Richards v Cornford
[2009] NSWDC 60
•7 May 2009
CITATION: Richards v Cornford [2009] NSWDC 60
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): March 4-6, 2009
JUDGMENT DATE:
7 May 2009JURISDICTION: Criminal JUDGMENT OF: Murrell SC DCJ CATCHWORDS: WORKPLACE INJURY - work trial - "engaged under a contract of service" - unloading accident - "caused by a defect in the vehicle" - "obvious risk" - "inherent risk" - requirement to plead defences in Division 4 of the Civil Liability Act. DISTRICT COURT EXTENDED JURISDICTION LEGISLATION CITED: Civil Liability Act 2002 Division 4
District Court Act 1973 s51(1)
Motor Accidents Compensation Act 1999
Motor Accidents Act 1988
Uniform Civil Pocedure Rules 2005
Workplace Injury Management and Workers Compensation Act 1998CASES CITED: Allianz Aust v GSF Aust [2005] HCA 26
Angel v Hawkesbury City Council [2008] NSWCA 130
Bebe v Woolworths Limited (District Court of New South Wales, Elkaim J, 11 July 2008, unreported)
Birkett v Tubbo Estate Co Pty Ltd (1997) 14 NSWCCR 369
Dederer v Roads & Traffic Authority [2005] NSWSC 185
Dietrich v Dare (1980) 30 ALR 407
Drzyzga v G & B Silver Pty Ltd [1994] NSWCC 12
Helmers v Department of Corrective Services (1997) 14 NSWCCR 248
MD v Sydney South West Area Health Service [2009] NSWDC 22
Port Stephens Council v Theodorakakis [2006] NSWCA 70
Teen Ranch Proprietary Ltd v Brown (1995) NSWCCR 197
Toll Pty Ltd v Dakic [2006] NSWCA 58
TNT Australia Pty Ltd v Christie [2003] NSWCA 47
Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261PARTIES: Danielle Richards (Plaintiff)
Ian Cornford (First Defendant)
Taringha House (Second Defendant and Cross-Claimant)
QBE Insurance (Australia) Limited (Cross-Defendant)
NRMA (Intervenor)FILE NUMBER(S): 4344/05 COUNSEL: Mr Lidden SC for the Plaintiff
Mr Rowe for the First and Secod Defendants (and Cross-Claimant)
Mr Stewart for the Cross-Defendant
Mr Khandhar for the Intervenor
1 Danielle Richards applied for a position as a truck driver with Ian Cornford and Taringha House Pty Ltd. By way of undertaking a "work trial", on 2 August 2004, she accompanied Mr Cornford when he drove a truck on delivery rounds. Mr Cornford collected a full truckload of milk pallets and drove to Coles, Lindfield. There, Ms Richards observed him to unload one pallet using a manual pallet jack to transfer the pallet from the rear of the truck on to a horizontal tailgate loader. The tailgate loader was lowered to the ground by mechanical means and the pallet was wheeled off the loader. Wishing to improve her job prospects, Ms Richards offered to unload the second pallet. When the pallet was positioned over the tailgate loader, Mr Cornford startled Ms Richards by yelling "drop it, drop it". She "dropped" the pallet. She then fell a distance of over 1 metre from the end of the tailgate loader to the ground. She injured her right knee. Since then, she has not worked.
2 Taringha House was insured by QBE Insurance (Australia) Limited against personal injury caused by negligence. QBE refused indemnity for the accident. The policy excluded indemnity if the injured person was "engaged under a contract of service" (ordinarily, such injury would be covered under workers compensation legislation) or the injury occurred " in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during…. such use or operation by a defect in the vehicle" (ordinarily, such injury would be covered by motor accidents legislation).
Issues
1. The manner in which the accident occurred and whether the defendants breached their duty of care to Ms Richards.
2. The application of Division 4 of the Civil Liability Act 2002
3. Contributory negligence.
4. Whether Ms Richards was “engaged under a contract of service”.
5. Whether the accident was caused "by a defect in the vehicle".
6. Damages.
7. Whether the Court has jurisdiction to award damages in excess of $750,000.
Breach of Duty of Care
3 Ms Richards had used a manual pallet jack on 10 or 15 prior occasions. She had no experience using a pallet jack to shift pallets from a tailgate loader to the ground and she told Mr Cornford that she had no such experience.
4 Ms Richards attempted to imitate the pallet movement that Mr Cornford had undertaken. Apart from the “demonstration” and direction to “drop it, drop it”, Mr Cornford gave no instruction in relation to performance of the task.
