January she had lots of pain: in both shoulders, right arm, elbow and wrist, and in the lower back. She spoke of headaches. She said that her hand had swollen, although no swelling was noticeable. Dr Scally wrote: "low pain threshold ... has been noticed by children to be lifting 10 kg boxes of bananas".[17] She saw Dr Scally on four other occasions that month, complaining on three of them of shoulder pain, and getting pethidine and morphine; but in that month there was no complaint of back pain after the 10th. February witnessed three attendances on Dr Scally, all involving shoulder and neck, but not back, pain. In March the plaintiff saw Dr Scally four times. Once, on the 27th, she mentioned back as well as shoulder pain. In this month she opened another fruit store.[18] In April there was one attendance on a medical practitioner - for left chest pain. In May she saw Dr Scally on the 2nd and 7th, complaining of right shoulder pain but no back pain. In mid-June she saw Dr Scally, "crying with pain" in the shoulder and neck. On 17 June she told Dr Scally of shoulder pain after "doing a little work at home".
In mid-July 1986 the plaintiff returned to Dr Phun to make her first complaint of back pain since she had touched upon that subject when discussing her shoulder with Dr Scally on 27 March. She told Dr Phun, as he recorded her story, that she had "been lifting cases of fruit and veges at work".[19] He prescribed pain relief. That afternoon he visited her at home because she wanted a stronger painkiller. He gave her pethidine and suggested she continue with digesic. The plaintiff did not see Dr Scally in July. In August she consulted him four times. Her attendance on the 22nd is material. That day she had pain in the right shoulder and received morphine. In August she took a shop at Caboolture Park. She also arranged for a valuation of the Chermside business. In September Dr Scally counselled her about "business and family worries". Shoulder pain was mentioned in late October, late November and mid-December. But there were no complaints of back pain at this time. In short, apart from a mention in March, in the whole of 1986 there were only two complaints of back pain; on both occasions the practitioner's notes refer to the pain as being associated with exertion.
There were two visits to doctors in January 1987; neither was accident-related. February 1987 passed without medical care. On 2 March the plaintiff saw Dr Scally about an ear infection. Then, on 4 March, a complaint of lower back pain was made - the first in almost nine months. The plaintiff had been a passenger in a car that was struck from behind. She told Dr Scally of pain in the neck, shoulder and lumbar region. There was not to be another assertion of back pain for seven months.
Dr Scally sold his practice to Dr Vorbach, who first saw the plaintiff at the end of March. She said she had hurt her shoulder a day or so previously. Pethidine was injected. Next day she told of more pain and said her fingers were swollen. On the 26th Dr Vorbach noted: "wants another injection. Told this will be the last injection". On 9 April there was left-sided chest pain, which Dr Vorbach associated with "recent stress". There were no attendances in May. There was one in June; it related to sinusitis. In July there were three attendances on Dr Vorbach; two concerned shoulder pain. There were no attendances in August. In mid-September the plaintiff told of a swollen right middle finger and painful right hand. She received a valium injection but returned later in the day with pain. This time she got pethidine. Four days later she mentioned reduced right shoulder movement. On 1 October she told Dr Vorbach of increasing stiffness in the lower back, and of nausea and vomiting. She was referred to Dr Nave. He reported that "no serious problem has been identified and the fall at most would have caused some soft tissue injury with the possibility of a degree of capsulitis".
As the plaintiff's financial fortunes declined, so did her health. On 6 October 1987 she saw Dr Vorbach complaining of pain in the right middle finger. She returned that evening with pain "all over". After a pethidine injection, she was referred to Dr Staunton-Smith, a rheumatologist. On 13 October Dr Vorbach heard complaints of pain, nausea and reduced appetite. Stemetil and pethidine were injected. Next day her condition was unchanged and Dr Vorbach thought she looked "washed out". Feldene was prescribed. The plaintiff saw Dr Staunton‑Smith on 15 October. He examined swelling of the right middle finger. He also detected a rotator cuff lesion. The cervical spine was tender. The ankles were swollen. Dr Staunton-Smith considered that "she must have an inflammatory rheumatic complaint". When he saw her on 26 October he thought she had seronegative polyarthritis. In the meantime, the plaintiff had seen Dr Vorbach every day between 16 and 20 October, receiving a pethidine injection on each occasion after various complaints of pain - in knees, fingers, neck, ankles, but not the back. In November she appeared to Dr Vorbach to be depressed. They discussed "family pressures and upcoming court case". The litigation and other pressures caused much anxiety. Dr Vorbach considered she might have been "suicidal". With such a state of mind, more sensations of aching were predictable.
