Park v Hobart Public Hospitals Board

[1991] TASSC 187

Serial No B73/1991
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Park v Hobart Public Hospitals Board [1991] TASSC 187; B73/1991

PARTIES:  PARK, Rita Pauline
  v
  HOBART PUBLIC HOSPITALS BOARD

FILE NO:  204/1988
DELIVERED ON:  12 December 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B73/1991
Number of paragraphs:  37

Serial No B73/1991
File No 204/1988

RITA PAULINE PARK v HOBART PUBLIC HOSPITALS BOARD

REASONS FOR JUDGMENT  ZEEMAN J

12 December 1991

1. The plaintiff was employed as a hospital aide at the Douglas Parker Rehabilitation Centre ("the Centre") at New Town conducted by the defendant. At about 8.20am on 17 June 1987 the plaintiff was at work and engaged in taking breakfast orders in the dining room of the Centre. Whilst moving about in the dining room she fell to the floor and was injured. The plaintiff alleges that her fall and the resultant injuries were caused by the negligence of the defendant and/or by a breach of it of a statutory duty imposed by reg88(2) of the Industrial Safety Health and Welfare (Administrative and General) Regulations 1979. It is not disputed by the defendant that the plaintiff fell to the floor of the dining room on the occasion referred to by the plaintiff nor is it disputed by the defendant that the plaintiff was injured as a result of her fall. The defendant has denied that the plaintiff's fall was as a result of any breach of the defendant's duty of care towards the plaintiff or as the result of the breach of any statutory duty.

1. Central to the plaintiff's case is the state of the dining room floor at the Centre at the time that she fell. The particulars of negligence relied upon by the plaintiff may be paraphrased as asserting that the defendant failed to remove a slippery polish which had been applied to the dining room floor when it was, or ought to have been, aware that persons were slipping on that floor; that it failed to heed warnings that the floor was slippery; and that it failed to warn the plaintiff that the floor was slippery. The breach of statutory duty relied upon is that contrary to the provisions of the regulation to which I have referred the floor did not have a slip–resistant surface.

1. The particulars of negligence all proceed upon the basis that the floor was in fact slippery or, to put it in more precise terms, that the surface of the floor was such that it tended to render the foothold of persons who might be expected to use it insecure. Evidence relevant to that question was given by the plaintiff, a number of lay witnesses called on both sides, and two expert witnesses, one called by the plaintiff and the other called by the defendant. It is appropriate to consider that evidence in some detail.

1. Prior to 12 June 1987 the timber floor in the dining room at the Centre had an Estapol finish. Mrs Turner, who was the night cleaning supervisor at the Centre, formed the view that the floor was showing signs of wear and she discussed that with Mrs Vegelien, who was the housekeeper and catering supervisor at the Centre. Amongst the latter's duties was the supervision of cleaning staff. Mrs Vegelien had noticed that the floor was extensively scratched. Mrs Vegelien made enquiries as to what could be done to improve the appearance of the floor. She spoke to Mr Hooper, the defendant's general services manager. Mr Hooper's duties included being in charge of cleaning generally at the Royal Hobart Hospital. From time to time he was consulted on matters relating to cleaning at the Centre. He suggested to Mrs Vegelien that a product called "Clearax Slip Retard" be used on the dining room floor at the Centre. Mr Hooper had had some experience with that product, it having been used previously on timber floors at the Royal Hobart Hospital. Mr Hooper had experienced no problems with the application of this product at the hospital. Acting on Mr Hooper's advice, Mrs Vegelien arranged for the purchase of Clearax Slip Retard and instructed Mrs Turner to apply it to the dining room floor. It was so applied on the evening of Friday, 12 June 1987. Mrs Turner was not happy with the floor once the product had been applied. She said that the floor then "looked terrible". She said that "instead of having a nice, shiny, even surface it had swirls where we tried to get it off with the brush and there was wax still around the legs of the tables and it wasn't – it didn't look very nice at all." She said that she had applied it to the best of her ability, but had had some problems due to the inadequate lighting available in the dining room. Either on the same evening or on the evening of the following Monday or Tuesday she also applied the product to portions of the floor of the occupational therapy room at the Centre, those portions being in the area of two of the three doorways to that room. Whilst Mrs Turner said that the application to the floor of the occupational therapy room occurred on Friday or Monday she was a little vague about that. The evidence of Mrs Patmore, to which I refer shortly, suggests that the application may have occurred on Tuesday.

1. Mrs Watson is and was a waitress employed at the Centre. She was at work on Monday 15 June 1987. She noticed that the dining room floor had become slippery. As she entered the dining room from the kitchen, she found that her feet went from under her and she grabbed hold of a bench in order to steady herself. Later that same day she observed that when another employee, a Mrs Kelly, entered the dining room from the kitchen she, too, lost her footing and steadied herself by grabbing hold of Mrs Watson. She said that as a result she made a complaint about the state of the floor to Mrs Davis, who was then the acting manager of the Centre. She made that complaint either on the Monday or the Tuesday.

