Medhurst v State of Queensland
[1999] QDC 276
•5 October 1999
DISTRICT COURT OF QUEENSLAND
[Medhurst v State of Queensland]
REGISTRY: BRISBANE
NUMBER: 2270 OF 1992
Plaintiff:
MARILYN LESLEY MEDHURST
AND
Defendant:
STATE OF QUEENSLAND
JUDGMENT - McGILL D.C.J.
Judgment Delivered: 5 October 1999
Catchwords: EMPLOYMENT LAW - injury to employee - duty to establish safe system of work - failure to monitor and instruct - employee adopting unsafe work practice
DAMAGES - personal injuries - back - 10%
Counsel for the plaintiff: P.B. de Plater
Counsel for the first defendant: R.N. Alldridge
Solicitors for the plaintiff: Watling Roche
Solicitors for the first defendant: Crown Solicitor
Dates of hearing: 24, 25 March, 3 June 1999
DISTRICT COURT OF QUEENSLAND
REGISTRY: BRISBANE
NUMBER: 2270 OF 1992
Plaintiff:
MARILYN LESLEY MEDHURST
AND
Defendant:
STATE OF QUEENSLAND
JUDGMENT - McGILL D.C.J.
Delivered the 5th day of October 1999
By this action the plaintiff claims damages for injuries which she says she suffered in the course of her employment with the defendant on 14 July 1993. The plaintiff alleges that she injured her back when she lifted a door mat and flung it behind her with a twisting motion and that this produced a painful condition in the spine which has never abated. Liability and quantum are both in issue, and the defendant disputes that there was any such incident as the plaintiff alleges, or that, if it occurred, there was any negligence, breach of contract or breach of statutory duty on the part of the defendant which caused it.
Facts
The plaintiff worked as a cleaner at the Undurba State School five days a week (p.15), working 6 a.m. to 9 a.m. and 3 p.m. to 6 p.m. each day except Wednesday when she worked until 8 pm: p.16. She was one of four cleaners, and from 6 p.m. to 8 p.m. on Wednesday they would work in teams of two. On 14 July 1993 she had been asked by the principal to clean some paint off some large sliding glass doors, which had been painted by pre-school children, evidently with paint which was designed to wash off because she was able to do it with just detergent and a soft brush and a hose: p.17. The doors opened on to a concrete patio about three metres wide, and in preparation for the job she removed things that were on the patio, including a door mat which was outside one of the doors. An example of such a mat became Exhibit 10, although the plaintiff said that the one in question was a bit thicker, more bristly and not so flat: p.18. That seems a little surprising, since the one which was tendered appears to be quite new. The plaintiff said that in order to move this mat she faced the door, bent over from the waist, picked it up and threw it (p.18) with a twisting motion, as one swift movement rather than a separate lift and turn: p.19. She could not recall with precision how this movement occurred (p.99, 148) which is not surprising. The intention was to throw the mat clear of the patio, which would have required some force, and it landed on the grass: p.35. She said that when she did this she felt a sharp pain in her lower back, but continued working for the balance of the shift: p.19.
At about 6 o’clock she had a 10 minute break and a cup of tea. The plaintiff said that during her tea break she mentioned the back pain to the other cleaners she worked with (p.23) and she identified these as Janet and Jessie Dohle: p.40. After that break her back actually felt worse although she was able to complete her duties that night with difficulty: p.20. She said that no one saw her at the time when she actually threw the mat, since at that stage of the evening the cleaners were working alone.
The following day the plaintiff was still feeling sore in her lower back but she worked on that day and on the Friday, hoping that at the weekend she would have a rest and give the back time to heal: p.22, 61. She did rest over the weekend, but on Monday the back was still very sore, and at the end of her morning shift on the Monday she told the school administrator that she had hurt her back and she was going to see the doctor: p.22. That day she saw Dr. Russell, a general practitioner, who advised rest and pain killers, but by the Friday her back had not recovered and she was sent for x-rays, and in time was referred to other specialists: p.23.
In a report dated 5 November 1993 (Exhibit 22) Dr. Russell confirmed that the plaintiff had presented with lower back pain on 19 July 1993, five days after an injury at work. The version given of the incident in Dr. Russell’s report was “She threw a heavy mat and it broke in half leaving her holding half in her hand. She then moved a carpentry table.” The actual entry Dr. Russell made of the visit of 19 July 1993 in her notes was:
“Unwell with back ache since last Wednesday. Threw door mat which broke, then moved a carpentry table. Decreased range of movement, decreased right flexion, L4 dermatome affected. LS spine okay. Bed rest and Naprosan.”:p.133.
Dr. Russell could recall being told about the mat breaking and part of it being left in the plaintiff’s hand.
On examination she found marked stiffness and decreased range of flexion and some nerve symptoms in the L4 dermatome. On 23 July, tenderness was localised over the sacroiliac joint, and the plaintiff was treated with some physiotherapy. Subsequently a CT scan showed a posterior bulge of the L4/L5 disc, and some degenerative changes in the L5/S1 facet joints. The plaintiff was subsequently referred to specialists, Dr. Sampson and Dr. Palmer, but I do not have reports from either of them.
As at 5 November 1993, Dr. Russell commented: “She is taking a long time to recover, which she doesn’t like.” She also confirmed that the plaintiff who had been a patient for seven years had never had back problems before this occasion and expressed the opinion that there was a genuine cause and effect relationship. Dr. Russell had seen the plaintiff on 23 June 1993, at which time there was no mention of back problems: p.128. Dr. Russell indicated that there had been complaints of neck pain dating from April 1987, although there do not seem to have been many visits about that, there was carpal tunnel syndrome on both sides in about 1990, and some tennis elbow in 1992: p.126. Dr. Russell said that she took the complaints of back pain fairly seriously: p.133.
An accident report form was completed and signed by the plaintiff, apparently on 23 July 1993: Exhibit 18. The description of the accident in that document is in the plaintiff’s handwriting (p.36), and refers to picking up a door mat to throw it out of the way when “one door mat snapped off at corner I carried on working picking up other mat and moving carpentry trolley and pulling hose to clean windows. It was while mopping floor that my back started to really hurt.” On 23 July 1993, the plaintiff also signed an application for workers’ compensation in Form 4: Exhibit 37. On this form she said that the injury occurred “picking up outside side mats and moving carpentry trolley”. An employer’s report in Form 3 (Exhibit 36) repeats this version, although it was signed subject to the qualification that the way the injury occurred was not verified as there were no witnesses, and the injury was not reported that day.
