Micevski v Ranjith Nominees Pty Ltd
[2009] VCC 597
•10 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-02852
| JULIE MICEVSKI | Plaintiff |
| v | |
| RANJITH NOMINEES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14, 15, 18, 19 & 20 May 2009 |
| DATE OF JUDGMENT: | 10 July 2009 |
| CASE MAY BE CITED AS: | Micevski v Ranjith Nominees Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 0597 |
REASONS FOR JUDGMENT
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Catchwords: Negligence – plaintiff injured in the course of her employment as a medical receptionist – whether negligence established – whether contributory negligence – injury to right hip – plaintiff suffering from asymptomatic pre-existing dysplastic condition of hips – whether hip replacement surgery inevitable without intervening trauma – whether plaintiff will undergo hip replacement surgery – prospects of success of such surgery whether plaintiff will return to workforce and if so to what extent – subsequent injury to right hand as a result of hip collapse – consideration of various methods of calculating damages.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with | Holding Redlich |
| Mr N Dubrow | ||
| For the Defendant | Mr J Ruskin QC with | Thomson Playford Cutlers |
| Mr S Dawson | ||
| HIS HONOUR: |
A. Background 1 This matter comes before me pursuant to a Writ issued by the plaintiff, Julie Micevski, against the defendant, Ranjith Nominees Pty Ltd, which was her employer. The plaintiff is seeking damages for pain and suffering, past economic loss and loss of earning capacity as a result of injuries allegedly suffered by her whilst at her place of and in the course of her employment on 22 February 2002. The principal injury suffered by her on that occasion was to the right hip, and various complications and sequelae resulted from it. Subsequent injuries consequent upon the original injuries were suffered on 23 November 2005. On this occasion the principal injury suffered was to the right hand with various consequences. The facts, many of which are not contentious, shall be summarised shortly hereafter.
2 Mr T Tobin SC with Mr N Dubrow appeared on behalf of the plaintiff. Mr J Ruskin QC with Mr S Dawson appeared on behalf of the defendant. Oral evidence on behalf of the plaintiff was adduced from the following witnesses:
(i) On behalf of the plaintiff – The plaintiff; Mr Dimitri Micevski, a son of the plaintiff; Ms Mary Micevski, the plaintiff’s husband’s sister-in-law; Mr Richard de Steiger, the plaintiff’s treating surgeon; and Mr Owen Deacon, orthopaedic surgeon, who examined the plaintiff at the request of her solicitors.
(ii) On behalf of the defendant – Mr Ranjith Hettiarachi, being, in essence the proprietor of the defendant and effectively the plaintiff’s employer, in addition to being her treating doctor; and Mr Rodney Simm, orthopaedic surgeon, who examined the plaintiff at the request of the defendant’s solicitors.
3 The parties tendered a considerable number of documents, and counsel made particularly helpful submissions which, whilst thorough, were concise and to the point. I shall now turn to my findings of fact, commencing with an assessment of the witnesses called.
B. Findings of fact
(a) The witnesses 4 This was a case where issues of credit received scant attention and were of minimum, if any, significance. It was really a most impressive collection of witnesses. In his closing address, Mr Ruskin described the plaintiff as a good person who has done a lot of good. He described his client, Mr Hettiarachi, as a really outstanding doctor and an outstanding witness. Whilst it supported a proposition which he was advancing, Mr Ruskin also referred to the description of the plaintiff given by Mr Kevin King, orthopaedic surgeon, to the effect that the plaintiff was very well motivated, a very clear historian and very sensible. Mr Tobin described the case as quite remarkable in the sense that every witness who gave evidence was one in whom the court could have confidence that such witness, whether professional or lay, was “trying to give their best effort at the truth”, and that included Mr Hettiarachi, in essence the defendant.
5 I agree with the observations of counsel and with the opinion expressed by Mr King. Where differences exist, for example, between the evidence of the plaintiff and Mr Hettiarachi in relation to a particular point, and they were not great, I would have no hesitation in treating them as differences arising, after the passage of some years, from honestly held beliefs. The plaintiff was cross-examined by Mr Ruskin concerning a few discrepancies between the histories recorded by some doctors in relation to the circumstances surrounding the occurrence of injury. I do not regard these as being of great moment or as being in any way damaging to the plaintiff’s credit. The histories taken are, if anything, more surprising because of their consistency than because of the somewhat insignificant or inconsequential differences between them.
6 In summary, I regard all witnesses as having been witnesses of truth. Leaving to one side differing medical opinions, if I express a preference for one version of events over the other it is only because I consider that the honest recollection of one witness is more accurate than that of another.
(b) The plaintiff 7 The plaintiff is aged 41 years, having been born on 5 September 1967. She is a married woman with three adult sons, the eldest of whom gave evidence. She was born in Macedonia and migrated to Australia at the age of nine years. She was educated to Year 9 level before going to a business college. She completed this business course earlier than had been anticipated, having received high grades, and then commenced work as a secretary/receptionist. The plaintiff was absent from employment only briefly at the time of the birth of her first son and then resumed work as a checkout operator at a supermarket, the location of this establishment making it convenient for her to leave her baby with her mother and this fitting in with breastfeeding arrangements.
8 After some six to eight months working at the supermarket, the plaintiff obtained a clerical/receptionist position with the Australian Physiotherapy Association and worked there until well into her pregnancy with her second child. When that child was five to six months old, she then commenced working for a real estate agent and then for a firm of solicitors loosely associated with that agent. Thus, her employment record prior to commencing with the defendant was a particularly good one, and indicative of a person with an admirable attitude towards work.
9 The plaintiff commenced employment with Mr Hettiarachi, and thus with the defendant, in February 1989. Shortly after that she became pregnant with her third child, and after the birth of that child the plaintiff needed further time off to have open heart surgery as she had been suffering from intraventricular tachycardia. I should add that there is no suggestion that this problem, which was corrected by the surgery, is of any relevance in relation to a subsequent capacity, life expectancy or the like. It was not argued that either this surgery or the underlying condition treated by it has any ongoing relevant effect.
10 In any event, Mr Hettiarachi was amenable to the plaintiff’s extended absence from employment even though she had been with him for only a short period. Their working relationship was obviously a happy one, and this state of affairs persisted for the entire duration of the plaintiff’s employment with the defendant, this continuing until October 2005. It was quite apparent from the evidence that the plaintiff and Mr Hettiarachi each hold the other in very high regard. It was also apparent that Mr Hettiarachi regards the plaintiff as having been a most competent and efficient employee. I accept that she was not only this, but would have been a most pleasant and helpful person to have in the workplace. I accept that her presence and her manner of dealing with the patients were responsible for attracting to Mr Hettiarachi’s Thomastown clinic a considerable number of Macedonian clients.
11 The plaintiff’s duties with the defendant were constituted by a combination of clerical and receptionist work in addition to what could be described as general duties. At all relevant times the defendant conducted two clinics, one being in Edgars Road, Thomastown and the other being in Station Street, Fairfield. Ninety per cent or more of the plaintiff’s working life was spent at the Thomastown practice where, save for Saturday mornings, she was essentially the only employee. On Saturday mornings another person called Christine Cauchie, who was the practice manager and normally based at the Fairfield clinic, would attend at Thomastown. However, as can be seen, for the vast majority of the time the plaintiff was the sole, and highly valued, employee at the defendant’s Thomastown clinic.
12 Apart from her busy working life, the plaintiff, prior to injury, was active in many other areas, including charitable work. There were, of course, family duties and activities, particularly when her sons were younger. She took her children to school and to football, indeed, two of them still play. The plaintiff would also engage in canteen duties and fundraising activities in respect of the football clubs. She would normally go for a four kilometre walk after getting out of bed of a morning, in addition to later walking with her husband or swimming. Her evening walks were for the same distance as her morning walks, and she engaged in swimming some three to four times per week. She performed her housework, and also had both a vegetable garden and a garden containing seasonal flowers. I accept that, prior to the injury, she loved gardening. She also had an active social life attending such things as dinner dances, functions, club meetings and the like. She also entertained at home. Sometimes this involved the inviting of approximately 60 guests upon the occasions of the “name days” of her children. She also engaged in, and loved, folk dancing. As will become apparent, these activities are now largely lost to her.