On 3 November there were complaints of pain in the back, left knee and left ankle. On the 4th the plaintiff was told she could have pethidine daily. Her drug regime then included saroten, prednisone, feldene, indocid, salazopyrin and ducene. Pethidine was injected the next day. On the 6th there was a consultation about sinus symptoms. On the 7th she told Dr Vorbach that she felt "close to a possible nervous breakdown" through family and business pressures. She seemed weepy and distressed and remained troubled about the litigation. Another injection of pethidine was given. Later that day Dr Vorbach saw her "tearful". Thereafter pethidine was injected daily until the 19th when Dr Vorbach noted "16 pethidine injections" this month; and in that period she took morphine tablets too. Dr Vorbach's notes refer to "nerves", "teary", and "shoulder pain". At Dr Staunton-Smith's suggestion, Dr Coleman, an orthopaedic surgeon with an interest in upper limb problems, saw the plaintiff on 19 November. He considered her a "very poor candidate for surgery". She also saw Dr Millroy. He reported that he could not "understand why this shoulder is causing so much pain", adding "I think she probably has a psychiatric problem". But there was also an organic problem.
On 25 November the plaintiff saw Dr Cooke, an orthopaedic surgeon, suffering from shoulder pain. All shoulder movements seemed grossly restricted. The diagnosis was adhesive capsulitis. This painful condition is called "frozen shoulder". Dr Cooke considered that it was caused by prolonged immobilisation of the arm in a sling. There was low back pain and left sciatica, which Dr Cooke then suspected was related to degenerative L4/5 spondylosis and osteoarthrosis. The plaintiff was admitted to hospital on 30 November 1987 where, under general anaesthetic, the shoulder was manipulated. This broke down adhesions and restored most of the passive ranges of movement. On 10 December the synovium of the shoulder joint was found to be inflamed. Adhesions were excised during surgery. The immediate post-operative course was uneventful. The plaintiff regained a useful range of pain-free active movements and was discharged on 15 December to continue mobilisation under supervision of a physiotherapist. She pressed for narcotics before long.
Dr Vorbach visited the plaintiff on the day she left hospital to find her troubled about matters unrelated to her fall. She spoke of nerves playing up and, as best his notes can be interpreted, of anxiety "about robberies, houses and children". Two days out she asked for relief from shoulder symptoms, and obtained pethidine. There were complaints of neck pain and tension headache. When Dr Vorbach attended next day to find them repeated, he suggested a cervical collar. Dr Vorbach wondered whether her condition might not be "nervous distress". When he saw her on the 20th he noted "stress" and a recent "police incursion". On the 21st there were complaints of heavy vaginal bleeding since the day before. Next day she told Dr Vorbach of poor sleeping, "worries" and "depression". The day after, she received a valium injection and treatment for a vaginal complaint. On Boxing Day she made her first complaint of lower lumbar pain since her discharge from hospital. Dr Vorbach decided that there should be a CT scan, blood tests, and appointments with Drs Staunton-Smith and Cooke. "Business worries" persisted, as Dr Vorbach noted on 29 December. On his second visit that day, he heard about neck and back pain. On 30 December pethidine was given for back pain. Next day pethidine was injected for shoulder pain.
By the end of 1987 the plaintiff's business and family worries were considerable, and for reasons unrelated to her fall. She suffered what Dr Cooke calls "emotional trauma" because of them. The details are obscure.[20] However, Dr Cooke understood from her that she had learnt that her brother had disappeared overseas with funds from her businesses, that a finance company had withdrawn its support, and that her father in Jordan, who had been unconscious for three years after a stroke, was regaining consciousness. According to Dr Cooke, "this upheaval coincided with exacerbation of generalised arthritis which proved incapacitating to her".
New Year's Day saw back complaints and injections. Arrangements were made for admission to hospital on 2 January 1988 for pain relief and investigations. On admission the plaintiff complained of low back pain radiating into the left buttock and down the postero-lateral aspect of the left thigh and calf to the left ankle. The pain troubled her night and day, repeatedly disturbing her sleep. She claimed it was exacerbated by bending forwards, by sitting, and by straining. Dr Cooke noted that all movements of the lower back were grossly restricted by pain. Radiographs and a CT scan revealed degenerative spondylitic and osteoarthrosic changes involving the L4/5 segment, resulting in a forward shift of the body of L4 on 5. A myelogram showed significant segmental spinal canal stenosis of the L4/5 segment. The plaintiff was offered conservative treatment in preference to surgical intervention. She wanted surgery.
On 4 January 1988 Dr Cooke performed an L4/5 decompressive laminectomy. He saw significant segmental stenosis due to hypertrophy of the ligamentum flavum on either side and detected a large osteophyte growing into the spinal canal. He considered that he achieved satisfactory decompression of both the segment and the left L5 nerve route. The plaintiff was discharged on 16 January. Once home, she resorted to narcotics. She complained of pain to Dr Vorbach that day; and only digesic was prescribed. Next day pethidine was injected. When Dr Vorbach saw her at home on 18 January, there were complaints of pain; again pethidine was injected. On 19 January Dr Vorbach discussed troubling "business concerns". On the 20th he gave her pethidine after complaints of vaginal bleeding lasting six days. On the 21st there was still vaginal bleeding, and Dr Vorbach noted that she was "upset and weepy - too depressed": more pethidine; and, later the same day, when there was "too much pain", an injection of another narcotic, omnopon. On the 22nd she spoke of swollen fingers and face and of having vomited: more omnopon; and the same on the 23rd. Dr Vorbach's visit on the 24th yielded complaints of aches, swollen wrist, hands and fingers; and, of course, pethidine.