1. Sister Swinton has been employed at the Centre since 1982. At the time of the plaintiff's fall she worked on the Wednesday, Thursday and Friday of each week. Whilst she did not see the plaintiff lose her footing, she was in the dining room at the time that that occurred. She had seen the plaintiff walk normally in the dining room. Shortly thereafter she noticed that the plaintiff was on the floor. Later that day Sister Swinton was again in the dining room when she suffered an experience which she described as her feet nearly slipping "from underneath me" without warning. Whilst she could not recall precisely what footwear she was wearing, she said that she was required to wear what she described as "low sensible shoes" and that it was her practice to wear such shoes.

1. Mrs Patmore is an occupational therapist and in June 1987 she was employed as a therapy assistant at the Centre. She heard of the plaintiff's fall and said that that was the day upon which the staff in the occupational therapy department had erected signs drawing attention to the fact that the floor in the occupational therapy department was slippery. She said that initially those signs were erected at two entrances and that later in the day a further sign was erected in the middle of the floor. She gave some evidence as to events giving rise to the erection of those signs. She said that when she entered the room she slid and grabbed the door. About ten minutes later, as she was making to leave the room, the same thing happened to her. She observed that other persons were having the same difficulty. In particular, she noticed that the senior occupational therapist on duty slipped in the same area where Mrs Patmore had lost her footing. It was then that signs were erected.

1. The plaintiff's evidence was that whilst engaged in taking breakfast orders in the dining room she lost her footing and fell to the floor. Her own description was "My feet just slipped from under me and I fell." She said that part of her body struck the corner of a table as she fell to the floor. She said that prior to her fall she had been walking normally, wearing flat heeled leather boots of the type generally worn by staff at the Centre in winter. The boots had rubber soles and stacked leather heels tipped with rubber or latex. Her fall was observed by Mrs Watson, who corroborated the plaintiff.

1. I accept the evidence of the various witnesses as to their various falls, or near falls. Their evidence means that over the period of the first three working days after the application of the Clearax Slip Retard (or possibly over a shorter period in so far as the occupational therapy room is concerned), there is evidence that six persons (one of them on two occasions) lost their footing in the dining room or the occupational therapy room. Whilst Clearax Slip Retard had been applied to part only of the floor of the occupational therapy room, I infer that it had been applied to the areas found to be slippery by members of staff. If the evidence of the fall and near falls stood alone, it would satisfy me that as a result of the application of the Clearax Slip Retard, the surface of the floor in the dining room had become slippery to the extent that it rendered the foothold of persons who might be expected to use it quite insecure. However, there is other evidence to which I need to refer.

1. I have already mentioned the evidence of Mr Hooper as to his satisfaction with previous applications of the product at the Royal Hobart Hospital. That evidence I find to be of little assistance. It may be that the properties of the product applied at the Centre were somewhat different from that applied at the hospital. Whilst Mrs Turner's dissatisfaction with the product once applied appears to have been expressed on aesthetic grounds, it may be that a failure to apply it in a way which provided a clear surface resulted in the floor becoming slippery. Both Mrs Vegelien and Mrs Davis were called by the defendant. Mrs Vegelien said that she inspected the floor on the Monday after it had been applied. She was pleased with its appearance. That evidence was in marked contrast to the evidence of Mrs Turner. She said that she did not experience any difficulties in walking on the floor. She said that she was notified of the plaintiff's fall, whereupon she and Mrs Davis inspected the floor and attempted to slide their feet over its surface to test it for slipperiness. She did so wearing leather soled shoes, in her stockinged feet and wearing rubber soled shoes. She concluded that the floor was not slippery. Mrs Davis recalled that on the Monday there had been reports of two members of the kitchen staff slipping on the floor. She said that in the company of Mrs Vegelien she then inspected the floor (which, contrary to the evidence of Mrs Vegelien, would have been prior to the occasion of the plaintiff's fall). Again, she did not find the floor slippery. Notwithstanding her own findings, she reported the complaints of slipperiness to Mr Hooper. Further tests were done in his presence when the floor was not found to be slippery. In cross–examination, Mrs Davis admitted to having signed a statement dated 20 November 1987. In the course of that statement she said the following:

"The cleaning supervisor Mrs Vegelien was advised by the cleaning supervisor of the Royal Hobart Hospital, Mr Hooper to put a particular polish on the floor because it was becoming scratched.

The polish was put on and was obviously slippery. I could see people slipping and Mrs Vegelien rang Mr Hooper and complained.

He sent out two of his own men to take if off the floor.

The polish was noted as slippery and we thought it was the footwear. I was not slipping. Then more people started to slip so Mr Hooper was advised and he immediately set (sic) out two of his own men.

It was immediately removed.

It was probably on the floor for about three days.

I could not believe it was slippery as I tested it after the complaints had been made but then I saw people and realised so Mr Hooper was notified.

Mr Hooper called Mr Hardwick who advised him to use the polish and Mr Hardwick said that it was not slippery.

Rita was the only one who fell. The polish had been on the floor a couple of days before Rita slipped. It was really her fall which prompted the decision to remove the polish."

1. I accept that statement as being an accurate account of Mrs Davis' observations, it having been made at a time when the events would have been fairly clear in her mind.

