Noveska v Citygroup Pty Ltd

[2005] ACTCA 38

NOVESKA v CITYGROUP PTY LTD & ANOR [2005] ACTCA 38 (9 NOVEMBER 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM A MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 27-2005
No. SC 363 of 2000

Judges:         Gray, Connolly and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date:            9 November 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 27-2005
  )          No. SC 363 of 2000
AUSTRALIAN CAPITAL TERRITORY    )
  )
COURT OF APPEAL  )

ON APPEAL FROM A MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:VESNA NOVESKA

Appellant

AND:CITY GROUP PTY LTD

First Respondent

AND:ACT HEALTH & COMMUNITY CARE SERVICES

Second Respondent

ORDER

Judges:  Gray, Connolly and Marshall JJ
Date:  9 November 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of the appeal.

IN THE SUPREME COURT OF THE       )          No. ACTCA 27-2005
  )          No. SC 363 of 2000
AUSTRALIAN CAPITAL TERRITORY   
  )
COURT OF APPEAL  )

ON APPEAL FROM A MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:VESNA NOVESKA

Appellant

AND:CITY GROUP PTY LTD

First Respondent

AND:ACT HEALTH & COMMUNITY CARE SERVICES

Second Respondent

Judges:  Gray, Connolly and Marshall JJ
Date:  9 November 2005
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. Mrs Vesna Noveska claims that she suffered a compensable injury in her employment as a cleaner at The Canberra Hospital on 19 November 1998. She claims that the injury arose as a consequence of the negligence of her employer and the relevant government health service.

1. Master Harper heard Mrs Noveska’s claim for damages for personal injury. He concluded that Mrs Noveska had not made out her case that she had suffered an injury. He found that, in the course of her cleaning duties a needle, or needles, had caused “at most a superficial scratch insufficient to break the skin”.

1. Mrs Noveska claims to have suffered from a bacterial infection after coming into contact with a needle or needles. However, the Master made the following finding (at [178]):

… any superficial breach of the outer skin layer was insufficient to be a source of bacterial infection. This falls short of an injury to the plaintiff’s person.

1. The main question for determination in this appeal is whether those critical findings of the Master were appropriate findings to be made by him on the evidence before him and whether proper inferences were made by him. For the reasons explained below, we consider that those findings were appropriate ones to be made on the evidence and that the inferences drawn by the Master were appropriate ones to be drawn. An issue also arises as to whether the Master should have assessed the damages flowing from Mrs Noveska’s suffering of anxiety and depression, given that those conditions allegedly stemmed from the incident in question.

1. On the morning of 19 November 1998, Mrs Noveska removed some plastic liner bags, including yellow bags marked as intended for infectious waste, from the plastic bins in the rooms on a particular ward of Canberra Hospital. After removing the bags, Mrs Noveska sealed them with a plastic tie and placed them on a trolley. She wheeled the trolley to a large yellow hopper labelled as a receptacle for bags of infectious waste. While lifting a full yellow bag from the trolley into the hopper, Mrs Noveska felt something sharp contact the back of her right hand.

1. The Master found at [160] that:

…the point of at least one of these needles came through the yellow bag as the plaintiff lifted it and pricked or scratched, without breaking the skin, the back of the plaintiff’s hand.

1. The Master accepted that Mrs Noveska had genuine pain in her right arm and has suffered from “a degree of anxiety and depression”. He said at [180]:

Despite that conclusion, I accept that the plaintiff has had genuine pain in the right arm, and has suffered from a degree of anxiety and depression.  An evaluation of the severity of her physical and psychological conditions is complicated by her exaggeration of her disabilities, both to the doctors who have seen her and to the Court.  I have found the plaintiff to be an unreliable historian and witness, and her unreliability casts doubt on the opinions expressed by almost all of the medical witnesses.

However the Master appears not to have accepted that these injuries arose from the superficial wound to Mrs Noveska’s right hand. Further, the Master considered that had he found in Mrs Noveska’s favour, he would not have found her guilty of contributory negligence on account of the lack of instruction given to her about safe transfer of bags from the trolley to the hopper.

1. The Master rejected Mrs Noveska’s evidence that she suffered punctures from the needles followed by an infection as well as redness and swelling of her arm. The Master also discounted evidence contained in notes from Mrs Noveska’s general practitioner, Dr Gillespie, which referred to a swollen and tender hand.

1. The Master noted Dr Gillespie’s unavailability to give evidence at the trial. His clinical notes could not be explained. The Master considered that the notes may have been a record of how Mrs Noveska described her injuries to Dr Gillespie rather than his observations of them. This treatment of Dr Gillespie’s evidence is supported by the Master’s acceptance of evidence of three nursing staff present on the morning of 19 November 1998 who saw Mrs Noveska immediately after the incident and did not observe any puncture marks. We consider that it was open to the Master to prefer the first hand accounts of the nursing staff. This is especially so, given that the Master found them to be credible witnesses but expressed doubts about Mrs Noveska’s credibility.

1. It was also open for the Master to reject the evidence of friends of Mrs Noveska concerning their alleged observation of her hand in the weeks and months following the incident. The Master was entitled to rely on the independent evidence of the nursing staff who were on the spot to tend to Mrs Noveska on the morning of the incident.

1. Is the mere pricking or scratching of the skin an injury? If so, is the bacterial infection that may have followed for a short time thereafter and the ensuing anxiety and depression compensable?   The Master said (at [179]):

Although the disabilities alleged by the plaintiff include depression, and her claim in supported by the evidence of a psychiatrist and a psychologist, the case has not been presented as one for purely psychological damage or nervous shock. The case has been pleaded and presented as one for damages for personal injury, with anxiety and depression as sequelae of later onset, secondary to the pain caused by the physical injury. In the circumstances, the plaintiff has not made out her case and cannot succeed.

1. In finding that no physical injury occurred in the incident, the Master found that any pain suffered by Mrs Noveska in her right arm was not related to the incident. Can it also be inferred from the Master’s findings that any anxiety and depression which Mrs Noveska suffered was not related to the incident?

1. We consider that the Master’s findings about anxiety and depression related to Mrs Noveska’s subjective fear as a result of her belief that she incurred an injury which led to puncturing and bleeding. There is no evidence that the mere scratching of her hand led her to have a genuine psychological reaction to the incident.

1. The Master must be taken in the passage of his reasons quoted above in [11], consistently with his findings that the needle or needles only caused scratching, that Mrs Noveska’s depression did not relate to that scratching or to the incident in itself. We consider that the depression found to be suffered by Mrs Noveska occurred as a result of her subjective view, not accepted by the Master, that she had suffered puncturing to her hand and consequent bleeding. In fact, that is how her case was presented below.

1. For the above reasons, it is a view that there is no appealable error in the Master’s reasons for judgment. The appeal is dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours, Justices Gray, Connolly and Marshall.

Associate:

Date:      14 November 2005

Counsel for the Appellant:  Mr B Meagher SC with Mr G Lunney

Solicitor for the Appellant:  Romano Satsia Kordis Legal

Counsel for the 1^st Respondent:  Mr F G Parker

Solicitor for the 1^ST Respondent:  Dibbs Abbott Stillman

Counsel for the 2^nd Respondent:  Mr F J Purnell SC with Mr I Bradfield

Solicitor for the 2^nd Respondent:  ACT Government Solicitor

Date of hearing:  8 and 9 November 2005

Date of judgment:  9 November 2005