Siemers v Ipec Holdings Ltd
[1990] TASSC 145
•18 October 1990
Serial No B68/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Siemers v IPEC Holdings Ltd [1990] TASSC 145; B68/1990
PARTIES: SIEMERS
v
IPEC HOLDINGS LTD
FILE NO/S: 1184/1982
DELIVERED ON: 18 October 1990
JUDGMENT OF: Wright J
Judgment Number: B68/1990
Number of paragraphs: 85
Serial No B68/1990
List "B"
File No 1184/1982
SIEMERS v IPEC HOLDINGS LTD
REASONS FOR JUDGMENT WRIGHT J
18 October 1990
The plaintiff claims damages for personal injuries, consequential loss and expense resulting from an accident which occurred near the staff entrance to the Wrest Point Hotel Casino at about 7.55pm on 15 July 1981.
At that time the plaintiff was employed as a bar attendant at the Casino and her hours of work were between 8.00pm and 4.30am five days per week. To gain access to the Casino she was required to use an entrance at the bottom of a ramp which runs alongside the Casino building from a point adjacent to the main entrance to a lower level. The ramp has a bitumenized surface and, at the point where the plaintiff's mishap occurred, the slope is between 6.4:1 and 6.6:1. On the left hand side as one descends the ramp there is a tubular metal handrail at about waist level. The plaintiff alleges that this rail was partially overgrown by shrubbery at the time and that consequently she was unable to keep her left hand on the rail for support as she walked down the ramp. The ramp is fairly wide, although its actual dimensions were not given in evidence. It is certainly wide enough to accommodate vehicular traffic and it would be fair I think to infer that this was one of the primary functions for which it was designed. It has been used at all relevant times for access and egress by goods and services vehicles making deliveries to or attending the Casino for other purposes.
There was a dispute between the parties as to whether or not the coarse bitumenized surface which is still evident across the main width of the ramp was in existence in the walking area immediately adjacent to the handrail on the 15 July 1981.
The plaintiff claimed that this old surface which was and still is "worn and very smooth" extended across the whole width of the ramp at the time. She also said that about 3 weeks after her accident when she returned to work at the Casino she found that a strip of pavement on the extreme left side of the ramp had been resurfaced with fresh bitumen giving a more consistent surface with better non–slip qualities.
The plaintiff gave evidence, which was uncontradicted, that she was required to wear high heeled shoes during working hours behind the bar and that on the evening in question she was wearing such shoes as she commenced to descend the ramp immediately before the accident. When she was about half way down the slope she slipped and fell, landing with her left foot out in front of her and her right foot underneath her buttocks.
She picked herself up, continued down the ramp to the staff entrance, put her jacket and bag in a locker provided for her use and as she mounted the internal steps to go to work she began to experience considerable pain in her back. She reported the incident to a security officer and, as she was doing so, her back became more painful. She became unsteady and dizzy and was taken to the Royal Hobart Hospital by ambulance.
There were no eye witnesses to the plaintiff's fall and I am dependent upon her account of events, the evidence of a professional engineer, Mr Roger Locke, as to a rather perfunctory examination of the ramp and the defendant's answers to interrogatories (which were disputed to some extent by oral testimony) to gain an understanding of how and why the plaintiff fell as she did.
The defence called evidence from Mr Peter Browne who was the defendant's Security Manager at the Casino for some years prior to and at the time of the accident, and another employee, Mr Eakins, both of whom were able to give some information as to the ramp and its past history.
Not surprisingly as this accident occurred almost nine years before the date of trial, some of the important evidence, particularly that as to the nature and condition of the walking surface on the ramp at the time of the accident was vague and uncertain.
It is not disputed that the defendant was the plaintiff's employer and was the occupier of the Casino premises at the relevant time. Nor is it disputed, as the plaintiff claims, that the defendant was under a duty or alternatively, as employer impliedly agreed with the plaintiff, to take all reasonable precautions for her safety whilst on the premises and to provide her with safe access to her place of work. The plaintiff alleges that the defendant was negligent and breached its implied agreement in a number of respects.
The particulars of this allegation have varied from time to time over the years since the action was first commenced but at the time of the trial the allegations stood as follows:
"PARTICULARS OF BREACH OF AGREEMENT AND/OR DUTY
(a)Failing to warn or otherwise provide any adequate warning that the ramp and pathway to the staff entrance was slippery.