1. The defendant called a consulting engineer, Mr England. On 22 April 1990 Mr England conducted tests on an area of the dining room floor to which Clearax Slip Retard had been applied. The parties have agreed as facts that the result of those tests was that the static co–efficient of friction between the Douglas Parker Rehabilitation Centre dining room floor and rubber soled boots was found to be 0.27 and that had those tests been carried out on 17 June 1987, the results would not have been different. The result of those agreed facts is that I can proceed upon the basis that on 17 June 1987 a static co–efficient of friction between the floor and rubber soled boots would have been 0.27. In Mr England's opinion, that static co–efficient of friction is not indicative of slipperiness.

1. The plaintiff called Mr Dohrman, an engineer with particular qualifications in human engineering or ergonomics. He has had considerable experience in teaching and consulting in areas concerned with friction and floor properties. Since 1981 he has been engaged on a full time basis as a consultant in occupational health and safety. That work requires him to frequently assess the safety of floors and floor surfaces. He referred to the American Standard Test for static co–efficient of friction of polish coated floor surfaces as measured by the James machine. That Standard includes amongst its definitions the definition of slip resistance, it being defined as "that property of a floor surface which is designed to prevent slipping. A surface having a static co–efficient of friction of 0.5 or greater as measured in accordance with this test method is considered to be a slip resistant surface." I should say at once that the James machine was not used to determine the static co–efficient of friction of the dining room floor at the Centre. Nevertheless, Mr Dohrman accepted that Mr England's method of determining the static co–efficient of friction was satisfactory. He said that the accepted standard in the literature for a slip resistant floor is that it has a static co–efficient of friction of at least 0.4. I accept that evidence. It follows that a static co–efficient of friction of 0.27 is indicative of a floor not being slip resistant. I prefer Mr Dohrman's opinion to that of Mr England, which I found somewhat unsatisfactory in a number of respects.

1. Notwithstanding the findings of supervisory staff when they tested the floor, the whole of the evidence leads me to the conclusion that in fact as a result of the application of the Clearax Slip Retard to the dining room floor the floor was such that it rendered the foothold of persons using it and wearing normal footwear insecure. I make that finding upon the basis of the experiences of various members of staff at the Centre to which I have referred coupled with the evidence of Mr Dohrman. Adopting the test accepted in the relevant literature referred to by Mr Dohrman during the course of his evidence, I also conclude that the surface of the dining room floor was not slip resistant so that it did not conform to the requirements of reg88(2). Clearly the dining room was a work place for the purposes of that subregulation.

1. The mere slipperiness of the floor is not conclusive of there having been a breach of the defendant's duty of care towards the plaintiff. The defendant's ultimate response to the fact that a significant number of the members of staff had slipped on the floor was to remove the product. That was an appropriate response. I am not satisfied that in all the circumstances the defendant was negligent in having failed to remove the product at a time earlier than when that was done. However, I am satisfied that the two remaining allegations of negligence relied on by the plaintiff have been made out. At the latest, on the day prior to the plaintiff's fall, the responsible supervisory staff employed by the defendant were aware that at least two members of staff had found the floor slippery and had lost their footing. That had occurred not long after the nature of the floor surface had altered. Whilst there was no specific evidence of this, Mrs Davis' written statement suggests that more than two members of staff may have slipped by Tuesday, although I can make no finding that that was so. By Tuesday, knowing that a new surface had been applied to the floor and knowing that at least two members of staff had found it slippery to the extent of losing their footing, it was incumbent upon the defendant to heed what it had been told about the floor. Notwithstanding the fact that senior members of staff had not found the floor slippery it was incumbent upon the defendant to warn members of staff of the fact that the floor had been found to be slippery. The defendant was not excused from giving such a warning merely because senior members of staff had concluded that the floor was not slippery. There is no suggestion that any of them were particularly qualified in judging whether or not a floor was slippery. The obligation imposed upon the defendant was to provide a warning to those members of staff who might be expected to use the dining room, of whom the plaintiff was one, that it had been found to be slippery. Had such a warning been given, it might be expected that the plaintiff would have taken particular care. She was given no such warning. The failure to give a warning to the plaintiff was a breach of the defendant's duty of care to the plaintiff. I therefore conclude that the defendant was negligent. That negligence was a legal cause of the plaintiff's injuries. In addition, the defendant was in breach of its statutory duty to the plaintiff. For the reasons I have expressed the floor did not satisfy the requirements of reg88(2). The defendant did not argue that if the floor did not comply with that subregulation such noncompliance would do other than provide the plaintiff with a cause of action against the defendant. Whilst the defendant has pleaded an allegation of contributory negligence, counsel for the defendant conceded that there was no evidence to support a finding of contributory negligence, so that I do not need to consider that matter. I turn to the assessment of the plaintiff's damages.