5 When Mr Cornford unloaded the first pallet, he walked backwards out of the rear of the truck. He moved the pallet completely onto the tailgate loader and clear of the truck interior, enabling the tailgate loader and pallet to be lowered to the ground. It was difficult to position the pallet on the tailgate loader because of the dimensions of each. The tailgate loader was 1.91 metres deep. The pallet was 1.2 metres square. From the pallet, the jack tynes protruded 5 or 10 cm on one side and the wheel edge of the pallet jack protruded 30 to 40 cm on the opposite side, giving the pallet and jack a total length of 1.55 to 1.7 metres. As Mr Cornford walked backwards onto the tailgate loader, his feet had to be accommodated on the tailgate loader. In order to accommodate 1.7metres of pallet/jack plus his feet, Mr Cornford swung the pallet/jack through an arc to the transverse position illustrated in photograph 5 to Mr Adams report. That figure understates the real size of the pallet/ jack vis-a-vis the tailgate loader. When Mr Cornford swung the pallet to the transverse position, his feet necessarily came very close to the rear sloping portion of the tailgate loader depicted in photographs 11 and 12 to Mr Adams report. As the laden pallet weighed 800 to 1000 kg, operator force of 15 to 40 kg was required to maintain pallet movement. Greater force was required to initiate or terminate pallet movement.
6 Ms Richards recalled concentrating on the task of placing the pallet in the transverse position so that no part remained within the truck. She was standing on the flat part of the tailgate loader, close to the rear sloping portion. Without prior warning, Mr Cornford yelled very loudly from “ a couple of feet" to her left "drop it, drop it". She pulled the lever to "drop" the pallet. She then moved in a sideways direction over the back of the tailgate, falling more than a metre to the ground. She landed on her right side. Ambulance and nursing notes (Exhibit 2) record that, soon after the accident, Ms Richards said that her right knee had twisted before she fell off the truck. In evidence, Ms Richards conceded that, while she no longer recalls twisting on her right knee when she was still on the truck, she may have done so when Mr Cornford yelled.
7 The defendants argued that, as the whereabouts and means by which Ms Richards sustained a right knee injury were unclear (in particular, whether it occurred on the tailgate loader or when she fell to the ground), it was not possible to identify what, if any, breach of duty of care caused the injury.
8 The mechanics of the injury are readily inferred. Ms Richards was an untrained and inexperienced operator who was permitted to work in a precarious location. She was visually and mentally focused on a delicate operation involving a heavy load. She was facing towards the front of the truck, rather than the rear. At the worst possible time, she was startled by a shout from her left. She involuntarily moved or twisted to her right. In that move, she lost her balance, probably because she inadvertently stepped from the flat part of the tailgate loader onto the sloping part. The right knee injury may have occurred when she moved or twisted on the tailgate loader but, as Ms Richards was a very large woman who fell more than a metre and landed on her right side, it is very likely that the injury occurred when she landed.
9 The defendants breached their duty of care to Ms Richards in that, knowing that she was inexperienced in the task, they permitted her to undertake a difficult operation in a precarious location without adequate instruction and without the opportunity to first practise in safety (for example, using an unladen pallet at ground level). Further, without prior warning and at a critical stage, Mr Cornford yelled at Ms Richards from a distance of "a couple of feet" and startled her.
Division 4 of the Civil Liability Act
10 In submission, the defendants argued that the risk of falling from the tailgate loader and thereby sustaining injury was an "obvious risk" within s 5F of the Civil Liability Act 2002 (CLA), of which Ms Richards was presumed to have been aware (s 5G) and in relation to which there was no duty to warn (s 5H). Alternatively, the fall was the materialisation of an "inherent risk" and section 5I of the CLA excluded liability.
11 The provisions of the CLA were not pleaded in the defence. Nor was Ms Richards cross - examined in a manner that clearly raised "obvious risk" or "inherent risk". Predictably, when the defendants made the relevant submissions, Ms Richards was taken by surprise.
12 Part 14 r 14 (2) of the Uniform Civil Procedure Rules 2005 (UCPR) provides:
- "In a defence or subsequent pleading, a party must plead specifically any matter:
(a) that, if not pleaded specifically, may take the opposite party by surprise, or
(b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or
…"
13 Where failure to do so may give rise to procedural unfairness, the provisions upon which a defendant wishes to rely should be pleaded: Port Stephens Council v Theodorakakis [2006] NSWCA 70 at [15], MD v Sydney South West Area HealthService [2009] NSWDC 22. Consequently, in this case the defendants may not rely upon the relevant provisions.
14 In any event, the risk of falling off the tailgate loader and thereby sustaining injury was neither an "obvious risk" nor an “inherent risk” within the meaning of the CLA. Section 5F defines "obvious risk" in the following terms:
"(1) For the purpose of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances , would have been obvious to a reasonable person in the position of that person." (emphasis added)
15 The reference to "obvious risk" is a reference to the risk of harm, i.e. injury resulting from the danger and not a reference to the danger itself: Dederer v Roads & TrafficAuthority [2005] NSWSC 185. The relevant risk must have been obvious to a reasonable person "in the circumstances": Angel v Hawkesbury City Council [2008] NSWCA 130.
16 In the present case, the circumstances included the fact that Ms Richards was facing away from the rear of the tailgate loader, was focused on positioning the pallet and was unaware that Mr Cornford would call out in a loud voice. In those circumstances, the risk of injury from falling from the tailgate loader was not an "obvious risk".