Home visits on 25 and 27 January saw complaints to Dr Vorbach of a peri-vulval rash and "pain everywhere". On the 29th the plaintiff spoke of pain in the legs and ankles. By the 30th there was pain in the hands. A concern about her father was mentioned to Dr Vorbach on 1 February, when treatment was given for a groin rash and the plaintiff seemed "depressed". Next day she got pethidine after complaining about sore hands and a urinary tract infection. On the 3rd she was due for a business meeting. She told Dr Vorbach she wanted "to be calm" in preparation for it. So he gave her pethidine. Dr Staunton-Smith saw her on 4 February when she complained of back pain. Dr Vorbach made home visits on 4, 7 and 10 February. He was told on the 10th that the plaintiff's father was unwell and that the family had gone to Jordan to be with him. Another pethidine injection was given. Dr Vorbach noted vaginal bleeding and business worries on the 15th. On the 16th the plaintiff said her arthritis was worse; omnopon was injected in the early afternoon and pethidine that night. On the 17th there was vaginal bleeding, which seems to have been connected with the meetings, and omnopon. On the 18th her fingers were swollen, and there were injections of maxalon, morphine and ducene. On that day she became bankrupt.[21] The plaintiff saw Dr Vorbach on the 19th when she spoke of handing over shops to her trustee in bankruptcy, and received injections of omnopon and phenergan, an antihistamine. Pain in the fingers, back and down the legs on the 20th resulted in an omnopon injection. Omnopon followed on the 21st, 22nd, 23rd and 24th. On the 25th, troubled about actions of a brother, the plaintiff received pethidine and omnopon after complaining of inability to sleep and pain in the fingers and back. Back pain was mentioned on the 26th, a sore throat on the 27th, a respiratory tract infection on the 28th, and pain in the ankles, legs and back on the 29th.
In March 1988 there were more than 30 consultations with general practitioners, many about gynaecological problems. Other complaints that month concerned back, knees, hands, abdominal region, ankles, rectal bleeding, night nerves, depression, and renal pain. Omnopon was frequently injected, and her drug regime persisted. Dr Cooke saw the plaintiff on 9 March 1988 when she was "obviously depressed". Although she complained of pain throughout the body, she told him that low back pain and sciatica had not troubled her since surgery. He thought her symptoms were of psychogenic origin. When the urologist, Dr Lukin, saw her towards the end of the month, she complained of loin pain, abdominal pain, "frequency", dysuria and discolouration of her urine. He arranged numerous urological investigations which were completed "without any significant abnormality being found". He suspected "a large functional element". In April she was seen by a gynaecologist, Dr Lumer, who wrote at the time: "her problem is psychosomatic and the pain and amenorrhoea are related to her stress situation ... there is nothing gynaecological causing her problems".
There was one complaint of back pain in March. In April there were 14 consultations, which were mainly concerned with gynaecological, rectal and abdominal problems; two were about the back. There were 12 attendances in May. Four involved back pain. Other complaints included vulval bleeding, ankle pain, joint swelling, and hand problems. The pattern was similar in June, with about 25 attendances, mostly with "general pain", for which the response was often pethidine. Dr William Douglas saw her in mid-June. She complained to him of pain throughout the body "in the bones and in the muscles", particularly about the neck, shoulders and knees. Dr Douglas was "not entirely sure what the diagnosis is". After further investigations, he concluded that "there is no obvious explanation for the severity of her symptoms".
July 1988 saw 20 attendances on medical practitioners. None involved back pain; several related to chest or pleuritic pain. In mid-July she was admitted to hospital for pneumonia and a pericardial effusion of unknown origin. In September she received injections for pain in the knees, chest, hand, feet, hip and back. Investigations at Dr Douglas's behest failed to disclose any basis for her complaints of inflammation. In October Dr Douglas said: "I do not believe that she has any serious underlying inflammatory joint disease". The physician, Dr J Douglas, saw her in August and October. He regarded her as "something of a diagnostic problem". After a battery of tests, he said "she remains difficult to assess, but overall I do not think that her disease process is particularly active". He recommended that the number of doctors involved in her care be limited. October saw one attendance on Dr Vorbach with "pain everywhere". More injections followed in November for complaints relating to the left chest and breast, left buttock and leg.