The plaintiff, under cross-examination, said that she recalled picking up the mat and throwing it, but could not remember whether it broke or not: p: 37. The plaintiff had said, however, earlier in her cross-examination and before being referred to her earlier versions, that she did remember a corner breaking off one of the these mats: p.35. Later, she said she recalled more than one occasion in the 12 months prior to the accident when a mat broke when she threw it: p.39. She thought the mats that broke were probably old mats. Throwing the mat in this way was something she did every day, with each of 4 such mats in her part of the school: p.37. The plaintiff said she always did it that way because it was the quickest way of doing it: p.151. She said that if she had been told that she might hurt her back doing that, and that she should just pick up the mat and put it on the grass, she would have done so: p.152. She usually did it in the morning (p.42) and it was done so that she could do her cleaning. She did not regard the mats as overly heavy: p.42.
On Exhibit 18, the plaintiff nominated Mrs. Dohle and J. Cunningham as co-workers told on the day. Mrs. Dohle was called and said that she knew nothing about the plaintiff’s having hurt her back lifting a mat or throwing a mat (p.197) but that a few days before the plaintiff finished work she had said that she had hurt her back getting over the fence into the school grounds because she had no key: p.196. Mrs. Dohle said that at some stage which she could not recall the lock to the gate was changed and after that only one of the cleaners had a key to the front gate: p.197, 203. The plaintiff, on the other hand, maintained that she always had keys and was able to let herself in: p.39. She denied having hurt her back on the fence: p.101. Mr. Perry, the school registrar, confirmed that at some stage he had arranged for all the cleaners to turn up at once and that only one or two keys to the gates were available to the cleaners: p.206. He said that the incident had been reported to him on 19 July 1993 (p.206) and what he recalled was that the plaintiff had hurt her back moving a coir mat: p.207.
There was some question at the trial about whether the plaintiff had to work particularly fast on this day to get the job done. In evidence in chief she spoke of the window cleaning as being just a rush job, but in the context of how thoroughly it was to be performed, that is that the glass did not have to be sparkling clean: p.17. In cross-examination she said that it was a fairly big job and an extra job, so she had to rush to get it done (p.60), but it does not appear that this method of handling the door mat was the product of rushing; she said that each day as part of her cleaning she moved four of these mats, that is this and three others, in the same way: p.37. The plaintiff did not say that she did something different from what she usually did on this occasion because she was rushing, and I think it follows that any rushing is irrelevant. I think it much more likely that the speed with which this manoeuvre was undertaken was dictated by the desire to give the mat enough momentum to clear the concrete, and that would have been the situation every time the manoeuvre was performed. She conceded the actual throw would not have been any different on the other days: p.152. I accept this.
This incident has been the subject of some expert investigation, although only relatively recently, by Mr. O’Sullivan, who has qualifications in physiotherapy and occupational health and safety and is a safety and ergonomics specialist (Exhibit 23) and by Dr. Jenkins, who has training and experience in engineering and also has some expertise in matters of occupational safety: Exhibit 25. In his report dated 24 March 1999 (Exhibit 24), Mr. O’Sullivan gave evidence of the weight of a mat like Exhibit 10 (p.161) was 4 kilograms, which could be increased to 7 kilograms if enough sand was trodden into it, and increased further to 9.65 kilograms if enough water was sprayed on to it to make it moderately wet. The plaintiff however described the mat as very slightly damp (p.42) and I accept the defendant’s estimate of 8 kilograms as its weight: Exhibit 32. Mr. O’Sullivan’s report was based on a telephone interview with the plaintiff on 22 March 1999, and the version given to him is therefore not likely to be the product of any better recollection than her evidence in court. It seems to me that the versions are essentially the same, although he does suggest that the mat was thrown more rapidly than usual on this occasion, something which I think is not established by the evidence and which I am not prepared to find actually occurred. His reference to psycho-physical data for lifting suggests that the weight of the mat, even enhanced with some sand and water, would not have been enough to cause real concern, at least where the lift was performed only four times. He did say that research had indicated that a combination of lifting, bending and twisting was believed to be the most frequent cause of back injuries, and that the twisting and bending of the spine is a recognised risk factor for back pain. He referred to research data which suggested that a combination of lifting and twisting was much more likely to cause injury to the spine than mere lifting, because such a manoeuvre puts the spinal discs under particular stress. Indeed, Mr. O’Sullivan thought that the speed of the twisting was of particular importance, being of greater importance than the weight of the mat. Dr. Pentis who gave evidence also said that a straight lift is not as bad, i.e., as bad for the back, as a lift where one is twisting: p.46.
The report of Dr. Jenkins (Exhibit 26) was based on an understanding of the mechanism of the accident which has ultimately proved not to be accurate, and really only considers the question of lifting the door mat, apart from any throwing and associated twisting: p.187. So far as it goes, I think it is essentially consistent with the report of Mr. O’Sullivan, and supports a conclusion that this task could have been carried out without particular risk or difficulty had the mat been lifted and then carried to a point which was clear of the concrete patio. He also expressed the view that an actual twisting of the spine would introduce an increased risk of injury, although if the manoeuvre was carried out by pivoting on one foot, and allowing a turning of the trunk rather than a twisting of the spine, this would not produce such an increased risk. In other words, if the shoulders and hips maintained their relative positions, so that the spine itself did not twist, it would not have mattered if the plaintiff had turned in the process. That may be so, but this is not the mechanism described by the plaintiff, nor is it, I think, the natural mechanism for performing the exercise described by the plaintiff, insofar as there can be said to be such a thing.
For the mat to be thrown backwards it is necessary to do more than just lift it, spin around and let it go at the right moment; undoubtedly part of the process would have been an attempt to apply additional force or thrust to the mat in a direction away from the building and that would, I think, have inevitably involved some twisting of the spine. Mr. O’Sullivan said that it was necessary to apply both vertical and horizontal force in the course of such a manoeuvre: p.176. Such forces are applied by a series of fairly small muscles in the back: p.176.
Mr O’Sullivan in his report identified another way in which the mat could have been removed, without actually lifting it clear of the floor, although that strikes me as having some other dangers. He also suggested ways in which the problem could be avoided by changing the style of the mat. Mr. O’Sullivan said that in his opinion if part of the mat broke off while the plaintiff was throwing it this could interfere with the throwing process and cause the plaintiff to move too far, which I understand as meaning that she would twist around further than she had intended: p.161.
Mr. O’Sullivan said that cleaners as a group were recognised as being at risk of manual handling injuries, and that they should receive some form of training in such techniques, particularly proper lifting techniques, and there should be some consultation with them about the nature of the work they do with a view to identifying any actions which might cause particular risk: p.173. He said that the Education Department had, for many years, had Workplace Health and Safety advisors providing training to people in the appropriate skills, which was a means by which instruction and proper lifting techniques could be transmitted: p.176. Dr. Jenkins conceded under cross-examination that the method of dealing with the mat described by the plaintiff as having been followed in this, and the ordinary, case, was one which in his opinion required intervention: p.194. Mr. O’Sullivan thought that if he had seen someone tossing a mat to the rear with a lot of twisting it would set alarm bells ringing: p.175. Dr. Cameron said that the manoeuvre such as the one undertaken by the plaintiff with the mat was something that could cause disc injury: p.116. Dr. Boys thought a strain of the soft tissues of the lower back would be consistent with the manoeuvre described by the plaintiff, which as appears from his report is essentially consistent with the description given by the plaintiff in evidence: Exhibit 17. It follows, and I find, that a risk of injury was a foreseeable consequence of the plaintiff’s method of dealing with the mats.
