Jesionkowski v Illawarra Retirement Trust

[2000] NSWSC 1013

CITATION:	Jesionkowski v Illawarra Retirement Trust [2000] NSWSC 1013
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20081/00
HEARING DATE(S):	29 - 31 March 2000
JUDGMENT DATE:	3 November 2000
PARTIES :	Lisa Rae Jesionkowski (Plaintiff) Illawarra Retirement Trust (Defendant)
JUDGMENT OF:	Dunford J

COUNSEL :	D Wheelahan QC / K Rewell (Plaintiff) G Parker (Defendant)
SOLICITORS:	Nagle & McGuire (Plaintiff) Moray & Agnew (Defendant)
CATCHWORDS:	NEGLIGENCE - employer/employee - nurse slips on floor in nursing home - assessment of damages
LEGISLATION CITED:	Workers Compensation Act 1987, Part 5
DECISION:	Judgment for plaintiff; damages see paras 40-41.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
Friday, 3 NOVEMBER 2000

20081/00 LISA RAE JESIONKOWSKI v ILLAWARRA RETIREMENT TRUST
JUDGMENT

1 HIS HONOUR: In these proceedings which are governed by Part 5 of the Workers Compensation Act 1987, the plaintiff claims damages for personal injuries allegedly suffered by her in a fall at her place of employment, the Culburra Nursing Home, owned and operated by the defendant on 14 July 1997. 2    On that day the plaintiff, who was at the time employed as a nursing assistant, was called in to do an extra shift from 11 am for 8 hours. Shortly after she commenced duty, she received a call from a resident who needed assistance to go to the toilet. She assisted him out of his bed and into a wheelchair and wheeled him to the toilet, used the mechanical lift to place him on the toilet and then returned after a time and placed him back on the wheelchair to take him to the dining room for lunch. On their way to the toilet the hallway floor was dry, when they got back to the hallway heading for the dining room she saw the cleaner, Shane Lewis, who told her the floor was wet and to be careful; and she knew from past experience that when the floor which was linoleum was being cleaned it was extremely slippery, and as she described it, "shiny like glass". Usually one side of the hallway was cleaned and then the other. 3    The resident wished to go to his room which was on the wet side of the hallway before going to the dining room; the plaintiff started to wheel the wheelchair along the dry side, but then she saw another elderly resident walking towards her on that side, so she moved the wheelchair to the other side which was the wet side, walking very carefully; but after taking about 3 steps, her feet slipped forward from under her and she landed heavily on her backside. She got herself up and continued working for the rest of her shift and again on following days until Friday 18 July. 4    Initially she felt she had bruised her backside but the pain got worse and included pain in her lower back area which radiated down her legs, particularly the left, so on 22 July she saw Dr Rossman and was later diagnosed as suffering from a lumbar sacral disc protrusion and related symptoms. 5    The plaintiff's Report of Accident dated 1 August 1997 (Ex. A) describes the accident as happening when she was lifting a resident with the mechanical lift, but I am satisfied that the plaintiff, as she claims, was distressed and not thinking clearly when she completed the form, and that the accident happened as I have described above, which is confirmed by the defendant's Report of Injury dated 5 August 1997 (Ex. B). Neither form, nor an earlier report by the plaintiff (Ex. 2), refers to the other patient, but the plaintiff impressed me as an honest witness, and I see no reason to not accept her evidence as to the presence of the other resident.