13 The plaintiff was also very much engaged in activities involving Saint Nicholas Orthodox Church in Preston. She did volunteer work there, before being made vice president of the women’s committee. Apart from attending church, she was involved in the running of raffles and fundraising activities, particularly when the church was damaged by fire. In addition, she had contact with some of the elderly people from her church and in her community and with some of them this contact would be maintained when they attended appointments at the defendant’s Thomastown clinic. Basically these contacts were carried on outside surgery hours, and consisted of the plaintiff cooking for them, making sure that their medications had been picked up, ensuring that they were aware of appointments, and ensuring that they were well and looked after on days of extreme temperatures. On weekends she visited people who did not have family and were in nursing homes, and a program was created in this regard.
14 In particular, the plaintiff commenced taking care of a gentleman called Mr Mladenovski, and this persisted over several years. The plaintiff was a godparent to Mr Mladenovski’s grandchildren and he also became a patient of Dr Hettiarachi. He had no family support and was suffering from a brain tumour. The plaintiff did his cooking, cleaning and washing. Sometimes Mr Mladenovski would eat at the plaintiff’s house and other times she would cook a meal and drop it off for him. Her older children also participated in this. This took about an hour a day with extra time involved on weekends.
15 Because of Mr Mladenovski’s condition, ultimately a provider of services, namely Omnicare, was appointed. Whilst the plaintiff had not requested it, Omnicare commenced to make payments to her based upon four hours care of Mr Mladenovski per week, although the time actually so spent was considerably greater. Ultimately, Omnicare asked the plaintiff to work for other people as well, which she did, outside working hours, for a period. However, she found the death of some of the people for whom she was caring very hard to take although she ceased caring for a greater number of people, but continued looking after Mr Mladenovski, stopping caring for him a day before her ultimate surgery. When she told him that she could no longer care for him, Mr Mladenovski opted to return to Macedonia, the plaintiff organised the details, and her children took him to the airport a day after the plaintiff’s operation. He in fact died some five or six months later. I should add that, after the plaintiff suffered injury and before the surgery, she still rang Mr Mladenovski daily to make sure that he was alright, but she could no longer do such things as the cleaning and the dropping off of the food. Her family continued to do such things.
16 I have dwelt at some length on the plaintiff’s charitable and caring activities for two reasons. Firstly, such matters demonstrate not only the type of person that the plaintiff is and the type of activities in which she could previously engage, but also demonstrated a large and important feature of her pre-injury life. I accept that she greatly misses her opportunity to care for others. Secondly, the loss of wages paid by Omnicare form part of the discussion concerning economic loss and loss of earning capacity. A wage of $60 per week was described by Mr Ruskin as being “probably reasonable”.
(c)
The plaintiff’s health and any conditions suffered by her prior to the injuries
17 As stated, the plaintiff’s cardiac condition had been corrected by surgery in excess of 10 years prior to the injuries sustained in 2002 and has no further relevance. There is no suggestion that, apart from a congenital condition of the hips which shall be discussed shortly, the plaintiff suffered from any other major health problem or condition which would have impacted upon her enjoyment of life, her work capacity or her life expectancy for the foreseeable future. Further, there is no suggestion that the plaintiff suffered from any previous injury to or condition of the right hand prior to her sustaining the second injury on 23 November 2005. I might add that there was some evidence concerning the plaintiff having some earlier back symptoms at a time which is not entirely clear but whilst she was employed by the defendant. Mr Hettiarachi recalled that in April 1989 the plaintiff had non-specific hip pain with some difficulty sitting and standing and pain over the right groin. He was apparently her treating doctor at the time, and described this difficulty as a passing thing which was treated with some strong anti-inflammatory agent, and the condition settled with no disability. The plaintiff also gave evidence of having a sore back which she attributed to problems in dealing with the lowest drawer on the filing cabinet in which the plaintiff’s cards were kept and which shall be discussed shortly. Whatever role these prior injuries may otherwise have had, I do not regard them as being of any significance in relation to the plaintiff’s ultimate incapacity and disability.
18 What is apparent is that, unbeknownst to her, prior to the injury of 22 February 2002 the plaintiff had an asymptomatic condition of the hips known as bilateral acetabular dysplasia, subsequent radiological investigation revealing that this condition was more marked on the right than on the left. As described by Mr de Steiger, this condition is essentially a maldevelopment of the socket of the hip joint. I accept that, given the amount of dysplasia which the plaintiff had and particularly on the right side as revealed by both radiological investigation and at surgery, it was highly likely that even without the occurrence of the trauma of 22 February 2002 the plaintiff would have developed arthritic symptoms. This aspect of the case shall be discussed in more detail subsequently.
(d) The operation and layout of the defendant’s Thomastown clinic as at 22 February 2002 and events leading up to the occurrence of injury 19 As shall be discussed, the plaintiff suffered the hip injury on 22 February 2002 in connection with the operation of a filing cabinet. The filing cabinet in question was of metal construction and could be described as being somewhat “old style”. Mr Hettiarachi gave evidence that he purchased the filing cabinet around about the late 1980s, early 1990s. The cabinet was free- standing and had seven comparatively narrow drawers. In the top six drawers were kept the cards on which were recorded patient details. The cards were kept in alphabetical order. Because of the preponderance of Macedonian clients whose surnames commenced with the later letters of the alphabet, the second bottom or sixth drawer carried a very heavy load. I accept that, as at 2002, the card system was becoming outdated and consideration was being given to an improved system. This was so even if Mr Hettiarachi was well- used to the existing system. Discussions were held between Mr Hettiarachi and the plaintiff concerning the replacement of the system with one involving folders on open shelving and at a higher level than at least the sixth drawer of the filing cabinet. This system was subsequently introduced after the injury to the plaintiff. Its introduction had been suggested by the plaintiff, although in the context of a particular accreditation which had the potential to benefit the clinic. Precisely when the discussions concerning the replacement of the existing system took place is not clear, but they seem to have occurred in 2001 and early 2002. Certainly I accept that such discussions were held prior to the occurrence of injury.
20 As at February 2002 the filing cabinet was in a comparatively narrow area between the door giving access to the office from the reception area and what could be described as an open window or space, under which was a ledge, which space patients would approach when wishing to speak to the receptionist. Thus, as I understand it, the plaintiff would communicate with the patients via this open window. When so doing, the filing cabinet containing the cards would be on her immediate right and the access door to the right of it again. Behind her and effectively over her right shoulder was a table and chair at which she presumably sat when not at the window talking to patients.
21 The plaintiff accessed the sixth drawer of the filing cabinet by squatting. Other than by kneeling, either on both knees or on one knee and combining this with squatting, it is difficult to imagine how else she could have accessed the sixth drawer. It would appear that the handle on the sixth drawer was less than 20 centimetres above the floor. Squatting was the method which the plaintiff adopted, and I accept that this squatting was carried out in a somewhat confined space.
22 It is also apparent that there were some difficulties with the drawers of this cabinet and their runners. In cross examination, Mr Hettiarachi described a certain heaviness in pulling out the drawers and particularly the lower ones. Certainly he did not disagree with the proposition that the plaintiff had purchased from the supermarket next door to the practice a spray lubricant which was used on the drawers and on the front door lock, which had been giving trouble. The plaintiff gave evidence that the drawers were making “funny noises” and she would have to put too much pressure on them to close them or to pull them open. She described their movements as unpredictable. She also gave evidence that, after spraying the runners with the fluid, the performance of the cabinet improved, but for a short time.
23 Essentially the plaintiff was required to open the drawers of the cabinet, including the sixth drawer, at least once a day. The plaintiff’s hours of work were from 9am to 5.30pm. Dr Hettiarachi would normally arrive between 11am and 11.30am, apparently have approximately a two hour break in the middle of the day, and work on beyond 5.30pm. Thus, normally the plaintiff would arrive at the surgery before Mr Hettiarachi. She would then collect the cards from the previous day’s work, bring them back to reception, put them in alphabetical order, and place them back into the filing cabinet. In addition, she would take out the cards for the upcoming appointments. Whether or not this was all part of the one procedure is not entirely clear, but in any event it was a process that was sometimes done more than once a day. If no filing took place during the day but was done all at the one time, some 25-30 cards would be involved. The plaintiff had developed a system of cardboard markers or spacers in order to assist in identifying the gaps where cards belonged. There were occasions when Mr Hettiarachi himself used the filing cabinet and accessed the cards.
