James v Rangeview Nursing Home Pty Ltd
[2000] QSC 458
•7 December 2000
SUPREME COURT OF QUEENSLAND
CITATION: James v Rangeview Nursing Home Pty Ltd PARTIES: LORRAINE SUZANNE JAMES
(plaintiff)
v
RANGEVIEW NURSING HOME PTY LTD
ACN 009 739 271
(defendant)FILE NO: Toowoomba S26 of 1998 DIVISION: Trial Division PROCEEDING: Trial DELIVERED ON: 7 December 2000 DELIVERED AT: Brisbane HEARING DATE: 17, 18, 21 August, 13 September 2000 JUDGE: Wilson J ORDER: Judgment for the plaintiff against the defendant for
$286,189-92CATCHWORDS: TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – SUFFICIENCY OF EVIDENCE – WEIGHT AND CREDIBILITY OF EVIDENCE EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE SYSTEM OF WORK – SUPERVISION AND INSTRUCTION
INDUSTRIAL LAW – INDUSTRIAL SAFETY, HEALTH AND WELFARE – QUEENSLAND – Plaintiff sustained injury to neck in the course of her employment as a nursing assistant in an aged care nursing home – whether alleged incident occurred – credibility of witnesses.
Fox v Wood (1982) 148 CLR 438
Griffiths v Kerkeymeyer (1977) 139 CLR 161
Grincelis v House (2000) 74 ALJR 1247Mott v FAI [2000]
Workplace Health and Safety Act (1989)
COUNSEL: RW Trotter for the plaintiff
GW Diehm for the defendant
SOLICITORS: Shine Roche McGowan for the plaintiff
Cleary & Lee for the defendant
.
WILSON J: The plaintiff claims damages for personal injuries sustained in the course of her employment by the defendant. Both liability and quantum are in issue.
Between 23 February 1993 and 4 December 1996 the plaintiff was employed by the defendant as an assistant nurse at the Rangeview Nursing Home in Toowoomba. Her claim relates to -
(i)injury to her cervical spine by reason of the cumulative effect of fast, continuous and repetitive lifting during the period 23 February 1993 - July 1995; and
(ii) injury to her cervical spine sustained in an incident on 13 November 1995 .
With respect to each claim, the plaintiff claims damages for negligence, breach of contract of employment, and breach of statutory duty, namely, duty under the Workplace Health and Safety Act 1989. That legislation was repealed from 1 July 1995 (before the incident to which the second claim relates).
There were 73 residents in the nursing home, accommodated in two wings called Wattle and Jacaranda. Most of them were frail, elderly people, some with dementia; there were a couple of younger ones who needed constant nursing care. Staff were rostered to work in shifts. They were rotated so that they did not always work the same shifts. The morning shifts were always the busiest: staff had to have all the residents washed, toiletted, their teeth put in, and hair combed, and their beds made (including their sheets changed if necessary), before breakfast. All patients’ showers had to be attended to before lunch. Generally there would be a registered nurse in each wing, two assistant nurses in each wing, from about late 1994/early 1995 two assistant nurses to shower the residents, a therapy nurse and someone in the dining room. The number of nurses and assistants was approximately doubled for the morning shifts. Staff had to work fast. There was a high staff turnover, and often the nursing home was short staffed.
In her statement of claim the plaintiff alleged that she began to experience symptoms of pain in her cervical spine in or about July 1995 (paragraph 8), and that that pain was the result of injury to her cervical spine by reason of the cumulative effect of the fast, continuous and repetitive lifting during the period from 23 February 1993 to July 1995 (paragraph 9). She alleged that the injury was a disc prolapse at C6-7 and an intervertebral disc protrusion at C5-6 (paragraph 10).
On the evidence the plaintiff developed neck and shoulder pain in May rather than July 1995. She said that she went to her doctor in May 1995, a couple of weeks after developing pain mainly in the back of her shoulders. She had physiotherapy. She took two weeks holiday in June and July, and received physiotherapy through that period and into August. On returning to work from holidays, she felt better, although not one hundred per cent. The general practitioner (Dr Gluer)’s notes record that she consulted him on 26 and 29 May 1995. On the first occasion she complained of acute neck and shoulder pain. There was no paraesthesiae in her right upper limb and no sign of root compression. He prescribed pain killing medication. On the second occasion the pain had eased and the neck was settling. He prescribed gentle manipulation. She had no other symptoms.