Liability

6    The defendant operated a nursing home containing a number of elderly residents, many of whom were infirm in varying degrees. It was, of course, necessary to keep the floors clean and attractive and this necessarily involved cleaning them regularly. In fact this was done every day and the method used was to wash them with water using a bucket and mop and then polishing them with an electric polisher. This necessarily made the hallways slippery particularly whilst they were wet, and it seems this was why one side was done and then the other side, leaving at all times one dry side for traffic. 7    However, this did not allow for persons moving in opposite directions, particularly as a lot of the residents needed to hold onto the handrails on either side whilst walking along the hallway, and it was another resident coming along the hallway that led the plaintiff to move to the other side. The hallway was outside a number of the bedrooms with toilet and bathing facilities at one end and access to the dining room and communal facilities at the other. The route being followed by the plaintiff and the resident at the time would have taken them to the resident's room and then on to the dining room for lunch. Although it would seem that the plaintiff had not reached the resident's room at the time she slipped, it would have been necessary to cross the wet surface to get to that room. The plaintiff was aware that the floors were slippery when wet, and that they were wet at this particular time, and the staff had been instructed not to walk on or cross wet floors except in an emergency, although the evidence satisfies me that this instruction was not always observed. 8    The routine for the Nursing Home was for the residents to have breakfast about 8 am, lunch at 12 noon and dinner about 5 pm. It appears that before and after breakfast the residents were taken to the toilets and also showered for the day and then encouraged to spend time in the communal areas until it was time for lunch. A large proportion of them needed assistance to get to the dining room. After lunch, because of the disabilities of the residents there was a need to clean the dining room while the residents were encouraged to again return to the communal areas until it was time for dinner. The cleaners regularly worked from 6.45 am to 3.15 pm and the practice was to clean the showers and ablutions areas whilst the residents were at breakfast, and the hallways of this particular wing from about 11 am, finishing by about 11.45 am, so that the cleaners could have their lunch at the same time as the residents, after which they returned to the dining room to clean up after the residents. 9    Most of the residents had to be assisted to the dining room and in many cases taken to the toilet first and so there was a build up of movement up to lunch time at 12 noon, but from then until about 12.30 pm the hallways were virtually deserted. Each section of the hallways took up to about 10 minutes to dry after being washed and mopped. 10    The hallways had to be cleaned at some stage and the risk of injury to employees by slipping on the wet and slippery floor could not be entirely eliminated, but the risk could have been significantly minimised or reduced by cleaning the hallways when there was the least traffic in the area, whereas they were cleaned at one of the busiest periods of the day when residents were making their way to lunch, with or without a detour to the toilets. The evidence is that the corridor was 2.17 metres or 7 feet 1 inch wide. 11    The risk could have been avoided, or at least substantially reduced, by having the cleaners take their lunch at say 11.30 am so that they could clean the hallways whilst the residents were at lunch, and then clean up the dining room after the meal, and I am satisfied that in maintaining the cleaning regime that it did, the defendant failed to take reasonable care for the safety of its employees, including the plaintiff, as a result of which she suffered her injuries. 12    Another possibility was to do the cleaning in the evening after the residents had all gone to bed. It would have been necessary to do it before they went to sleep, so as not to disturb such sleep, and also necessary to watch for dementia patients who may get out of bed and go walking in the hallways without good reason, but there would not have been as much traffic then as there was in the hallway in the period leading up to lunch. 13    The defendant pleads that the plaintiff was guilty of contributory negligence in disregarding the instructions not to cross a wet floor except in an emergency. Although she was aware of the instruction, she had been asked by the resident to take him back to his room on his way to the dining room and being comparatively new to the job, considered it appropriate to do what he wanted in this regard. To do this it was necessary to cross the wet part of the floor because his room was on the side of the corridor which was wet and the effect of the other man approaching in the opposite direction holding on to the handrail merely meant that she crossed onto the wet side a little earlier. As an employee concentrating on the job in hand, I do not consider that she failed to take reasonable care for her own safety, and the defence of contributory negligence fails.

