Markovska v Golden Star Receptions Pty Ltd
[2014] VCC 1816
•7 November 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
Case No. CI-13-04740
| DANICA MARKOVSKA | Plaintiff |
| v | |
| GOLDEN STAR RECEPTIONS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 November 2014 | |
DATE OF RULING: | 7 November 2014 | |
CASE MAY BE CITED AS: | Markovska v Golden Star Receptions Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1816 | |
REASONS FOR JUDGMENT
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Assessment of damages following interlocutory judgment entered in default of defence.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | John Dellios & Associates Pty Ltd |
| For the Defendant | No Appearance |
HER HONOUR:
1 This matter concerns an assessment of damages following interlocutory judgment in default of defence.
2 Danica Markovska commenced the proceeding by way of Writ and Statement of Claim on 16 September 2013. The claim is in respect to personal injuries suffered as a consequence of a fall suffered at the Golden Star Receptions Pty Ltd (“Golden Star Receptions”) premises at 15 Yale Drive, Epping.
3 Ms Markovska is aged 68. On 5 April 2010, she was a member of a pensioners group that was having a lunch at the Golden Star Receptions. She fell from a raised floor area where her table was situated to a lower floor area. Ms Markovska was unaware of the differing floor levels. She later ascertained there was something in the order of a 40 centimetre height differential between the two different floor levels. There was no handrail, barricade or other indication of this difference. Following the fall, a rope was erected to indicate the presence of the height differential.
4 As a result of the fall, the Plaintiff landed heavily onto her buttocks. She was taken to the Emergency Department of the Northern Hospital where she underwent x-rays. She was diagnosed with having a sprain/strain of the right ankle.[1] She was discharged to be reviewed by her local medical officer in one to two weeks. If the swelling and the pain persisted, the Plaintiff was advised to see her doctor.[2]
[1]PCB 25
[2]PCB 25
5 Ms Markovska attended on her local practitioner, Dr Irani in St Albans. She was having problems with ongoing pain in her right ankle, lower back and right hip. With the passage of time, by reason of her right hip injury, her gait altered and she developed problems in her left hip as well.
6 Dr Irani organised further investigations. An ultrasound of the right ankle taken on 30 April 2010 revealed a grade 3 complete rupture of the anterior talofibular ligament at the anterolateral aspect of the ankle. She had associated soft tissue swelling and ankle joint effusion.
7 A bilateral hip x-ray taken on 1 February 2012 showed mild to moderate bilateral hip joint degenerative osteoarthritis.[3]
[3]DCB 16 & 17
8 Mr Bedi, Orthopaedic Surgeon, reviewed Ms Markovska for assessment and management of ongoing right ankle pain approximately three months following injury. He noted ongoing and slow movement.
9 Ms Markovska complained of anterior pain as well as some lateral and medial aching. She had discomfort on walking and that was worsened by prolonged standing and walking, particularly on uneven surfaces.
10 Mr Bedi considered that there was swelling and instability, as well as regular colour and temperature changes, suggestive of pain syndrome. He recommended management of her pain through a referral to a pain management specialist. He also recommended physiotherapy to help with strengthening, range of motion and control of swelling.[4]
[4]PCB 26 & 27
11 Dr Peter Courtney, Pain Specialist, reviewed Ms Markovska on one occasion only and referred her back to her general practitioner.
12 In the meantime, the Plaintiff had ongoing problems of the low back and right hip. The right hip was further investigated. An ultrasound performed on 16 March 2012 was reported as showing right trochanteric bursitis. The right hip was then the subject of an ultrasound-guided steroid injection that was administered on 26 March 2012.[5]
[5]PCB 20
13 Thereafter, there were problems with the left hip, and an ultrasound of the left hip showed left trochanteric bursitis.[6] A further ultrasound-guided injection to the left hip was suggested but no such procedure has been performed to date.
[6]DCB 19
14 Ms Markovska was reviewed by Dr Alex Stockman, Rheumatologist, who saw her on 18 May 2012 with respect to pain in the right hip region. He also noted low back pain and pain in the right ankle following the fall. The right ankle condition had improved but the other pains had worsened with the passage of time. He suspected osteoarthritis of the right hip and lumbar referred pain/radicular pain.
15 An MRI scan of the right hip and the lumbar spine was organised, and that confirmed degenerative changes and possibly a vascular necrosis of the right hip. The MRI of the lumbar spine was unremarkable.