17 Even if there was an “obvious risk” upon which the defendants were entitled to rely, in this case the only relevance of that risk would be to obviate any common law duty to warn: s 5H. Ms Richards did allege a failure to warn, but that allegation was not critical to her case on breach of duty of care.
18 The defendants argued that the risk of falling off the back of the tailgate loader was an "inherent risk". In relation to “inherent risk”, s 5I provides:
- "(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill."
19 When Mr Cornford unloaded the first pallet he did not fall off the back of the tailgate loader, thereby demonstrating that the risk of falling off the tailgate loader could be avoided if an operator was suitably skilled and was not startled at a critical time. In other words, the risk could be avoided by the exercise of reasonable skill and care. It was not an “inherent risk”.
Contributory Negligence
20 The defendants argued that one cause of the injury was Ms Richards failure to take care for her own safety.
21 I am not satisfied that Ms Richards fell short of the standard to be expected of an inexperienced operator. Indeed, she was doing her utmost to perform the task satisfactorily as she wished to impress Mr Cornford with her proficiency.
“ Engaged Under A Contract of Service”
22 The QBE insurance policy provided indemnity for liability in respect of personal injury in connection with business: clause 2.1. Clause 3.1 excluded liability in the following circumstances:
Personal Injury to any employee arising directly or indirectly out of or in the course of their employment in Your Business …“3.1 Employment Liability
(c) which You are or would have been entitled to seek indemnity under any policy of insurance required to be taken out pursuant to any legislation relating to workers’ or workmen's compensation …
For the purpose of this Exclusion 3.1 "employee" shall mean any person engaged under a contract of service or apprenticeship with You but does not include any person employed under such a contract who is excluded from the definition of worker under any workers compensation legislation.” (emphasis added)
23 The Workplace Injury Management and Workers Compensation Act 1998 requires that any “worker” be insured. Under section 4, "worker” is defined to mean “a person who has entered into or works under a contract of service …" (emphasis added). QBE submitted that Ms Richards was working under a "contract of service". As a "worker", she should have been indemnified under a workers compensation policy. Consequently, liability was excluded under clause 3.1. QBE relied upon TNT Australia Pty Ltd v Christie [2003] NSWCA 47.
24 The facts in TNT differed from the present case. In TNT, the employer had full day-to-day control over work activities. Even where work is subject to direction and control, that fact does not necessarily establish a contract of service: Helmers vDepartment of Corrective Services (1997) 14 NSWCCR 248. A contract of service involves a mutuality of obligation: Birkett v Tubbo Estate Co Pty Ltd (1997) 14 NSWCCR 369. When considering whether there is a contract of service, the critical question is whether the arrangement between the parties evidences an intention to enter into legal relations: Teen Ranch Proprietary Ltd v Brown (1995) NSWCCR 197. Respectively, in Helmers, Birkett and Teen Ranch, it was determined that a prisoner, a work experience student and a volunteer working with a non-profit Christian organisation had not entered contracts of service because an intention to enter into legal relations was lacking.
25 In Dietrich v Dare (1980) 30 ALR 407, the High Court considered the position of an unemployed man who had undertaken a work trial. The Court determined that there was no contract of service. At 411, the majority stated:
- “A contract of service is of its nature a bilateral contract. It may be conceded that merely to say that the parties had agreed upon a trial does not necessarily rule out its formation. The answer in that respect will depend upon the detail of the arrangement. In particular, the answer will be affected, among other things, by the discovery in the arrangement of the assumption by the ‘worker’ of an obligation to perform some work, it being the purpose of the trial to determine whether the work is performed in a satisfactory manner. But in the present case we cannot discover an obligation on the appellant to perform any work at all.”
26 Apart from the obligation to perform work, circumstances that may support a contract of service include the payment of wages and agreement as to hours of work. Drzyzga v G & B Silver Pty Ltd [1994] NSWCC 12 concerned a work experience situation. The Court determined that there was no contract of service because no relevant consideration flowed to the “employer”. There was only the possibility that the “employer” might acquire “a worker who knew (the work) if (the ‘employer’) ever decided to offer him more casual work or a permanent position”.
27 The arrangement between Ms Richards and the defendants did not require Ms Richards to perform any work. She was to accompany and observe Mr Cornford. Mr Cornford could have asked her to leave at any time. She could have left of her own volition. She offered to perform only one task. She was under no obligation to make that offer and Mr Cornford was under no obligation to accept it. Regardless of whether she undertook that or any other task well or at all, Mr Cornford was under no obligation to offer her a position. There was no “mutuality of obligation” and no intention to enter into legal relations. There was no day-to-day control over work activities, no consideration and no agreement as to work hours. Consequently, there was no contract of service.