The plaintiff’s counsel submitted that I should find that the general system of work regarding the lifting and transferral of patients caused the neck and shoulder pain of which she complained in May 1995. However, as counsel for the defendant submitted, there was limited evidence from the plaintiff as to her involvement in the various heavy activities in the nursing home. He conceded that there was evidence which showed she was engaged in heavy activity which could have been alleviated by other means, but submitted that there was no evidence that it caused her any injury. It will be necessary to consider the plaintiff’s medical history at some length in order to determine what, if any, injury she had sustained by May 1995 and what injury she sustained in the later incident of 13 November 1995. Suffice it to say at this point that while I accept that she had degeneration in her cervical spine which was aggravated by the work she had to perform, there is insufficient evidence for
me to find that she sustained either a disc prolapse at C6-7 or an intervertebral disc protrusion at C5-6 by July 1995 as the result of the defendant’s breach of any duty it owed her. In short, she has not made out her claim in paragraphs 7 - 12 of the statement of claim.
In her statement of claim the plaintiff alleged –
“ Incident of 13 November, 1995
Further, at or about 7.45 am on 13 November 1995:-
(a)The Plaintiff, in the course of her employment at Rangeview, was required to lift a brain-damaged heavy resident namely PEARL JUKES (‘Jukes’) into an upright, sitting position in bed;
(b)The Plaintiff was being assisted in the lift by a co-worker, namely, BEV ANDERSON (‘Anderson’);
(c)Prior to lifting Jukes, the Plaintiff suggested to Anderson that they utilise a lifting method known as a ‘shoulder lift’ to which Anderson replied to the effect that she had not been trained and/or instructed by the Defendant in the use of that method;
(d)The Plaintiff and Anderson thereafter proceeded to lift Jukes utilising a lifting method known as a ‘monkey grip’ and by the use of a strap to which two handles are affixed;
(e)Whilst the Plaintiff and Anderson were lifting Jukes by the method referred to in (d), Jukes pulled back suddenly trapping the Plaintiff’s left hand partly beneath Jukes [sic] back and violently wrenching the Plaintiff’s left shoulder (‘the incident’).”
She went on to allege that she suffered -
(a)further injuries, namely a strain to the left side of her neck, a strain to her left shoulder and a strain to her left arm; and
(b) an aggravation of the injury sustained in July 1995; or
(c)disc prolapse at C6-7 and intervertebral disc protrusion at C5-6.
The plaintiff’s evidence was that on 13 November 1995 she was rostered on the morning shift, working in Wattle wing. She was paired with Bev Anderson, who was indisputedly a physically smaller person: the plaintiff was about 5 feet 8 1/2 inches in height and 76 kilograms in weight, while Mrs Anderson was 5 feet 2 inches tall and weighed about 55 kilograms. One of the patients they had to attend was Mrs Pearl Dukes. She was a heavy woman (about 76 kilograms in weight) who was difficult to manage: as the result of some brain damage she was sometimes uncooperative and sometimes aggressive. The plaintiff and Mrs Anderson had to change Mrs Dukes’ bed, wash her, etc and sit her up in bed for breakfast. To sit her up they performed a modified “cradle lift” using a blue plastic lifting strap. Sometime later, Mrs Anderson took Mrs Dukes’ breakfast tray into her room and found that she had slipped down into the bed. Mrs Anderson obtained the plaintiff’s assistance. According to the plaintiff, on arriving she found that the bed was a little
wet, and said something to the effect, “Oh God....again. Do you know how to do a shoulder lift? I’d really like to do that because she is so heavy.” Mrs Anderson replied, “I don’t know. You can show me.” The plaintiff said, “Sorry, I can’t” (because she had been told by the director of nursing Ann McMahon and the owner that she was not to give instructions or demonstrations). The plaintiff took up a position beside the bed with the head of the bed on her left, and Mrs Anderson was on the other side. They placed the blue plastic strap behind Mrs Dukes’ back. (It had one handle on each side, not two as pleaded, but nothing turns on this.) The plaintiff held the