In December the plaintiff saw Dr Cooke, complaining of "crippling" back pain restricting movements of the lumbosacral spine. Radiographs and a CT scan revealed a postero-lateral prolapse of the L4/5 disc, compromising the cauda equina, and marked osteoarthrosic changes involving the L4/5 and L5/S1 apophyseal joints. Dr Cooke recommended rest. There were also attempts at immobilising the spine in a surgical brace, as well as physiotherapy. These proved ineffective. So in January 1989 Dr Cooke performed a decompressive laminectomy extending from L4 to S2. He found extensive scarring involving the dura at the L5/S1 segment on both sides, firmly attached to cystic masses causing significant stenosis and which were responsible for a tenacious adhesion to the thickened dura. After clearing away the adhesions and cysts, Dr Cooke enucleated the L5/S1 intervertebral discs. Histopathological examination of tissues suggested to Dr Cooke "typical changes of a reactive synovitis most likely of late traumatic origin".[22] She was mobilised under supervision of a physiotherapist and discharged.
In February there were more than 30 attendances on Dr Vorbach with low back pain. Much the same pattern existed in March. April saw more than 30 consultations with Dr Vorbach. In April the plaintiff was reviewed by Dr Rice, a psychiatrist, who detected a significant "psychological aspect" to her pain. When she saw Dr Rice, she was anticipating further surgery. Because of the psychological aspect, he expected that pain would persist after the operation. His prognosis was accurate.
The earlier surgery failed to alleviate the back complaints. In May Dr Cooke performed a third major back operation: a bilateral postero‑lateral fusion extending from L3 to S1, reinforced with CD instrumentation. The instrumentation - rods and screws - was intended to stop movement of the fused segments. The plaintiff was discharged six days later when, in Dr Cooke's view, she was "relatively pain free and mobilising comfortably". Pain soon followed. There were multiple visits to Dr Vorbach in June. The plaintiff told him of back pain on seven occasions that month. She also sought treatment for pain in the chest and for bleeding. In July there were no complaints of back pain in the 15 attendances upon Dr Vorbach; but he was told of chest tenderness, pain in the knees, hip and wrist, of depression, and of feeling suicidal. More injections resulted. In August back pain was mentioned on one of several visits. In late August Dr Vorbach noted that she was "hysterical". In September the plaintiff went to hospital with inflammatory pleuritic pain of uncertain cause. On the day she was discharged, she complained to Dr Vorbach of back pain. Many more attendances on Dr Vorbach and other practitioners occurred before the end of 1989. These included treatment for multiple complaints of chest pains, and problems with hand, knee and breast. She went to hospital on four occasions in these three months, but not for back pain. Her physical and mental condition gradually deteriorated from about 1989.
The evidence presents an incomplete picture of the complaints and treatment after 1989. Dr Vorbach's notes were typed up under the direction of Dr Satchwell. She did not continue with the exercise into the 90s; the notes became too hard to read. Dr Vorbach testified, but was not asked to interpret them. And, generally, not much attention was given to complaints after 1989, except those related to the back. Resource considerations may explain the absence of analysis of her other ongoing, multiple complaints and the extensive treatment they involved. The task would have been huge. Another factor may account for the limited consideration of non-back complaints. Until the addresses, the case seemed to proceed on a shared assumption that the compensation for the period after the successful shoulder operation largely depended on whether the fall caused the continuing back problems. This was a little surprising. Her back, it is true, has caused much suffering. However, many problems unrelated to the fall have also brought misery and disabling pain.[23] Some components of the award, especially economic loss and gratuitous services, might not have been markedly different if she had not had her back problems.[24] But it is unnecessary to form a concluded view about this. For it has not been proved that the fall contributed to her back trouble after September 1985.
While digressing from history, a drugs issue may as well be canvassed. Evidence of side effects was given, especially by the psychiatrists, Drs Grant, Mulholland and O'Callaghan. This was adduced to demonstrate that poor business decisions which played a part in her bankruptcy were attributable to the drugs, in particular omnopon, pethidine and morphine, which, regularly used, can cause confusion. Any possible connection between the drugs and her financial problems lost its potential significance when it was conceded that the plaintiff would have become bankrupt in any event at about the time she presented her bankruptcy application.[25] It was then suggested that the drugs, especially the anti-inflammatory agents, had caused a deterioration of physical and mental health.
The plaintiff absorbed an enormous quantity of steroidal and non-steroidal anti‑inflammatory agents, including prednisone, indocid, decadron and kenacort. These drugs can produce peptic ulceration and bleeding, and they can aggravate or cause depression. Prednisone can cause osteoporosis. The lack of strength in bones in the spine which contributed to the collapse of the CD instrumentation quite possibly resulted from osteoporosis that developed through a combination of inactivity after the fall and the anti-inflammatory agents. Moreover, someone who regularly resorts to methadone may become hypersensitive to pain. And methadone can produce symptoms of a kind which these days afflict the plaintiff: chronic tiredness, lack of drive, and depression.