Overall, it seems to me that Mr. O’Sullivan’s evidence is either uncontradicted or actually supported by that part of Dr. Jenkins’ evidence which is not based on some incomplete information as to the nature of the task the plaintiff was performing at the time when she suffered her injury. I find that a reasonable employer would not just ignore the risk of injury, but, if aware that the plaintiff was doing this, would have told her not to do it and devised a safe alternative system to put in place.
On the whole I think it probable that the plaintiff did injure her back in the manner that she described, although I think it is also probable that on this occasion the door mat that she was throwing did break, as she recorded in the reasonably contemporaneous documents. She seems to retain some recollection of a door mat breaking, although she no longer particularly associates that with the incident when she hurt her back. At the time when those accounts were first written the broken door mat would presumably have still been in existence and available for anyone to see. Although it seems no particular investigation into the incident occurred (p.210), one could have occurred and the plaintiff was not to know at the time when she reported the incident that one would not occur. Even if there was no formal investigation, it is reasonable to assume that Mr. Perry would have discussed the matter with some of the other cleaners (p.209), and if anything odd or unusual had emerged he probably would have investigated further. Although Mrs. Dohle has no recollection of being told that the plaintiff had hurt her back, she would have had no particular reason to remember that at the time, and could easily have forgotten all about that particular conversation by the time she was first asked to recall it. Mrs Dohle seemed to me an honest and straightforward witness, but the fact that a person does not remember something which is supposed to have happened several years ago is not particularly strong evidence that it definitely did not occur, particularly if it would not have been a matter of any great consequence to that person at the time.
If the door mat broke on this occasion, that in addition provides some difference between this incident and all the other times when the plaintiff performed a similar exercise with the door mat without suffering an injury to the back. I think that if the door mat actually came apart in the plaintiff’s hands as she was throwing it, this would have interfered with the throw and could well have resulted in some atypical and greater stress on the spine, which was of greater than usual significance. This is supported by the evidence of Mr. O’Sullivan. The alternative explanation is that the disc was weakening and it had to go some time and it just happened to be then: p.54.
On the whole I am satisfied that the injury did occur in the way in which the plaintiff described, and that she did suffer a genuine injury to the spine. I shall return shortly to the scope and consequences of that injury, but for present purposes it is sufficient to find that there was an injury. There is no doubt that the defendant as the plaintiff’s employer had a duty to take care for the plaintiff’s safety at work, and that there was an implied term in the contract of employment to that effect. The question is whether the duty or implied term was breached. This is not a case where the plaintiff was doing the work in a way laid down by the employer, nor is it a case where the plaintiff had adopted her own unsafe system of work of which the defendant was aware and which the defendant had tacitly accepted. There is no evidence that the defendant was aware that the plaintiff was dealing with door mats in this fashion prior to this injury, and there is no suggestion that the plaintiff was ever instructed to adopt this approach. The real question in terms of liability, I think, is whether the defendant ought to have supervised to some extent the work of the plaintiff, to detect unsafe work practices, and ought to have given some further instruction to the plaintiff, and whether if it had been given it would have deterred the plaintiff from acting as she did.
This was not a case where the plaintiff had adopted this particular process for the first time on this occasion. As she had been doing this regularly for some years, the defendant had time to find out about it, either through observation or by asking questions. There was no reason for the defendant to be looking for this particular form of conduct, but I think that some form of instruction to the plaintiff, or investigation of the plaintiff’s work practices, would have been appropriate simply because she was working as a cleaner and cleaners are recognised as being particularly at risk from manual handling injuries. Further, the risk of injury to the spine by doing this was not one which was obvious to the plaintiff.
In these circumstances, in my opinion, it is not enough for the defendant simply to assume that safe work practices were generally being followed. Mr. O’Sullivan’s evidence that there ought to have been some investigation of these matters is, I think, consistent with the authorities which seem to require some form of active investigation of industrial safety questions as part of the obligation to establish a safe system of work: O’Connor v. Commissioner for Government Transport (1954) 100 CLR 225 at 229. There was evidence that the defendant has people appropriate to investigate industrial safety, and it seems to follow from the fact that both Mr. O’Sullivan and Dr. Jenkins would not have regarded the plaintiff’s mat handling technique as satisfactory that, if it had been discovered in the course of such investigations, the plaintiff would have been warned not to use that technique, and hopefully also instructed on a safer technique to adopt. That could have been done by someone who was in a position to make a more appropriate analysis of how the job ought to have been done. It is clear that this did not occur: Exhibit 33. The plaintiff said she had never received any instructions in manual handling techniques and there was no evidence to the contrary. It seems that the cleaners were basically just hired to clean and left to get on with it. I find that the defendant was negligent, and in breach of contract, in failing to establish a safe system of work.
It may seem surprising in a way that a cleaner would injure herself in lifting and throwing a door mat, and that her employer should be liable in negligence or for breach of contract as a consequence. However, there are plenty of examples of cases where the outcome at first sight appears surprising, but where Appellate courts have held that the employer is liable; the question is whether the application of established principles to the particular facts of the case produces that outcome. In my opinion, on the basis on which I have described there was a breach of the employer’s duty in failing to give the plaintiff proper instruction in manual handling techniques, and in failing to provide some form of monitoring of her work practices in order to prevent her from adopting techniques which were unsafe.
The next question is whether this was a cause of the injury, in the sense that if this course had been adopted it would probably have prevented the injury. This should not be analysed on the assumption that instruction or any monitoring took place just before this particular accident; the employer’s duty did not extend to the provision of continuous monitoring or instruction. That, I think, is far more than a reasonable employer would have done in the circumstances. But there ought to have been some monitoring at some stage, and some proper instruction, and given that the plaintiff had been using this technique for a long time, if there had been any reasonable amount of monitoring at any time, it would have detected this so that there was the opportunity to correct it. The plaintiff’s evidence is that if she had been warned that this method carried a risk of injury to her back she would have abandoned it (p.152), and on the whole I think that that is a realistic and reasonable proposition and I am prepared to accept that it is more likely than not that if the plaintiff had received proper instruction and warning she would not have adopted this technique, and in those circumstances this incident would probably not have occurred. On that basis causation is made out.