Damages

14    The plaintiff was born on 27 February 1963 and was accordingly aged 34 at the time of the accident and is now 37. She attended Plumpton High School and obtained her Higher School Certificate. She did 1 year of an Arts Degree at University with a view to a teaching career but discontinued that and worked for NEC as an electronics assembler for 5 years. She was married in 1982, at the age of 19 and in 1986/7 she and her husband moved to the United States where she worked as an Assistant Activities Director for 6 months. In 1987 her first marriage broke up and she returned to Australia. After again working for NEC for something in excess of 6 months she remarried in 1989. She and her husband have 3 children, a daughter, born in 1989 and sons born in 1991 and 1994. After the birth of her first child, she worked for a period as an ultrasound assistant for a physiotherapist, until in 1994 the family moved to the Shoalhaven district. 15    In about February 1997, she commenced voluntary work at the defendant's nursing home, serving refreshments to the residents and assisting them with such refreshments and also just sitting down and talking with them. She was usually involved in these activities 2 days a week but occasionally more. In the meantime she developed a desire to become a nursing assistant and she obtained paid employment at the nursing home on 4 April 1997 as a trainee nursing assistant, employed on a casual basis. She initially worked 2 days a week but the hours gradually increased and the week of the accident she worked approximately 30 hours. The hours were variable. On the day of her injury she was called in because the facility was under staffed. 16    Prior to the accident she was in good health and played Netball regularly. She had in 1996 suffered an injury when she had a fall at Netball involving the muscles of her mid and lower back, but after physiotherapy it cleared up and she was left without any residual problems. 17    The plaintiff suffered her injury on 14 July 1997. After the fall she felt that her buttocks were bruised and although in some pain, continued working until Friday 18 July. However, as the pain increased, particularly in her lower back and legs, extending down to her left foot, she consulted her general practitioner, Dr Rossman on 22 July. He referred her for physiotherapy which did not help, and for a CT scan on 31 July which showed a large soft tissue mass encroaching on the thecal sac at L5/S1 level, consistent with a herniated disc fragment and she was referred to Dr McGee-Collett who on 6 August performed an L5/S1 discectomy and partial laminactomy. 18    That operation required a wide exposure of the lamina at L5 and S1 and a medial part of the L5/S1 facet to gain access and the extruded fragment was described as huge and presented in the axilla, that is between the nerve root and the main thecal sac. Two large fragments of disc material were removed, the first sacral nerve retracted and the L5/S1 interspace cleared out. An inflammatory reaction in the surrounding epidural fat was noted and a hole in the thecal sac was repaired. 19    The plaintiff was discharged from hospital 3 days later on 9 August, apparently on her own request because she wanted to be with her children. Whereas she had previously experienced bad stabbing pain in her back and referred pain in her left leg, after the operation the back pain was reduced, she says by about 30%, although considerable pain remained. Furthermore the pain in her left leg was reduced but was replaced by numbness which caused her to fall on her left ankle, particularly on uneven ground, walking down a step or any other irregular surface. On her return home she was in considerable pain, had difficulty rolling over in bed, was unable to do any housework and needed personal care for approximately 5 months during which period she spent most of the time in bed. 20    She was reviewed by Dr McGee-Collett on 25 September 1997, 7 weeks after the operation, who noted that although improved from the pre-operative state, progress seemed slow and she was troubled by numbness in the leg and back pain, there was still mild weakness of plantar flexion on the left, and the left ankle jerk was absent. He told her that there was a cloud over her future ability to work in nursing. On Dr McGee-Collett's recommendation she returned to physiotherapy but that gave no lasting relief. 21    She was also referred to Dr Speldewinde, a rehabilitation physician whom she saw for the first time on 17 November 1997. She was by this time feeling depressed, inadequate, useless and suffering from panic attacks, and Dr Speldewinde referred her to a psychologist, Mr Weaver, for counselling at the beginning of 1998, with whom she had 10 sessions between January and July 1998. Mr Weaver considered that she was suffering ongoing and severe depressive reaction to her chronic pain, also associated with marital stress which was itself a consequence of her pain and disability and a reduction of her active lifestyle and family participation. 22    Dr Speldewinde also started her on a rehabilitation program and on 19 March 1998 he gave her a caudal injection in the lower spine. She found this painful and of no assistance. By this time she was also troubled by upper back and shoulder pain and she also developed nerve flutters. Dr Speldewinde also increased her anti depressant medication and analgesics which were of some assistance. In May 1998 her left leg gave way and she fell in the shower, breaking the glass screen. 