JL Smith v Tricare Ltd

[1999] QDC 59

IN THE DISTRICT COURT

HELD AT BRISBANE

QUEENSLAND

[JL Smith v Tricare Ltd]

[Before Forde DCJ]

Plaint No 3394 of 1997

BETWEEN:

JOANNE LEE SMITH

Plaintiff

AND:

TRICARE LTD

Defendant

JUDGMENT

Judgment delivered:              16 April 1999

Catchwords:  Negligence - Personal Injury.  5% loss of body function - injuries to the lumbar-thoratic spine, neck, and shoulder girdle.  Liability admitted.  Discounting factors - 36 year old female nurse’s aide.

Counsel:    Mr H Zillman for the Plaintiff

Mr R Traves for the Defendant

Solicitors:   Richard Hoare & Co for the Plaintiff

Heiser Bayly & Mortensen for the Defendant

Hearing Date:   8 April 1999

IN THE DISTRICT COURT
HELD AT BRISBANE
QUEENSLAND
  Plaint No 3394 of 1997
BETWEEN:
  JOANNE LEE SMITH
  Plaintiff
AND:
  TRICARE LTD
  Defendant
  REASONS FOR JUDGMENT -FORDE D.C.J.
  Delivered the 16th day of April 1999

The plaintiff, Joanne Lee Smith, sues her former employer, Tricare Ltd., the defendant, in this action, for damages for personal injury.  On or about the 16th day of February 1995, the plaintiff was engaged in the performance of her duties with the defendant at premises situate at 20 Sommerfield Street, Mt Gravatt.  Whilst attempting to transfer a patient with the assistance of  a co-employee, the patient began to fall, causing the plaintiff to take her weight.  It is alleged that the said incident caused injuries to the lumbar-thoracic spine, neck and shoulder girdle.  Liability has been admitted.

Nature of medical evidence
On the 20th day of February 1995 the plaintiff saw Dr Petersen, a general practitioner, with a diploma in musculo skeletal medicine.  The plaintiff was complaining of pain to her left upper chest and back as a result of the said incident.  She had a sudden onset of pain and a tearing sensation on her left chest.  She has complained of pain since the incident.  After conservative treatment of antiflammatories and physiotherapy, the plaintiff continued to have problems with her neck.  After a trial back at work, it seemed like “her chest was caving in when coughing”.  Dr Petersen’s report is dated 26th April 1996.  He said the plaintiff had been using pain-modifying tablets and physiotherapy since the incident.  She also had tender areas over her left thoracic spine, especially around the scapula and middle and lower medial ribs.  The anterior chest pain had settled.  He referred to the fact that x-rays showed Scheuermann’s disease. 

The plaintiff was next seen by Dr John Cameron on 16th May 1995.  She told him that she heard a loud noise as though something was “ripping”.  When she attempted to straighten up, she noticed pain in the left lower thoracic region of her back.  Dr Cameron said that the plaintiff had undergone physiotherapy and had noticed significant improvement, although she still complained at times of intermittent discomfort at the site.  It seems that the physiotherapy treatment aggravated the pain to the lower thoracic region of her back. 

About six weeks prior to seeing Dr Cameron, she first noticed discomfort in her neck.  There was no such problem at the time of the incident.  There is evidence that the long period of physiotherapy probably aggravated her neck muscles.  She also had a burning feeling in her shoulder and biceps region, and some numbness in the tips of her left finger.  Those symptoms largely improved with physiotherapy to her neck, and her neck felt freer by 1995.  She had also developed headaches.  Dr Cameron said that the plaintiff’s neck and shoulder movements were normal, and that there was no evidence of any muscular spasm or tenderness in the cervical region.  There was no evidence of cervical root disturbance, or any long track signs to suggest a spinal cord disturbance.  It was Dr Cameron’s opinion that the plaintiff had suffered a musculo ligamentous strain type injury as a result of the lifting incident some four months previously.  He stated there had been a gradual improvement in her back symptoms to the present time with no neurological disturbance.  He stated that it was possible that the plaintiff could have aggravated the Scheuermann’s disease with the lifting incident. 

At trial, Dr Cameron stated that it was highly improbable that the symptoms in the neck as well as tailbone were related to the incident.  I accept Dr Cameron’s evidence based upon his early examination of the plaintiff that she suffered a musculo ligamentous injury.  This opinion is supported by both Dr Nave and Dr Pentis.  Even if physiotherapy did aggravate her condition, Dr Cameron was of the view that it would subside within a short time because it was not really traumatic in nature.  Although Dr Cameron thought that the symptoms should settle within six to eight weeks with  conservative treatment, it appears that the ongoing physiotherapy aggravated her condition and may well have aggravated the Scheuermann’s disease.  The neck discomfort and arm pain has nothing to do with the Scheuermann’s disease, according to Dr Cameron.  I accept the view that the nature of the plaintiff’s work may have caused the Scheuermann’s disease to become symptomatic in the course of her employment in any event.  It is certainly one explanation for the plaintiff’s ongoing symptoms of which she complains.  I find that the injury aggravated the Scheuermann’s disease, but that the effects of same subsided.