1. After her fall, the plaintiff got up feeling pain in the area of the lower back and left leg. She continued with the breakfast orders, and then consulted a general practitioner, Dr Townley. She then returned to work and completed her normal working day. She felt sore, with the pain getting worse. She returned to work on the following day and felt the pain getting worse. She again saw Dr Townley that day because of a worsening back pain and because she had noticed that a bruise on the left buttock, about 8 cm. across, had started to come out. On the next day she returned to work, but found that the pain was still getting worse. She then consulted her usual general practitioner, Dr Ayling. On examination, Dr Ayling found the plaintiff to be tender over the back of the right side of the chest and over both buttocks, with the left worse than the right, and in the sacral area. He noticed the bruise on the left buttock and some spasm of the muscles in that area. He considered that his examination disclosed a condition consistent with the plaintiff's history of her fall. Dr Ayling commenced ultrasound treatment. This continued on a daily basis until 6 July 1987. Whilst the plaintiff was undergoing ultrasound treatment, she continued at work. She found some difficulties in coping with that. She was having trouble walking in the course of her work. In particular she had difficulty in walking up ramps and stairs as that was productive of lower back and leg pain. Dr Ayling referred the plaintiff to a physiotherapist, Mr Poon. The plaintiff did not find that the physiotherapy treatment alleviated her symptoms. Dr Ayling then referred her to an orthopaedic surgeon, Mr Clements, who first saw the plaintiff on 13 August 1987. On 14 August 1987, the plaintiff was admitted to the St Helen's Private Hospital for the purpose of strict bed rest prescribed by Mr Clements, combined with a lumbar epidural injection. Until that admission to hospital, the plaintiff generally had continued at work, with difficulty, although she had had some periods of absence due to her injury. She had found that she was incapable of attending to most domestic duties. Those duties were performed by her husband and children. The plaintiff was admitted to the St Helen's Private Hospital on 1 October 1987 for six days for a discogram and CAT scan. On 13 October 1987 the plaintiff was admitted to Calvary Hospital by Mr Clements when a lumbar discogram was performed. The plaintiff was discharged on 15 October 1987. She returned to work on 19 October 1987, having been certified as fit to perform light duties. She was not then required to engage in heavy lifting, but nevertheless found difficulty in performing some of the duties which she was required to perform. Her duties as an aide included a number which she was not able to perform. Those duties included pushing heavy trolleys, dragging bags of soiled linen along corridors and various duties requiring her to stretch her body. The plaintiff continued on light duties for about a month when she was certified as unfit for work.

1. In December 1987 Mr Clements referred the plaintiff to Dr Michael Jackson. He examined the plaintiff on 14 December 1987. He found no overt neurological signs in the lower limbs. He found that straight leg raising on both the right and left was reduced to 75^o with pain, that there was pain on extension of the lumbar sacral spine, and that pain was produced on both right and left bending of finger tips to the knees. On 15 December 1987 the plaintiff had a trial of a TENS machine at St John's Hospital. She has subsequently been provided with a TENS machine, which she finds to be of benefit so long as she only uses it intermittently. Dr Jackson treated the plaintiff with lumbar epidurals on 16 December 1987 and 29 January 1988 which provided some initial relief, but that relief was not sustained. Subsequent to that, the plaintiff has had many admissions to hospital for facet blocks and nerve end blocks. Those procedures were carried out at times when she suffered an exacerbation of pain. Except for recent occasions, the procedure resulted in a period of pain relief, but on no occasion was that relief sustained.

1. On 27 June 1988 the plaintiff returned to work for the defendant on the basis of two hours per day in Central Supplies at the Royal Hobart Hospital. She found that she was required to stand at a machine sealing packages containing sterilized items, and that that standing and associated lifting and bending exacerbated her back and leg pain. On medical advice, she ceased performing that work on 11 July 1988 and did not again return to work until 4 August 1989, when the defendant provided her with work as a ward clerk at the Royal Hobart Hospital. She worked one hour per day. She obtained support from Mrs Young, a rehabilitation specialist. The plaintiff found her working conditions uncomfortable, being required to work at a bench with no seating provided. Her back pain worsened. On 15 August 1989 she was advised by the defendant that the position as a ward clerk was no longer available to her. The plaintiff thereupon enrolled in an adult literacy course to improve her reading and spelling skills, both of which were poor. She also enrolled in an adult education course designed to teach keyboard skills. She travelled to Claremont for the purpose of attending those courses which lasted for about a year. Subsequently she has pursued at least one further course, in computer bookkeeping, which she abandoned in order to commence full time employment with the defendant in July 1991. At that time, the plaintiff had difficulty in coping with stress and was consulting a psychologist, Miss Merse.

1. Whilst the plaintiff was still pursuing her studies at Claremont, the defendant made available a clerical position to the plaintiff. The position involved filing, typing envelopes, delivering facsimiles and photocopying in the Department of Neurosurgery at the Royal Hobart Hospital. The plaintiff commenced in that position on 6 January 1990, being employed for two hours per day. The plaintiff considered that she could cope with those duties, and continued to work until 18 January 1990 when she was told that the position was no longer available to her, but that a position was available in the Department of Social Welfare at the hospital. That position involved filing for three hours per day, five days per week. The plaintiff considered that she coped with that work. She was then transferred to the PAD scheme section, but only upon the basis of working three hours one day per week. The nature of the plaintiff's duties in that section was not made clear. By May 1991 the plaintiff had been paid the whole of the maximum amount of weekly payment payable to her pursuant to the provisions of the Workers' Compensation Act 1927. When that occurred, the defendant terminated her employment.