The plaintiff claims in the alternative for breach of statutory duty. In the circumstances, the defendant, by not providing some materials handling instruction, and some monitoring the plaintiff’s work practices has, in my opinion, failed to ensure the health and safety at work of the plaintiff, and in view of the evidence of Mr. O’Sullivan that for some years the Education Department has maintained appropriate people to provide such instruction and monitoring, I am not satisfied that it was impractical to do so. It follows that the defendant is also liable for breach of statutory duty.
Because the defendant is liable for damages of breach of contract, there is no question of contributory negligence: Wylie v. ANI Corporation Ltd (Plaint 2999/96, McGill DCJ, 9.4.99). However, since that decision is under appeal, I should make some precautionary findings of fact. My clear impression during the trial was that the plaintiff’s conduct in lifting and throwing a door mat in this fashion was a silly thing to do (see for example p.174), although that opinion was formed with the benefit of hindsight in that I knew that the plaintiff had injured her back. There was also the consideration that the plaintiff had been doing the same thing, apparently without difficulty, on a regular basis for some years. Furthermore, the plaintiff’s behaviour must be assessed on the basis that there has been a failure on the part of the defendant to provide proper instruction and monitoring of her work practices; that is, a failure to institute a safe system of work: Bankstown Foundary Pty Ltd v. Braistina (1986) 160 CLR 301 at 310. If the plaintiff had simply come upon this task on this occasion for the first time and had chosen to do it in this fashion, I think the plaintiff would have been failing to take reasonable care for her own safety, in that she was doing something which a person who was taking such reasonable care would not have done. But in circumstances where she had been doing it without difficulty for many years, it is, I think, more difficult to regard the fact that it was done again on this occasion as displaying a lack of reasonable care for her own safety. By the time this incident came around, her experience with this technique was to the effect that it worked and did not give her any particular trouble, and in those circumstances if I had been considering the question of contributory negligence I would nevertheless not have been prepared to find that there was a failure on the plaintiff’s part to take reasonable care for her own safety.
Quantum
Following the injury the plaintiff consulted her general practitioner, Dr. Russell, to whose evidence I have already referred, and was seen by Dr. Samson and Dr. Palmer, from whom I do not have reports. In November 1993, the plaintiff began to attend the South Brisbane Rehabilitation Centre (p.23) which she attended although the travelling caused her increased pain, being keen to persist with the course: p.24. On Monday 29 November 1993 while at the centre she developed symptoms which were ultimately identified as being caused by an aneurism in an artery in the brain. She was admitted to the Princess Alexandra Hospital and underwent surgery on 2 and 9 December 1993, and was discharged on 14 December 1993: Exhibit 1. Dr. Cameron gave a little more detail as to the nature of the brain surgery the plaintiff underwent at p.114. So far as the hospital was concerned, she made a good recovery, but the plaintiff has complained that ever since the operation she has been left with almost continuous pains in the head which she attributes to muscle spasms: p.44. The plaintiff said that she was flat on her back in intensive care for some 12 days after admission to hospital (p.25), and she thought that during that time her back had stiffened up somewhat and she had lost a lot of mobility: p.28. She said that since then back pain had been permanent, although the pain did vary in intensity. Sometimes physiotherapy was of assistance, and she had also benefited from treatments from a chiropractor, although she had been unable to afford to continue receiving such treatments: p.25. She is able to do her own housecleaning and meal preparation, although she receives assistance from her sons, particularly with household jobs and transport: p.26. The plaintiff said that she had been unable to return to bush walking, rock climbing and ballroom dancing which she had been active in prior to the accident: p.27. The plaintiff had also engaged an organisation, Volcare, whose drivers would from time to time drive her to shopping, and spent money on purchasing various items set out in Exhibit 11: p.29.
The reports from a large number of doctors were put in evidence, but apart from Dr. Russell, they were all doctors who had seen the plaintiff first in 1997 or subsequently, so they really do not throw much light on the question of whether the plaintiff’s back condition is different from what it was prior to the aneurism and the associated surgery. Of the medical evidence that I have, the specialist who first saw the plaintiff for the purpose of a report was Dr. Ewing, a neuro-psychologist who examined her on 14 May 1997. Dr. Ewing noted that prior to the aneurism, the plaintiff had returned to regular dancing, although on some occasions this required a TENS machine strapped to her back. Dr. Ewing’s reports contained reference to opinions of other doctors which are not independently before me, and which I disregard. Dr. Ewing noted that during the interview the plaintiff did not show overt signs of pain, although she reported that her back was sore and her head was bothering her. Dr. Ewing administered an MMPI-2 questionnaire which produced a profile consistent with a tendency to deny psychological difficulties and to convert these into somatic symptoms. The profile was consistent with that of chronic pain patients, and Dr. Ewing was of the opinion that the plaintiff fulfilled the criteria for chronic pain disorder associated with both psychological factors and a general medical condition, and that she was preoccupied with her health problems. There were some depressive response to her difficulties but no evidence of major depression or clinically significant reactive depression. Dr. Ewing recommended six to eight sessions with a clinical psychologist experienced in pain management which would cost about $1,000, and referral to an appropriate support group.
Dr. Ewing did not perform any tests of brain function: p.67. She thought however that apart from being mildly disinhibited during the interview, there was nothing to indicate that there was any abnormality of brain function: p.68. Dr. Cameron did not think there was any indication of brain damage as a result of the surgery: p.106. Dr. Ewing thought that the plaintiff was likely to be more prone to physical symptoms in response to stress: p.68. She reported complaints from the plaintiff of quite severe head pains, quite debilitating pains in the head, from which she had relief only from injections (p.69) which she had received from Dr. Gary Ferris (Exhibit 6, p.5). The plaintiff said she also received relief from the pains in the head by taking Valium, but it was only temporary: p.150. Dr. Ewing thought that the plaintiff was really experiencing pain (p.70), and did not think she was deliberately exaggerating: p.71. Dr. Ewing said that it was not possible to say whether or not the plaintiff would have developed chronic pain disorder had it not been for her problems with her back; she may or may not have gone on to develop it because of the consequences of the aneurism: p.72.