24 At a date upon which the parties could not entirely agree, although perhaps not a great deal hangs upon it, the plaintiff began to experience low back pain. The plaintiff believes that this occurred in late 2001 and prompted some discussion between herself and Mr Hettiarachi concerning the cabinet, its drawers, and the possible provision of a stool. It is to be remembered that Mr Hettiarachi has also been the plaintiff’s treating doctor. His evidence, after consulting the plaintiff’s records, was that he could find no mention of any thoracolumbar pain or the like after October 1999. The plaintiff missed no time from work. However, Dr Hettiarachi also said that, after the back injury, the plaintiff had trouble getting up from the squatting position when dealing with the drawers and thought that he could have noticed this as late as 2000.
25 Ultimately, whether the back problems experienced by the plaintiff occurred in 1999, 2000 or 2001 is not an issue of great significance. At some stage prior to the occurrence of the relevant injury the plaintiff was suffering from low back pain and exhibiting symptoms of this, and discussions concerning difficulties with the filing cabinet and particularly the lower drawer or drawers ensued.
26 These discussions centred upon the provision of a stool for the plaintiff so as to assist her in the use of the filing cabinet and particularly the sixth drawer. Again, the versions of what occurred differ. Again, I would attribute any such differences to varying powers of recollection rather than to any other cause. The recollection of the plaintiff is that, because of her sore back, she had difficulties in relation to squatting and movements associated with it and Mr Hettiarachi became aware of this. The evidence of Mr Hettiarachi concerning his observations is to the same effect, even if his evidence concerning the timing of events does not coincide precisely with that of the plaintiff. The plaintiff’s further evidence was that Mr Hettiarachi suggested a stool, although not going on to say who should get it or where it should come from. The plaintiff stated further that either Mr Hettiarachi or the practice manager would be the person responsible for the purchase of such an item. The evidence of Mr Hettiarachi was that he told the plaintiff to get a stool to assist her in accessing the drawer and getting up from a squatting position, and he told her this at least three times. He claimed that he did hardly any purchasing, except for very important things, and suggested to the plaintiff that she should go and get a stool because she was the one who was going to use it and would know the nature of the stool required. However, in describing the usual manner in which purchases such as this would be made, he gave the following answer at transcript page 187:
“The usual sequence of events is that normally they would find whatever, let alone the stool or anything else, they will say, ‘such and such a place has this, it is so much’, and then I would say, ‘let me have a look at it as well’, and I would go and of course if I am satisfied I would issue a cheque for them to go and purchase it or sometimes rarely a big thing like a vaccine fridge or something I’ll pick up myself.”
27 That answer is certainly suggestive of Mr Hettiarachi involving himself in purchases of this nature, whether or not the request to make the actual purchase emanated from himself or from someone else.
28 The plaintiff gave evidence that a purchase such as this would be made not by her, but by Ms Cauchie, the practice manager, or by Mr Hettiarachi. She did not have the authority to purchase items of furniture. She also stated that, should Mr Hettiarachi have asked her to obtain a stool, she would have done that. She agreed that she might have discussed or suggested getting the stool, but ultimately Mr Hettiarachi did not ask her or authorise her so to do. In cross examination Mr Hettiarachi agreed that nothing was actually done about obtaining a stool. When cross examined about whether the plaintiff had ever been involved in the purchase of any furniture for the practice, Mr Hettiarachi thought that she had been, but the only example he could give was the purchase of the fridge which “we did see in a place in Thomastown”.
29 On balance, the whole impression given by the evidence is that, if purchases of furniture and the like were to be made, they were to be done by the office manager or at least in consultation with Mr Hettiarachi. In relation to this issue, I prefer the evidence of the plaintiff and consider her recollection of events to be more accurate. Even if the position was that Mr Hettiarachi suggested to her that a stool be purchased, as opposed to the suggestion emanating from her, the end result is that nothing was in fact done. Furthermore, I am of the view that the plaintiff held the honest belief, and held it reasonably, that the purchasing of items other than very small and day-to- day items had to be carried out by either the practice manager or in consultation with Mr Hettiarachi.
30 As shall be discussed, again whether these differences in evidence represent matters of significance is doubtful. These matters must be considered in the context of the duty of care, the system of work, and whether there exists a requirement that the worker, as opposed to the employer, take positive steps to alter the system of work over and above discussing its imperfections with the employer.
31 I also accept that, at least in the period immediately prior to the occurrence of the first injury, it was the habit of the plaintiff, in rising with difficulty from a squatting position which she adopted when accessing the sixth drawer, to place some weight on that drawer as she rose. In other words, she effectively “pushed off” from the drawer so as to attain the upright position. This was the method employed by her on most occasions, and had been observed by Mr Hettiarachi.
(e) The occurrence of injury on 22 February 2002 and the nature of the injury suffered (the right hip injury) 32 On 22 February 2002 the plaintiff arrived, as usual, before Mr Hettiarachi. Having tidied up the consulting room, she returned to the reception area with the medical records or cards from the previous day, organised them in alphabetical order, and began to put them in the sixth drawer of the cabinet. On completing the filing of the cards in that drawer, she attempted to raise herself in the usual fashion by placing both hands on the drawer in order to support herself as she rose. As she did, the drawer started to open further towards her. She placed her right hand on the floor next to the table and rubbish bin but, with the drawer pushing out, lost her balance and fell backwards on top of her right heel.
33 This, in essence, is the version of events which I accept. As previously stated, the plaintiff was cross-examined concerning discrepancies contained in histories given to medical examiners, but, with one exception, these discrepancies are minor indeed and really have little or no bearing on the issues to be determined. This is particularly so as causation is not an issue, and there is no argument but that the incident, however precisely it may have occurred on a split-second by split-second basis, involved the plaintiff in squatting in order to access the sixth drawer for the purpose of filing medical cards, losing her balance and falling backwards, and thus causing injury. Some examiners have a history of her being bumped by the drawer or holding onto the drawer. The one exception referred to above is the history taken by Mr Peter Battlay, who has her falling backwards as she pulled out the drawer, and the filing cabinet (as opposed to the plaintiff) overbalancing and landing on her. It was not seriously suggested that this happened, or, indeed, that this was the history which she in fact gave to Mr Battlay. If Mr Battlay’s history illustrates anything, it is that doctors, when taking such histories, are not preparing witness statements or conducting records of interview. There are frequent, and understandable, differences of varying degrees of importance between histories when one is measured against another, and also between histories taken and what a plaintiff claims was actually said. Sometimes there are differences between histories taken and what is agreed actually occurred. All of this is hardly surprising. Indeed, in a situation such as the present where there are a large number of medical examiners, were the histories precisely the same in each instance, that would probably excite comment.
34 The bottom line is that I accept the version of events as given by the plaintiff and as set out above. I further accept that the plaintiff had not previously experienced the situation where the drawer opened further back towards her as she was trying to get up. It had previously slid out, on its own and without anyone touching it. However, this was the first time that it had moved out whilst the plaintiff was using it as a support in order to elevate herself.
35 The plaintiff would normally close the drawer either by hitting it with her knee or bending down and pushing it closed. Presumably, after straightening up, she did the same on this occasion, and then walked back to the kitchen to make herself a cup of coffee. She felt no pain at this stage. She then attended to some typing. Next, a patient arrived and she rose from her chair and started to walk towards the opening between the reception area and the waiting room. It was then that she began to experience severe pain, and found that she could not properly lift her leg. She attended to that patient, and shortly thereafter tried to walk from the reception area to the kitchen as she was very uncomfortable. She sat in a more comfortable chair and “kept on going backwards and forwards”. The pain continued. Mr Hettiarachi arrived approximately 45 minutes after its onset and noticed that the plaintiff was limping. He arranged to examine her after seeing the morning patients, and did this. He examined her again on the following day when she was no better. He had prescribed some medication for her, and, on the occasion of the next visit, injected her with some Diazepam. The pattern of pain without improvement continued over the next few days. The plaintiff persevered with great discomfort, and ultimately Mr Hettiarachi put her off work on 28 February. She attended a masseur daily, but her problems continued. The plaintiff was referred to Mr Tran, an orthopaedic surgeon, and then, on 19 March 2002, to Mr Jonathon Rush. X-rays, which seem to have been taken in March 2002, showed bilateral acetabular dysplasia. This appeared to be more marked on the right side.