Entitlement under the Motor Accidents Compensation Act
28 Under the Motor Accidents Compensation Act 1999, "motor accident" and “injury” are defined as follows.
- “ motor accident means an accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person"
“Injury”:
“(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during :
(i) the driving of the vehicle, or
(ii) a collision, or action taken to avoid a collision, with the vehicle, or
(iii) the vehicle’s running out of control, or
(iv) such use or operation by a defect in the vehicle , and …” (emphasis added).
29 QBE asserted that Ms Richards injury was the result of and caused by "a defect in the vehicle" in that there was no demountable guardrail at the rear of the tailgate loader and/or the junction between the flat and sloping parts of the tailgate loader was unmarked.
30 The facts in Allianz Aust v GSF Aust [2005] HCA 26 were that an unloading mechanism was defective and inoperable. An employee was directed to unload containers manually. The employee was injured. The High Court held that the Motor Accidents Act 1988 (NSW) did not apply as the employee’s "injury" was not caused by a "defect". Relevantly, the MAA and MACA definitions of "injury" are the same. At [102], the majority held that causation involved "notions of proximate cause" and "notions of predominance and immediacy rather than … more removed circumstances".
31 In a separate judgment, at [54] McHugh J disapproved of the use of "metaphysical concepts" such as "proximate cause" or "immediate cause", saying that, when determining causation, the task was to identify the factors that contributed to the injury and determine whether the injury was caused by a defect in the vehicle and not by some other factor.
32 McHugh J identified three requirements for causation under the MAA. The first requirement was that the injury was caused by the fault of the owner or driver "in the use or operation of the vehicle", ie "in relation to" or "in the course of" the use or operation of the vehicle. The requirement could be satisfied by a failure to fix a defective aspect of the vehicle or by a direction to use an unsafe system of work to unload the vehicle: Allianz at para 21. The second requirement was temporal. The injury must be "a result of and is caused during … such use or operation”. Loading and unloading activities could be part of the "use or operation" of a vehicle: Allianz at [30]. The third requirement was that the injury be "a result of and is caused … by a defect in the vehicle”, ie by the lack of something that was necessary to the proper operation of the vehicle. The defect may be major or minor. It may arise from the original design or construction of the vehicle, or from inadequate maintenance: Allianz at [31]. However, the defect must be "in" the vehicle. A vehicle was not "defective" only because its operation in a particular manner may lead to injury, but the manner in which the vehicle was intended to operate could determine whether there was a defect "in" it: Allianz per McHugh J at [32] approving Chief Justice Spiegelman in Zurich Australian InsuranceLtd v CSR Ltd [2001] NSWCA 261 at [68].
33 In Toll Pty Ltd v Dakic [2006] NSWCA 58, the Court of Appeal considered the application of the MAA where an employee was injured when he was removing a trailer ramp after utilising the ramp to load utilities onto a semi-trailer. The manner of loading the utilities had caused a vehicle overhang that restricted the employee’s physical access to the ramp. At [15], Giles JA held that there was no “defect” as the trailer could readily have been used in a manner that did not expose the employee to a risk of injury. At [155] – [160], Brownie JA held that the injury did not occur "during" the use or operation of the vehicle, was not a "defect" and was not a defect "in" the vehicle. Santow JA at [97] held that there was no relevant causal connection between any defect and the injury because the predominant, proximate or immediate cause of the injury was the employer’s human intervention in creating an unsafe system of work. In relation to causation, Santow JA considered the two approaches to causation in Allianz and made the following observations.
- "93 At [54], McHugh J disapproved of the use of "metaphysical concepts" such as "proximate cause" or "immediate cause", saying that, when determining causation under the Act, the task was to identify the factors that contributed to the injury and determine whether the injury was caused by a defect in the vehicle and not by some other factor. The injury was caused, as McHugh J explained at [60], not as a consequence of contact with or use of the (inanimate) loading mechanism. Rather it was caused by human intervention directing that the operation be done manually, though this was clearly unsafe. …
94 This is so whether one uses or eschews the language of " proximate cause ", or " immediate cause ". … according to Gummow, Hayne and Heydon JJ in Allianz , such terminology of proximate or immediate cause was appropriate for an insurance context under the Motor Accidents legislation. At [102] they concluded that: "‘ If, and only if’ directs attention to notions of predominance and immediacy rather than to more removed circumstances ". On either basis, human intervention was the relevant cause and not the defect per se."
34 In the present case, there was no relevant "defect" in the vehicle. Neither the absence of a rear demountable guardrail nor the failure to mark the junction between the flat and sloping parts of the tailgate loader was a design fault. QBE failed to establish that either alleged deficiency was necessary to the safe use or operation of the vehicle. There was no evidence that a rear demountable guardrail was an available and practical option. There could have been demarcation of the junction between the flat and sloping parts of the tailgate loader, but the evidence did not establish that the absence of such demarcation was a "defect" in the sense that it was a design fault.