23    On 25 May 1998 she again saw Dr McGee-Collett who thought he could do nothing further for her. He was surprised that she had such degree of incapacity and concluded that she exhibited evidence of excessive somatisation of her problem. He did not envisage her returning to work as a nursing assistant, although he saw no medical contra indication to her performing such work. 24    When she saw Dr Burgess, an orthopaedic surgeon to whom she was referred by her solicitors, in July 1998 she was in addition to her low back and legs also complaining of pain in her coccyx and of migraine headaches. The pain in her coccyx had been present since shortly after the fall and the migraine headaches since the surgery, although by this time the frequency of the headaches was substantially reducing. She also complained to Dr Burgess of a painful loss of neck movement and neurological symptoms down the left arm, aggravated by lifting and various forms of housework. Dr Burgess considered that the neck and shoulder symptoms were due to jarring her neck at the time of her fall which had increased the wear and tear in her neck and affected the rate of cervical spondylosis. The coccydynia is also attributed to the accident and this pain has continued although she has been advised not to have surgery for excision of the coccyx. To relieve the pain in this area she uses an air cushion and also ice packs when she sits for any length of time. 25    In August 1988 she commenced a Workfit rehabilitation program recommended by the defendant's specialist, Dr Bashford. However, a short time after she started the program she had another accident when a mat she was intending to sit on flew from under her legs and she hit the floor on her backside again. She was very shaken and because she was afraid of further injury did not continue the mat exercise part of the program although she continued the walking program. On 6 October 1998, she was seen by Dr Bashford who terminated her participation in the Workfit program. 26    Meanwhile she had been having problems because of urine retention. She was seen by Dr Korda, a urologist, who ultimately found this was not related to the plaintiff's accident. 27    In December 1998 she commenced a course of massage with Ms Stores which lasted approximately 12 months which the plaintiff found very beneficial in breaking down pain barriers; but after that time the insurance company declined to pay for it any further and the plaintiff was unable to afford it herself; although her evidence was that she would like to undertake the program again if she had the funds. 28    She continued to be in pain and in January this year she moved out of the family home with the children and moved into a flat. I am satisfied that the marriage had become strained and this was largely due to the long and irregular hours worked by the husband as an escort officer with the Department of Corrective Services so that he was not home to give the plaintiff the assistance with the housework that she needed and he apparently became dissatisfied with the amount of assistance that she needed when he was at home. Furthermore, the sexual relationship became virtually non-existent after the operation because of the pain suffered by the plaintiff. Her husband expressed the wish that a reconciliation would be possible and they still see each other, mainly when he comes to visit the children; but I am satisfied that the break down in the marriage relationship was essentially due to the effects of the plaintiff's injury. 29    She was provided by the insurance company with paid household assistance until August 1999 and since then she has herself paid a lady to provide assistance with ironing, cleaning the floors and bathrooms and other household chores, 4 hours a week. In addition, her father generally does the grocery shopping for her. 30    In May 1999 she was assessed at the Pain Management and Research Centre at the Royal North Shore Hospital and placed on a waiting list to have a spinal cord stimulator inserted in her spine with a view to undertaking that hospital's pain management program. She had a number of medico-legal assessments in about March 1999 and I refer particularly to the reports of Dr Kevin Bleasel, neurosurgeon; Dr Martha Baz, occupational physician; Dr Dent, psychiatrist; and Associate Professor Oakeshott who examined her on behalf of the defendant. I have taken all their assessments into account. She was also examined by Dr Millons, orthopaedic surgeon, on behalf of the defendant but no report was served or tendered from Dr Millons. 31    In summary, I am satisfied that the plaintiff suffered a lumbar sacral disc protrusion which required surgery which was not wholly successful, leaving her with significant ongoing pain in her lower back and left leg. She also suffers coccydinia which is clearly due to the accident and also symptoms in her left shoulder and arm probably due to jarring in the fall. She also suffers depression, anxiety and stress and panic attacks, and is severely disabled in her everyday living with difficulties in housework and caring for the children, she is unable to play netball, walk long distances, sit or stand in one position for any length of time and because of these conditions she has lost touch with her former friends and is suffering a degree of social isolation. She has also put on weight. 