36 Mr Rush saw the plaintiff again on 9 April 2002 when her symptoms were worse, and she had developed some clicking in the hips suggesting that there may have been a tear of the labrum.
37 An MRI scan was performed on 13 August 2002 which confirmed the presence of significant acetabular dysplasia and a small labral tear. Mr Rush saw the plaintiff again on 20 August 2002 and surgery was discussed. In the meantime the plaintiff had returned to work on a part-time basis and with restricted duties. Although it seems clear that she was not coping, of her own volition she increased the hours which she was working to 32 hours per week.
38 Ultimately, in mid 2003 Mr Rush organised for the plaintiff to be seen by Mr de Steiger, with a view to the performance of a pelvic osteotomy. Mr de Steiger’s diagnosis was of an acute rotation injury to the right hip resulting in probable labral tear which had initiated ongoing pain in an underlying dysplastic hip. The plaintiff came to surgery at the hands of Mr de Steiger on 18 March 2004 when a peri-acetabular osteotomy of the right pelvis was performed, the osteotomy being fixed with screws and the site bone grafted. By the time that she came to such surgery, the plaintiff could barely walk.
39 The plaintiff has endured a great deal following surgery, and Mr de Steiger, one of the few experts in Australia who is able to perform such surgery, freely admits that the operation has not been a success. Apparently this only occurs in something in the order of 15 per cent of cases, but, unfortunately for the plaintiff, she falls within that category. The site where the surgery was performed did not heal and did not unite. Effectively, it subsequently collapsed. Whilst, as shall be discussed, the development of arthritis in one suffering from the plaintiff’s underlying condition is to be expected, the plaintiff’s condition is now probably worse than if she had not undergone the surgery. In his more recent report of 17 April 2009, Mr de Steiger described the plaintiff as now having advanced osteoarthritis of the right hip.
40 In any event, the plaintiff’s progress after surgery was certainly unsatisfactory and indeed stormy. She was in a wheelchair for some four to five months and then on a walking frame. Her pain was controlled by medication. When she went for a review after three months, she was told that the bone had not united. There was subsequent surgery on 21 October 2004 to remove the screws, which were interfering, and one of which had come loose and could almost be touched underneath the skin. This was very uncomfortable. Only some of the screws could be retrieved, and one could not because it was broken. The plaintiff developed a haematoma following this surgery, and became sick and feverish. On 9 November 2004 a draining procedure was undertaken. Whilst his resolved the immediate problem, the plaintiff’s leg was in fact worse for some 12 months after the initial surgery than it had been before it. The plaintiff became very distressed and was referred to a psychiatrist. At times she felt that life was not worth living. Obviously the occurrence of the second injury to the right hand did not assist. Further, the plaintiff has been left with a substantial scar which is painful. I was shown the scar. It is unsightly.
41 Without in any way taking into account the plaintiff’s second injury, being to her right hand, I am satisfied that the plaintiff is totally disabled because of the condition of her right hip and suffers a great deal of pain and restriction because of it. Mr de Steiger has described her as suffering significant and debilitating pain which is affecting both her social situation and her mental health. Mr Kevin King, consultant orthopaedic surgeon, in a detailed report of 4 March 2009 described her as “very severely disabled by a very stiff, painful right hip joint”. Mr Rodney Simm, who examined the plaintiff and gave evidence at the request of the defendant’s solicitors, stated in a report of 7 May 2009 that the plaintiff has no normal hip joint, the weight bearing area of the hip is covered by fragmented displaced acetabular fragments, and that the disruption of the plaintiff’s hip is such that it must be extremely difficult for her to walk and to cope with the pain which includes rest pain. In his oral evidence he again referred to her severe pain and to the fact that at the moment she has a very severely disrupted hip. I will not go through in detail the many medical reports which are in evidence, as there is no great distinction between the views expressed by the more current examiners in relation to the high level of pain and restriction from which the plaintiff suffers as a result of her hip injury and in relation to her total incapacity for employment.
42 Concerning this last mentioned issue, it is perhaps worth referring briefly to the reports and evidence of Mr Hettiarachi, he being in the dual role of treating doctor and effective employer. Mr Hettiarachi organised for the plaintiff to return to the Thomastown clinic on 15 July 2005 to take part in what could be called a return to work trial, or, as described by him, an orientation to the workplace. After some 18 months absence, she was to get accustomed to the office surroundings and have the satisfaction of being there and greeting patients whom she had known for a long time. She would also perform small duties such as switching on the lights, opening the doors and being seated at her desk. This only lasted for a few weeks until 10 August 2005. The plaintiff had trouble remaining seated on account of her hip pain and difficulties in getting in and out of the chair. She was enthusiastic to resume some duties, but the attempt was unsuccessful. Indeed, the plaintiff gave evidence that, after the third week she could not get out of bed. Mr Hettiarachi terminated her services in October 2005, whilst assuring her that she could always come back if she felt well enough. Further, this failure occurred despite the fact that, whilst the practice normally only required one person to manage the office, Mr Hettiarachi had another person available to assist the plaintiff. If confirmation were needed that the plaintiff was totally incapacitated for work in 2005 (and her condition has deteriorated since), her failure to be able to perform the lightest of duties with a very sympathetic and supportive employer removes any doubt but that she was and is totally disabled for employment. Of course, the work orientation trial in July and August 2005 predated the injury to her right hand.
(f) The future of the plaintiff’s hip condition - is further surgery required? Is the plaintiff likely to undergo it and, if so, when? What is its likely outcome? 43 These related issues were the centre of considerable attention. Hip replacement surgery has been suggested to the plaintiff, but she has been unwilling to agree to having it performed. Whether she will ultimately agree to it and thus permit it to be performed, when this might occur, and what the outcome might be are questions that shall now be discussed.
44 Mr de Steiger has strongly recommended that the plaintiff consider a total hip replacement as a matter of some urgency. He would anticipate that it would give good pain relief with a stable functioning hip for up to 15 to 20 years. Mr Kevin King has described a right total hip replacement as being, effectively, the only long-term solution and has expressed the following view:
“ … the present situation will almost certainly be intolerable from a long-term point of view, and it is very probable that she’ll agree, within the next year or so, to a major reconstruction of the right hip joint with a total hip joint replacement procedure.”
45 Mr Deacon described hip replacement as being the obvious procedure to be adopted, although having some reservations because of the plaintiff’s comparatively young age and the fact that the previous unsuccessful surgery could make a hip replacement a more difficult operation. He referred to possible alternatives such as an arthrodesis or a girdlestone arthroplasty. Mr Simm has stated that the plaintiff’s prognosis is for persistent pain, disability and loss of function of the right hip until such time as she undergoes a right total hip replacement. He also foreshadowed some technical difficulties given the plaintiff’s entrenched pattern of pain. In his recent report of 7 May 2009 he expressed the view that the plaintiff’s level of pain and disability was such that he would recommend a total hip replacement, although he noted that she should be adequately appraised of the expected outcome and potential complications, and that she was an extremely apprehensive person.
46 Thus, the overwhelming medical view is that the plaintiff should undergo a right total hip replacement. Of course, as stated by a couple of the expert witnesses, the ultimate decision is hers. However, I accept that it is a procedure that is highly recommended. To date the plaintiff has been unwilling to agree to the performance of the surgery. However, in my view the opinion expressed by, for example, Mr King is accurate and the plaintiff’s pain and level of disability will, unfortunately, become intolerable and she will agree to undergo a hip replacement. Like Mr King, I consider this to be very probable.