strap with her left hand in a position under Mrs Dukes’ right armpit. Mrs Anderson took hold of the other end of the strap, which was outside Mrs Dukes’ left arm, so that the plaintiff was further under Mrs Dukes than was Mrs Anderson. They pulled Mrs Dukes forward a little, and had to move round, etc in order to pull the back of the bedhead out; then they resumed their former positions, with the strap still in position. They clasped their other hands under Mrs Dukes’ thighs around the buttock area in a monkey grip. They were to lift on the plaintiff’s count of 3; they were lifting and had Mrs Dukes off the bed, not very high, when Mrs Dukes threw herself backwards and holding her right arm very tight by her side, she went down on the plaintiff’s left arm. The plaintiff and Mrs Anderson had to roll Mrs Dukes off the plaintiff’s arm. The plaintiff immediately felt a real wrench at her shoulder, pain travelled instantly down her arm and she felt pins and needles in her hand and fingers.
In his submissions counsel for the defendant conceded that if the incident happened in the way described by the plaintiff, the defendant was liable for the injury the plaintiff sustained in it. This concession makes it unnecessary for me to canvass the undisputed evidence of Mr O’Sullivan, a physiotherapist and expert in ergonomics, who explained the unsafe aspects of the lifting procedure described by the plaintiff.
There is a critical conflict in the evidence of the plaintiff and that of Mrs Anderson.
The plaintiff impressed me as an honest and reliable witness. In cross examination she readily acknowledged feeling some anger towards the defendant, because it was not particularly safety conscious, a concern that she had had before November 1995. However, I am satisfied that her anger was not such as to result in her giving deliberately untruthful or otherwise unreliable evidence.
Mrs Anderson had trained as a nurse at the Toowoomba Base Hospital about 30 years before the incident. Her nursing experience was very limited - she worked at Garden Settlement in 1987-88, and at Rangeview (as an assistant nurse) from 8 June 1995. The intervening years had been spent rearing a family. She stayed at Rangeview until 30 June 1996 and then spent a couple of years living in Canada with her husband. Upon her return to Australia she went back to work at Rangeview, in the capacity of a domestic. She did not know of the plaintiff’s claim until a few days before the trial.
Mrs Anderson remembered Mrs Dukes. However, she said that she did not remember this incident. I accept that she did not remember the incident on 13 November 1995, but I am nevertheless satisfied that it did occur. It would, understandably, have made far less of an impression on her than it did on the plaintiff.
The critical question is whether Mrs Anderson told the plaintiff that she did not know how to do a shoulder lift. She said in evidence that she knew how to do a shoulder lift, and that she had had experience in doing shoulder lifts during her training at the Toowoomba Base Hospital, while she worked at Garden Settlement and at Rangeview. Mrs Anderson’s evidence with respect to the orientation she received when she commenced employment at Rangeview conflicted with that of Judith Marquet (then the deputy director of nursing, and now the director of nursing). Mrs Anderson said that she was given training in lifting by Judith Marquet, and that a physiotherapist had also been involved in the training, although she could not remember his name, and that she had been given a printed handout on lifting techniques. I accept the evidence of Mrs Marquet, who was responsible for the orientation of new staff, that the instruction in lifting was given not by her but by the physiotherapist, Ms Loretta O’Sullivan. There were three videos used by the defendant as part of the orientation of new staff. Mrs Anderson’s recollections of what they were about were faulty: contrary to what she said, they were not all about lifting and they did not refer to aged care patients. I do not think that Mrs Anderson told deliberate untruths in her evidence, but I do consider that she was an unreliable witness. I accept the plaintiff’s evidence that Mrs Anderson said she did not know how to do a shoulder lift on the occasion in question. I accept that the incident occurred in the way described by the plaintiff.