Adverse side effects did manifest themselves. However, evidence was not adduced to show a causal relationship between drugs taken for complaints possibly referrable to the fall as distinct from those ingested for symptoms unrelated to it. And the plaintiff was taking a cocktail of drugs for pain which was not accident-related. The evidence does not permit a dissection between, for example, knees[26] and back. So it is not proved that the debilitating sequelae of her surprising drug regime sounds in damages. In this respect, she is not shown to be worse off because of the fall.
In January 1990 there were two attendances on Dr Vorbach; at least one related to a knee. In February she had problems in the lungs, fingers and elbow. Complaints in March and April concerned the hand, rectal pain, ulcers, indigestion and coughs. This pattern persisted in 1990, although the attendances were down on 1989. Dr Vorbach was prevailed upon to continue with narcotics. Several other medications were prescribed.
1991 was another eventful year. In January she saw Dr Maguire, an orthopaedic surgeon retained by the defendant's solicitors. Regular attendances on Dr Vorbach involved multiple complaints; pethidine was routinely administered. In May she was treated for haemorrhoids, and for knees and hands problems. In June she complained of severe back pain to Dr McPhee, another orthopaedic surgeon. In August she was admitted to hospital for surgery. The CD instrumentation inserted by Dr Cooke had loosened. Great suffering resulted. A fourth back operation was performed in an attempt to alleviate her distress. Dr McPhee removed the instrumentation and reinforced a deficient graft at the L3/4 level. The plaintiff was discharged home with her spine immobilised in a corset. Next month she attended the drug dependence service at Biala for her seemingly inevitable dependence on opioid medications. The general pattern of consultations with Dr Vorbach continued.
In January 1992 the plaintiff's gall bladder was removed. In June she was put into hospital for two weeks with chest pain diagnosed as pericarditis. In August 1992, a few days after receiving news of her father's death, she was readmitted with "multiple body pain". Later that month she had difficulty walking and breathing. In November she saw Dr Boys, an orthopaedic surgeon, seeking relief from bilateral knee pain associated with crepitus. By then her anti-inflammatory medication had ceased because of gastro-intestinal upset, but she was taking physeptone daily.
By January 1993 the focus of the back complaints had shifted to the mid-thoracic region. According to Dr McPhee's report of 20 January 1993, pain in that different part of the back necessitated the taking of methadone. "She has", he wrote, "no problems in the area of her previous surgery". He considered that her problems were not "orthopaedically curable". The plaintiff's mother died in 1993. 1993 witnessed heart problems, troubles with a right finger, one lung, one hip, "general pain", and pain sited in the abdomen, left kidney, right foot, and right arm. Medications continued.
In January 1994 the plaintiff was hospitalised with heart palpitations. In March Dr Staunton-Smith referred her back to the Pain Clinic. Her eldest brother died in April 1994. In May she told Dr Mulholland, one of at least five psychiatrists she has seen, that she had given up on life since 1988 "and particularly so since 1993". He thought she suffered from a chronic depressive neurosis that had been aggravated by deaths in the family.[27] In his opinion, the condition had existed since at least 1988. Dr Mulholland thought her depression was an "end result of all the various factors in her life", and he did not try to decide whether her psychiatric condition might have been different but for the fall. He did comment in June 1994 that:[12]cf. The Uniting Church of Australia Property Trust v. Dobell per Thomas and Dowsett JJ at 7, 8.
[13]She was a lessee with him but saw her role as being that of a guarantor.
[14]Back pain in women is commonly associated with menstruation. The plaintiff said that these back concerns were associated with period pain. The evidence, especially that of Dr Phun, Dr Scally, Dr Toft and Mr O'Brien, shows she has made up this connection.
[15]Fibromyalgia is a disease of unknown origin. The term is sometimes used to describe generalised aches for which no cause can be found. Fibromyalgia is controversial. It can, it seems, be precipitated by trauma, but it is often associated with emotional problems.
[16]These businesses were retained until Christmas 1985.
[17]The note was probably based on something said by one of the plaintiff's children, and not in her presence. After the fall, the plaintiff helped out in the shops by moving the produce around, as the evidence of Mr Wright disclosed, contrary to her denials.
[18]which she kept until the end of October.
[19]She denied both having done such work and the conversation. Language difficulties do not explain their different recollections, and I prefer Dr Phun's evidence.
[20]because the plaintiff refused to acknowledge their nature in evidence.
[21]Her statement of assets and liabilities in support of the application is mostly false.
[22]The pathology report said "both of the submitted specimens show changes of reactive synovitis of non-specific type. There is no evidence to suggest any inflammatory process ... There are certainly some degenerative changes present. These may be secondary but there is no histological evidence to suggest the nature of the primary pathology. The histological appearances are consistent with an old traumatic lesion. Summary: Reactive synovitis, possibly late post-traumatic."