47 Indeed, there are some indications that the stance against the proposed surgery which the plaintiff has taken may be weakening. She is an intelligent person. Mr de Steiger has offered to refer her to other surgeons with special interest in complex hip pathology, but she wishes to remain under his care. Mr de Steiger is strongly recommending that she have the surgery, and the fact that she has refused the offer to seek a second opinion may well indicate that, ultimately, Mr de Steiger’s advice will prevail. The plaintiff gave evidence that she respected the views of Mr de Steiger and has “stuck by him”. She also indicated a preparedness to talk in detail with Mr de Steiger when she was “mentally up to it”. She conceded that she might give a hip operation very real thought if Mr de Steiger said, for example, that there was a 90 per cent chance that such operation would result in very good pain relief and mobility. Thus, I am of the view that ultimately the plaintiff will agree to hip replacement surgery and it will be performed. Selecting a date as to when this might occur is very difficult, but, given the views expressed and the level of disability and pain currently experienced by the plaintiff, I would have thought such surgery would probably be undertaken in the next three to five years. Whilst Mr King has referred to “the next year or so”, it may take a longer period for the plaintiff to accept Mr de Steiger’s advice concerning the desirability and inevitability of such surgery and for her to become “mentally up to it”. She is, as noted by Mr Sim, very apprehensive concerning further surgery, which, given what she has been through, is not surprising. On balance, I have come to the conclusion that the plaintiff will probably undergo hip replacement surgery in approximately four years time or when she is 46 years of age.
48 The next issue concerns the prospects of success if the surgery is in fact performed. Whilst it was essentially agreed by all key medical witnesses that the surgery might be technically more difficult because of the failed osteotomy, and it was stated by Mr Simm that the prospects of a good outcome might be adversely affected by the plaintiff’s entrenched pattern of pain, the chances of a successful outcome remain strong. Mr de Steiger expressed the view that, if hip replacement had been performed following gradual deterioration due to the dysplastic condition without the intervening trauma and osteotomy, the prospects of a successful operation resulting in a pain-free condition would be in the order of 95 to 98 per cent. If he were now performing hip replacement surgery on this particular plaintiff and with her history, the prospects of a result giving relief of pain and improvement of function would be in the order of 90 per cent. Mr Deacon did not take issue with this, although he indicated that a success rate of 90 per cent was “the highest figure you really could put”. Basically, however, he did not quarrel with the views of Mr de Steiger. Mr Simm put the prospects of successful surgery in the case of this particular plaintiff as at 80 to 90 per cent.
49 I am of the view that, whilst the surgery might be technically more demanding than it would have been had there not been the earlier surgery, nevertheless it would be, as described by Mr de Steiger, a fairly routine procedure with an added degree of difficulty. Mr de Steiger stated that this was so even though the procedure was major and could not be described as simple. Of course, I shall bear in mind the possibility that the plaintiff might again fall into the unfortunate minority who do not have a successful outcome. I also accept the view widely expressed that, should the surgery be successful, the plaintiff would be essentially pain free. There would be some restrictions on her lifestyle basically concerning movements such as running, jumping and twisting and a person who has undergone a successful hip replacement would be ill advised to engage in such activities as singles tennis or skiing. However, as stated by more than one witness, successful surgery would result in the plaintiff being “a new woman”.
50 In summary, I am of the opinion that the surgery, whilst the degree of risk attached to it may have been increased by a small percentage, is far more likely than not to be successful. The plaintiff would probably be left in a condition that was largely pain free and with some restrictions which would be noticeable but not major. Of course, the possibility remains that such surgery will not be successful, but this seems a less likely outcome.
(g) If the plaintiff undergoes a total hip replacement, for how long will this replacement last? Will there be the need for further, and if so how many, operations? If the trauma had not occurred, and the plaintiff had come to total hip replacement as a result of the gradual progress of her underlying condition, would the timing of this mean that only one such operation, as opposed to more than one, was likely to have been necessary? 51 These inter-related questions involve the basic issues of for how long hip replacements last and whether, as a result of the trauma and the resultant rapid deterioration of the plaintiff’s condition, she will now need to undergo more than one hip replacement operation. These questions require consideration of a number of hypotheses or estimates, including when the plaintiff will in fact have the first hip replacement surgery, when that will occur compared with when such surgery might have been performed were it not for the relevant trauma, the lifespan of the replacement, whether the plaintiff would then have to undergo a second replacement, whether that decision would be influenced by the possibility of a less favourable outcome and the like.
52 It seems to me that, bearing in mind the timing of events as assessed on the balance of probabilities, this area of dispute may not be as significant as it may at first appear. I have already stated that, in my view, it is probable that the plaintiff will undergo hip replacement surgery in the next three to five years. That would then place her in the age bracket of 45-47 years, and I have selected 46 years as being her probable age the relevant time.
53 The expert evidence concerning the “life” of a total hip replacement before the recurrence of symptoms was reasonably uniform. Mr de Steiger stated that, on the basis of current knowledge, the plaintiff would remain pain free for some 15 to 20 years before the surgery would have to be redone. He also gave evidence that the rate of wearing out of the artificial components has slowed as a result of the advances brought about by medical research. He stated that these advances could result in an estimate of 30 years as the maximum life of a hip replacement, but emphasised that this was on the basis that “you were lucky enough and clever enough to get it all 100 per cent solidly done”. Mr Simm gave evidence that a hip replacement for the plaintiff would “hopefully” last for 25 years.
54 If one selected the figure of, say, 20 years as being the likely life of the prosthesis, and proceeded on the basis previously expressed that the plaintiff is likely to undergo the surgery when she is something in the order of 45-47 years of age, hip replacement surgery is likely to provide pain-free and comparatively unrestricted relief until she reaches, or is very close to, the normal retiring age.
55 The situation would, in all probability, be little different if there had been no trauma and the plaintiff had become disabled as the result of the inevitable progression of her underlying condition. Mr de Steiger gave evidence that it was reasonable to say that there was a 50 per cent chance that, without the trauma, the plaintiff would have come to operation in her late 30s to early 40s and that, given the degree of severity of the plaintiff’s condition, she would not have been asymptomatic “much past 50 at the most”. He further said that, with the degree of dysplasia that the plaintiff had, he would have expected to see significant symptoms “by about late 40s early 50”. Mr Deacon did not agree with these propositions in their entirety, but considered that it was a possibility that the plaintiff may have developed significant symptoms requiring operative intervention in her “late 30s or early 40s”. He seemed to think that the more probable time for the inevitable onset of symptoms would have been when the plaintiff was between the age of 55 and 60 years. In re-examination, whilst describing his estimate as being a figure plucked from the sky, he expressed the view that, absent trauma, the plaintiff would have been likely to come to a hip replacement in “something of the order of 20 years”, but whether that was from the present date or from the date of such trauma was not entirely clear. Mr Simm expressed the view that there was a more than 50 per cent chance that the plaintiff would have come to an operation at something in the order of 40-43 years of age. Mr King has opined that, with well marked dysplasia of both hip joints, it is more probable than not that the plaintiff would have gone on to have had secondary osteoarthritic changes within another 10, or possibly 15, years.
56 It seems reasonable to take the view that, if the trauma had not occurred, the almost inevitable progress of the underlying condition would have led to the plaintiff having symptoms warranting hip replacement surgery by the time she attained the age of 50 years. There is a possibility, which I would regard as being very slim, that the symptoms may never have developed and surgery may never have been required. There is also the possibility that the development of the symptoms and the requirement for surgery would have occurred at an earlier age, as opined by Mr Sim. However, on balance, and bearing in mind that considerable hypothesis is involved, it seems to me that surgery would probably have been required in any event when the plaintiff was approximately 50 years of age. Thus, in terms of hip replacement surgery, the distinction between what would probably have happened if there had been no trauma and what is now the situation is not great. The plaintiff is likely to undergo the surgery approximately two years prior to what would otherwise have been the case. In either situation the prosthesis would probably have lasted beyond her normal retirement age. Whether the plaintiff would then undergo a further revision would depend upon the circumstances then prevailing. If there were such further revision, the prospects of success might be reduced by an amount which is difficult to quantify when surgery is being performed for a third, as opposed to a second, time.
57 Allowance should also be made for a recovery period following the performance of hip replacement surgery. The estimates of the period for which the plaintiff might be expected to be out of the workforce varied from two months (Mr de Steiger) to three to four months (Mr Sim) or six months (Mr Deacon, although describing that estimate as being generous). On the balance of the evidence, a recovery period in the order of three months seems to me to be reasonable.
(h) The occurrence of injury on 23 November 2005 and the nature of the injury suffered – the right hand injury 58 No argument was advanced but that the injury suffered by the plaintiff to her right hand on 23 November 2005 is causally linked to the original injury of 22 February 2002. On that day she was attempting to pick up some broken glass from the floor of the garage at her home when her right hip collapsed under her and she fell heavily onto a piece of the glass, thereby lacerating her right wrist. It should be noted that the plaintiff is right hand dominant.