Dr Nave and Dr Pentis differed as to the percentage disability from which the plaintiff continues to suffer as a result of the accident.  In his later report of 11th March 1996, Dr Nave assesses the permanent disability at 2½% of body function.  He had earlier assessed it at 5%.  Dr Pentis assesses the percentage disability at somewhere between 5% and 7½%.  In the realm of things, it is not significant in this case if one accepts that the plaintiff suffered, say, a 5% disability to the whole of her spine.  The reason for this is that the disability, according to both orthopaedic surgeons, would prevent her from continuing as a nurse, and that other appropriate employment would be necessary.  I accept the general thrust of that evidence.  I accept the plaintiff’s evidence that she continues to suffer pain to her thoraco-lumbar spine and that this is causally related to the incident on 16 February 1995.

Dr Downes gave evidence on behalf of the defence.  He examined the plaintiff on the 21st August, 1998.  He had not seen either of the reports of Dr Nave, or that of Dr Cameron.  He had seen the report of Dr Pentis.  Dr Downes did not accept that the plaintiff injured herself at work.  He says that if she had suffered an injury of the type described, then the symptoms would have settled within three to six weeks.  He does not accept that the symptoms of which she complained were work related.  He does however, accept that the plaintiff may have suffered a musculo-ligamentous injury, and that it should have resolved in four to six weeks.  He accepts that the physiotherapy may have aggravated her symptoms.  I do not accept the evidence of Dr Downes for the following reasons:

(a)it was not until 21st August, 1998 that he examined the plaintiff;

(b)the history of the plaintiff, as detailed by Dr Peterson, supports ongoing symptoms since the accident;

(c)the weight of the evidence from Dr Pentis and Dr Nave, which I accept, establishes a 2½% to 5% residual disability which was caused by the incident on 16 February 1995, leaving the plaintiff unfit to continue her duties as a nursing aide.

Dr Liong gave evidence.  He opined that the plaintiff was suffering painful minor intervertebral dysfunction (PMID).  The report of Dr Liong relied heavily on the text of Dr Maigne entitled “Diagnosis and Treatment of Pain Invertebral Origin”.  Unfortunately, Dr Liong did not refer to some important statements made by Dr Maigne which would tend to show that that particular diagnosis does not apply to the plaintiff.  Firstly, there was no cellulalgic pain found by Dr Liong.  Secondly, there was no precise identification of the spinal segment to which the pain applied.  Thirdly, there was the existence of some bilateral pain which is inconsistent with the diagnosis.  I therefore find that Dr Liong’s evidence was of limited assistance in this case.  Dr Liong did state, relevant to this case, that the plaintiff’s pain has continued for a long period of time and has become chronic.  He believed that if she had been treated properly at the outset, physiotherapy would have been necessary only for, say six weeks, and then more specialist treatment should have been given.  He said that there are often psycho-social factors which exist.  In the present case, I am satisfied that those factors are present, particularly given the fact that the plaintiff had problems in her relationship with Mr Symons, who lived with her, the failure of a business in which they were both involved, the exaggeration by the plaintiff of her symptoms when giving evidence, and particularly the help that she needed during the recovery process.

Pain and suffering and loss of amenities
I accept that the plaintiff has a 2½% to 5% disability of the bodily function referable to the work injury.  The symptoms from which he suffered have been referred to previously.  What is of some importance is that in her day to day living, her ability to carry out tasks around the home is affected.  Although Mr Symons was not living with her, he assisted her.  His observations are of some help in that the injury has affected their sexual relations, which contributed to a breakdown of their relationship.  The parties have lived together on and off on several occasions, so it could not be said that the injury was the cause of their breakdown.  Previously, the plaintiff had been actively involved in gym, including aerobics, tennis and other activities with her children.  She intends to qualify as a childcare worker and this activity will, on a day to day basis, I find, cause her some discomfort.  She is entitled to be compensated for this ongoing disability.  I assess her general damages at $20,000.  I allow interest on the sum of $10,000 for 4 years at 2%.  This will amount to $800.