1. On 4 July 1991 the defendant made an offer of further employment to the plaintiff. The position was that of office assistant at the Centre with duties involving keyboard work, associated with some clerical duties and relief switchboard work. The position was offered upon the basis that the appointment was in a temporary capacity for a period of three months, during which time an assessment would be made as to the likelihood of the position being on–going. The plaintiff commenced in that employment on 9 July 1991. She found the work stressful. She considered that she received inadequate instruction in the operation of the computer. By the end of the day she found that her back pain had increased. She was worried that other members of staff would consider her too slow. As a result, she had difficulty in sleeping at night. She sought the advice of Miss Merse. As a result of that advice, she arranged with the defendant to reduce her working day to half time from 15 July. As the standard of her keyboard work was unacceptable to the defendant she was transferred to the medical block to assist in updating statistics on that same day. Finally, on 19 July 1991, Mr Miller, the manager of the Centre, gave the plaintiff a week's notice of the termination of her employment. The plaintiff has not worked since. The plaintiff was distressed by the termination of her employment. She considered that she had worked hard to improve her skills, only to find that her efforts did not produce any benefit to her.

1. Mr Clements expressed the opinion that the likelihood is that the plaintiff has suffered an internal disc derangement probably involving the L4–5 lumbar disc. A consultant neurosurgeon called by the defendant, Mr Southby, expressed the view that the plaintiff had suffered an injury which brought on or aggravated minor degenerative changes in the lumbar spine with, in particular, some slight degeneration in the L5–S1 disc. Dr Jackson thought that the plaintiff has segmental instability with a possible discogenic problem at the L3–4 disc and with a possible additional problem with the L5–S1 disc. Whilst there was no coincidence of views amongst the three practitioners, they were in broad agreement on a diagnosis of lumbar disc injury which I find the plaintiff suffered as a result of her fall and which is and has been productive of her symptoms. When Mr Clements examined the plaintiff on 19 July 1990 the plaintiff was undergoing a regime of weekly physiotherapy, the use of a TENS machine, non–narcotic analgesia and non–steroidal anti–inflammatory medication. He formed the view that at that time the plaintiff still remained unfit for work involving repetitive bending, lifting and twisting activities, and for work which required her to spend prolonged periods of time in a stooped or standing position. However, he considered that she was then fit for full time employment of a restricted nature, not involving such activities. When he saw her again on 18 July 1991 he found the plaintiff more cheerful than she had been on previous occasions. That state was no doubt explained by the fact that she had recently commenced a position at the Royal Hobart Hospital, albeit that that was to be terminated on the day after she saw Mr Clements. Her gait and mobility were normal. Lumbar spinal movement was somewhat restricted. In the standing position she was able to flex forward such that her fingers reached within approximately twelve inches from the floor. Her straight leg raising ability on each side was unrestricted, and neurological examination relating to the lower limbs was normal. The plaintiff remained slightly tender to palpation over the lower lumbar spine. Mr Clements examined the various muscle groups which, in his view, are essential for rehabilitation of chronic spinal problems, namely the abdominal musculature, the extensor spinal musculature, gluteal muscles and the quadriceps.  He found all to be extremely weak. The plaintiff was unable to squat due to quadriceps weakness. In the supine position she was not able to raise her head and shoulders from the examination couch. In the course of his evidence, there was read to Mr Clements evidence which the plaintiff had given as to the exercises performed by her on the advice of her physiotherapist. This evidence then proceeded as follows:

"QAt page 102 to the exercises now, Doctor: 'What exercises have you been advised to do?', answer: 'Step ups, heel and toe raises'. Question: 'By step up, that's literally going on one foot after the other up a step and back down again?', answer: 'Yes, that's right, yes'. Question: 'You do that as a repetition how many times?', answer: 'Oh, twelve times on each side because depending on which way you go it's a different gait, that's twelve on each leg'. Question: 'Yes, and I think you said toe and leg raises? ... Yeah, walk on your toes and walk on your heels, walk on your toes both back and front. Do that about six or seven times just to get the balance as well as the walking gait'. Question: 'And is this done on a daily basis, these exercises?', answer: 'I do that at home, yes'. Now is that method of exercising an appropriate one for Mrs Park in the light of her injuries?

AIt is appropriate but it's inadequate. Totally inadequate.

QRight, in what – what additional exercises would you suggest?

AWell, anybody that has a bad back has to rehabilitate their abdominal muscles, their spinal musculature, their shoulder girdles, their quadriception muscles and their buttock muscles. There are four basic sets and if those – if attention is not paid to those sets of muscles, the patients won't be able to – I don't believe they'll improve and Mrs Park has not done any of those.

QRight. Now, if Mrs Park were to undertake appropriate exercises for those four sets of muscles and was able to stay with those exercises, what effect would it have in your opinion on her level of back pain?

AI believe it would have significantly diminished. I'm unable to say that it would have completely settled but it would have significantly diminished such that she would have been able to perform her activities far more efficiently than she has been able to.

QAnd could you look to the future and answer the same question please?

AOnce again I would say that it could only improve her significantly.

QIs it likely that she would be able to return to any heavy style of work?