35 Further, causation was not established. The real, proximate, predominant and immediate cause of the accident was neither the absence of a rear demountable guardrail nor the lack of demarcation but the fact that an inexperienced person was allowed to perform an inappropriate task and was startled at a critical time. As McHugh J. observed in Allianz at [59]:
"Where a person directs another person to take a step that places a person in proximity to a passive condition of danger, it is often the case that it is the direction rather than a condition that causes any subsequent harm.”
Non Economic Loss
36 Damages are to be assessed under the CLA.
37 Ms Richards was 33 years old at the date of the accident.
38 Ms Richards was a convincing witness. Except in relation to her weight at the date of the accident, there was no serious suggestion of exaggeration or malingering. I do not consider that Ms Richards optimistic view of her pre-accident weight to be indicative of deliberate dishonesty in that or any other respect. Ms Richards partner corroborated her evidence. His credibility was not challenged.
39 In 1991, Ms Richards injured her left knee. For about two years, she was unemployed and inactive. She used a walking stick. She was advised to avoid employment that involved heavy lifting or climbing up or down stairs. In 1991, Dr Courtney of St Vincent's Clinic ominously reported "a girl of her size cannot afford to lose much of her muscle power in her legs before she becomes almost immobile".
40 In 1994, Ms Richards returned to courier work. Periodically, her left knee was painful. It continued to grind and crack. Sometimes, it "locked". She could not squat. She took painkillers. Her left knee "was very, very slowly getting worse".
41 In 2003, Dr Dave made a provisional diagnosis of patello femoral dysfunction and medial meniscal tear. In his view, her main problem was patellofemoral joint degeneration that would not benefit from surgical intervention (Exhibit 1).
42 Prior to the accident, Ms Richards was diagnosed as suffering from bilateral patella femoral joint arthritis. Although her left knee was symptomatic, her right knee was asymptomatic.
43 In the 1990s, Ms Richards sustained a muscular injury to her back and was off work for a short period. In 2000, she completed a work application in which she stated "no heavy lifting over 12 kg bad back but Dr given ok" (Exhibit 6).
44 At the date of the accident, Ms Richards had an eating disorder and weighed about 130 kg (Exhibit 7).
45 Prior to the accident, Ms Richards was psychologically vulnerable. In 1996 she experienced an episode of depression caused by multiple stressors (Exhibit 8).
46 Ms Richard derived considerable self-confidence and enjoyment from her status as a truck driver. She enjoyed lifting heavy weights and driving heavy vehicles. Her self-image was that of a strong, active, hard-working person who was "one of the boys". Indeed, prior to the accident Ms Richards obtained a "heavy rigid" truck licence. She hoped to progress from driving a medium rigid truck to driving a heavy rigid truck, thereby improving her income. In 2004, a dietician reported that "for a female she is exceptionally muscular" (Exhibit 1, Ms Deshpande).
47 Despite obesity and physical and psychological vulnerability, prior to the accident Ms Richards had an excellent employment history in the field of moderate to heavy work and she enjoyed an active life.
48 Since the accident, Ms Richards right knee has been constantly swollen and painful. At night, she uses morphine patches to reduce the pain. She cannot fully bend the right knee. She walks with a limp. When she leaves home, she always uses a walking stick. She is emotional and argumentative with her partner and son. "Family life" revolves around Ms Richards disabilities.
49 In 2005, Dr Dave reported that patellofemoral joint osteoarthritis was causing Ms Richards severe pain. While weight loss and physiotherapy may improve the level of pain, it was unlikely that she would ever return to labouring work. The accident had aggravated the underlying patellofemoral degeneration (Exhibit 1). Dr Ellis said that Ms Richards sustained damage to her ligaments and cartilage affecting the right patello-femoral joint and that her condition was likely to deteriorate. Reporting for the defendants in 2006, Dr Stephenson gave a "somewhat guarded" prognosis for the patellofemoral joint, noting Dr Dave's assessment of an aggravated underlying patellofemoral joint arthritis.
50 Dr Anthony Smith, an orthopaedic surgeon who reported on behalf of the defendants, expressed the view that the accident could have aggravated osteoarthritis. In his view, the aggravation would have recovered within about three months of the accident. He could see no reason for Ms Richards being unable to drive a truck or bus and no need for any domestic assistance. I do not accept the opinion of Dr Smith. His views as to the extent and duration of disability caused by the accident are at odds with those of the other doctors, including Dr Dave, the treating doctor, and he is the only practitioner to express the view that Ms Richards is quite capable of returning to heavy driving activities.
51 Ms Richards conceded that, prior to the accident, her left knee was becoming gradually worse. Dr Ellis reported that a slight increase in the left knee pain was due to excessive weight bearing on the left leg and that the right knee disability and associated significant weight gain has placed significant additional pressure on the vulnerable left knee. That is common sense. I find that the accident has contributed slightly to the deterioration of the left knee.