(b)Failing to warn or otherwise provide any adequate warning or instruction to the plaintiff not to wear –
(i)high heeled shoes; or
(ii)shoes with a smooth sole when traversing the ramp and pathway.
(c)Failing to warn or provide any adequate warning to the Plaintiff not to descend or use the said ramp or pathway unless she held onto the adjacent pipe rail fence as she so descended and used the ramp and pathway.
(d)Failing to remove foliage from plants then protruding on and over the pipe rail fence adjacent to the pathway.
(e)Instructing the Plaintiff to use the pathway and ramp to gain access to the said premises when the Defendant knew or ought to have known that the said pathway and ramp was slippery.
(f)Failing to remove the surface of the pathway and ramp and replace the same with a surface of rough and pitted texture.
(g)Failing to take any or any reasonable steps to remove or reduce the smooth and slippery texture of the surface of the pathway and ramp.
(h)Requiring the Plaintiff to wear high–heeled shoes in the course of her employment.
(i)Permitting the Plaintiff to wear high–heeled shoes when using the ramp.
(j)Requiring the Plaintiff to enter her place of employment via the ramp and not by any other route when the ramp had a gradient of about 1 in 6.
(k)Failing to provide adequate lighting in the vicinity of the ramp."
These allegations were denied by the defendant and indeed particular (k) can be discarded immediately because there was no evidence given by or on behalf of the plaintiff from which it could be concluded that inadequate lighting was in any way causative of her fall.
In deference to an argument put by Mr Jackson, counsel for the defendant, I should also say at this stage that I do not regard the alterations and additions to or deletions from the particulars in the Statement of Claim as reflecting upon the plaintiff's credibility. She was not cross examined upon these matters and, in any event, there are other explanations which occur to me as possibly explaining these changes in the pleading.
The defence also alleges that the plaintiff's fall was caused by her own negligence or alternatively that there was contributory negligence on her part.
I propose now to review the evidence in a little more detail. Except insofar as I indicate to the contrary my narrative of events may be taken as being my findings of fact.
The plaintiff commenced employment at the Casino about a fortnight before her accident. She was aged 23 years at the time. When she first took up her job she was told by the Personnel Manager that she had to wear high heels on her shoes at work and that she must use the entrance at the bottom of the ramp both to enter and leave the Casino. She was warned that breach of this rule would result in instant dismissal.
On the evening in question she was wearing a pair of shoes which she had owned since 1977. These were wedges with a heel about 1½ to 2 inches high. The uppers were of patent leather with straps (I infer across the instep). The sole was a synthetic type of material. Whether it was smooth like leather or otherwise I was not told. There were rubber tips upon the heels. The shoes themselves were not produced in evidence, nor was I shown a photo of them. What has become of them is not clear. The plaintiff said that she was accustomed to wearing these shoes during the course of her work as a barmaid at the British Hotel in Adelaide where she had worked before coming to Tasmania, even on occasions when there was "beer all over the floor" or when she was working "really fast". She could not remember slipping or falling whilst wearing those shoes prior to the accident and she did not believe that they contributed in any way to her fall. Mrs Siemers said, "they were very comfortable, they were ..... my favourite pair".
In the absence of the shoes themselves I must exercise what imagination I have to conjure a vision of them for present purposes. The "wedge" shape described by the plaintiff suggests a sole lacking flexibility although not perhaps suggesting anything approaching the clog like stilts which were in vogue in the 1960's. As to the heel height it may be said,
"It is certainly not a flat heel, but neither is it one of those elegant structures on which modish women manage to hobble so successfully".
(see Crisp J Turner v Scenic Motels Pty Ltd 69/1967 at p6). It seems to me that such a shoe is not inherently unstable and is not likely to predispose a female wearer to stumble, slip or trip.
Counsel for the defence strongly urged me to find that the plaintiff should have worn shoes other than these ie shoes more suitable for walking down the ramp in question, as she was not obliged by the terms of employment to wear high heels until she actually started work, but I find this to be an unacceptable argument even though the plaintiff had a locker and could have utilized facilities available to change her footwear on arrival at her place of employment.
These were not special working shoes and it is unreasonable in my view to expect female staff to provide a change in footwear to negotiate the entrance to their workplace unless they have been specifically instructed to do so.
Whilst I am confident that the plaintiff would not have fallen had she been wearing gymboots, sandshoes or the like I am equally confident that the shoes she was wearing were within the normal range of female footwear that her employer should have anticipated would be worn by young women coming and going to the staff entrance.
