Irving v Rudale Nominees Proprietary Limited
[2011] VCC 1007
•10 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-10-04114
| KRISTY LEE IRVING | Plaintiff |
| v | |
| RUDALE NOMINEES PROPRIETARY LIMITED | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 30 and 31 May, 1, 3, 6, 7 and 8 June 2011 |
| DATE OF JUDGMENT: | 10 June 2011 |
| CASE MAY BE CITED AS: | Irving v Rudale Nominees Proprietary Limited |
| MEDIUM NEUTRAL CITATION: | [2011] VCC1007 |
REASONS FOR JUDGMENT
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Catchwords: DAMAGES – Damages trial – negligence – duty of care of employer – general damages claim.
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| APPEARANCES: | Counsel | Solicitors |
| For Ms Irving | Mr J Jordan SC and | Slater & Gordon Ltd |
| Mr M Nightingale | Ballarat | |
| For the Defendant | Mr J Moore QC and | Herbert Geer Lawyers |
| Mr I Gourlay | ||
| HIS HONOUR: |
1 In this proceeding, Kristy Lee Irving seeks damages against the defendant for injuries suffered by her in the course of her employment when, on 21 April 2007, she was struck by a number of heavy plaster sheets which had been located at her place of employment.
2 The defendant conducts a dental clinic and Ms Irving was employed by the defendant as a dental nurse at its premises situated in Lyons Street North, Ballarat.
3 The layout of the clinic, insofar as it is relevant to the claim, is as follows. Access to the ground floor of the clinic is principally via the front door which opens onto a reception area/waiting room from which a central passageway extends to the rear of the premises. Various treatment rooms and other rooms such as an x-ray room and a sterilising room are located on either side of this passageway, entry to those rooms being via doors positioned to either the left or right of the passage way.
4 Towards the rear of the clinic a secondary waiting room is located which can be accessed either via the passageway or via an external door which opens from what has been described as a laneway or driveway which is adjacent to the premises.[1]
[1] See the Plan which is Exhibit C
5 The defendant’s dental clinic is one of a number of clinics within Ballarat which provide, on a rostered basis shared between them, emergency dental treatment during weekend hours.
6 On the morning of Saturday, 21 April 2007, Ms Irving was to attend the clinic for the purpose of preparing the facilities required for the treatment of emergency patients who were to attend the clinic on that day.
7 In accordance with the system by which emergency services were provided, on the evening of Friday, 20 April 2007, Ms Irving had been provided with a mobile telephone for the purpose of taking calls from and making bookings for patients requiring emergency dental treatment over the weekend.
8 In the course of the Friday evening, Ms Irving had received three telephone calls requesting emergency treatment and had made arrangements for the patients seeking treatment to attend the dental clinic on Saturday morning, 21 April 2007, the first appointment being arranged for 11.00 am on that morning.
9 It is not in issue that on the Saturday morning, Ms Irving, together with a junior assistant, Ms Krystal Fontana, were required to attend the clinic prior to the arrival of the patients (and also the treating dentist) for the purpose of preparing the facilities required to manage the patients’ presentations, and that this required the setting up of the room in which the patients were to be treated.
10 On 10 April 2007, the defendant had executed a contract for plastering works to be undertaken at the clinic.[2] The works involved the fixing of plaster sheeting in various locations within the premises, including the waiting/reception area and the ceiling of the passageway. It was a condition of the contract that the works were to be carried out after hours, and although the evidence as to this issue is scant, it seems that some of the work was to be undertaken over the weekend of the 21-22 April 2007, as both Ms Irving and Ms Fontana were aware that builders would be working at the clinic on Saturday 21 April 2007. In this respect, it is not in issue that the presence of workmen at the premises was not unusual, in the sense that the clinic had undergone substantial renovations which had been completed in December 2006, during the course of which the clinic had continued to operate.
[2] See Exhibit 3
11 It was Ms Irving’s evidence, which was not the subject of challenge, that whilst she was not aware of the precise nature of the work which was to be undertaken in the course of 21 April 2007, she was aware that workmen would be present on that day.
12 On the morning of 21 April 2007, Ms Irving rang Dr Han Han Nguyen, the dentist who was on call to treat the emergency patients, informed her of the bookings which had been made and advised her that she (Ms Irving) would attend the clinic early because:
“I understood the workmen would be there so I – I went in early and she
agreed to that.”[3]
[3] Transcript (“T”) 54
13 When Ms Irving arrived at the clinic she gained access to the premises through the front door which opened onto a reception area. On entering the building, she noticed that the builders had been working in the waiting room/reception area as chairs had been moved. She also noticed that large plaster sheets consisting of lengths of plaster of approximately six metres by one point four metres (the height being my estimate on the basis of Ms Irving’s evidence that she is 164 centimetres tall and that the plaster sheets came up to her chin) had been placed in the hallway, the sheets being positioned upright on their edges and leaning against the wall of the hallway, such that they blocked access to a number of treatment rooms and also to the area in which the x-ray facilities were located.
14 In the course of a telephone conversation between Ms Irving and Dr Han Han, Ms Irving was informed that Dr Han Han’s husband, Dr Tan Nguyen (“Dr Tan”), was to attend the clinic in the morning in the place of Dr Han Han and Ms Irving was instructed to prepare Dr Tan’s usual treatment room which was located next to the x-ray room. Because this treatment room was blocked by the presence of the plaster sheets however, Ms Irving was subsequently directed by Dr Han Han, in the course of a further telephone conversation, that an alternative treatment room at the rear of the premises was to be prepared for Dr Tan’s use.
15 There is no issue that it was the expectation of both Ms Irving and Ms Fontana that emergency presentations of the type which were to be treated on the morning of 21 April 2007 would require dental x-rays to be taken. Ms Irving described this as being invariably the case.