ANot heavy manual type work but I think she would be able to over a period of time if she could rehabilitate herself in the way that I have suggested I think she would be able to commence work with her previous type of duties if she were able to comply with a programme that is set out for her. It wouldn't be a programme that would give instantaneous results over 2 or 3 weeks; having been off work for 3 or 4 years you don't just get back to work in 2 or 3 weeks so it would be a slow process increasing slowly but provided she did the right exercises I think she would be able to do it.

QRight. From a physical point of view, is there anything in relation to the exercises which would make them difficult for her to do bearing in mind the type of injury she suffers?

AI don't think so. The heavier duties that she might be required to perform, I can't see any point in suggesting that she do the mopping or the vacuum for 3 hours at a time, this is only going to aggravate things but at this stage of the game I think she would make a start if the employer is able to provide her with a reasonable time table for resuming work or some form of restricted duties.

QI think you may have misunderstood my question, it might not have been put very well. Is there anything about the exercises themselves which would physically make them difficult? To put it another way, will the exercises themselves trigger some back pain that will need to be put up with by Mrs Park while she does the exercises?

AI'm sorry. There would be slight discomfort but it is a matter of pushing on through that discomfort and starting the exercises at a suitable level. In other words you basically essentially you must learn to crawl before you can walk and walk before you can run. And if she could do the same thing with her exercises starting off gradually, she would progress."

1. I found Mr Clements' evidence as to the expected beneficial effect of an alternative exercise programme somewhat surprising. The exercise programme carried out by the plaintiff has been prescribed by her physiotherapist, Miss Martin. Miss Martin has noticed an improvement in the plaintiff's muscle power. Whilst it may be assumed that the defendant was on notice as to the views to be expressed by Mr Clements, they were not specifically put to Miss Martin. Bearing in mind Miss Martin's ongoing involvement with, and assessment of, the plaintiff I accept her views that the plaintiff has built up appropriate muscle groups by exercise but that nevertheless she remains unfit. I am not persuaded that a different programme would have the dramatic effect suggested by Mr Clements. In any event in his report of 6 December 1988 Mr Clements expressed the view that he doubted that the plaintiff would ever be able to resume her previous occupation as a hospital aide or cope with any work that required her to stand or sit in the one position for any prolonged period of time. In evidence Mr Clements confirmed his continuing adherence to the opinions expressed in his report of 6 December 1988. It was made clear by Mr Clements, in cross–examination, that he was not suggesting that the plaintiff would ever be fit to perform the heavier aspects of the work of a cleaner or hospital aide.

1. In assessing the plaintiff's damages for non–economic loss, I accept her evidence as to the extent of her pain and discomfort to date, including pain and discomfort attendant upon the numerous medical and para–medical procedures which she has undergone. I do not accept that a short exercise programme of the type described by Mr Clements is likely to eliminate the plaintiff's present symptomology of on–going pain. Whilst I do not reject the view that such a programme might be of benefit to the plaintiff, the following factors are relevant:

(a)Had such a programme constituted an obvious cure for the plaintiff's symptoms, I might have expected Mr Clements to have recommended it earlier.

(b)Miss Martin gave evidence of the current exercise programme, and no suggestion was made to her by counsel for the defendant that it was inappropriate.

(c)The evidence I have falls short of enabling me to be satisfied to any extent as to precisely what it is that the plaintiff would be required to do by way of an alternative programme and judge that against her physical and emotional capacity to rigorously adhere to the required programme.

(d)Mr Clements' expectations may well be misplaced.

1. I am satisfied that a combination of the plaintiff's continuing back and leg pain and lack of skills resulted in her being unable to perform most of the duties made available to her by the defendant from time to time. The continuing pain combined with her inability to work has had a number of other effects upon the plaintiff's amenity of life. The relationship between her and her husband has deteriorated. They now lead separate social lives. Prior to her fall she and her husband enjoyed attending social functions together. They now find it difficult to talk to one another. The frequency of sexual intercourse has markedly reduced. Whilst Dr Burges–Watson, a specialist psychiatrist consulted by the plaintiff and called by her, has been equivocal as to his diagnosis, his evidence does confirm the view which I formed of the plaintiff, namely, that she has suffered extensive periods of depression as a result of a combination of pain and an inability to remain in the workforce. I am satisfied that the plaintiff enjoyed being in full time employment and that once she accepted that her physical limitations prevented her from following her former occupation, made every endeavour to qualify herself to take up alternative forms of employment. Nevertheless, those endeavours have not met with ultimate success. The plaintiff's present level of motivation is low. That low level of motivation is the result of her lack of success in previous endeavours. The plaintiff's sleep is affected. Initially she suffered broken sleep. She woke if she rolled on to her left side as that produced pain in the left leg. She now sleeps on a foam mattress and sheepskin with pillows under her knees. Worry about her perceived inadequacies keep her awake. The plaintiff played ten pin bowling and badminton on a weekly basis. Her pain does not now enable her to participate in those sports. She engaged in jogging, sometimes in the company of her husband. She is no longer able to do so.

1. In so far as the future is concerned, I will proceed to assess the plaintiff's damages for non–economic loss upon the basis that there is a substantial likelihood that her present symptoms will largely remain unchanged during her lifetime. I tentatively attribute the sum of $25,000.00 to the plaintiff's non–economic loss.