59 Immediately following this unfortunate accident, the plaintiff noticed that she was bleeding profusely and that her fingers were curling in. Her son helped apply a tourniquet and, after a brief delay, the plaintiff was conveyed by ambulance to the Northern Hospital. Surgery was then performed almost immediately. She had sustained a deep cut which had divided her ulnar nerve and ulnar artery.
60 Whilst both the artery and the nerve were repaired, the plaintiff has been left with a very significant injury to her dominant hand. Mr King found classical signs of a partial ulnar nerve palsy with marked wasting. She has clawing of the right hand. Mr Simm, giving evidence on behalf of the defendant, described the injury as severe and as an ulnar nerve injury which has been repaired without a full recovery. Whilst he felt that there was some inconsistencies on examination, he stated that “the sensory changes are quite consistent with the severe injury”. He acknowledged the possible, although unusual, link between the injury and spasms of the right hand. He also stated that, “she is still left with severe restrictions on the use of her right hand … ”. Whilst expressing the view that the plaintiff might return to a “receptionist office environment that didn’t require rapid and prolonged use of a keyboard”, Mr Simm’s evidence was that he did not believe that the plaintiff would have individual function in her fingers which would enable her to touch type.
61 Mr Hettiarachi, when asked to comment upon the capacity of the plaintiff to perform normal clerical duties, bearing in mind solely her right hand injury, stated that there would be significant difficulties and that “ … she would be severely disadvantaged in respect of certain duties”. He referred to the fact that the result of the surgery to the right hand was “far from desirable”, and that unfortunately the resultant function was far below expectations. The plaintiff ended up with a flexion claw deformity, muscle wasting and spasms. Even allowing for a repair of the hip, Mr Hettiarachi foresaw difficulties in the use of a keyboard, report writing and the like.
62 In summary, I am satisfied that the plaintiff has suffered a nasty and debilitating injury to her dominant hand and that this produces significant interference with her capacity to engage in a number of employments, including that in which she was engaged with the defendant. Such difficulties would appear to be permanent, and there is no persuasive suggestion to the contrary. The injury has also resulted in significant restrictions which impact upon the plaintiff’s daily life. Apart from the clawing, her right hand has no strength and she has difficult doing such things as preparing the evening meal. I accept that it is an injury which has a very considerable effect upon her life and activities.
63 As stated, the plaintiff’s version of events has not been challenged. That the injury to the right hand resulted directly from a collapse of the right hip, and thus to the original incident in 2002, it is not disputed. If the plaintiff otherwise succeeds, the injury to the right hand needs to be taken into account in the assessment of damages.
C. Ruling 64 I now turn to my ruling in this matter, commencing with the issue of negligence.
(a) Negligence 65 I am satisfied that the plaintiff has discharged the burden of proof in establishing negligence. She has alleged both negligence and breach of the Occupational Health and Safety (Manual Handling) Regulations 1999 (“the Regulations”). In relation to an alleged breach of the Regulations, the defendant referred to Regulation 13 and argued that the relevant work in which the plaintiff was engaged was not repetitive or sustained. The submissions of Mr Ruskin in relation to breaches of the Regulations were brief, and the issue was scarcely addressed by Mr Tobin. I tend to agree with Mr Ruskin that the action in which the plaintiff had to engage when dealing with the filing cabinet was regular, but could scarcely be described as repetitive or sustained within the meaning of the Regulations.
66 However, I am against Mr Ruskin on the issue of negligence and breach of a duty of care. I am satisfied that the system of work involving the filing cabinet was outdated, unsatisfactory, and creative of the problems which the plaintiff encountered. It was apparent to the defendant, via Mr Hettiarachi, that the plaintiff was having difficulties with it. I accept that there were discussions between the plaintiff and Mr Hettiarachi concerning an improved system generally, and that ultimately, but unfortunately after the plaintiff’s accident, such system was installed. I am equally satisfied that there were discussions concerning how the existing system might be improved for the benefit of the plaintiff by the provision of a stool. This also did not come to pass. The measures that could be taken to improve the existing system were not so difficult as to be physically or financially impossible or impracticable.
67 Accordingly, we have a system of work that was both antiquated and awkward. The defendant was aware that the plaintiff was experiencing difficulties because of it, and particularly difficulties in relation to access to the sixth draw of the filing cabinet. The injury sustained by the plaintiff on 22 February 2002 arose directly out of the known difficulties associated with the use of the sixth drawer and concerning which inadequate remedial steps had been taken. It was not until after the plaintiff suffered injury that the system changed. Given the difficulties which she had encountered and the discussions which had been held, and the defendant’s knowledge of these, the fact that the plaintiff ultimately suffered injury whilst employing this system of work can scarcely be said to be something that came “out of the blue” and which no reasonable employer could possibly have anticipated.
68 Indeed, I reject the argument that the defendant did not act unreasonably. I agree with Mr Tobin that the defendant owed to the plaintiff a duty to take reasonable care for her safety by providing a safe place of work with safe appliances and a safe system of conducting her work. I agree that the duty extends to ensuring that the system is implemented. In this regard, Mr Tobin referred me to O’Connor v The Commissioner of Government Transport (1958) 100 CLR 225. The defendant was aware of the defects in the existing system and the problems thus created. There had been discussions concerning a better system involving the use of folders and shelves as opposed to cards in drawers, and there had been discussions concerning improvement to the existing system by means of the provision of a stool, these discussions possibly dating back to 1998 but certainly pre-dating the accident. However, in fact nothing was done and I agree that this constitutes negligence.
69 In summary, I am satisfied that the plaintiff has established negligence on the part of the defendant.
(b) Contributory negligence 70 I am not satisfied that contributory negligence on the part of the plaintiff has been established.
71 Argument concerning this centred upon the provision of a stool and whether the plaintiff could have attended to such a matter. As I have previously indicated, I prefer the evidence of the plaintiff in relation to the possible obtaining of a stool. I consider her recollection to be more accurate. It was her belief, based upon the system of work which had operated for some years, that such a stool could only be purchased by Mr Hettiarachi or the office manager. Neither of them did this. Whether the presence of a stool might have prevented the occurrence of injury is debatable, and the expert evidence does not really touch upon it, but, even if it would have produced the desired result, the outcome seems to me to be the same.
72 I agree with Mr Tobin. There was a long-established system of work established by the employer, known to it, and with which the plaintiff complied. There was no direction to the plaintiff to alter that system of work. At best from the defendant’s viewpoint, there was a discussion concerning a possible improvement but no direction in this regard. Regardless of from which party any suggested improvement emanated, it was not up to the plaintiff to take a step which she did not believe she was authorised to take in order to alter the system of work. Essentially, I agree with Mr Tobin that the plaintiff’s compliance with the system of work set up by the defendant does not establish contributory negligence.
73 I do not accept that the plaintiff was in fact directed to purchase a stool, apart from any issue as to whether it would have solved the problem with the filing cabinet. The plaintiff complied with the existing system of work, whilst knowing that the defendant was aware of its defects. The fact that she continued so to comply, and having discussed the shortcomings of the system with her employer, does not seem to me to constitute contributory negligence.
(c) Damages (i) The right hip injury – pain and suffering (general) damages 74 As Mr Ruskin quite rightly pointed out during his closing address, and when quoting from Malec v JC Hutton Pty Ltd (1999) 169 C.L.R. 638, “damages founded on hypothetical evaluations defy precise calculation”. As to the approach to be adopted, Mr Ruskin referred to the judgment of Eames J in Lindhe v Royal Childrens’ Hospital (delivered 28 August 1992). His Honour there stated that, in essence, a rigid mathematical approach should not be adopted, particularly when there is a multiplicity of contingencies which might apply. Whilst the various contingencies are to be taken into account in making the ultimate assessment, to use the words of Eames J, “The task, however, does not require that the steps in the process be calculated with the skill of a mathematician”. Rather, a “broad brush” approach is to be employed, and this was the course urged upon me by Mr Ruskin and one which I shall adopt.
75 Bearing the above in mind, Mr Ruskin submitted that the general damages for the injury to the right hip should be significantly reduced for the risk that the plaintiff would have come to surgery in any event, and also for the probability that the plaintiff will undergo the hip surgery and be vastly improved. After the exercise of selecting a figure for general damages which would be appropriate if other factors and contingencies did not operate, I should then do some “juggling” of the possibilities and probabilities and arrive at a figure for general damages. In the submission of Mr Ruskin, that figure is $150,000.