16 Ms Irving gave the following evidence as to the circumstances in which she was injured:
“I put the phone down. I then walked back down the hallway, and I was
looking for the x-ray equipment which was in this room.[4]
[4] By reference to “this room”, Ms Irving was referring to the x-ray room, access to which was precluded by the presence of the plaster sheets
As I was walking down the hall I appeared – I got to the x-ray room door – well, where the plaster sheets were laying – and I placed my right hand up to peer over to see how.
Q: You are going up in the witness box, is that indicating you were
tippy toing?---A: Yes. I was tippy toing up. Q: Yes?--- A: And that’s when they fell on me. Q: What were you tippy toing up to do. What were you trying to do?--- A: To peer over to see if the x-ray equipment was still in that room. Q: Were there lights on in that room or not?--- A: No. Q: What happened to the plaster sheets when you did that?--- A: The first one wobbled, that fell towards me, which dominoed (sic)
effect the rest of the plaster sheets.[5]Q: I know this happened quickly, but how far up did you think the
sheets went to the best you can recall?---A: When standing it was roughly. Q: At chin height?--- A: Yes. Q: About your chin height?--- A: Yes, roughly my chin height. Q: When they fell on you Ms Irving, where did you end up?--- A: I ended up against the hallway wall. … Q: What happened to your left arm?--- A: It, it, my wrist broke.”[6] [5] T 60
[6] T 61
17 It is not in issue that the mechanism by which Ms Irving sustained her injury was that the plaster sheets which had been positioned within the hallway so they rested with one edge on the floor and the other against the wall, fell in such a manner that they forced Ms Irving against the opposite wall of the hallway, her left arm becoming wedged between the wall of the hallway and the collapsing plaster sheets, such that her left hand was flexed upwards and her wrist was broken.
18 Ms Irving said that prior to attending the clinic on the morning of her injury, she had not been told that plaster sheets would be placed so as to block access to the x-ray developing machine and that had there been some forewarning of this, arrangements could have been made to relocate the portable x-ray machine which was stored in that room.
19 In the course of cross-examination by Mr Moore QC, who appeared on behalf of the defendant with Mr I Gourlay:
(i)
Ms Irving said that whilst she was aware that building works were to be undertaken on the Saturday morning, she could not recall who gave her that information, it being her recollection that she was told that builders would be in the area but that she was not aware that plasterers would attend;
(i)
Ms Irving denied that she had instructed Ms Fontana that patients were to be met at the front of the surgery and escorted along the external walkway so as to enter the external waiting area. She agreed, however, that this process would have been the most sensible and safest way for patients to gain access to the premises.
(ii)
Ms Irving said that she was not aware that plaster was going to be positioned within the premises until she arrived, nor had she been told that she was not supposed to be in the area in which the plaster had been positioned.
20 Ms Irving was questioned as to her conversation with Ms Fontana:
Q: “She says that the angle of this plaster was slight, and in talk with
you, you are both wondering whether it was safely stacked? ---A: I don’t remember.”
21 Ms Irving agreed that at the time at which she left the dental clinic on the Friday evening at approximately 5.45 pm, the plaster had not been delivered. She said that she had no idea who had delivered the plaster or when it had been delivered, but agreed that it must have been delivered between the time she left the premises on the Friday evening and her arrival on the Saturday morning.
The Evidence Adduced by the Defendant as to Liability
22 In opening the defendant’s case as to liability, Mr Moore QC made the following concession on behalf of the defendant:
“Despite extensive inquiry and investigation, your Honour, we are not in a position to establish by way of any evidence that Ms Irving was instructed with respect to maintaining herself clear of the corridor. So that allegation, as implicitly indicated yesterday, your Honour, is now a fact. We do not and cannot call any evidence to indicate that Ms Irving had any notice of anything, any instruction, direction or warning of that nature.”
23 On the basis of that statement, an application was made by the defendant to delete sub-paragraph (1) of its allegation of contributory negligence on the part of Ms Irving, namely:
“Failing to heed the arrangement that during the weekend the corridor
was off limits for staff and patients.”
24 The sole witness called on behalf of the defendant upon the issue of liability was Ms Krystal Fontana. She gave evidence that in the week leading up to the Saturday morning upon which Ms Irving was injured, a discussion had taken place within the reception area of the clinic between herself, Ms Irving and Belinda Pilcher in which Ms Fontana said that she –
“… mentioned to Kristy that – about the renovations happening, and that we’re – we’re to still go ahead with the on call even though they were going ahead with the renovations on the Saturday and I remember Kristy just saying ‘that’s just the way it was’ and we were just to do the on call.”
Her evidence continued:
Q: “Before you go there and going back to the discussion with Belinda and Kristy, is there anything else said about what was going to happen on the morning? --- A: Just that we were to come via the back door, patients were to come into the front reception area. Let the front – reception, Kristy know that they were here. Kristy was – if they need to fill out any paperwork, being new, they were to do that, then they were to exit – the building, go down the back alleyway and take a seat in the back waiting room and myself would come out to collect them when they were ready. Q: Was there talk about why that was the case. In other words, not
to use the corridor?---A: It was due to the renovations, and that if there was anything to be done in that way that we were to not use, the corridor, in case there were things laying around, to be in our way, to fall on us.”[7] [7] T 106
25 When Ms Fontana was asked to recount any discussion between herself and Ms Irving as to the plaster the following evidence was given;
Q: “Can you recall any discussion or talk about the presence of
plaster and what should be done?---A: We were in the hallway when we saw the plaster. Q: Both of you?--- A:
Both of us, yeah. We were standing right in front of it and we were just having a discussion that it didn’t look like it was safe from the way it was leaning and we didn’t feel that it should be where it was for us to be able to continue working.”[8]
[8] T 98
She continued:
Q:
“In relation to the position of the plaster, did you notice anything about its position relative to the wall when you were talking about its presence?---
A: It was sort of on an angle. Q: Could you indicate what sort of angle it was on if you can
answer?---A: Not really, just - yeah, just an angle. Q: Was there any talk about its stability?--- A: Not that I really remember, no.”