52 Following the accident, Ms Richards noticed some back pain but her attention was focused on her knee pain. In about 2006, her back became worse and she began to experience pain down her left leg. Since then, she has suffered from chronic back pain. A 2008 CT scan of the lumbar spine revealed a mid line disc protrusion at L4/5 compromising the right L5 spinal nerve and a nerve root block was recommended (Exhibit D). According to Dr Ellis, Ms Richards back has been affected by her right knee injury, which has altered her gait and caused her to limp. I accept that part of Ms Richards back pain is caused by her limp. The back pain is probably also partly due to an increase in weight. However, given the pre-accident back pain, the CT findings and the two-year post-accident delay in reporting back symptoms, I do not attribute the bulk of her back symptoms to the accident.
53 After the accident, pain and unemployment made Ms Richards depressed and argumentative. She sought solace in food. In March 2006, she was admitted to Liverpool Hospital expressing suicidal thoughts arising from frustration over chronic knee pain and various social stressors. She was diagnosed with a recurrence of major depression against a background of multiple psychosocial problems. She was admitted for three days. The provisional diagnosis was dysthymia and a depressive episode secondary to her medical condition.
54 In April and November 2006 and October 2007, Mr Glancey, a psychologist qualified on behalf of Ms Richards, diagnosed a major depressive disorder that had somewhat improved by 2007. Mr Glancey stated that her greatest stressor was physical incapacity associated with the accident (Exhibit F). In October 2007, he reported that she was suffering from an adjustment disorder with mixed anxiety and depressed mood. Her prognosis was "bleak". There was little prospect of further improvement. Her confidence was "severely depleted" and she had a "poor self image".
55 Dr Broster, a psychiatrist with NSW Health, saw Ms Richards in early 2007 and noted her low sense of self-worth due to physical incapacity which resulted in decreased independence and decreased ability to look after her son, leading to angry outbursts (Exhibit D). In February 2008, Dr Causer, a psychiatrist with NSW Health, opined that Ms Richards was suffering from depression/adjustment disorder secondary to injury (Exhibit D).
56 In March 2008, Ms Richards general practitioner, Dr Wong, reported (Exhibit B) that Ms Richards had a depressive illness punctuated by periods of anxiety and emotional instability and that "a fragile mental state has a significant effect on her life in general". He did not foresee any short-term improvement. Ms Richards was referred to a chronic pain program at the Liverpool Hospital Pain Clinic.
57 In April 2007, Dr Roberts, a clinical psychologist, undertook a lengthy review of medical and other material on behalf of the defendants. She concluded that the 2004 injury was one factor that contributed to her "current emotional presentation". Dr Roberts reported elevated anxiety and depression scores on testing but considered that Ms Richards was exaggerating (Exhibit 1). Although Dr Roberts opinion that Ms Richards was exaggerating her emotional problems was based on psychological tests, other psychologists and psychiatrists have not reported significant exaggeration. Dr Roberts view differed from that of the psychiatrists with NSW Health, who reported at about the same time. Ms Richards impressed me as honest. Consequently, I do not accept Dr Roberts opinion that Ms Richards was exaggerating.
58 In September 2008, Dr Selwyn Smith, psychiatrist, reported to the defendants that Ms Richards had developed a chronic pain disorder as a result of the accident. He diagnosed an adjustment disorder with depressed mood, linked with chronic pain, associated relationship strain and inability to reintegrate into alternative work. He considered that Ms Richards clinical presentation was probably complicated by underlying adverse personality traits (Exhibit 1). Dr Smith’s opinion is generally consistent with that of the other psychiatrists and psychologists, except for Dr Roberts.
59 In summary, at the date of the accident Ms Richards was a 33-year-old woman who had bilateral patellofemoral joint arthritis that was symptomatic in her left knee. The symptoms were worsening very gradually. Her right knee was asymptomatic. Some years earlier, she had experienced a back problem that had restricted her ability to lift. Neither her left knee symptoms nor any ongoing occasional back problem prevented her from undertaking relatively heavy work as a truck driver. She was obese, but her obesity was to some extent controlled by the heavy work that she undertook in the course of her employment. She was psychologically vulnerable but had only experienced one significant episode of depression, eight years before the accident.
60 As a result of the accident, Ms Richards right knee became symptomatic, virtually immobilising her with pain, swelling and stiffness, and contributing to her left knee and back problems. The chronic pain and loss of the ability to work in a field that she loved made her depressed. Immobility and depression aggravated her obesity. Increased obesity exacerbated her pain and depression. As she will continue to experience significant pain in her right knee and is incapable of returning to her former occupation, it is most unlikely that the cycle of pain, obesity and depression will be broken. Ms Richards physical and psychological condition has greatly impacted on her working and personal life.
61 Non-economic loss is assessed as 38% of a most extreme case.
Employment Prospects
62 Since the accident, Ms Richards has not worked. Following a recommendation made by the Commonwealth Rehabilitation Service, in 2005/2006 she undertook a six-month TAFE course in office administration and introductory computer studies. She applied for positions but obtained no interviews. She was anxious to obtain employment because she was under enormous financial pressure. The reason that she failed to gain work was that she is not really suited to white collar work.