Shortly afterwards the plaintiff reported the incident and one of her children came and took her home. She consulted a general practitioner, Dr Littleton, that day. She returned to work a week later because the family needed her wages for living expenses. After one day she was very tired, and had two days off. Thereafter she was “only about 85%”, but worked to the best of her ability. She tried to avoid using her left side. In December she developed a lump on the back of her left shoulder towards the neck. From the latter part of November until Christmas the pain gradually worsened, becoming more constant and more intense. She ached down the back of her arm between her shoulder and her elbow. She started having headaches. On arriving home from work she would go to bed by 5.30 or 6.00 pm, whereas previously she had not gone to bed until midnight or later. She would not be able to settle, and her sleep patterns were erratic. She relied on her husband and daughter to do household chores. Her daughter did the pre-Christmas cooking that she normally did. Her brother visited over the Christmas period and observed that she was in pain, that she had trouble lifting and that she favoured her left side. Her sister cancelled a Christmas visit because the plaintiff was not well enough.
On 29 December 1995 the plaintiff was involved in a motor vehicle accident. She was on her was home from work when she swerved to miss a wallaby and hit a guidepost. She then swerved on to the other side of the road and went through a barbed wire fence. The impact with the guidepost was minor, the only damage to her car being a cracked indicator light. She said she was “a bit sore” for a day or two and then returned to work after two days, by which time she was back to where she had been before the motor vehicle accident.
In 17 January 1996 the plaintiff was involved in another motor vehicle accident. She was a front seat passenger in a vehicle driven by her sister. They were returning from a visit to the Workers Compensation Board when they were involved in an
accident at an intersection. Their vehicle hit one vehicle, and another vehicle hit theirs. The plaintiff was taken by ambulance to hospital. Her neck injury had been aggravated temporarily, but she had not sustained any further injury.
The plaintiff was born on 25 September 1953. She said in evidence that she is never without pain, and on some days it is a lot worse than on other days. She has pain in her neck and both shoulders. It starts around the back of her left shoulder and extends down the back of her arm through her elbow; it does not always extend to her wrist, but it often does, leading to pins and needles affecting all the fingers of her left hand except her little finger. Sometimes the pain is down the front of her arm, although it is more often down the back. It seems to be inside the arm, like a bruise. She has pain in her lower back. Sometimes she has chest pain. She has headaches in the back of her skull. She has changed from being a happy, gregarious person to someone who becomes teary and frustrated, angry that she cannot do what she could. There has been a lot of stress on her marriage, and her physical relationship with her husband has been adversely affected. She has had to rely on her husband and children to do many of the things she used to do at home. She has four children presently aged 25, 24, 23 and 16 years. All but the 23 year old live at home. She has not returned to work as an assistant nurse. She had a casual position in a pharmacy for 6 - 8 weeks, after doing a 5 week course in Brisbane, but she left because of pain up and down her whole back and headaches.
The plaintiff has been diagnosed as having degenerative disease in her cervical and lumbar spine, and a disc protrusion at C6-7. I find that the disc was ruptured in the incident on 13 November 1995 although it may have been vulnerable to protrusion because of the pre-existing degeneration. Dr Redmond, who examined her in April 1996, assessed her as having a 12.5% impairment of her whole person, and considered her condition to be stable and stationary. Dr Pentis, who examined her in late 1999, put the level of disability related to the incident at 15% loss of efficient use of the spine as a whole; if wear and tear were added, it would rise to 20 - 22%. According to Dr Redmond, it was probable that, but for the November 1995 incident, she would have come to the condition she presented within any event, but he would not speculate on a time frame. I accept the evidence of Dr Pentis, that she could have had a disc protrusion with time, but some force would have been needed to bring it about, and he would not have expected it to have happened merely with bending over or sneezing.
The plaintiff complains of pain over her whole back and generalised weakness. Those symptoms are not directly attributable to the disc protrusion at C5-6, but they are attributable to a chronic pain syndrome. According to Dr Byrne, a psychiatrist whose evidence I accept, a chronic pain disorder is not unusual in someone with a prolapsed disc in the neck. It may lead to the presentation of pain symptoms not all of which can be explained by the underlying neurological damage. When he examined the plaintiff in late 1999, he considered her condition to be stable and stationary, and put the psychological component at no more than a 5% impairment. I accept his opinion, given in oral evidence, that the extent of her impairment may be ameliorated by the resolution of the litigation.