And further:
Q: “Was there any talk you recall about the x-ray equipment, where it
was and what could be done about it?---A:
We did have a discussion about the x-ray machine – where – where it was behind the plaster in the room, and that we would need to take an x-ray and we just had a discussion that there was no possible (sic) that we were going to be able to get it out of the room.”
And further:
Q: “Now can I take you back in time to your earlier discussions, can you recall any talk about the relative safety or otherwise of this plaster up against the wall?--- A: Just a general discussion that they shouldn’t be there and that they looked unsafe if someone was to walk down the hallway and trip over them. Q: Who was doing the talking about that?--- A: It was sort of a discussion between the two of us and we were just
having a chat.”[9][9] T 110
26 Miss Fontana did not witness the circumstances of the accident as she was in the sterilising room when it occurred.
My Findings as to the Defendant’s Alleged Breach of Duty of Care and as to
Contributory Negligence27 It is put on behalf of the defendant that Ms Irving has not established on the balance of probabilities that the defendant was in breach of its duty to provide her with a safe place of work, having regard to the absence of evidence that the defendant was aware that plaster had been delivered to the premises or that it had been positioned in a way which created the potential for risk of injury to Ms Irving.
28 Further, the defendant relies upon the evidence by Ms Fontana that instructions were given to both Ms Irving and Ms Fontana, to the effect that they should keep clear of the building works, as being evidence of an appropriate safe system which the defendant put into place to secure the safety of its employees.
29 As to the latter point, a conflict arises between the evidence of Ms Irving and that of Ms Fontana as to whether a discussion took place during the working week which preceded her injury as to whether the passageway of the premises should be avoided.
30 As I have referred to earlier, Ms Fontana gave evidence that a discussion to the following effect took place:
“”It was due to the renovations, and that if there was anything to be in the way that we were to not use the corridor in case there was [sic] things lying around, to be in our way, to fall on us.”
31 Ms Irving denied the fact that such a discussion took place.
32 It was Ms Fontana’s evidence that this conversation took place in the presence of Belinda Pilcher. Ms Pilcher has not been called by the defendant and no reason was advanced for the failure of Miss Pilcher, who was one of the defendant’s proposed witnesses, to give evidence to corroborate the evidence of Ms Fontana.
33 Further, Ms Fontana’s evidence is inconsistent with the statement made by Mr Moore QC shortly before it was adduced that no evidence was available that such a warning was given.
34 In these circumstances, I am not satisfied that the warning referred to by Ms Fontana in her evidence was actually conveyed to Ms Irving or that, even if it was, her failure to comply with such a generalised warning could be a ground which absolves the defendant from liability (as was suggested by Mr Moore).
35 Indeed, the latitude which was present in the warning, if it was administered, is, in my opinion, demonstrated by the fact that when Dr Han Han advised Ms Irving that her husband was to attend the premises, Dr Han Han did not hesitate to instruct Ms Irving to set up his treatment room which was located immediately next to the x-ray room and therefore required nursing staff, patients and Dr Tan to make use of the hallway, and that Ms Fontana did not hesitate to use the hallway to gain access to the sterilising room in which she was located at the time of the accident.
36 Having regard to the evidence that a number of plaster sheets which were in the vicinity of 6 metres in length and in excess of 1.4 metres in breadth had been positioned within the hallway of the premises at such an angle that the mere placing by Ms Irving of her hand upon the plaster sheets caused them to fall across the hallway, I am satisfied that the way in which the sheets had been positioned gave rise to a serious potential risk of injury.
37 Whilst there is no evidence as to the time at which the sheets were delivered to the premises, I am satisfied that the evidence establishes that they were most probably delivered on Saturday morning when the alarm system at the premises was disengaged for a period of approximately thirty minutes between 7.20 am and 7.41 am.[10]
[10] See Exhibit 4
38 I am further satisfied that I may safely infer that access to the premises by the persons responsible for the delivery of the plaster occurred by reason of an arrangement entered into between the servants or agents of the defendant and those persons.
39 In circumstances in which the defendant was aware that a delivery of plaster of sufficient quantity to enable the replastering of the ceiling of the hallway and other areas of the dental clinic was to be made to the premises over the weekend and that Ms Irving, together with Ms Fontana, were to enter the premises for the purpose of preparing it for the emergency treatment which was to be administered on the Saturday morning, I am of the opinion that it was incumbent upon the defendant to take appropriate steps to ensure that the areas in which Ms Irving was required to work or walk through were safe for her use.
40 In my opinion, at a minimum this should have involved the defendant either:
• ensuring that an appropriately qualified person attend the clinic before Ms Irving entered the premises for the purpose of ascertaining the condition of the premises and ensuring that the areas in which Ms Irving was required to work or walk through were safe; or, alternatively • in the absence of checking the area, arrangements should have been made for any equipment which might have been required during the operation of the emergency clinic on the Saturday morning to be relocated outside the building works area and that clear instructions should have been given to Ms Irving and Ms Fontana that that area was out of bounds. 41 Alternatively, given the fact that the provision of emergency treatment at the clinic was not a weekly occurrence, the defendant could have arranged for the building work to be undertaken on a weekend when the clinic was not being used.
42 In my opinion, in failing to make any such arrangements, the defendant was in breach of the duty of care which it owed to Ms Irving as her employer.