63 In 2005, Dr Dave reported that it was unlikely that Ms Richards would ever return to any labouring work. Dr Wong, stated that she would never return to work as a truck driver/courier and was only suited to non-manual work (Exhibit 7). Dr Ellis stated that Ms Richards was permanently unfit for physically demanding work, bending, lifting, prolonged standing or walking.
64 Dr Stephenson said that Ms Richards should look for light semi-sedentary work and that light courier driving may be appropriate (Exhibit 1). Dr Stephenson's report does not refer to the retraining that Ms Richards attempted in 2005/2006.
65 The suggestion that Ms Richards could undertake light courier work on a full-time basis is not realistic. It would involve prolonged sitting. Sometimes, in order to break the monotony of her days alone at home, Ms Richards accompanies her partner on his courier rounds. Although she is not working herself, she finds such days to be exhausting.
66 Ms Richards had an excellent employment history up to the date of the accident, undertaking moderate to heavy work. She was an enthusiastic worker. She had training and experience as a truck driver. She had no other qualification. Since the accident, she is physically incapable of undertaking any work other than light office type work. She has made reasonable efforts to obtain such work, without success. She may yet obtain some type of light work, possibly on a part-time basis. However, for all practical purposes, she has little residual earning capacity. I estimate her residual earning capacity as no more than $100 per week.
67 In the period 1 July to 13 August 2004, Ms Richards earned approximately $565 per week net. She was seeking a position that offered better pay. It was agreed that the position offered by the defendants would have paid $20 per hour for a 40-hour week, or approximately $621 net per week in 2005 and $662 net per week now. The position would have been casual for 3 months and then permanent. In 2005, average female weekly earnings were approximately $695 net. They are now approximately $800 net. I find that, but for the accident, that Ms Richards would have earned at least $600 net per week, rising to $700 net per week at the present time. Allowing for a small residual earning capacity, I allow $600 per week from the date of the accident and continuing.
68 Because of her significant pre-accident disabilities and the moderate to heavy work in which she was engaged and was likely to remain engaged, I intend to discount future economic loss by 25% for contingencies.
Out-of-Pocket Expenses
69 Dr Dave undertook an arthroscopy. Ms Richards said that it did not assist. She attends her general practitioner frequently. She has received considerable psychiatric assistance through the public health system.
70 Past out-of pocket expenses were agreed at $10,653. No detail was provided but, given Ms Richards current impoverishment and the fact that some services were provided at public expense, the figure is consistent with the report of Dr Ellis, who assessed the ongoing annual cost of medical consultations, medication, physiotherapy etc at about $3000.
71 I allow past out-of-pocket expenses of $10,000.
72 Ms Richards uses morphine patches daily for knee pain and takes painkilling medication. She will require ongoing attention from her general practitioner. She needs anti-depressant medication and counselling.
73 Dr Ellis recommended a patella excision at an approximate cost of $10,000 and said that eventually Ms Richards will require a knee joint replacement at an approximate current cost of $20,000. Dr Stephenson reported that a patella excision was contra-indicated. He did not rule out a repeat arthroscopy at a total cost (as at 2006) of $6,000.
74 Dr Ellis recommended gastric stapling at a cost of about $10,000 but there was no other reference to such surgery.
75 I allow $30,000 for future out-of pocket expenses, including a possible further arthroscopy.
Attendant Care Services
76 Before and since the accident, Ms Richards, her partner, her son and a female friend have lived in a rented four-bedroom home on a 4 1/2 acre block.
77 Before the accident, Ms Richards lead a very busy life. When she returned home after work, she attended to several horses, undertook housework, and assisted her son with his homework while preparing the evening meal. Sometimes, she played with her son. She did all the shopping. Her partner worked long hours and did little housework. Ms Richards and her partner shared the outside work, including the ride-on lawn mowing.
78 Since the accident, Ms Richards has had difficulty with any work below waist level. She has a "grabber" to assist her to pick up things from ground level. Ms Richards and her partner have installed rails on the front and back steps of their residence and Ms Richards utilises a laundry trolley so that she does not have to bend to a laundry basket. Ms Richards partner and 15 year old son are responsible for much of the housework. They do most of the sweeping, vacuuming, bathroom cleaning and making of beds. Her partner does all the outside work. He assists with the shopping, which Ms Richards undertakes in a wheelchair. Ms Richards partner works long hours and her son assists after school until her partner returns home from work.
79 Ms Richards partner estimated that he spent about 10 hours per week on domestic duties that he had not undertaken prior to the accident and that Ms Richards son undertook another 10 hours per week of domestic duties. Ms Richards said that her partner and son were occupied for one to 1.5 hours per day with domestic tasks that she used to perform. Dr Ellis accepted a need for domestic assistance eight hours a week from the date of the injury and continuing.
80 Having regard to the tasks in question, eight hours per week for past and future assistance is conservative. The threshold prescribed by the CLA of six hours per week over a six-month continuous period is satisfied.