[23]These include joint inflammation. Dr Scally thinks that the plaintiff suffered from fibromyalgia, or "soft tissue rheumatism". In his opinion, the fall probably exacerbated symptoms, "particularly in the right shoulder and perhaps in the low back". He regards that aggravation as only temporary and attributes the persistence of aches to fibromyalgia that ante-dated the fall. Drs William Douglas and Staunton-Smith seem baffled. They have considered whether fibromyalgia explains the diffuse pains in so many joints. Once, Dr Staunton‑Smith thought the plaintiff had fibromyalgia. Investigations persuaded him that inflammatory arthritis of unknown cause was involved. Dr Douglas regarded the pains as consistent with fibromyalgia, which might have been stress‑related. This would be consistent with the pre-accident manifestation of symptoms during financial pressure. Dr Cooke noted that an emotional "upheaval" in 1987 coincided with incapacitating "generalised arthritis". The defendant propounds a case that many of the problems are rheumatic. This much is common ground: any fibromyalgia-like problems have nothing to do with the fall. It is not the plaintiff's case that she has ever had a rheumatic condition which might be related to it. The plaintiff contends that her problems are orthopaedic in origin. Those practitioners who believe otherwise have "got it wrong", Mr Greenwood Q.C. argued. It rather looks to me as if they may well be correct.
[24]See Nilon v. Bezzina [1988] 2 Qd R 420; H. Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed. (1990), pp. 146-148; and, generally as to those possibilities which are to be valued, Sellars v. Adelaide Petroleum NL (1994) 179 CLR 332, 349-351; Wynn v. NSW Insurance Ministerial Corporation (1995) 70 ALJR 147; McDonald v. FAI General Insurance Co Ltd, CA 127 of 1995, 3 October 1995.
[25]Days were occupied with evidence directed to the issue whether the fall might have caused or hastened her bankruptcy. Late in the trial, it was conceded that, had the fall not supervened, the plaintiff would have become bankrupt in any event at about the time she did. The evidence amply supports the concession.
[26]She told Dr Cooke in November 1987 that "both knees" are "killing me now". Her knee problems, like those in the hands, have nothing to do with the fall.
[27]Mrs Fisher's evidence confirms the impact of the death of the parents. These events were, she testified, "very, very tough" on the plaintiff.
"Mrs Ibrahim is focused upon this fall as being the cause of all her physical and psychological problems. It is difficult to appreciate how this could be. As best I can understand it the fall and its associated problems may be a contributing factor but it is amongst many other factors. Because she was in a setting of unresolved and, I understand, contested litigation, there is an inevitable trend towards maximisation of symptomology and disability. It is noted that she has adopted an invalid role and it is not entirely clear to me whether adoption of such an invalid role is appropriate given her medical condition."
A few days later she saw Dr Maguire, complaining of constant right shoulder pain so intense that she could not use her arm. She spoke of pain in most joints of the body: especially in the right hand and wrist. Her fingers, she said, would swell at night, at times her whole arm felt numb, and the lower back was always painful. She informed Dr Maguire that she did virtually no household tasks and that attempting "anything" worsened her back pain. Complaints were also made of neck and mid-thoracic pain most of the time, and of pain in the left shoulder on use. There was marked hyper-reaction to all examinations. Dr Maguire reported that he did not think that a significant back injury had occurred in the fall, but he left open the possibility that her back complications might be accident-related, particularly if records immediately after the fall disclosed suggestions of significant lower back pain.[28]
In July 1994 the plaintiff returned to see Dr Staunton-Smith for treatment of a painful right middle finger. She said her finger was broken and affected by a green discolouration. Dr Staunton-Smith detected neither swelling nor discolouration. She was an in-patient at the Pain Clinic for about two weeks in August. Her discharge medication included daily methadone. In October 1994 she complained to Dr Staunton-Smith of sore knees. He could not help her. He wrote to Dr Vorbach: "She has painful knees now and I recommend she go (to hospital) to be reviewed by the Orthopaedic Department. It seems as though when one area is less troublesome, another breaks out." An x-ray in December showed degeneration in the thoracic area with kyphosis.
Little detail of the complaints and treatment in 1995 emerged.
The plaintiff feels constant back pain. Apart from gardening, she does little around the house. Almost any activity aggravates her suffering. She seems dependent on friends and relatives for assistance with simple chores. Both knees are very painful and tend to give way. She can walk only short distances. She complains of other joint pains: in the neck, hands, fingers and wrist. A large drug intake persists.