43 As to the allegation made by the defendant that Ms Irving was guilty of contributory negligence, I am not satisfied that the defendant has made out that allegation for the following reasons:
(i) Firstly, I accept Ms Irving’s evidence that the plaster sheeting was dislodged by the application of only slight pressure on her part, the application of such pressure being, in my opinion, consistent with the activity which Ms Irving was undertaking; namely, peering over the plasterboard to check for the location of the x-ray machine; (ii) Secondly, I am not satisfied that the defendant has established on the balance of probabilities that Ms Irving was or should have been aware that the plaster was positioned in such a manner that it was likely to be dislodged from the position in which it had been placed if the slight pressure was placed upon it. 44 Although Ms Fontana gave evidence that there was a discussion between her and Ms Irving that the plaster “did not look safe from the way it was leaning”, there is no suggestion that there was any real appreciation by either Ms Irving or Ms Fontana as to the precarious instability of the plaster. When this issue was specifically raised with Ms Fontana, she commented that her concern was that the plaster sheets presented a potential tripping hazard.
45 I am of the opinion that Ms Irving was entitled to presume the plaster, having been stacked by those who delivered it, had been positioned on an angle sufficient to provide a modicum of stability and safety. I consider it unreasonable that any obligation should have been imposed upon Ms Irving to make an assessment as to whether the angle of repose of the plaster against the wall which supported it was adequate.
46 Nor do I consider it to have been unreasonable of Ms Irving to have performed the activity which dislodged the plaster; namely, placing her right hand upon the plasterboard for the purpose of ascertaining whether the x-ray equipment which would be needed to treat the patients who were to attend the dental clinic that morning, was still located within the treatment room.
47 In my opinion, the allegations of contributory negligence made against Ms Irving by the defendant, namely:
ƒ failing to wait for the duty dentist to arrive; ƒ failing to keep clear of the plasterboard; ƒ failing to anticipate that if dislodged the plasterboard might fall are all predicated upon the fact that Ms Irving should have appreciated that the plasterboard, in the way in which it was located, posed a risk of injury to her, in that its stability was on a knife-edge and that the slightest interaction between Ms Irving’s body and the plasterboard could cause it to be dislodged. There is no evidence that this was the impression gained of Ms Irving or Ms Fontana. Having found that Ms Irving was entitled to assume, unless the contrary position was reasonably obvious, that the plasterboard had been positioned in a safe manner by those responsible for its delivery, I am not satisfied that any of the defendant’s allegations of contributory negligence against Ms Irving have been established.
My Findings as to Damages
The Medical Evidence as to the Injury
48 Following her accident, Ms Irving was taken to the Emergency Department of the Ballarat Health Services where an x-ray of her left wrist revealed the presence of an oblique articular fracture of the distal radius with displacement posteriorly. A CT scan of the wrist revealed the presence of a comminuted fracture of the left radius and a fracture of the ulnar styloid process, with the presence of a 2-3 millimetre step in articular surface of the radio-carpal joint, a posterior subluxation of the first carpal row and angulation of the articular surface of the distal radius.
49 On 23 April 2007, Ms Irving underwent a surgical open reduction and internal fixation of the fracture; the reconstruction of her radiocarpal ligament; a decompression of the median nerve; an extensor retinaculum repair; and an injectable artificial bone graft which was located into a bone cavity which was present. Ms Irving was reported as having made an uncomplicated recovery from this surgery and as being discharged home on 25 April 2007.
50 In a report dated 16 June 2009, Mr Steve Csongvay, Ms Irving’s treating orthopaedic surgeon, describes her injury as being a very significant wrist injury which involved a combined wrist fracture and a severe ligament injury. He states that in association with the injury, Ms Irving developed severe tendon adhesions in a number of structures within her fingers, but that with ongoing therapy administered under the supervision of Ms Laura Shorney, a hand therapist, the range of Ms Irving’s finger function improved dramatically.
51 On reviewing Ms Irving two-and-a-half months post-surgery, Mr Csongvay reported that she presented with no wrist pain, that she had a good functional recovery with respect to both wrist extension and flexion, and he said that he considered that she was performing so well that he formally discharged her from his care.
52 Mr Csongvay re-examined Ms Irving on 5 February 2009 for the purpose of a medico-legal assessment. On that occasion he obtained a history that Ms Irving –
“… found that activities of daily living, such as cooking, was occasionally
difficult and she did have the occasionally intermittent ache in the wrist.”.
53 On examination, Mr Csongvay opined that a moderate reduction in the range of movement was present in the wrist and that a grip strength of 28 kilograms, was present, which Mr Csongvay described as being on the low side of normal.
54 Mr Csongvay concluded his report with the following opinion:
“Overall I believe that Kristy, despite sustaining a very severe wrist injury, she has recovered very well, but it is quite clear that the injury has left her with some limitation of function in the wrist. Already she is noticing some difficulty with her activities of daily living, and at this stage I suspect that her recovery will be very minimal. That is to say, I do not expect her to make any major gains as far as her function or range of motion from here forwards. As far as the long-term outcome is concerned, there is always a risk of Kristy developing osteoarthritis in the wrist joint due to the injury to the articular surface of the wrist.
Overall however, I believe that Kristy is managing very well and I believe she will continue to manage well and perform well and will be able to perform her duties, however, with some mild restriction.”
55 Ms Laura Shorney, a hand therapist, has provided three medical reports. In her first report dated 15 August 2008, Ms Shorney –
•
Describes Ms Irving’s injuries as being very significant and as requiring more than the usual treatment of a wrist fracture and dislocation.