1. As to the plaintiff's loss of past earning capacity the quantum of that is agreed at $67,677.69 for the period up until 2 May 1991. It has further been agreed that had the plaintiff continued in her employment as a hospital aide from 2 May 1991 until the date of trial, her net weekly wage would have been $309.15. Largely her loss of earning capacity up until the date of judgment can be quantified by reference to that weekly sum with little being required by way of an allowance for contingencies. I tentatively attribute the sum of $77,500.00 to the plaintiff's loss of past earning capacity.

1. I turn to the question of the plaintiff's loss of future earning capacity. At the time of her fall, she had been employed by the defendant for some 12 years, initially as a part time cleaner and then as a hospital aide for the last six years. There is no suggestion but that her employment was secure and the performance by her of her duties satisfactory. She is married with two children aged 19 and 20. She is aged almost 41, having been born on 21 December 1950. She left school at the age of 15, having partially completed Gr 9. She obtained no formal qualifications, and at school was placed in what she described as the lowest stream. She said that she did not do very well at school. Her standard of education is indicated by the fact that when she enrolled in the keyboard skills programme, she also enrolled in an adult literacy course. Apart from her employment with the defendant, the plaintiff had little experience in the workforce other than working as a shop assistant for about a year when she first left school. I infer that prior to her fall, she was quite capable of performing all the duties of her position, many of which involved functions of a physically demanding nature. No medical practitioner called appeared to disagree with the proposition that she is now incapable of performing such functions and would be incapable of performing them even if the exercise programme recommended by Mr Clements was carried out successfully. The termination of her employment by the defendant was not solely based upon her physical disabilities. An internal confidential staff report prepared by the defendant on 26 July 1991 contains the following material:

"Mrs Park commenced duty on 9 July, 1991 and was shown her duties. These involved the entering and checking of daily accounting statistics provided by departments at the Centre then entering details of patient visits onto the computer system. She was advised that accuracy of input was essential as patients were billed by the system from the input.

After two days it was apparent to both her supervisor and herself that she was too slow to keep up with the tasks assigned which usually only take about half a day. It was also evident that she did not possess the ability to accurately transfer the details to the computer as a number of errors were identified. We then were forced to hire temporary staff to catch up on the backlog of clerical work leaving Mrs Park more time to carry out the keyboard work. She was still unable to perform the duties with accuracy and she was also too slow in input.

It had been intended that Mrs Park be trained in the use of the PABX switchboard as a relief telephonist, however she informed the senior clerk that she did not wish to do this, she only wanted to do keyboard work.

It became apparent by the end of the week's work that Mrs Park had rather poor keyboard skills, lacked concentration in the public area in which she worked, was concerned at having to perform more than one activity at a time (eg answering the telephone), felt stressed by working in a busy area and felt uneasy that she was being judged by other staff. She left this area willingly and was placed in the Medical Block to assist in updating nursing statistics. This occurred on 15 July, 1991, however, she was only working four hours per day by this time (actually from 15/7/'91).

Whilst in this area she prepared team lists by transcribing names, referral dates etc., carried out photocopying duties, carried lists around the Centre, tidied up the treatment room, carried messages, and answered the phone.

She performed these simple tasks in a very satisfactory manner, was always punctual and expressed her pleasure at being able to work again.

On Friday 19 July, 1991 I spoke to Mrs Park regarding her performance and informed her that she was hired to carry out duties in the Medical Records/Accounts area and that we could fund this because of a vacant position. There was no vacancy in the nursing area for clerical/general duties so I advised her that her services would no longer be required after Friday 26 July, 1991."

1. That report is indicative of the present and future capacity of the plaintiff to earn income. Accepting that she is no longer fit to perform work requiring significant physical exertion, the question must be asked as to what she is still able to do. That question must be answered by reference to her intellectual capacity. That capacity would not appear to extend to performing clerical duties of any degree of complexity or those requiring literacy and keyboard skills. Counsel for the defendant suggested to the plaintiff that she might improve her chances of obtaining employment by further training. The plaintiff did not entirely disagree with that proposition but made it plain that she was not inclined to undertake further courses unless she had some assurance that that would result in her obtaining employment. I have concluded that further training is unlikely to do much by way of widening the plaintiff's employment opportunities. Obviously she is a person whose intellectual capacity is limited and no amount of training will enable her to function at a level above her capacity. Her capacity to perform simple tasks such as those carried out by her in the medical block at the Royal Hobart Hospital would appear to be largely unaffected, although the availability of such work to her may be doubted. The defendant employs almost 2,000 persons, and whilst a large proportion of those are no doubt skilled personnel, I infer that unskilled personnel are required in various areas. The defendant has not been able or willing to find a position suitable for the plaintiff. I infer that the defendant has one of Hobart's largest workforces and its inability or unwillingness to find suitable employment must be taken as some indication of the plaintiff's prospects of obtaining suitable employment in the future. The defendant declined to take steps with a view to placing the plaintiff in employment with some other government department or agency.