32    I consider that she is totally unfit for any form of paid employment at present, and will never be fit for nursing type activities. She said that she has just started painting and she would like to spend time with the sick and the dying on a voluntary, unpaid basis, in a position where she can stand or sit as she needs. Although a number of the doctors have queried the extent of her disabilities on a purely organic basis, I am satisfied that she is genuine and the pain and disabilities are very real to her as evidenced by the surgery she has already undergone and her intention of having the spinal cord stimulator surgically inserted. 33    Bearing these matters in mind, her comparatively young age and her life expectancy of 45 years, the actual pain and suffering and the disruption to her lifestyle that her injuries have caused her, I assess her non-economic loss at 65% of a most extreme case. At the date of the injury the maximum amount which could be awarded for non-economic loss pursuant to s 151G of the Act was $224,500, and accordingly under this head I allow $145,925. 34    Out of pocket expenses to date have been agreed at $46,251 of which $42,596 has been paid by the workers compensation insurer, and future out of pocket expenses, including the cost of the spinal cord stimulator, have been agreed at $35,000. The tax paid on workers compensation payments as at the date of hearing was $6,090 but presumably additional tax has been paid since then, and under this head I allow $7,000. 35    When the plaintiff first commenced paid employment with the defendant she was employed as a casual on an "at call" basis. Initially it appears to have been about 2 days a week but it became more frequent depending on the defendant's needs. By the time of the accident she was working 30 hours over a 5 day week. Because of her family commitments, netball and other interests I do not consider it likely she would have worked full time or 5 days a week over a long term period, and the probabilities are that she would have averaged a 3 or 4 day week probably up to about 30 hours per week, although she may have worked longer at times. A further complication in assessing her earning capacity is that there were different rates and loadings for night and weekend work, but whether she would have done a lot of such work remains unclear. For the period 4 April to 30 June 1997 her average net earnings were $187 per week, but as Ex. E shows for the period 2 to 15 July 1997 her net earnings were $589.27 or $295 a week. That was the second pay period of the year and as the exhibit shows for the year to date (4 weeks) her average was $253 net a week. There is also the prospect that when she completed her training as a nursing assistant she would have gone onto a higher hourly rate although there was no direct evidence to this effect. 36    Doing the best I can with this rather vague material, I allow loss of income to date at $250 per week from 22 July 1997 to date (171 weeks) $42,750. 37    As to the future I regard her as presently totally unfit for any paid employment and do not believe she will ever be fit for work as a nursing assistant requiring as it does the lifting and manoeuvring of heavy patients, who in many cases are virtually helpless. She may at some time in the future, if the spinal cord simulator and the pain management program are successful and after some retraining, be fit for some form of work but this is extremely doubtful and no particular type of work has been indicated. She is likely in any event to have a degree of continuing pain and I consider she should be regarded as totally and permanently incapacitated. 38    She would by now have completed her training as a nursing assistant and presumably have gone to a higher rate of pay. It was submitted that loss of future earning capacity should be calculated to age 65, but I consider it most unlikely that a person working as a nursing assistant with aged people would be likely to work after age 60 because of the heavy lifting of patients involved in such work. For loss of earning capacity I therefore allow $280 per week to age 60 (22 years) capitalised at 5% per annum less 15% for vicissitudes, that is $167,528. 39    As regards domestic care and assistance, I refer to Ex. F. Although since the insurance company stopped paying for domestic assistance she has only employed outside help for 4 hours a week, her need is clearly greater than that, e.g. her father helps her with the shopping etc; and accordingly for domestic care and assistance to date I allow the amounts set out in Ex. F updated to the present time namely $44,000. As to the future I accept that, as agreed, her present need is 6 hours a week and her life expectancy is 45 years, but I believe that as time passes, the children get older, and she learns to adapt, her need in this regard will not be so great. Accordingly for domestic care and assistance I allow 5 hours a week at $20 per hour, i.e. $100 per week for 30 years, capitalised at 5% pa namely $82,200. 40    These various heads of damages may therefore by summarised as follows:-

$
Non-economic loss 145,925
Out of pockets to date 46,251
Future out of pockets 35,000
Tax paid on workers compensation 7,000
Loss of income to date 42,750
Loss of future earning capacity 167,528
Domestic care etc to date 44,000
Future domestic care etc 82,200
$570,654

41    There remain outstanding loss of superannuation benefits, interest, and costs, as well as an updated total figure for the amount of workers compensation paid to date which needs to be deducted from the final judgment. I shall stand the matter over for consideration of these matters and the making of formal orders.

--------------

Last Modified: 11/06/2000