•
She states that initially Ms Irving had severe restrictions in her ability to flex her fingers, that she could not lift her thumb and that the range of movement in both her wrist and forearm was severely limited.
•
She describes Ms Irving as working very hard and consistently on “her home program” which enabled her to achieve full finger flexion after many weeks, with a gradual increase in her wrist, forearm and thumb range of movement.
•
She said that during the course of her treatment, Ms Irving’s left grip strength had increased from 7 kilograms to 32 kilograms, but noted that Ms Irving continued to have difficulty with some activities, particularly ones that involved extreme wrist range of movement such as putting a plate full of food down onto a table.
•
She opined that it was likely that Ms Irving’s injuries had stabilised, commenting that whilst “there are still some problems with her wrist, Kristy has enjoyed such a good outcome due to very hard work and determination on her part”.
56 In a report dated 28 October 2008, Ms Shorney said:
• that the strength in Ms Irving’s left hand had diminished to 28 kilograms, whilst the strength in her right hand had increased to 45 kilograms; • that whilst Ms Irving had good wrist extension, she could not fully extend her wrist while her fingers were extended due to the presence of adhesions in her long finger extensions. She commented that this would prevent Ms Irving from using her hand to push things such as a door or to push up when she is sitting on the floor.
57 In a further report dated 28 October 2010, Ms Shorney reported that Ms Irving had consulted her in April 2009, because she had developed De Quervain’s tenosynovitis which resolved with “the usual program”; and again on 2 July 2010, when she reported the onset of pain which had commenced three months prior to her visit which had involved three to four incidences of the sudden onset of pain in the wrist which was at times severe. Ms Shorney said that she had been unable to determine the cause of these symptoms. She recorded Ms Irving’s grip strength at this time as being 26 kilograms on the left and 45 kilograms on the right.
58 In the course of viva voce evidence, Ms Shorney described Ms Irving as being –
“… at the very top of effort and willpower for all of my patients. I think it’s only because of her exceptional attitude that she has done as well as she has.”[11]
[11] T 91
59 Ms Shorney said that she had examined Ms Irving in April 2011 when she had been consulted for the purpose of obtaining a “wrist wrap to give her – to get her back to the gym”. On that occasion, Ms Shorney described Ms Irving as presenting with significantly weaker grip strength in her left hand which was recorded as being 16 in comparison with her peak grip strength which had been recorded at 32.
60 Ms Shorney described Ms Irving –
•
as having nearly normal wrist extension if extension was measured with her fingers flexed but that her range of motion was reduced when her fingers were extended by reason of damage which she had suffered to her retinacular ligament, commenting:
“The second she tries to lift her fingers up she can’t keep the wrist
up.”;
• as having fairly good ulnar deviation but explained that she lost a significant amount of her range of movement when she held her thumb in for the purpose of gripping something. Ms Shorney described this as being significant for Ms Irving’s work in which she may have to reach into the mouths of people. 61 In cross-examination, Ms Shorney said that until July last year, Ms Irving had not made many complaints of pain and that she had only presented to her on one occasion in July 2010 with a complaint of pain, the diagnosis of which was uncertain, because the pain had not been able to be reproduced.
62 She said that Ms Irving had complained of pain in her arm which she opined was probably caused by Ms Irving overusing her arm, and explained her position in this regard in the following way:
“My assumption - my professional opinion would be that because she has so much weakness in her wrist and also because she doesn’t have a normal range of motion, she’ll be struggling and straining with the rest of her arm to try to accomplish the tasks that she needs to in her life.”
63 She continued:
“Because she can’t move all the way with her wrist and because she doesn’t have a full strength and she’s trying to do a normal life [sic] she’ll be straining her arm.”
Q: How far up the arm do those symptoms ---? A: Well, she complained about pain in the shoulder and neck.”
64 Ms Shorney opined that the lack of mobility with which Ms Irving presented in her wrist was permanent; that her impaired grip strength was permanent, commenting:
“She might be able to get a little bit more back up to – not what she was I
wouldn’t think at this stage, but she could increase that somewhat.”[12]
[12] T88
65 In re-examination, when commenting as to the reason for Ms Irving’s reduction in grip strength, Ms Shorney said:
“It’s hard to say why it’s gone down to 16. I mean normally the things that cause a decrease in strength this far after the injury or sometimes people just don’t use it as much, maybe don’t exercise as much although I believe that Kristy does keep exercising. Sometimes if – and I believe it was said originally that she could end up with an arthritic problem because she has such severe joint damage. That could be developing although I can’t comment on that. I mean – but there’s something that’s causing her to lose strength, but on the other hand she could maybe gain a bit but I don’t think back to where she was.”[13]
[13] T 87
66 As to the relevance of Ms Irving’s present left hand grip strength, Ms Shorney opined:
“16 is not normal and so a lot of tasks would be difficult. I mean that put together with a range of motion, heavier tasks would be very difficult for someone who had a 16 kilogram grip strength.”[14]
[14] T 87
67 Ms Shorney was asked to comment as to Ms Irving’s complaint of increased pain in cold weather, and commented:
“That is very common when people have that much hardware in their
wrist.”