The plaintiff was seen for the purposes of a report by Dr. Michael Coroneos, neurosurgeon, on 19 May 1997: Exhibit 20. The current complaints at that stage to the doctor were constant low back pain with restriction of movement aggravated on bending forward with occasional sharp low back pain, predominantly right sided. There was said to be a sitting tolerance of 30 minutes, a walking tolerance of 100 metres, some difficulty with continuing standing, and sleep interruption. She reported an inability to do shopping, and that she required some assistance with the house work from a cleaner. She did gardening and mowing but with pain, and driving increased pain. Dr. Coroneos’ examination was essentially normal, although he did note complaints of severe pain on superficial lumbar examination. He thought that her complaints of very severe pain upon gentle palpation of superficial skin was inconsistent with the known basis of a lumbar spine disease and symptomology: p.120. He thought that the x-rays and CT scan results in 1993 and the x-rays of the lumbo-sacral spine in 1994 were all essentially normal, at least for someone her age. He thought that she would have suffered some soft tissue injury in respect of the manoeuvre on 14 July 1993, which he would have expected to have resolved over a period of a few weeks, and that there was no evidence of any underlying basis for the reported continuation of symptoms. Dr. Coroneos said that it was normal to find a minor bulge in the L4/L5 disc: p.119. Dr. Coroneos said that he would expect that there would be a definite structural abnormality to account for the continuing symptoms and he could not find any: p.122. Indeed, Dr. Coroneos thought that the plaintiff’s range of movement and her travel which included a trip to Port Douglas and a trip to England were inconsistent with a somatiform disorder: p.123.
The plaintiff was examined by Dr. Pentis, an orthopedic surgeon, on 7 August 1997 for the purposes of a report: Exhibit 4. The plaintiff complained that she had pain in her back. Dr. Pentis noted on examination straight leg raising which was actually better than that found by Dr. Coroneos, particularly on the right, but he did think there was some wasting of the left leg and calf. He thought the plaintiff had probably aggravated a previous degenerative disc and that there was not much which could be done for her in the absence of signs of specific nerve root entrapment. He expected her to have permanent difficulty with bending, twisting and lifting and to be unlikely to be able to return to her previous job as a cleaner. In a later report Dr. Pentis expressed the view that problems in the neck were a consequence of the cerebral aneurism rather than any problems with the back: Exhibit 3.
Dr. Pentis examined the plaintiff again on 1 June 1998 for the purposes of a report: Exhibit 5. The various problems with the back were continuing, and the examination results were much the same, although this time there was slightly better straight leg raising on the left, and the wasting was of the right calf. Dr. Pentis noted a decreased range of movements of the spine to the right. He thought that the plaintiff’s condition had stabilised and that there was not much else which could be done for her, and did not recommend surgery. He thought that the condition should be treated conservatively with stressful activities being avoided and doing only light duties. He put the loss of efficient function of the spine at 10% as he had earlier. The percentage took into account the presence of pain: p.52.
Dr. Pentis said that he thought it likely that the injury occurred because of some pre-existing weakness in the back, and that if this injury had not occurred, a similar injury could have occurred in a variety of ways: p.48. It was not possible to say when this other injury might have occurred, it could have happened at any time, but it could well have taken a long time: p.52. Dr. Pentis thought that it was possible that difficulties in the spine could have been aggravated by the aneurism, as a result of blood getting into the cerebra-spinal fluid, and aggravating an area lower down the spine which had already been irritated: p.55. He gave this as a somewhat unconventional opinion, and put it as a possibility rather than as something which was likely, but he did not think that otherwise mere immobilisation in bed should have aggravated any soft tissue injury to the back: p.56. Dr. Cameron also said that the reported increase in back pain after the aneurism might be associated with the presence of blood in the spinal cord: p.113. Dr. Cameron said an alternative explanation was enforced bed rest in a hospital bed which could aggravate an arthritic or injured back, as could an extended period on an operating table: p.114. Complaints of pain in the right buttock and down the leg would be consistent with pressure on the sciatic nerve at the L4/L5 levels, and the L5/S1 levels of the spine: p.58.
The plaintiff was seen by Dr. Boys, an orthopaedic surgeon, for the purposes of a report at the request of the defendant’s solicitors on 4 March 1998: Exhibit 17. Complaints to Dr. Boys were of pain in the neck and lower back which were reported as equally symptomatic. There was a sitting tolerance of 20 to 30 minutes, a standing tolerance with comfort for 10 minutes, and walking tolerance with comfort of approximately 15 minutes. There was difficulty ascending hills and stairs, and difficulty straightening up after bending at the waist. She was able to perform routine housework, and garden maintenance, and could drive for about 15 minutes. Spinal movements seem to have been generally normal except for an extension catch with recovery from flexion, and little extension past the neutral position. Dr. Boys said that the extension catch was a matter of objective observation, and indicated pain when performing the manoeuvre: p.136. Dr. Boys thought that there was muscular ligamentus strain and degenerative changes in the spine, but no explanation for complaints of right sciatica. Dr. Boys would expect any problem at the L4/5 level which was interfering with the L4 nerve to be a protrusion visible on a CT scan: p.139. He did not think the headaches, neck pain and interscapula pain were related to the back injury, and that the back problems were essentially an aggravation of the spinal degeneration. He thought that the current inability to work was largely the product of conditions not related to the injury in 1993. He would also assess a 10% impairment of bodily function referable to the spine but only apportion 2-4% of this to the injury in 1993. Dr. Boys thought the x-rays and CT scans were within normal limits for a patient of this age: p.137. He felt the plaintiff’s condition was stable, she was fit only for sedentary employment with restrictions on repetitive bending and lifting, and that she would benefit from a home exercise program. Dr. Boys expressed the opinion that the degeneration would probably not have resulted in significant reduction in working capacity in itself, although she may well have suffered some other symptoms from it. He thought degeneration of the facet joints at the L5/S1 level could have been stirred up by the sort of manoeuvre undertaken by the plaintiff, and that degeneration might produce continuing symptoms: p.139.
On 14 March 1998, the plaintiff was seen by a psychiatrist, Dr. Varghese, for the purposes of a report at the request of the solicitor for the defendant: Exhibit 15. The complaints of the effect of the back pain recorded were an ability to walk only for 10 to 15 minutes and that “driving a car is murder”. There was difficulty sleeping because of the pain, which was more intense than when she first experienced it, and had decreased her mobility. She was seen to walk with a limp and looked uncomfortable when sitting in a chair. She did not appear to be depressed or anxious. Dr. Varghese was definite that the plaintiff was not depressed when he saw her: p.89. However, that was consistent with the natural progression of depression, it is episodic and responds to life events: p.95. After reviewing the various other reports, Dr. Varghese came to the conclusion that the plaintiff had a chronic pain disorder of a somatiform type, although it was not thought to be a case of malingering:p.90. Dr. Varghese thought that the conclusion of litigation would help to reduce the effects of the pain disorder. He was not able to say whether if the back injury had not occurred but the aneurism had, the plaintiff would have gone on to develop a chronic pain disorder anyway: p.88. The diagnosis of a somatiform disorder really depended on the absence of an organic cause for a level of pain consistent with the plaintiff’s reported symptoms: p.91.