76 In essence, Mr Tobin adopted a similar “broad brush” approach in submissions, and, in if anything, his brush was even broader in that the range of general damages suggested by him incorporated both the right hip injury and the injury to the right hand. He argued that, were I instructing a jury, I could tell the jurors to look at the individual injuries but come back with an overall figure, and that, sitting alone, I am entitled to adopt the same procedure. Mr Tobin put the global amount for pain and suffering damages for all injuries as being in the magnitude of $375,000 to $400,000 and, for the purposes of his ultimate calculations, selected the figure of $375,000.
77 Whilst there is force in Mr Tobin’s submissions, and certainly a jury might be instructed in such a fashion, I would prefer to break down the assessment of pain and suffering damages into the amount allowed for the right hip injury and its sequelae and the amount allowed for the injury to the right hand and what flows from that injury. In that way the path of reasoning which I have followed might be more transparent. Accordingly, I shall now deal with the assessment of general damages in relation to the right hip injury.
78 I also agree that a logical starting point is the assessment of damages for the right hip absent the other complicating factors. The injury occurred in February 2002 and symptoms commenced virtually immediately. As at the time the plaintiff saw Mr Jonathon Rush in April 2002, her symptoms were worsening and she was developing clicking in the hip. The plaintiff gave evidence that, within a couple of months of her attempted return to work in March 2002, she got to the stage where she could not lift her leg at all, could not drive and could not lift. She could barely walk. Of course, when she ultimately came to surgery in March 2004, no relief was provided and in fact her condition since has been worse. I have already referred to these matters, and now deal with them in more summary form in order to underline the fact that the plaintiff has already undergone in excess of seven years of painful and debilitating symptoms. She is still only approaching her forty-second birthday. She is in constant pain, greatly limited in her activities, and it is virtually universally agreed that she is severely disabled. It seems to me that, were there no other factors operating, her general damages in relation to the hip injury would assess in a very large amount indeed. A plaintiff who was bright, active, industrious, enjoyed work, involved herself in charitable and community activities, had an active social life and was deeply involved in family and domestic matters is now, as she put it, a “zero person that exists for nothing”. Her activities have been dramatically curtailed, she is in constant pain and, apart from the years for which she has already been forced to endure these things, absent are the factors this would have remained the situation for the rest of her life. I might add that there is no reason to believe that the plaintiff has anything other than normal life expectancy.
79 Some discussion took place concerning comparable verdicts and the difficulties that may now arise because of the relative scarcity of damages decisions by either juries or judges sitting alone. What could be described as the “market” is not as easy to identify as it might have been some years ago. What the community thinks represents fair and just compensation by way of general damages for particular injuries is not as easy to ascertain as it once was. Mr Tobin referred me to a range of recent verdicts which may be of broad assistance but are not directly related to the facts of this case. My overall impression is that, for this particularly impressive plaintiff and bearing in mind all that she has lost and will lose (absent other factors), an appropriate assessment of general damages for the right hip injury would be in the order of $320,000.
80 I now turn to the “juggling” exercise. I should add that, whilst the plaintiff is clearly 41 years of age, she is now closer to her 42nd birthday, and in this judgment I shall treat her as effectively being 42. I have already found that, on the balance of probabilities, the plaintiff will undergo hip replacement surgery; that she will undergo such surgery in the next three to five years; and that the surgery will probably be successful in alleviating many of her symptoms and restrictions. There would then still remain some inhibitions as to what she might be able to do, and a small chance that the surgery might not be successful also remains (particularly bearing in mind the earlier surgery). As I have previously discussed, it seems to me that there might not be a great difference between the plaintiff’s age when she is likely to come to hip replacement surgery and the age at which she would have required such surgery because of her underlying condition. On balance, I am not persuaded that an enormous amount hinges upon this. It may be that she will now come to hip replacement surgery at the age of approximately 46, rather than approximately 50 if the trauma had not occurred, but the converse proposition could prove to be more accurate. In other words, the discounting factors relating to the prospects of future successful surgery and the progression of the underlying condition could virtually be merged and treated as one discounting percentage. Further, allowance for other factors which favour the plaintiff, such as the undergoing of further surgery, the risk of failure, restrictions during recovery and ultimate long-term restrictions might be tempered by the amount of speculation and the number of hypotheses which necessarily attach to a calculation such as one required in the present case.
81 The end result is that I am of the view that a discounting factor of 30 per cent should be applied. This would reduce the amount of general damages in respect of the injury to the plaintiff’s right hip to the sum of $224,000.
82 Another way of arriving at such a figure might be to say that it is probable that the plaintiff, by the time she comes to surgery or by the time that her underlying condition would have overtaken her, would probably have endured a period well in excess of 10 to 12 years of suffering pain and restrictions of the type which have been described. If one took an estimate of, say, 11 years of such suffering and allowed the comparatively modest amount of $20,000 per annum in respect of it, the total would be $220,000. I am not saying that this method of calculation is in any way preferable to the normal approach, or that I have adopted it. Rather, it is of interest that one arrives at much the same conclusion.
83 Accordingly, I assess general damages in relation to the injury to the right hip at $224,000.
(ii) The right hand injury – pain and suffering (general) damages 84 The complicating factors operating in respect of the right hip injury are not relevant to the assessment of general damages for the injury to the right hand. As stated by Mr Ruskin, the reductions referred to in Malec do not apply because of the nature and circumstances of this injury. Mr Ruskin suggested a figure of $60,000 to $75,000 by way of general damages.
85 In my view it is easy to underestimate the severity of the injury to the dominant right hand. Because of the complexities associated with the hip injury, some medical examiners have not focussed a great deal of attention upon the hand injury. In my opinion it is a very significant injury. Mr Simm, having examined on behalf of the defendant, described it as “severe” more than once. Mr Phillip Slattery, a hand surgeon, reporting in January 2008, referred to the injury as stabilised; significant; associated with weakness, awkwardness and curling of the fingers; and of such magnitude as to make it difficult to see the plaintiff returning to meaningful work in the near future. The plaintiff herself described the difficulty she has in performing such things as cooking because of the lack of strength in the right hand. As previously stated, Mr Simm expressed the view that the plaintiff would not have sufficient individual function in her fingers to enable her to touch type. In summary, this 41 year old woman has been left with a dominant hand which now has claw-like features. She has given evidence that she can no longer type with it, has difficulties writing and is subject to spasms up to ten times a day. Incidentally, whilst Mr Simm described the spasms as an unusual symptom, he acknowledged the possibility that they result from the physical injury. I accept the plaintiff’s evidence in relation to them. Bearing all of this in mind, the plaintiff suffers from a major and debilitating injury to her right hand.
86 In my opinion, the estimate of damages put forward by Mr Ruskin of $60,000 to $75,000 in respect of this injury is clearly inadequate. Unlike the hip injury, there appear to be no prospects for improvement, no available surgery other than for cosmetic purposes, and there is no suggestion of any pre-existing underlying condition. The plaintiff will have to endure the consequences for the balance of her life. I would assess damages in the order of $110,000.
(iii) Past loss of earnings 87 In dealing with at least a portion of the claim for past loss of earnings and the claim for loss of earning capacity, no separate consideration is required in respect of the separate injuries. In fact, as figure has been agreed by the parties. I am quite satisfied that, to date, the plaintiff has been unable to earn income in respect of the periods for which she claims, and that includes any relevant period prior to her sustaining the hand injury.
88 It was specifically, and very fairly, stated by Mr Ruskin that the defendant did not contend that the plaintiff could have worked to date, and further the plaintiff agreed with the figures advanced by the defendant, including the Fox v Wood component. I am grateful for the sensible approach adopted by counsel in this regard. Accordingly, the agreed figure for past loss of earnings, and following some rounding-off, is $170,000.