The plaintiff admitted that she had had neck pain before 1995. She likened it to a stiff neck - as if she had slept on it the wrong way, and said it had not persisted very long or caused her to lose any time from work.
In answer to a question from Dr Michael (her general practitioner) when she consulted him on 28 October 1992, the plaintiff mentioned an old motor vehicle accident. This occurred in the mid 1970’s near Coonabarabran. She was a front seat passenger in a car that rolled. On her evidence the only injury she sustained was a cut finger. She did not seek any medical treatment. There is no evidence that she sustained any injury to her neck in the collision.
According to Dr Michael the plaintiff consulted him about neck pain in October 1992. She complained of pain in the back of her neck extending up to the back of her head and triggering headaches, as well of spasm in the muscles in her neck extending down to her lower back. She complained of pain in her groin - although that was caused by gynaecological problems. He prescribed anti-inflammatory medication. She returned to Dr Michael five days later about her neck and about another matter. The neck pain was more on the left side. It extended into her shoulder and left arm. He arranged an X-ray of her cervical spine: it revealed early degenerative changes. There was narrowing of the C5-6 disc and very slight narrowing of the right 5th and 6th cervical nerve root foramina.
The episode of neck pain in 1992 was comparatively minor. There is no evidence that she sustained a disc protrusion at C6-7 at that time. While such a protrusion would not have been apparent from an X-ray, it would have produced clinical signs of which there was little if any evidence. The consensus of expert opinion (Drs Pentis, Redmond and Meibusch) was that the most significant injury was sustained in the incident on 13 November 1995.
I assess the plaintiff’s pain and suffering and loss of the amenities of life as the result of the incident in November 1995 at $40,000-00. Of this I assign $25,000-00 to pretrial loss, on which I allow interest of $2,500-00 (calculated at 2% per annum over 5 years).
The plaintiff had a good work history. After leaving school at the age of fifteen, she went straight to work in a grocery store, as well as working weekends at the Mater Hospital as a hospital assistant. When she was about 18, she joined the Army, where she was a nursing assistant for three years. She married in 1974 and had three children in the first three years, and later a fourth child. She returned to work night-filling in a supermarket and then as a shop assistant when the third child was three or four years old. She moved to Crows Nest in about 1986 where she obtained casual work as a strawberry plant trimmer and then as a clerical assistant at the local school. In about 1990 she went to work as an assistant nurse at the Crows Nest Hospital where she remained for about three and a half or four years. From there she went to Rangeview. I accept her evidence that she loved nursing. Towards the end of her period at the Crows Nest Hospital she enrolled at her own expense in a course conducted by Aged Care Queensland, and she completed the course after commencing at Rangeview. Apart from the short period as a casual in a pharmacy to which I have already referred, she has not worked since leaving Rangeview. I accept the opinion of Mr Hoey, the occupational therapist, that, given her condition, her age and her limited occupational skills, she is commercially unemployable.
The parties agreed that past loss of earning capacity should be assessed at the rate of $348-98 net per week. The plaintiff’s actual pretrial income was $5,557-00. I allow $80,000-00 for past loss of earning capacity. I have arrived at this by calculating loss at $348-98 per week over 263 weeks minus actual income (ie $91,781-74 minus $5,557-00 = $86,224-74) and then discounting the result to allow for contingencies. Having regard to periodic and lump sum payments of worker’s compensation, I allow interest on $40,000-00 at 5% per annum over 5 years, which I calculate as $10,000-00. (Interest is allowable at commercial rates, halved to reflect the emerging nature of the loss. The defendant tendered rates applicable to an at call deposit facility with a major bank. I have not applied those rates because I consider that borrowing rates rather than deposit rates are appropriate.)