The plaintiff was seen by Dr. Apel, a psychiatrist, at the request of the plaintiff’s solicitors on 22 June 1998 for the purposes of a report: Exhibit 7. The complaints to Dr. Apel were of difficulty in straightening up after bending, and an inability to twist to the right or very much to the left. Walking was restricted, on some days more than others, but on a good day she could walk over 200 metres. She could drive for about 10 minutes, and at home could cook and do most basic cleaning, and a little gardening. Dr. Apel diagnosed a pain disorder associated with both psychological factors and a general medical condition, and gave a guarded prognosis. During the interview the plaintiff did not emphasize the headaches, but described them as being quite well controlled on medication: p.76. Dr. Apel thought it significant in terms of her psychiatric reaction that the injury at work had changed the plaintiff from someone who could work and support herself to someone who could not: p.78. He offered a tentative opinion that if the back injury in 1993 had not occurred, but the medical history had otherwise been as it happened, the plaintiff would not have been as severely affected because the headaches would not have prevented her from working, and she would have been able to cope better if she could continue to work: p.81. He regarded the injury that prevented her from working as having made the most important difference in her life, and he did acknowledge that if the headaches were sufficiently serious to prevent the plaintiff from working, that could leave her in the same psychiatric state as she is now but without the back problem: p.82. He regarded this as a possibility rather than a probability.
In June 1998, Dr. Redmond, a neurosurgeon, wrote a review of certain documentation with which he had been provided: Exhibit 2. He expressed the opinion that the aneurism and subsequent operation had not affected the plaintiff’s capacity to work as a cleaner, although this appears to have been on the basis that there was no physical explanation for the continuing head pain. Dr. Redmond did not give oral evidence.
The plaintiff was seen for the purposes of a report by Dr. Cameron, a consultant neurologist, on 8 September 1998: Exhibit 16. Dr. Cameron thought that the plaintiff walked with an odd limp which he described as non-organic. She was able almost to touch her toes but had great difficulty straightening up afterwards, and had reduced back extension, rotation and lateral movements. Dr. Cameron said that the manner in which the plaintiff straightened up after bending was not at all typical of an extension catch seen with people with apophyseal joint disturbance: p.108. She was quite tender to gentle palpation of the neck and lumbar region, but with no spasm evident. There was inconsistency of presentation in relation to straight leg raising. Dr. Cameron thought that the results of the x-rays and the CT scans were consistent with the normal aging processes and he did not detect evidence of organic lower back disturbance. He did not think there was any continuing consequences of the back injury at the organic level. He did not think that any chronic pain disorder or somatiform disorder was related to the aneurism. He did not think that the headaches were associated with the brain surgery, and thought they were muscular contraction headaches which were the product of various factors in her life. Dr. Cameron said that the bulge seen on the CT scan could not be the cause of the leg discomfort, although it might be the cause of pain in the back: p.110. However, it was within normal limits for a person of her age. It was possible that she had constant pain from the degeneration at the L5/S1 level: p.111. Dr. Cameron did not believe that there was a disc injury in the lower back, and thought that any ongoing pain in the back was due to degeneration: p.115. Dr. Cameron’s position ultimately was that because of the absence of objective evidence, and what he regarded as a good deal of elaboration in the complaints, he was sceptical of the plaintiff’s story: p.116.
I mentioned earlier Dr. Russell’s evidence about the back problems. Dr. Russell also gave evidence that after the aneurism until the end of 1996 there were numerous complaints of headaches or pains in the head, and neck pain, but she had no recollection of the plaintiff mentioning her back after the brain surgery: p.127. The plaintiff said that she did complain to Dr. Russell about her back during the period between early 1994 and October 1996: p.74. Dr. Russell acknowledged that it was possible that lower back problems were mentioned at some stage during the consultations, although they were not recorded (p.132), but it was apparent from her records that the plaintiff did not ever come to see Dr. Russell specifically about back problems: p.134. The notes (Exhibit 23) reveal that the plaintiff saw someone else (p.132) on 28 January 1994 and 29 August 1994 for a workers’ compensation certificate concerning her back and saw a different doctor on 28 March 1994 concerning problems with leg pains; because of the basis of the tender, notes by other doctors may not be part of the evidence: p.124. Dr. Russell recalled that the plaintiff during this period complained of very severe headaches, and said that she would often arrive at the surgery with a wheat pack to her neck, and be quite tearful as a result of the headaches: p.133.
The plaintiff agreed under cross-examination that she had been complaining about headaches, sore neck and depression as far back as 1987, and that since the aneurism she had been suffering muscle spasms or pains in the head which are quite severe: p.44. The plaintiff used the term “pains in the head” to indicate that it was a sharp pain: p.65. It was however different from a migraine. They were present all the time, but the plaintiff said that they would not affect her concentration and that she would not know whether they would affect her ability to work: p.44. The plaintiff said she had tried dancing before she had her aneurism, but denied that she stopped it because of that condition: p.62. The plaintiff said she had been referred to a pain clinic in 1998 to have the pains in her head killed: p.149. She was considering surgery to have the nerves severed, but the doctors did not want to do that: p.150.
There are certainly a number of doctors who maintain that there is no serious problem with the plaintiff’s back, but their opinions are largely based on the absence of objective evidence to support the plaintiff’s complaints of pain. Yet there is some objective evidence, in that the plaintiff’s complaints are to some extent, in terms of the distribution of the pain in particular, consistent with the sort of problems which one would expect with interference with the nerve roots in the spine. Dr. Cameron conceded that the complaints of pain radiating into the right leg were consistent with some pathology at the L4/5 or L5/S1 level: p.107. The plaintiff has some degeneration at the relevant level which, although not unusual in a person of her age, can be associated with back pain. There was also the extension catch observed by Dr. Boys which is an objective sign. The x-rays and the CT scans do not confirm serious continuing back pain, but they do not exclude it. There can be problems with the spine which are not revealed by x-rays or a CT scan: p.137. Dr. Pentis did not think that an absence of signs in an x-ray, or even a CT scan, was of much importance in relation to a soft tissue injury: p.50. The doctors who have doubted that the plaintiff is genuine have usually be those who are looking for some other objective sign, or who have found what they took as over presentation. The presentation to Dr. Cameron seems to have been unsatisfactory in a number of respects, but that was a fairly late medical examination by which time the plaintiff may well have been particularly affected by the approach of the trial.
I think it is also of some significance that the plaintiff complained of very severe pain from the muscle contraction headaches following the surgery. I think the plaintiff may well be someone who takes pain rather badly, and does not cope well with it. I think that the psychiatric evidence that the plaintiff’s various problems tend to be manifested in concern about her physical well-being is consistent with this; I think that when she does have something physically wrong with her she focuses very heavily on that. Some doctors thought that the plaintiff was genuine, and interestingly, Dr. Varghese initially thought that the plaintiff was genuine; it seems to me that he came to conclude that the plaintiff’s problems were essentially psychiatric as a result of an acceptance of the orthopaedic opinion that there was no organic cause for the continuing pain of which the plaintiff was complaining. But that really begs the question of whether the plaintiff’s complaints are genuine.