(iv) Loss of earning capacity 89 Understandably, no such agreement was reached in relation to this head of damages. In respect of her loss of earning capacity, whilst the effects of the separate injuries will need to be considered, a separate assessment in respect of each was not advanced by counsel and is not required. Apart from considerations relating to the future level of disability, future surgery and the like, two streams of income require consideration. There is the income relating to the plaintiff’s normal work as a medical secretary/receptionist, and the income derived from Omnicare. Of course, consideration also has to be given to the fact that, even if the plaintiff undergoes hip replacement surgery and it is successful, her disability of the right hand will continue, and this is of particular relevance to the type of secretarial/receptionist work which she was performing.
90 Assuming successful hip surgery, and bearing in mind this particular plaintiff and her attitude towards work, I agree with Mr Ruskin that she has retained some work capacity. Whilst some theoretical ability to perform secretarial or receptionist work, particularly in a medical setting, might exist, I note the evidence of Mr Hettiarachi, whom I would consider a most sympathetic employer, to the effect that such work at his clinic would include typing and writing duties. Mr Slattery has expressed the view that it is highly unlikely that the plaintiff would be able to return to work as a medical secretary. It may be that she could work as a receptionist or in some supervisory capacity, but the overall impression which I gained is that, even with successful hip surgery, the plaintiff may struggle to return to full-time employment. The figures put before me by Mr Ruskin embrace a period of total incapacity followed by an ongoing reduction in earning capacity in the range of 40 per cent to 60 per cent. Leaving to one side the Omnicare earnings, Mr Tobin suggested that the plaintiff’s ultimate capacity would be productive of an income of no more than $200 per week, a reduction in earnings in excess of two thirds. Certainly, I am of the view that there will be a period of total incapacity, and that will be followed by ongoing partial incapacity. I think it unlikely that the plaintiff will be able to command, on a regular basis, a salary in excess of $250 net per week, or approximately 40 per cent of her earnings as a medical receptionist. I have already expressed the view that the plaintiff will probably not have hip replacement surgery for some three to five years, and that there will be a recovery period of some three months following that. Therefore, it seems to me that a median figure of approximately four years of total incapacity prior to the carrying out of surgery, followed by a period of three months recovery, would be reasonable.
91 If my mathematics are correct, the total loss of earnings as a medical receptionist for four years amounts to $133,120. I think it is fair to then allow another three months, or 13 weeks, as a recovery period during which the plaintiff would continue to be totally incapacitated. I appreciate that arguments can be advanced concerning possible utilisation of long service leave, sick pay and the like, but that in itself involves considerable speculation and, in some circumstances, could in fact involve loss to the plaintiff in the form of the diminution of accrued benefits. In any event, 13 weeks of total incapacity would assess in the sum of $8,320 in respect of the period of total incapacity following hip replacement surgery, but that amount should be reduced to, say, $7,000, as the loss will not occur for some four years. Thus, as at the time that the plaintiff was able to return to the workforce on a part- time basis, the amount to which she would be entitled would be, after rounding the figures out to the nearest convenient large number, $140,000. I should say that, in first calculating the amount attributable to the period of total incapacity, I am following one of the approaches suggested by Mr Ruskin. Such approach involves a calculation of the amount lost during the period of total incapacity, followed by the fixing of a sum for ongoing partial incapacity and after consideration of various factors. The approach adopted by Mr Tobin could be summarised as being a calculation based upon ongoing total incapacity to retirement age, and then the application of discounting factors. In any event, I am currently assessing the total incapacity period and shall then move to a consideration of the loss incurred thereafter.
92 Mr Ruskin has put before me various figures based upon a residual loss of capacity ranging from 40 per cent to 60 per cent and allowing for cessation of employment at the age of either 55 or 60 years. Given the plaintiff’s attitude to employment and being in mind her history, I see no reason why, barring unforeseen circumstances, the plaintiff would not have worked through to the age of 65 years. Mr Tobin has referred to the fact that the normal retiring age by then may in fact have been extended to 67 years. That may or may not occur. I prefer to select 65 years as the age at which the plaintiff would probably have retired. As stated, she being a woman who seems to have loved her work and been very capable at it, and having an adult family, I see no reason why she would have stopped work at any earlier age unless some unanticipated occurrence intervened.
93 Thus, on the basis of the probable scenario which I have outlined, we have a woman who would have returned to the workforce at the age of 46 years and worked on a part-time basis until the age of 65 years.
94 As was stated by Mr Ruskin, there are a number of ways in which the calculation of this particular loss can be approached. As also stated by him, the various actuarial figures are simply guides, and the end result to which I should come is a figure which I think fairly represents in money terms the diminution of earning capacity, bearing in mind the whole of the evidence and the factors which have previously been discussed. The approach adopted by Mr Tobin was at times more strictly mathematical, but there was no real dispute with the proposition that the actuarial tables are items which, whilst they may be of assistance, are not binding and it is a fair figure based upon the evidence that should be ascertained.
95 In endeavouring to arrive at such a fair figure, I have approached the task in different ways, but the end results are very much the same. For the moment I shall concentrate solely upon the plaintiff’s loss of earning capacity as a medical secretary/receptionist, and leave to one side the question of earnings from Omnicare. Based on projected earnings of $250 per week, the plaintiff will be losing $390 per week following her return to part-time employment, and bearing in mind the figure of $640 per week as wages for a medical receptionist. The multiplier, according to the six per cent tables, for a 46 year old to the age of 65 is 599.5. Multiplying this by $390 per week produces a total of $233,805. If that figure were then reduced by 12.5 per cent to allow for the ordinary vicissitudes of life, the end result would be a figure of $204,579. Adopting this approach I have not used a delayed multiplier, but I have also made no allowance for the risk of failure of hip replacement surgery or for the chance that the plaintiff will not undergo such surgery. In all the circumstances, it seems to me that this a just and reasonable outcome.
96 Another way of approaching this difficult problem would be to simply allow the plaintiff a loss on the basis of partial incapacity for, say, 19 years and 3 months (being the approximate period from the date of hearing of this matter until her attaining the age of 65 years). This period totals approximately 1,000 weeks at $390 per week. If the end result of $390,000 was then reduced by 40 per cent to cover deductions associated with present payment, whilst bearing in mind risks associated with surgery or the possible non-performance of same, a figure of $234,000 would be produced. A further reduction of 12.5 per cent for other vicissitudes would result in a figure of $204,750.
97 The approach urged by Mr Tobin would result in a higher figure. Whilst he also acknowledged alternatives, essentially his argument was based upon an assessment of ongoing total incapacity to the age of 67 years, followed by the application of discounting factors. As previously stated, the outcome would then be a figure of somewhere between $375,000 and $400,000. There is also merit in that approach. However, the outcome suggested by him is not one at which I have arrived.
98 Of course, whichever way one approaches it, these figures are based upon a number of hypotheses. In the circumstances, I fix the amount of the plaintiff’s loss of earning capacity relating to the performance of part-time work, as opposed to full-time work, as a medical receptionist in the sum of $205,000.
99 I turn now to the future loss relating to the Omnicare work. Mr Ruskin put an estimate of $12,000 to $15,000 in this regard, this being based on a weekly income of $60 and for a period which was not specified, but less than 10 years. Mr Tobin argued for a figure of $20,000. He selected a multiplier of ten years, and then rounded downwards. It seems to me that a multiplier based on eight years is probably fair, which would take the plaintiff through to the age of 50 years and which, bearing in mind all the competing factors in this case, seems to me to be a reasonable estimate. That would produce a figure of $20,022 and when a deduction is made for the many factors that have been discussed, an overall estimate of $18,000 seems to me to be fair.
100 When the loss in relation to Omnicare is added to that relating to the work as a medical secretary/receptionist, the total figure for loss of earning capacity from the date of commencement of part-time work until the age of 65 years is $223,000. If that is in turn added to the figure of $140,000 which I have allowed in respect of four years and three months total incapacity, the total figure for loss of earning capacity is $363,000. Whilst the figure in respect of the Omnicare loss might embrace periods of both total and partial incapacity, counsel treated it as a separate item and I have done the same.
D. Conclusion 101 Thus, having found the defendant to be negligent and having found no contributory negligence, I assess damages as follows:
(i) general damages in relation to the right hip injury: $224,000; (ii) general damages in relation to the right hand injury: $110,000; (iii) past economic loss: $170,000; (iv) loss of earning capacity: $363,000. 102 This makes a total of $867,000 and accordingly I order that the defendant pay to the plaintiff that amount.
103 I shall hear the parties as to any ancillary orders that are required.
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