81 Evidence as to rates of pay was received after the hearing. The rate under s15 of the CLA is approximately $22 per hour. The rate of $22 per hour claimed by Ms Richards is well justified. Because of her pre-existing mobility problems and restrictions ordinarily associated with ageing, damages will be discounted by 25%.
Damages
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Non-economic loss (38% of most extreme case) Past out – of - pocket expenses (including interest) Future out – of – pocket expenses Past wage loss ($600 pw x to 7 May 2009) Interest on past wage loss + past loss of superannuation Past loss of superannuation (11% of net wage loss) Future economic loss ($600 pw x 27 years discounted 5% and 25% for contingencies) Future loss of superannuation (11% of $352,350) Past gratuitous attendant care services (8h pw x $22 x 234 weeks) Future gratuitous attendant care services (8h pw x $22 x 50y, discounted 5% and 25% for contingencies)
Jurisdictional Limit
83 The total of the sums in [82] exceeds the Court’s jurisdictional limit of $750,000: s 4 District Court Act 1973 (DCA). When determining whether the jurisdictional limit has been exceeded, interest is to be disregarded: s 44 (2) DCA.
84 Ms Richards argued that "the amount claimed" in her October 2005 statement of claim exceeded $750,000. Since 10 October 2005, when the statement of claim and statement of particulars were filed, there has been no relevant change to the DCA or the UCPR.
85 Section 51(1) of the DCA provides:
- “(1) This section applies to an action or cross-claim that, but for this section, the Court would not have jurisdiction to hear and dispose of by reason only of the fact that the amount claimed exceeds the jurisdictional limit of the Court as at the time the action was commenced.
(2) The Court has, and may exercise, jurisdiction to hear and dispose of an action or cross-claim to which this section applies: …
(b) if no objection to the Court’s jurisdiction has been raised by any of the parties prior to 3 months before the trial of the action commences.
(4) The maximum amount for which judgment may be given in relation to an action or cross-claim that is dealt with pursuant to subsection (2) (b) is an amount equivalent to 50 per cent above the jurisdictional limit of the Court as at the time the action was commenced.”
86 Section 53 of the DCA provides that an action is to be commenced in the manner prescribed by the rules. Part 6.2 of the UCPR provides that proceedings are to be commenced by the filing of a statement of claim. Pursuant to Part 6.12, the statement of claim must “specifically state the relief claimed”. Under Part 15.12:
- “(2) On or as soon as practicable after serving the statement of claim, the plaintiff must serve on the defendant, or on the defendant’s insurer or solicitor, a statement accompanied by the following documents:
…”
In the statement of particulars, the plaintiff must itemise the sums claimed under various heads of damages; Part 15.12.
87 Section 51 (1) means that if, when filed, a statement of claim unambiguously claims more than the jurisdictional limit of $750,000 then, if no objection is raised in accordance with section 51(2) (b), the Court has extended jurisdiction in accordance with section 51 (4). In Bebe v Woolworths Limited (District Court of New South Wales, Elkaim J, 11 July 2008, unreported) at [67] – [68], the Court was inclined to adopt such an approach.
88 The October 2005 statement of claim sought “damages”. The “particulars of moneys paid or liable to pay” were “to be advised”. In relation to particulars of economic loss, the reader was referred to the statement of particulars. The statement of particulars referred to out-of –pocket expenses of $1129.50. Future out-of pocket expenses were said to be $15,000 plus other unquantified expenses. In relation to past economic loss, there was a claim from 22 September 2004 of “approximately $800 to $900 net per week … and continuing”. As to future economic loss, "a claim (was) made at the plaintiff’s pre-accident rate of pay until age 65 years". There was no evidence as to what documents evidencing pre-accident rate of pay accompanied the statement of particulars, if any. At the trial, the evidence established that, in the period preceding the accident, Ms Richards earned $720 gross or $565 net per week. Ms Richards argued that, in effect, the statement of claim and statement of particulars claimed a total sum of $771, 273 (see Exhibit K).
89 Exhibit K does not accurately reflect the claim as articulated on 10 October 2005. First, it assumes a past wage loss claim of $900 net per week over 1.1 years rather than $800 net per week over one year and 18 days. Second, it contains a future wage loss claim of $900 per week rather than $565 net per week (assuming that the statement of particulars was accompanied by a document evidencing $565). Third, it refers to the standard (but not automatic) discount for future economic loss of 15% for contingencies. Adjusting the Exhibit K figures claim to allow for these differences, the total falls well short of the jurisdictional limit of $750,000.
90 I am not satisfied that the amount claimed by Ms Richards exceeded the jurisdictional limit of the Court as at the time that the action was commenced.
91 There will be a verdict for the plaintiff and judgment against the defendants in the sum of $772,818. There will be a verdict for the cross-claimant against the cross-defendant.
07/05/2009 - amount correction - Paragraph(s) 82 & 91
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