My own impression of the plaintiff was that she was fairly reliable as a witness, and fairly genuine, although not entirely; she seemed to play down to some extent the effect of the head pains after the aneurism, at least relative to the effect of the pain in her back, and this I think is inconsistent with the presentation to Dr. Russell over a fairly lengthy period of time. I think that there was a tendency for the plaintiff to focus on the back problems when giving her evidence, and when describing her condition to the various doctors who have examined her, and perhaps to downplay the extent of her recovery from the back problems. For example, she told Dr. Apel that she had received considerable help from the chiropractor, Mr. Vincent, whereas she was rather more guarded in her oral evidence about the extent to which he had been of assistance. She told Dr. Ewing that she had, prior to the aneurism, returned to regular dancing: Exhibit 6, p.2. However, she told me that her attempt to resume dancing was not successful: p.28. There was some variation in her presentation to the various doctors. Another matter I noticed was that although the plaintiff has complained to several doctors of difficulty in sitting for any extended period of time, she sat in the witness box at one stage for just under two hours without standing up. It may be that she felt she should not stand up, although it is not unusual for plaintiffs and occasionally other witnesses who are complaining of back problems to ask to stand for a time while giving evidence. I suspect that the stress associated with giving evidence was sufficient to distract her somewhat from her back problems.
On the whole I am prepared to accept the plaintiff has continuing back pain and that this was a consequence of the injury suffered in 1993, in that it was that injury which triggered the condition which is producing the pain. I am not prepared to accept at face value all of the plaintiff’s evidence about her symptoms and problems, although I think it is a matter of some overpresentation of a real problem, rather than one which has been invented, consciously or unconsciously. I accept the evidence of Dr. Pentis, which it seems to me is most consistent with an analysis based on acceptance in a general way of the plaintiff’s complaints. He thought that what she had done was to aggravate some pre-existing weakness or degeneration, and I accept that analysis.
A more difficult question is to determine what would have occurred had this injury not produced these back symptoms. In view of Dr. Pentis’ evidence I think it likely that at some stage the plaintiff would have suffered back symptoms anyway, although it may well have been a number of years before that occurred. Dr. Boys also said that the degeneration was likely to produce symptoms at some stage, but it was very difficult to say when: p.139. The degeneration observed was not of any great degree, and she could easily have gone through life without any symptoms: p.141. This is not something which can be forecast with any precision, but it is something which must be allowed for, and commonly is allowed for, in matters of this nature. A further complication in this matter is that it seems clear that the aneurism was not caused by this injury at work, so it is appropriate to assess damages on the basis that that would have occurred when it did anyway. That would have disabled the plaintiff for a time and prevented her from working, but it may be that if she had not had the back problems, once she recovered from the effects of the surgery she would have been able to go back to work and live a more normal life. In circumstances where it is not clear what is the cause of the continuing pains in the head, I am not persuaded that they are caused by the injury at work, and given that they seem to have begun after the aneurism, I think it more probable than not that they are related to the aneurism or the brain surgery, even if only through psychological factors. I think it probable that the plaintiff would have suffered the pains in the head anyway, and that makes it necessary to consider what the effect would have been on the plaintiff if she had still had the pains in the head but not had the pain in the back.
I found the evidence of Dr. Russell helpful and persuasive in relation to this, particularly as pointing out the intensity of the plaintiff’s difficulties with the pains in the head. It seemed to me that the plaintiff had found these quite seriously disabling, at least at times, and I find it very hard to accept that the plaintiff would have been able to continue working if her head were as bad as her complaints to Dr. Russell indicate. Dr. Russell was the only doctor who had seen the plaintiff both before and after the brain surgery, and at a time when the pains in the head were not effectively treated. I do not think Dr. Apel had as much information as I have about the plaintiff’s problems after the brain surgery, and I do not accept his assessment.
On the other hand, it may be that the plaintiff would have coped better with the pains in the head if she had not had the back pain to cope with as well. As I have said, I do not think the plaintiff copes well with pain, and having two lots of pain would have been quite hard for her to cope with. I do not think that it is the case that the plaintiff would necessarily not have worked again anyway as a result of the aneurism and the head pains, even if she had not had any back pain. This is a hypothetical fact, and I can and should assess damages on the basis that this might or might not have happened, by making some appropriate discount from the amount awarded had the plaintiff been wholly prevented from working just by the back injury.
One further complication is that the plaintiff’s evidence was that the back was worse after the brain surgery. There was medical evidence to support the proposition that, for one reason or another, this was plausible, and I think that the hospitalisation associated with the aneurism did aggravate the back injury. I think the correct principle here is that if a plaintiff suffers another problem which happens to make to make the injury or the effects of the injury worse, then the original injury remains a cause of the injury in its aggravating state, at least unless there are circumstances which break the chain of causation, which I think is not the case here. I think therefore that it is appropriate to compensate the plaintiff for the back injury in its aggravated state.
I think there is also some prospect of improvement after the conclusion of litigation. The plaintiff had been assisted by a chiropractor in the past, and further chiropractic treatment in the future may also produce further improvement. The chiropractic treatment had made it easier for her to do things like shopping and driving a car: p.26. Without the associated stress of litigation, the plaintiff may well learn to cope better and some of the psychological factors will be removed. I doubt that the plaintiff will ever improve enough to be able to work, particularly as a cleaner, and given her lack of experience in other fields and her age, I think it unlikely that she would obtain any other kind of work. She tried to work as a clerical assistant in September 1994, but that was not successful: p.33. I think there are reasonable prospects of her life being made rather more comfortable in time after the conclusion of litigation. There is also the factor that as time passes the possibility increases that the back symptoms would have been present anyway. All of these factors must be taken into account when assessing damages.
The plaintiff was born on 7 December 1949 (p.15), and is now 49. Although she had done some other work in earlier years, she had worked as a cleaner at the state school for over 10 years prior to the accident (Exhibits 27, 28), and I think it realistic to assume that as long as she was capable of working she would have continued in that position: Exhibit 31. She has two children who are now adults, and the medical reports speak of her living alone. She is generally able to cope with meal preparation and house work, but she has obtained some assistance with shopping, particularly in the provision of transport, and she need some assistance from her children around the house. I think that the inability to engage in bush walking is reasonably attributable to the back injury, which provides some limitation of her mobility, but she had returned to regular ball room dancing before the aneurism.
The plaintiff complains of loss of mobility, although that has not prevented her from enjoying holidays in North Queensland and in England. I accept that they would have been less pleasant than if the back had been pain free. Although the medical opinion suggests that it was likely that at some stage the plaintiff would have had back problems anyway, the doctors did not suggest that this was probable any time soon, and it was rather that it was likely at some stage of her life. In all the circumstances, I think a reasonable allowance for damages for pain and suffering and loss of amenities is $20,000 of which I apportion $10,000 to the past. I will allow interest on this amount, less the workers’ compensation disability settlement of $3,634 (Exhibit 8) at 2% per annum for 6 years.