68 Ms Shorney described Ms Irving as being
“Over the top in compliance. I mean she – when I very first saw Kristy, which was I think, I can look at the dates, but not that long after her surgery, and she had so many problems with tendon adhesions, range of motion problems, but the thing that concerned me the most was all the scarring in her flexor and extensor tendons, her thumb tendons and I – when I very first see patients like that I try not to look shocked and say ‘Oh my God, you’re never going to get better’, but that was on my mind at the beginning with her because she has such a severe injury, but with – and I really didn’t think she’d have as good an outcome as she does, but she worked so hard, and I saw her twice a week for those first few weeks just to try to keep those scars from sticking her tendons down all the way, and she did very, very well considering the severity of that injury which was just horrific.”[15]
[15] T 90
69 In a report dated 22 September 2010, Mr Damian Ireland, a hand surgeon, described Ms Irving as presenting as an honest reporter of the facts with no tendency to exaggerate her symptoms and, if anything, tending to understate them.[16] He opined that Ms Irving had been left with a significant loss of motion in her left forearm and wrist, that –
“It is possible that traumatic arthritis will follow, resulting in the insidious onset of increasing pain with diminishing grip strength. It is unlikely her range of motion will be further compromised. It is my opinion there is no indication for any further surgical treatment presently nor is there any likelihood of further surgery being necessary within ten years. It is possible that surgery may be necessary after ten years to address traumatic arthritis at the radiocarpal joint; as this has been an intra- articular fracture with some evidence of minor joint incongruity at the lunate fossa of the radius, there is a possibility of long term deterioration in the form of traumatic arthritis.”
[16] PCB 42
70 In a further report dated 18 May 2011, Mr Ireland opined:
“Although the fracture at the radiocarpal joint has involved the radiocarpal joint and although there is some minor incongruity, the risk of developing post-traumatic arthritis of any substantial degree is minimal. The persisting non union the ulnar styloid process is unlikely to cause any future problems.
As Ms Irving is right hand dominant, she is able to attend to most of the normal activities of daily living without difficulty. The injury has however impacted upon her social, recreational and sporting activities to a significant degree as outlined in the report above. She is no longer able to play the guitar in a semi-professional capacity. She is no longer able to safely ride either of her two horses. She has difficulty doing hairdressing for friends and family.”
71 In a report dated 8 April 2010, Mr Murray Stapleton, plastic surgeon, commented that Ms Irving presented with a scar on the dorsum of her wrist which was 6 centimetres in length and a scar on the radial side of her wrist which was also 6 centimetres in length. He opined that her long-term prognosis –
“… is an open question. With fractures such as this, whether or not she will have increasing problems with post-injury arthritis is for time only to determine. … This lady’s non-dominant hand has been fractured, but all activities at home and at work have been affected. Her enjoyment of life and, of course, her daily activities along the lines noted in the body of the report. … Her employment capacity is affected. She has less facility with her left wrist where movement, I note, has been profoundly diminished because of her accident.”
The Lay Evidence as to the Effect of Ms Irving’s Injury
Ms Irving’s Evidence
72 Ms Irving described her initial reaction to her injury as being one of shock. She said she was taken by her mother to the hospital, where she was administered with painkilling medication; she subsequently underwent surgery and was discharged with her arm in a plaster cast which extended to her elbow. Following her surgery, she said that she suffered from aching type pain:
“If anyone’s broken a bone, that type of pain.”[17]
[17] T 65
73 In the first month after the surgery, Ms Irving described her arm as being painful and stiff. Approximately ten days after the surgery, the stiches were removed and her cast was removed and replaced with a three-quarter cast which remained in position for approximately one month. She said that she was then fitted with a removal hand brace.
74 Ms Irving said she underwent rehabilitation supervised by Ms Shorney for approximately fifteen months. She said that she initially attended Ms Shorney twice a week and that her treatment involved strengthening and movement exercises. She described there being a lot of work in that activity which involved the use of a material of a similar substance to play dough:
“In regards to strengthening, just constantly moving to try and get my
fingers working.”[18]
[18] T 71
75 Approximately nine weeks after her accident, Ms Irving commenced looking for a new job. She had resigned from the defendant’s practice for the reason:
“I felt that they didn’t take the accident serious. I felt I was let down by
them and I didn’t feel that I could work there any more.”[19]
[19] T 67
76 Ms Irving commenced employment with Mr Graham Fowler, an oral surgeon, on a full-time basis, and continued in that employment until late February 2009. She described the work that she undertook for Mr Fowler as being different to that which she was required to undertake for the defendant as it involved assisting Mr Fowler with surgery and did not require her to mix material, take x-rays and was, in that sense, easier for her.
77 Ms Irving’s daughter, Millicent, was born in June 2009. Shortly before her birth, Ms Irving had ceased employment with Mr Fowler.
78 In September 2009, she commenced employment with Ms Jenny Sampson (on a part-time basis), her duties being similar to those she undertook for Mr Fowler.
79 Ms Irving said:
•
that she could not be employed in general dentistry on a full-time basis because –
“It’s just too much for my hand.”[20].
[20] T 70
•
That she initially employed medication in the form of Panadeine Forte but had subsequently used non-prescription strength medication, and she now tended to avoid medication as she was breastfeeding.
•
She said that she now employed a splint occasionally when her hand required support, and a hand glove at times and that she continued to employ a hand cream which she applied to the scarring on her wrist.
•
Ms Irving demonstrated the restriction of movement in her wrist which was notably restricted more so when her fingers were extended. She has surgical scars present on the dorsum of the wrist which are, in my view, unsightly.
80 Ms Irving said that there had been no improvement in the movement of her wrist in recent times, that she experienced a “pinching” sensation in the wrist if she overused it and that she suffered from a deep aching sensation in the joint which she described as occurring spontaneously a few times a week.[21] She described this ache as having been present for some years now and said that whilst her symptoms appeared to be stable, the ache in her wrist was exacerbated by cold weather which she said –
“…makes my wrist ache and my hand gets really, really cold really
easily.”
[21] T 75
81 Ms Irving described a passion for horse riding and for horses. She said that she had owned horses since she was approximately thirteen years of age and that, at the time of the accident, she had two horses: ‘Mystique’ and ‘Jethro’. She said that the loss of grip strength in her left hand made it very difficult for her to control her horses, the result being that since the accident, she had ridden only on six or eight occasions. In addition, she said that she required the assistance of her partner or her mother to help her with the activity required to maintain her horses, such as lifting bins and bales of hay. She said that horse riding was an interest that she had hoped to pursue into her later life and that she would have loved to introduce her daughter to that activity.