The main contest concerns the lower back. The plaintiff contends that her back disability is related to the fall. Dr Cooke's opinion supports this case. Dr Maguire disagrees, considering that, although the fall may have caused some initial back pain in a degenerative spine, the ongoing symptoms are referable to degenerative change not caused or accelerated by the fall. The resolution of this difference is problematic. A court receives expert evidence because of a lack of knowledge requisite to an informed adjudication. Both doctors are experienced specialists. How is a choice to be made between these persuasively articulated, considered points of view, which were unshaken by cross‑examination? The answer apparently lies in "logic and commonsense".[29]
Dr Cooke had the advantage of treating the plaintiff and of seeing first-hand the lower back condition described in his reports and testimony. He did not see her until 2½ years after the fall; but Dr Maguire did not see her until almost six years had passed. This much is common: these specialists initially formed their opinions in ignorance of facts germane to the validity of their views. Dr Cooke acknowledges that his understanding of the extent of her complaints before and shortly after the accident influenced his conclusion; and the plaintiff misled him about these things. She told him that she had not experienced lower back pain before the accident. She exaggerated her post-accident back symptomology. Even as he testified in chief, Dr Cooke remained unaware of the truth concerning her history of back problems. Dr Maguire's opinion concerning the absence of a relationship between the fall and her ongoing back disabilities was formed when he lacked material records, especially those disclosing complaints of back pain from 27 May 1985 until September that year. Yet he accepts that her history is important. None of this makes it any easier to decide between the doctors. But the history seems more consistent with Dr Maguire's view.
There was clinical evidence of degenerative spondylotic and osteoarthrosic change involving the lumbar spine before the accident. The plaintiff's description of her symptoms resulted in referral to an orthopaedic specialist and traction from a physiotherapist. This was consistent with advancing degenerative back pathology. After the accident, the plaintiff did not experience the kind of severe pain which might have been expected if there had been disruption to a disc or other trauma likely to affect the natural degenerative process. She did not complain to a medical practitioner of any back pain until a week after the fall. From late May until September 1985, there were occasional complaints of low back pain. Apparently the fall lit up symptoms like those experienced previously.
The picture emerging from the intermittent complaints from about October 1985 until late 1987 also seems to accord better with Dr Maguire's opinion. Between 24 September 1985 and 10 January 1986, no doctor was told of back trouble. Lifting fruit at work probably explains the complaint on 10 January. The next back complaint was on 27 March 1986, and the problem is not shown to have differed in nature or extent from pre-accident symptoms. The trouble in July occurred after lifting at work, as might have been expected without the accident. Back pain was next recorded in March 1987 - the day after the car collision. After that, no relevant pain was recorded until October 1987. And if the plaintiff had been troubled by back pain in that time, the doctors would very likely have learned of it.
Other points bear on my preference for Dr Maguire's view. Dr Cooke considers that the histopathological report[30] favours a conclusion that the reactive synovitis was of old traumatic origin. But, as Dr Maguire pointed out, the report spoke of the condition as "possibly" of traumatic origin, the earlier surgery is a more likely explanation for traumatic synovitis than a back strain five years before, and the synovitis was consistent with naturally degenerative pathology. Next, Dr Cooke relied to an extent on the plaintiff's description of a heavy fall onto her buttocks. She probably described the event and its aftermath overdramatically. More generally, Dr Cooke's reliance on misinformation from the plaintiff detracts from the appeal of his opinion.
In the result, preferring the opinion of Dr Maguire, I am not persuaded that the fall contributed to the condition of the lower back which led to the surgery early in 1988. In other words, it has not been established that the fall altered the natural progression of the degenerative disease in the lumbar spine.[31] The fall contributed to occasional lower back pain until about September 1985. Later back complaints are not connected with it.
This brings me to the components of the assessment.
The shoulder injury has resulted in a permanent disability of about 10% of the limb. In the scale of things, it is not a major disability, but it is not unimportant. Until the surgery in December 1987, the shoulder was the site of pain and restricted movement. It resulted in related neck pain. In association with intrusive psychological factors arising from family and business worries, the shoulder caused anxiety and ongoing, occasionally severe, pain until the surgery in late 1987. And there is a continuing shoulder disability which must be reflected in the assessment. Otherwise, her symptoms and their consequences have already been mentioned.
In respect of pain and suffering and loss of enjoyment of the amenities of life, the damages are assessed at $27,500. I apportion $20,000 to the pre-trial period.
The plaintiff sought compensation for services gratuitously provided by her family. From the fall until early 1988, the claimed need was an average of 2½ hours per day. No attempt was made to justify such an approach. Because of the shoulder, however, there must have been a need for some assistance before the first back operation: in domestic tasks, for example. Forming a view about the extent is not easy. No records were kept at home or at work. And the evidence of Dr J. Douglas, Dr Scally and Mrs Fisher is inconsistent with the degree of need suggested by the plaintiff and her children, who overstated her predicament in that 2½ years.
In assessments in personal injury cases, courts do their best. "The difficulty inherent in the assessment of damages provides no reason for the courts to shirk the task of arriving at the estimate most likely to provide fair and reasonable compensation".[32] But in view of the unsatisfactory evidence offered in proof, it is questionable whether anything should be awarded under this head. Yet the defendant accepts that there should be an allowance for domestic and general assistance "to the extent of some hours per week" from the fall until the middle of 1986 and also around the time of the shoulder operation. The defendant proposes a "global sum" in the range of $5,000 - $10,000. Nothing proved really warrants more than $7,500, which therefore will be allowed.