Past economic loss
The plaintiff was born on 27th October 1962.  She had intended to work as a nurse’s assistant until retirement.  However, there was a possibility that she was going to commence employment in a business which Mr Somers owned.  It was a take-away food shop.  In fact, after her injury, she did work there for some months, but the venture was unsuccessful.  The plaintiff had worked with the defendant for some three years prior to this incident.  However, in the period prior to that employment, the plaintiff had had a sporadic work history.  She had to look after her young children, but had not been in any employment for two years prior to 11th October 1993.  Her earnings at the time of the accident was $180 per week.  The plaintiff’s counsel asserts that from the period 16th February 1995 to the date of trial, the earnings would total some $38,700 if the plaintiff had continued her employment with the defendant.  During that period she earned some $7,259.  The pre-trial economic loss claimed is $31,441, but it is accepted that there should be some discounting of that figure.  The amount of that discounting is the controversial question.  For example, she may have suffered another injury which aggravated the Scheuermann’s disease, or she may well have taken employment in the takeaway business.  She has shown an interest in childcare, and that alternative employment is something which she intends to pursue once she is qualified.  She says that she had attempted to obtain other employment, but since the accident, and apart from the takeaway business, there has been minimal employment as shown in the summary being part of Exhibit 6.  I am not satisfied that the plaintiff has taken all reasonable steps to obtain employment during the past four years.  She was obviously capable of working in the takeaway business, but left that because of financial reasons.  Allowing for all of these discounting factors, I would assess past economic loss at $20,000.  According to the WorkCover Queensland letter of 18 March 1997, the plaintiff received weekly compensation payments of $5,552.33.  I will allow interest on the sum of $14,448 at 6% for four years.  This produces a total of $3,468.

Future Economic Loss
It is common ground that a global figure should be allowed for this head of damage.  The plaintiff is confident of obtaining employment as a child care worker.  As the plaintiff is expected to receive as much money as a child care worker there is no weekly loss.  She has made inquiries and has worked in that capacity since the injury occurred. It may be that the plaintiff is unable to work from time to time because of the ongoing problems of which he complains.  It may be that certain activities do aggravate these symptoms.  The plaintiff intends to enrol in child care training.   It is suggested that for the next 12 months that she will lose some $9,630 income.  That figure, as far as quantum is concerned, is not disputed but whether the plaintiff is entitled to it is disputed.  The plaintiff has a duty to mitigate her loss and by retraining she will be able to get other employment as a child care worker.  Allowing for that retraining for the next 12 months, and a further nominal figure for future economic loss, I would assess future economic loss at $15,000.

Griffiths v.  Kerkemeyer
The plaintiff gave evidence that Mr. Somers would help some 30-40 hours a week doing grocery shopping, mowing the lawn and taking the children to sporting activities.  It is not clear how long this has continued but certainly by the end of the year when the plaintiff’s brother arrived he also helped with some 30 hours a week.  I find the evidence of the plaintiff in this regard was highly exaggerated.  In any event and prior to the injury, Mr. Somers used to assist when he would visit the plaintiff doing similar types of tasks, except perhaps for the lawnmowing.  In argument it was put to both counsel that allowing say 1½ hours per day for 12 months was more reasonable in the circumstances, and there seemed to be no dissention from that proposition.  I would therefore allow 1½ hours per day at $10 per hour for 52 weeks.  This would amount to some $5,460.00.  With interest, I allow $5,900.00 under this head of damage.  No claim is allowed for the future, as the plaintiff seems to cope in her present circumstances. 

Fox v.  Wood
The amount referable to this head of damages in Exhibit 5 is $484.75.  I allow that figure. 

Other Expenses and Rehabilitation
The figures of $2,478.14 and $690.59 appear in Exhibit 5, and these sums were not contested.  I would allow each of those respectively.

Medication
The plaintiff has used medication in the past and also claims the cost of $10 approximately per fortnight for painkilling analgesics.  For the past I would allow $1,040 with interest of $250.  For the future, I would allow $5.00 per week for 20 years.  This would amount to $3,297.  A period of 20 years has been allowed in recognition of the fact the plaintiff may well have suffered the effects of Scheuermann’s disease later in life, or from other ailments.

Medical Expenses
Defence counsel conceded that the sum of $1,159.15 is the total of the amounts which the plaintiff says were related to the accident.  I accept her assessment (Exhibit 4).

Summary of Quantum
Pain and suffering and loss of amenities  $20,000.00
Interest   $800.00
Past economic loss   $20,000.00
Interest  $346.00
Future economic loss  $15,000.00
Griffiths v.  Kerkemeyer  $5,900.00
Fox v.  Wood  $484.75
Other expenses   $2,478.14
Rehabilitation  $690.59
Medication (past and future)  $4,587.00
Medical Expenses  $1,159.15
Total:  $74,568.63
Less
Amount repayable to WorkCover  $8,721.06
TOTAL:  $65,847.57

There will be judgment for the plaintiff in the sum of $65,847.57.  In the absence of further argument, it is ordered that the defendant do pay the plaintiff’s costs, including reserve costs if any, of the action to be taxed.