82 Ms Irving said that she had had a serious interest in music, that she played the guitar, the congas and the drums and that she had played in a number of bands. One of her bands, ‘Amy and the Risers’ had supported Daryl Braithwaite at Geelong Deakin on the Waterfront Café. They had also supported Ross Wilson, the Master’s Apprentices and Johnny Diesel. She said that her band had had gigs at The Grainery and the Barwon Heads Hotel on a regular basis.
83 She said that she enjoyed playing the guitar, both in performing but also in “jamming” with other musicians, but that by reason of the injury to her left wrist, she could no longer play the guitar as she was unable to push the strings down with her left hand to form chords .
84 Ms Irving said that she also had an interest in hairdressing, which she described in the following terms:
“I just really enjoyed doing hair, so any opportunity I would take I would
get I would just do somebody’s hair.”[22]
[22] T 81
85 Ms Irving said that she suffered from difficulty lifting and carrying things with her left hand and tended to favour her right hand. She described particular difficulty managing her daughter when she was first born, especially when bathing her, as she did not have the requisite ability to bend her wrist.
86 In cross-examination, Ms Irving was asked:
Q: “Is this really the picture overall - you’ve had ongoing difficulties
and limitations in doing certain things. Is that accurate?---A: Yes. Q: On the other hand, there is nothing that you’re not doing now that you used to do before, it’s just there’s some difficulty and, of course, the symptoms when you do too much?--- A: Yes.”[23] [23] T 85
87 She said that she continued to do her shopping, cooking and washing, and activities such as ironing, vacuum cleaning and gardening. She said that these activities were associated with discomfort from time to time.
88 She conceded that her activity both in riding horses and in being a member of a band would have been, to some extent, influenced by the birth of her daughter. However, she maintained that she would have been able to accommodate those activities with the support of her partner and her mother.
89 Ms Irving described having travelled to Tonga with a team of volunteers under the umbrella of Rotary for the purpose of establishing a dental facility in Tonga. She said that the work which was undertaken involved general labouring and that those tasks were now beyond her.
90 Ms Irving said that she had consulted Ms Shorney in July 2010 with a history of wrist pain. She did not agree however that the pain in her wrist had been present only for a period of three months but said that it had increased during this period.[24] Ms Irving agreed that she had not returned to see Mr Csongvay and neither had she consulted her general practitioner in management of her symptoms.
[24] T 9
The Evidence of Paul Howlett
91 Ms Irving’s partner, Paul Howlett, gave evidence that her major interests before the birth of their daughter had been her music and her horses. He said that notwithstanding the disbanding of her bands Ms Irving had continued to engage in jam sessions and had on occasions played in the band in which he was a member. He said that since her accident, Ms Irving had hardly touched her guitar and that she was no longer able to play the congas which required flexibility of the wrist.
92 Mr Howlett said that the pain in her wrist often affected Ms Irving’s sleeping pattern and that –
“It’d be at least once a week where – where I’m woken because she’s
woken with it.”[25]
[25] T 67
93 He described the winter weather as being worse for his partner, causing more interference with her sleep and more pain. He said that Ms Irving had difficulty with groceries; using the handrail at their premises which was located on the left side. He said that their daughter loved the water but Ms Irving could not take her into the water because she could not hold onto her. He described Ms Irving as having had difficulty bathing their daughter; that she did not have the confidence to hold their daughter up in the shower; and that Ms Irving had difficulty manoeuvring their small daughter into her car seat.
94 He said that when cooking –
“She can’t hold the frypan left-handed – tilt to – just pour things out it (sic) because it’s just too heavy. Making beds is really a problem and lifting the corners of the mattresses and again she’ll do that but then complain about it afterwards or miss sleep because of it.”[26]
[26] T 69
95 Mr Howlett described Ms Irving as being stoic –
“She just copes. I try to help but most of the time I try and just get nearly
out of the way to give her a free hand.”
Q: “When you say she’s pretty stoic, what do you mean. Can you
give us some examples of that?---A: Well, she just doesn’t complain – never has. Q: And what might her wrists be like at the end of the day after having these things, trying to work and done some housework and that sort of thing. What’s her wrist like then?--- A: Well, of a night time she just lies in front of the fire. She can’t lean on her left wrist at all. It’s just, you know, impossible for her to do that and it aches. So, you know, especially after – if she’s done a long shift at work and then had to come home and deal with, you know, any housework, I try to do as much as I can but most of the time I’m working so – it aches of a night time.”[27] [27] T 69
96 In cross-examination, Mr Howlett had agreed that his partner still went about most of her normal chores, including ironing, vacuum cleaning and gardening. When questioned as to whether Ms Irving had consulted her general practitioner, Mr Howlett responded:
“I’ve told her to go to the doctor quite often but she doesn’t listen to
me.” 28
97 It was put to Mr Howlett that Ms Irving had regained good wrist function, to which he replied:
“No, I don’t think she’s ever had that.”
Q: “She wa s back to her normal activity?--- A: No.