The economic loss is confined to a period ending at about the time of the bankruptcy. Since then the plaintiff's earning capacity has been extinguished for reasons entirely unrelated to her fall.
Accountants conferred in an effort to reach a consensus. A complete accord was not reached, although they did agree that an appropriate reflex of the diminished earning capacity between fall and bankruptcy was "her share of the cost to the trust of employing substitute labour". Unhappily, this approach is deceptively simple. Among other things, there is difficulty in identifying both the cost of substitute labour and her "share" of the trust.
The day after the fall, the plaintiff's brother came to Chermside from his fruit shop at Kingston, and a Mr Mowed took the brother's place at Kingston. The brother came to Chermside because the plaintiff could not work. Mr Mowed's wages until mid-February 1988 were about $50,000. Sameha Pty Ltd met at least some of this expense. Not all the cost of employing Mr Mowed is attributable to the fall. The plaintiff had substantially resumed her pre-accident functions by about September 1985. She was not as well as she had been, and help was needed from her brother for a while. But not long after the fall, she returned to manage Chermside much as before; and she also opened other enterprises which needed staff. In short, the plaintiff did not need a full-time employee to replace her over the entire period between the fall and her bankruptcy. And, as the evidence of Mr Catania shows, the plaintiff's brother was not at Chermside full‑time. So only a proportion of Mr Mowed's wages could relate to the fall.
Secondly, it is hard to ascertain what the plaintiff's "share" of the trust was. There are no company accounts, no accounts of the trust, and no tax returns after the fall. In earlier years, trust funds had been used to pay school fees. The children were beneficiaries, entitled to be considered annually as prospective distributees. And the plaintiff's brother had participated in distributions; he was treated as having a "share". In any event, it is by no means clear that the plaintiff herself derived less than she would have received but for the fall. The burden of engaging Mr Mowed may have fallen on other beneficiaries, leaving the plaintiff with as much as she would have received from her enterprises had Mr Mowed not been engaged. No records exist to indicate the true state of affairs.
Here again it is a question whether the evidence affords a rational basis for concluding that the plaintiff sustained a loss through Mr Mowed's employment. The defendant acknowledged that a "very limited" claim for economic loss had been proved.[33] So some amount should be allowed. Mr Mowed's wages were about $1,500 a month. To allow, as I shall, $7,500 does not involve an under-assessment of her economic loss.[34]
In the hope that my findings will enable special damages and the cost of future medical care and pharmaceuticals to be agreed, the parties have asked me not to assess those components.
The defendant proposes that interest not be allowed for more than five years from the issue of the writ on 18 May 1988. The matter has taken a long time to come to trial. In all the circumstances, however, I do not regard the delay as so inordinate as to justify withholding interest. The calculations can be left for the moment.
There is one more thing. I am not inclined to act on the plaintiff's testimony in any controversial matter unless it is distinctly corroborated other than by her sons. There are several reasons for this reticence. But the outcome of the trial can only add to her burdens, and it would be needlessly hurtful to elaborate on my adverse views of her veracity.
For services gratuitously provided, for diminution in earning capacity, and for pain and suffering and loss of enjoyment of the amenities of life, the damages are assessed at $42,500. But there will be judgment for the defendant.[28]which they did not.
[29]Holtman v. Sampson [1985] 2 Qd R 472, 474; cf. Monroe Australia Pty Ltd v. Campbell (1995) 65 SASR 16, 27-28.
[30]see fn 22.
[31]Nor am I persuaded that problems in the thoracic and cervical areas are causally related to the accident.
[32]Todorovic v. Waller (1981) 150 CLR 402, 413 per Gibbs CJ and Wilson J; cf. Roe v. Cullinane Turnbull Steele (No 2) [1985] 1 NZLR 37, 48; JLW (Vic) Pty Ltd v. Tsiloglou [1994] 1 VR 237, 241-246; Truss v. Brazier [1993] 1 Qd R 691, 697.
[33]This makes it unnecessary to consider whether problems like those in Lago v. Lago [1983] 2 Qd R 29 arise; cf. Seymour v. Gough [1996] 1 Qd R 89; Luntz, op. cit pp. 248-249.
[34]A claim was foreshadowed for losses allegedly resulting from an inability to engage successfully in the acquisition and sale of business for capital gains. The point essentially concerned whether the plaintiff's commercial judgment and her energy may have been adversely affected by the fall. There were reports from valuers and accountants, and the topic was explored at length with the plaintiff. It is not surprising that Mr Greenwood made no mention of the claim in his address. The evidence does not sustain a conclusion that the plaintiff's chances of conducting her businesses more profitably were diminished by the fall: still less that she could possibly have disposed of her enterprises for more than she did were it not for the fall.
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