16 Mr Stockman referred Ms Markovska to Mr Jonathan Hooper, Orthopaedic Surgeon, who further reviewed her and recommended a right total hip replacement. The total hip replacement was performed on 23 October 2012.[7] Following that procedure, Mr Hooper monitored the Plaintiff’s progress and noted slow but gradual improvement. By January 2013, she was walking indoors unaided and outdoors using a walking stick.
[7]PCB 31
17 Over time, Ms Markovska’s pain has been managed with anti-inflammatories and pain relief medication. Her anti-inflammatory, Celebrex, did not appear to lead to any lasting improvements so that was ceased. She is currently taking Oxynorm and Targin for pain.
18 Following the surgical procedure, the Plaintiff has recovered reasonably well but reports sensation of looseness and giving way in the right hip, a loss of confidence when walking indoors unaided, and also increase in shoulder problems as a result of the weight that she is placing on her shoulder, that is, the right shoulder.
19 Ms Markovska has been reviewed for medico-legal purposes by Mr Peter Mangos, General Surgeon, who saw her on 25 February 2013.
20 He considered that her condition had stabilised and that currently she is suffering from a right hip replacement due to severe osteoarthritis contributed to by the fall and an aggravation of severe lumbar spondylitis. Mr Mangos opined that the fall was significant in contributing to her right hip pathology and back injury. He recommended ongoing analgesics where necessary and physiotherapy to keep joints mobile and strong. The injury is likely to cause pain into the indefinite future. It is long-term and permanent.
21 Dr Irani, General Practitioner, confirms gradual but slow progress following the right hip replacement surgery. He documents, in February 2014, that Ms Markovska complained of right shoulder pain which the Plaintiff related to constant use of a walking stick causing increase in pressure to the right shoulder. He noted the past injury to the right shoulder from which she made a good recovery.
22 He referred her for x-ray and ultrasound of the right shoulder and referred her for local steroid injection to the right shoulder.
23 As a consequence of the fall, Dr Irani states that the Plaintiff has sustained:
(i) right angle ligamentous tear;
(ii) aggravation of right hip pathology degenerative changes needing total hip replacement;
(iii) aggravation of lumbar degenerative disease; and
(iv) aggravation of a right shoulder injury.
24 He confirmed that the injuries had stabilised but there was still ongoing pain in the hip off and on when she walks for long periods and with prolonged standing. He confirmed the need to continue analgesics and anti-inflammatories and physiotherapy as needed.[8]
[8]PCB 50
25 The Plaintiff documents the impact that the injuries have had on her loss of enjoyment of life in paragraphs 17, 18 and 19 of her affidavit that was sworn on 31 October 2014.
26 In brief summary, she has had ongoing pain since the fall and her symptoms have been managed conservatively with the exception of the right hip which has been treated by way of surgery.
27 Her walking is now limited to about 15 minutes, after which she experiences pain, particularly in the right hip. The left hip is not as bad but seems to be increasing in pain with the passage of time.
28 Her walking is very slow and she is not as confident as she used to be when she was on her feet. She is no longer able to participate in dancing or recreational activities in the Macedonian community to the extent that she was able to previously. Her ability to participate in her grandchildren’s activities have been curtailed.
29 Socially, she and her husband do not mix as much and they no longer travel as much. Her sleep is affected by pain and her intimate relationship with her husband have been restricted because of the pain. She continues to take Targin, an opiate medication for pain, and, on a bad day, which occurs about two to three times a week, she uses three of those tablets. She also uses Panamax medication, which is over-the-counter pain relief.
30 At the commencement of this application, Mr Ingram, on behalf of the Plaintiff, confirmed that the claim was limited to general damages as sought in the Statement of Claim, and he abandoned the application for special damages being the medical and associated expenses and the attendant care expenses.
31 Having regard to the nature of the injury suffered by the Plaintiff and the ongoing symptoms requiring ongoing conservative treatment and management, and her pain and suffering consequences, I consider the amount of $150,000 is appropriate compensation for her pain and suffering and judgment will be entered accordingly for that amount.
32 In relation to the claimed legal costs, I have had regard to the draft bill that was dated 5 November 2014, together with the additional items as set out by Mr Ingram for his brief fee to appear and conferences in preparation of the application.
33 I fix the amount of $32,670, being $24,151.13 costs (including GST) and disbursements of $9,849.32 (including GST). I have rounded up the final figure to $32,670 and judgment will be entered for that amount.
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