In considering future loss of earning capacity, I am mindful of Dr Byrne’s opinion that the psychological component of her condition may be ameliorated by the resolution of the litigation. However, that component is equivalent to an impairment of only 5%. I am mindful also that the preexisting degeneration in the plaintiff’s cervical spine may have become symptomatic in any event resulting in loss of earning capacity. The parties agreed that future loss of earning capacity should be assessed at the rate of $427-75 net per week, and in the schedule of damages put forward by the plaintiff’s counsel, loss was claimed over 13 years, ie to age 60. The present value of loss of $427-75 per week over 13 years using the 5% tables is $214,858-82. In all the circumstances, I consider that this should be discounted to $150,000-00.
The plaintiff claims for the loss of employer contributions to superannuation. I have calculated the past loss on the basis that the employer would have contributed 6% of her gross earnings to superannuation. Assuming a gross income of $420-00 per week, I have calculated gross pre-trial earnings as follows -
($420-00 x 263 weeks) minus (actual gross income of $7,272-00)
= $110,460-00 minus $7,272-00= $103,188-00.
I have then discounted that figure in the same proportion as the net loss was discounted in paragraph 27, and arrived at approximately $95,500-00. I have taken 6% of that ($5,730-00), and reduced the result by 30% on account of income tax. In the upshot I allow $4,000-00 for past superannuation benefits.
I have adopted a similar general approach to the assessment of loss of future employer contributions to superannuation. I have assumed the gross future wages would have been $535-00 per week, and that the employer’s contributions would have been at the rate of 7.5%. I allow $9,875-00 under this head.
There are claims under the principle in Griffiths v Kerkemeyer for the past and the future. I accept that for the first three or four months after the incident in November 1995 the plaintiff could do very little. Members of her family stepped into the breach and assisted her. Gradually she resumed previous activities of personal care and household chores, although there are some tasks that she still cannot perform. It was agreed that damages for past loss under this head should be assessed at the rate of $12-00 per hour and those for future loss at the rate of $13-00 per hour.
For the past the plaintiff claimed that she needed 5 hours assistance per week over the whole pre-trial period. While I accept that she needed that level of assistance for
the first 6 months, I think that a fair assessment thereafter would be 2 hours per week. Accordingly, for past loss I allow -
(5 hours per week x 26 weeks x $12-00) plus (2 hours per week x 52 x 4.5 years x $12-00)
= $1,560-00 + $5,616-00
= $7,176-00.
I round that off to $7,175-00.
Interest on damages for pre-trial Griffiths v Kerkemeyer loss is to be calculated at commercial rates: Grincelis v House (2000) 74 ALJR 1247. I allow interest at the rate of 5% per annum over 5 years, ie $1,795-00.
For the future the plaintiff claims the value of services for 3.5 hours per week over 34 years. I think the number of hours claimed exceeds her reasonable future needs, and am prepared to allow only one hour per week. In calculating the present value of the amount claimed, her counsel used the 3% tables. That is appropriate where the services will be provided gratuitously; otherwise the 5% tables should be used: Mott v FAI [2000] 2 Qd R 34. In the past the services were provided gratuitously, and there is no reason to think that they will be obtained commercially in the future. Under this head I allow $14,500-00.
Special damages amount to $9,283-37.
The Fox v Wood component is $3,251-90.
I allow $1,000-00 for future medication.
In summary, my assessment of damages is as follows -
Past pain and suffering $ 25,000-00
Interest $ 2,500-00
Future pain and suffering $ 15,000-00
Past loss of earning capacity $ 80,000-00
Interest $ 10,000-00
Future loss of earning capacity $150,000-00
Past superannuation benefits $ 4,000-00
Future superannuation benefits $ 9,875-00
Past Griffiths v Kerkemeyer $ 7,175-00
Interest $ 1,795-00
Future Griffiths v Kerkemeyer $ 14,500-00
Special damages $ 9,283-37
Future medication $ 1,000-00
Fox v Wood $ 3,251-90$333,380-27
less WorkCover refund $ 47,190-35
$286,189-92
I give judgment for the plaintiff against the defendant for $286,189-92.
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