Q: Have you ever suggested that she go back to see the surgeon, Mr
Csongvay?---A: No, I’ve just told her that if she had pain to go and see her doctor. Q: To your knowledge has there been any point in time when pain
has beco me a bigger part of the picture?--- A: Yes. Q: When?--- A: Sleep times. Q: No, I mean in years. Is there any time when your partner’s said,
‘look it’s hurting a lot more than it used to’ or anything like that?---A: I think there was a time last year when it was sort of getting bad so
I think she went and saw someone then anyway.”[29][29] T 75
The Evidence of Judith Irving
98 Judith Irving gave evidence that following her daughter’s accident for a period of time she was able to look after herself and required assistance in showering, dressing, undertaking basic household work and preparing meals for both herself and her partner. She described providing assistance to her daughter in that regard “In the early days”.[30]
[30] T 45
99
She said that in the last four years her daughter had mood swings:
“
She gets wild with herself because of the hobbies that she’s lost that she used to love doing, her horses, her music that she used to play, yeah, just frustrated because she just couldn’t do what she used to do.”
Q: “Around the home, is she able to do all the things she needs to do
or does she still need assist ance?---
A: She still needs assistance. Q: With what sort of things does she need assistance?--- A:
It’s like hanging washing on the line, ironing, doing hand washing for baby Millie, two hands that rub together is impossible for her. Yeah, just little things every now and then she’ll just, … the wrist
and say, ‘Oh’ [indistinct] Mum help me. So – c ooking. Q: You’re grabbing there. What’s she grabbing. A: Quite often she would just hold her wrist and say, ‘oh, it’s just too
weak to, to wring out the baby’s clothes or …’.”[31][31] T 46
100 Ms Judith Irving gave evidence that her daughter had difficulty managing the spiral staircase at her premises, that she occasionally required assistance with activities such as vacuum cleaning, that making the bed, turning the sheets and trying to lift the mattress or hold the sheets and make the beds was difficult for her and that drying the dishes and wringing and putting things out caused her problems.
101 In cross-examination, Ms Irving said that she had not seen her daughter ride
but was aware that she had tried to ride a couple of times since the accident.
She agreed that her daughter tried to do all of her normal household chores.
102
Whe n she was cross-examined as to her daughter’s mood, she said:
“
It has, over the last – I can pick probably the last twelve months. I think it’s just – well she was just a full on person with her horse and her music and whatever and now it’s, yeah, toned down to the bare necessities. What she’s got to do with looking after her horse and her hobbies and that she’s just about.”
Q: “And her daughter and her husband?--- [32] T 55
A: Yeah.”[32]
Findings as to the Consequences of Ms Irving’s injury and Quantum of Damage
103 Whilst the defendant takes issue with Ms Irving’s evidence that she has virtually given up horse riding, and relies in maintaining its position in this regard upon histories provided by Ms Irving to various medical practitioners, I do not find those histories to be necessarily inconsistent with Ms Irving’s sworn evidence on this issue.
104 When account is taken of:
• Mr Howlett’s evidence, and that of Ms Irving’s mother on this topic; and •
the opinion expressed by Mr Ireland, who opined that Ms Irving was no longer able to safely ride her horses having regard to the nature of her injury;
which provides support for Ms Irvin g’s evidence on this issue, I have no hesitation in accepting her evidence.
105 The impression Ms Irving made upon me was very similar to that which she made upon Mr Ireland. It was my clear impression that her evidence as to the consequences of her injury upon her was given with a significant tendency towards understatement. She made very little of the difficulties which she faced during the acute phase of her recovery, notwithstanding that she was managing an injury described by Ms Shorney as one which caused Ms Shorney to be shocked and to caution herself to avoid commenting that Ms Irving would never recover. In fact much of the evidence as to the consequences of her injury upon her was given by Ms Irving’s partner and her mother.
106 Whilst Ms Irving has not sought any treatment from her general practitioner, I am satisfied that this is largely due to her stoicism and her understanding that little can be offered to her in the form of treatment other than pain control.
107 Ms Irving was twenty-nine at the time at which she was injured. She was clearly a musician of some talent, having regard to the semi-professional level at which she played. Her ability to play both her guitar and her drums has been lost to her completely. From a young girl Ms Irving had a passion for horse riding. At the time of her injury she had two horses, one of which she had rehabilitated and had patiently broken in, having taken the horse after it had been physically abused. She rode regularly. Her love of horses is evidenced by the fact that she has maintained her two horses in the years which have followed the accident but has effectively been unable to ride them.
108 Ms Irving has a significant restriction in the movement of her left hand. Her left wrist and forearm are scarred, her grip strength is significantly diminished and although it might be improved, I am satisfied that any improvement is only likely to be marginal. Whilst I am satisfied that the risk of Ms Irving developing arthritis which requires surgical intervention is minimal, it is nevertheless a factor which should be taken into consideration even though its influence upon the quantum of damages must be an extremely modest one.
109 It is clear that Ms Irving’s injury has significantly reduced the range of employment options available to her as a dental nurse. This is also a matter to be taken into account in assessing the impact of her injury upon her life. Further, I accept the evidence that a feature of Ms Irving’s condition is pain, particularly in cold weather, of such a degree that it regularly interferes with her ability to sleep.
110 It is not to be underestimated that any activity which requires bilateral strength or flexibility of wrist movement in her left hand or strength in her left hand is now precluded to Ms Irving. The evidence of both her mother and her partner as to the myriad of small things which Ms Irving now has difficulty with was, in my opinion, compelling in providing an insight as to the effect of her injury upon her, none more so than her loss of confidence in her ability to hold her daughter in the shower or to adequately support her as she wriggled and played in a swimming pool.
111 In my opinion, taking into account the totality of the consequences to Ms Irving of her injury, which I am satisfied has largely stabilised, I am of the opinion that it is appropriate to assess the quantum of the damages which should be awarded to Ms Irving in compensation of both pain and suffering and loss of enjoyment of life in the sum of $180,000 (ONE HUNDRED AND EIGHTY THOUSAND DOLLARS).
112
I will he ar the plaintiff as to the orders which are to be made in the matter as to costs.
144B- - -
T 74
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