I think it quite likely that but for this injury the plaintiff would have continued to work as a cleaner up until the time when the aneurism occurred, but would not have worked, as a result of the surgery, for at least three months thereafter. What would have happened after that is more difficult to say, and depends on the extent to which the plaintiff’s headaches proved to be disabling anyway. It is clear from the evidence of Dr. Russell that, at least at times, the pains in the head had a very severe effect on the plaintiff, and under these circumstances she would not have been able to work as a cleaner, at least at times. At the time of the accident the plaintiff was earning $312 per week net (Exhibit 14), and the plaintiff lost 19 weeks prior to the aneurism, a total of $5,928. I will then allow a period of three months when the plaintiff would not have been earning anyway because of the surgery. The plaintiff said that her preference would have been to continue to work up to retirement age, whatever that was: p.32. The plaintiff might have worked to age 60, although there would be significant possibility that at some stage before that age her back condition would have deteriorated to the point where she would not have been able to work as a cleaner anyway. I think the appropriate course is to start off on the assumption that the plaintiff had 15 years working life ahead of her, apart from considerations such as this, and then make allowance for the possibility that she would not have been able to work anyway because of her back, or because of the pains in the head and neck consequent on the aneurism. For ease of calculation I will assume 5 years past loss and 10 years future loss on this basis. The figure of $312 net per week was not updated, but I think it would be safe to round it off to $320 per week for the current rate of loss. In respect of past loss this produces an amount of approximately $83,000, and loss at this rate over the next 10 years discounted at 5% is $131,200. I think the latter figure needs to be discounted more heavily, because of the increased possibility of back pain in any event as time goes on. I think it would be unrealistic to make any separate allowance for the possibility that the plaintiff might actually earn something at some stage in the future; this really assumes some significant degree of recovery and the medical evidence does not provide much basis for that assumption. I think however that there needs to be a substantial discount for the possibility of the plaintiff’s not having worked anyway because of other problems, even in respect of the past period, and I think on the whole the appropriate course is to allow $40,000 in respect of the period up to trial, and $50,000 in respect of future economic loss. This leaves a total amount of past economic loss of $45,928. Interest is allowed at 5% per annum for 6 years on this amount after deducting the net workers’ compensation benefits of $18,344: Exhibit 8.
There was a claim for loss of superannuation benefits. The plaintiff was receiving superannuation in her employment, and I think this loss has been proved. The usual way in which this is done is by allowing 6% of the total amount allowed for economic loss, and on that basis I will allow $5,756.
The special damages paid by WorkCover (Exhibit 8) are not controversial, and I allow $4,483. There is also a Fox v. Wood component of $1,828: Exhibit 8. There were also rehabilitation expenses incurred with the Commonwealth Rehabilitation Service in the sum of $810: Exhibit 9. There was a schedule of “out of pocket” expenses (Exhibit 11) but this includes some items already allowed; I will allow the balance which comes to $2,643 of which only $714 is really out of pocket. There was also a claim for travelling expenses as set out in a schedule which became Exhibit 12 but there are difficulties with this schedule. The plaintiff said that she went to Andrew Vincent in a Volcare car (p.30) so that the entries relating to him should be disregarded. As well, there are numerous entries for attendances on Dr. Russell after November 1993, but it is apparent that these were either wholly or predominantly associated with difficulties with the head and neck rather than the back pain, and should be disallowed. In addition, it is by no means clear that the other entries after November 1993 have been confined to those relevant to the back pains because there are a number of doctors mentioned of whom I have not heard. Indeed, Dr. Ferris was the doctor who gave the injections which assisted with the head and neck pains. Finally, the rate claimed of 46.7 cents per kilometre seems too high. Overall, I think the best course is just to allow $100 for travelling expenses. The plaintiff also claimed an amount of approximately $1,000 for pharmaceutical expenses to date: Exhibit 13. I am also wary about this claim, but the amount is not very large and I think on the whole it would be appropriate to allow it. The total for special damages is $10,864 and the part for which the plaintiff is out of pocket comes to $1,814 and I will allow interest on this at 5% per annum for 6 years.
There is also a claim for gratuitous care, although it seems that this is confined to assistance in providing transportation, and doing some of the heavier tasks around the house whenever the plaintiff could not do them herself: p.27. The plaintiff is ordinarily able to cope with things at home herself, although she has difficulties with them, no doubt she can take her time and do things in a way which suits herself. But the plaintiff has also been obtaining transport from another organisation, and she said that more recently her ability to drive had been improved by the treatment she received from the chiropractor: p.26. I am prepared to accept that the sons assisted in providing transport and in doing the heavier work around the house, although I suspect that some of the latter is work that would have been done by them anyway. Furthermore, I suspect that for the period after November 1993 there would have been some of this assistance provided anyway. No doubt at some times more assistance was provided than at others. This, I think, is not a matter of calculation, but I will allow $5,000 for past gratuitous care, and $2,500 for future gratuitous care. I will allow interest at 2% for 6 years on the amount of the past care.
There will also be future medical expenses, chiropractic treatment and medication. Again, I think this is not a matter of calculation. I do not expect that the plaintiff will require regular chiropractic treatment for the rest of her life, although in view of the evidence I think a course of that treatment would be of assistance to her. I expect that there will be some need for medical treatment from time to time, although the possibility of the condition having been present anyway becomes relevant here in time. I do not think that these costs are susceptible of calculation but I think the plaintiff will suffer a real loss of this nature, and I will allow the sum
of $2,000.
Summary
Pain, suffering and loss of amenities $20,000
Interest on $6,366 at 2% for 6 years $764
Past economic loss $45,928
Interest on $27,684 at 5% for 6 years $8,305
Future economic loss $50,000
Loss of superannuation benefits $5,756
Special damages $10,864
Interest on out of pocket expenses at 5% for 6 years $544
Past gratuitous care $5,000
Interest at 2% for 6 years $600
Future care and expenses $4,500
Sub-total: $152,261
LESS
Refund to WorkCover (exhibit 8) $28,289
Total: $124,022
I therefore give judgment that the defendant pay to the plaintiff $124,022 which includes $10,213 by way of interest. I will circulate these reasons and hear submissions if necessary as to costs, but unless another order is appropriate, I will order the defendant to pay the plaintiff’s costs of the proceeding to be assessed.
Counsel for the plaintiff: P.B. de Plater
Counsel for the first defendant: R.N. Alldridge
Solicitors for the plaintiff: Watling Roche
Solicitors for the first defendant: Crown Solicitor
Dates of hearing: 24, 25 March, 3 June 1999
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