1. An application of the agreed multiplier of 571 to the agreed current net wage of $309.15 which the plaintiff would have been receiving had she presently been in the defendant's employ as a hospital aide results in the sum of $176,524.65, as the present value of that weekly wage to the date upon which the plaintiff attains the age of 60, that being the age at which the plaintiff had intended to retire. I consider that figure to be the appropriate starting point with a view to assessing the plaintiff's future loss of earning capacity. The following further factors need to be taken into account:

(a)The plaintiff has some residual earning capacity, although I consider it to be minimal. In particular, in current circumstances of high unemployment the likelihood of the plaintiff being able to utilize such residual earning capacity as she has must be regarded as minimal.

(b)The plaintiff's husband has never been happy about the plaintiff being in full time employment, and as the plaintiff and her husband aged and became financially secure, her husband's attitude might have induced the plaintiff to retire early or to reduce her working hours.

(c)The plaintiff might not necessarily have ceased to be employed in remunerative employment upon attaining the age of 60. The impression I formed of her was that she was the sort of person that if after retirement casual work were to become available, particularly of a part time nature, she might well have been minded to do such work to supplement the family income if she was then physically fit.

(d)The usual contingencies.

1. Upon the basis of those considerations, I tentatively attribute the sum of $117,683.00 (being two–thirds of the sum which I have mentioned) to the plaintiff's loss of future earning capacity.

1. The plaintiff is likely to require some future medical and paramedical treatment. She is currently undergoing physiotherapy but there is some doubt as to the future of that. If Mr Clements' views are correct, then expenditure of between $162.00 and $324.00 (upon the basis of 6 – 12 treatments at $27.00 each) should effectively provide the plaintiff with all the physiotherapy which she requires. The plaintiff's physiotherapist, Miss Martin, suggested a more extensive programme so that during 1992 the plaintiff would receive physiotherapy weekly over periods of four weeks, with gaps of three to four months in between. She did not suggest physiotherapy beyond 1992. Her programme might require twelve treatments during 1992 at a cost of $324.00. I tentatively attribute that sum to future physiotherapy.

1. There is some suggestion in the evidence that the plaintiff might undergo facet blocks in the future. She first underwent a facet block in December 1987, then on four separate occasions in 1988, and three occasions in 1989. She has not undergone any further facet block except in October 1990 when she underwent facet block, nerve root and disc block. Whilst on the earlier occasions the facet blocks provided temporary relief from pain, that does not appear to have been so on more recent occasions. The plaintiff expressed no firm intention of undergoing any further facet blocks. She has had medical advice that further facet blocks may not be appropriate. There was no medical evidence indicating that that procedure might be appropriate in the future, although the plaintiff said that "it's the only way for me to get rest so I have them". I am not persuaded that the plaintiff is likely to undergo further facet blocks. I am not persuaded that they will be called for from a medical point of view. It is reasonable to suppose that the plaintiff will require some services from a medical practitioner other than a psychiatrist in the future although the extent of that is obscure. I tentatively attribute $2,500.00 to future medical expenses.

1. The plaintiff is likely to benefit from some group psychological counselling arranged by Miss Merse, and some further consultations with Dr Burges–Watson. I attribute the sum of $640.00 to the cost of future psychological counselling. Dr Burges–Watson's opinion as to the number of consultations with a psychiatrist appropriate for the plaintiff to receive psychotherapy was unchallenged in cross examination, and I accept it, although with some reluctance. I tentatively attribute $5,680.00 to the cost of future psychotherapy upon the basis of 40 consultations of $142.00 each (most of which would occur during the next six months).

1. The plaintiff will continue to require various forms of medication. In order to deal with pain, she will require at least Digesic tablets. In addition, to deal with her depressed state she will require an anti–depressant such as Tofronil, coupled with a hypnotic such as Normison. The plaintiff will probably need to take Digesic for the rest of her life, although the extent to which she requires it may well decline, particularly if her current exercise programme is successful in further building up her muscles. Dr Burges–Watson referred to the other medication as being taken in conjunction with psychotherapy and I did not understand him to suggest that such medication was called for beyond such period of therapy. There are a number of unknowns in assessing damages for future pharmaceuticals and the plaintiff's evidence on the subject was a little obscure. Doing the best I can, I tentatively attribute the sum of $7,500.00 to this item.

1. In summary, I have tentatively attributed the following amounts to the various components of the plaintiff's general damages:

Non–economic loss  $25,000.00

Loss of past earning capacity  77,500.00

Loss of future earning capacity  117,683.00

Future physiotherapy expenses  324.00

Future medical expenses  2,500.00

Future psychotherapy expenses  5,680.00

Future psychological counselling expenses  640.00

Future pharmaceutical expenses  7,500.00

$236,827.00

1. Rounding off that amount, I assess the plaintiff's general damages at $235,000.00. The plaintiff's special damages were agreed at $37,864.79, of which sum $37,705.45 has previously been paid by the defendant pursuant to the provisions of the Workers' Compensation Act 1927. In addition, the plaintiff received weekly payments under that Act totalling $67,677.69. It follows that the amount to which the plaintiff is entitled is as follows:

General damages  $235,000.00

Special damages  $_37,864.79

  

$272,864.79

Less payments made pursuant to the provisions

of the Workers' Compensation Act 1927  105,383.14

$167,481.65

1. Accordingly, there will be judgment for the plaintiff for $167,481.65.