The plaintiff said that she always exercised caution on the ramp and on the evening in question she was walking down at what she considered to be a comfortable and safe speed. She said she was hanging on to the rail on her left hand side and was carrying her handbag in her right hand. She said that she relinquished her hold upon the rail on two occasions because of the presence of bushes overgrowing the rail. She remembers taking her hand off the rail, walking a little further and then slipping and landing awkwardly as I have described above. She was cross examined as to her allegation that the handrail was overgrown. It was pointed out that she made no mention of this factor in the reports which she had submitted in relation to the accident and there were no contemporaneous records to substantiate her claim. Furthermore Mr Peter Browne, the Security Manager at the Casino, at that time could not recall foliage growing over the handrail at any time during several years that he was on the staff. The photographs tendered in evidence although taken in about September 1982, some 14 months after the accident, tend to support the defence submission that the handrail was not overgrown at the relevant time particularly along the section leading down to the point where the plaintiff fell. The plaintiff claimed that on feeling herself falling she reached out to the handrail for support and I think it quite likely that she did so, but it was only in re–examination that she claimed that her left hand had been scratched by the bushes in the course of this attempt to maintain stability.
All in all I am left in considerable doubt as to this aspect of the plaintiff's case and I am not prepared to find that the handrail was obstructed in the manner alleged.
The plaintiff said that she had never received a warning as to the use of the ramp from her employer before the fall. However some days after the accident she spoke to the personnel manager, Mrs Langridge, about the matter and
"she said that ... my fall was unfortunate and they knew it was slippery, and she said that they had been thinking about carving steps in the ramp for the staff to walk down but that would make it more difficult for the delivery trucks to manoeuvre going up and down the ramp, and she said that they were going to rebitumenize it ... She just said that she knew it was slippery, that other people there had fallen and she knew it was slippery and so that they were going to do something about it".
As already mentioned the plaintiff said that when she returned to work after the accident she found "That they had put that new bit of bitumen down, It's about 3 feet wide, down by the side of the rail". She indicated this area in the photographs.
It became clear from the evidence of Mr Eakins that Mrs Langridge has been employed by the Casino since 1974 and is still employed there. It is not without significance therefore, that she was not called to give evidence to contradict the plaintiff's version of the conversation referred to. I find that such a conversation did occur in substantially the same terms recounted by Mrs Siemers.
Mr Peter Browne's evidence was also of some importance in relation to these issues. He confirmed that for security reasons Casino staff were required to use the lower entrance to the building. His evidence also demonstrated that the only feasible way of reaching that entrance was (and still is) by descending the ramp. He recalled that the portion of the ramp adjacent to the handrail had been resurfaced about two years before he swore an affidavit in answer to interrogatories in July 1983 but he was unable to say whether this had occurred before or after the plaintiff's mishap. He agreed that the fresh bitumen strip had been laid on his suggestion "As a result of my recommendation, I believe that piece of hot mix was put there. It came about from a number of complaints I'd received from staff members in relation to the slipperiness, slippery surface". He also conceded that it was possible that the plaintiff's fall was one of the factors which led to the decision to resurface the strip.
Mr Eakins, Group Administration manager at the Casino was called to prove that the defendant's records did not show that this resurfacing work had been carried out at about the time alleged by the plaintiff but, significantly, those records did not show that the job had been performed at any other specific time. In short there are no records showing when it was done. In these circumstances I have no reason to doubt the plaintiff's evidence and I find that the resurfacing was carried out between the date of her fall and the date on which she returned to work.
The plaintiff made it plain that at the time of her fall the ramp surface was dry. It is also apparent that she does not claim to have slipped on any foreign substance on the ramp.
In the answers to interrogatories already referred to, Mr Browne conceded that on the date of the accident the surface was "slippery" and further that "It is naturally slippery because of its steepness and bitumen surface". In his oral testimony Mr Browne qualified this seemingly damaging admission by saying "It was slippery when it was wet". Asked about its condition when dry he said, "I didn't feel that it was anymore slippery than any other roadway or walkway with the same descent". He agreed that "It was certainly improved after the hot mix was put on".
Both he and Mr Eakins said they had no recollection of any one apart from the plaintiff falling and injuring themselves on the ramp. Mr Browne said that there were about 700 full time and 700 or 800 part–time staff members working at the Casino in 1981.
Mr Eakins said that, although he had never fallen over on the ramp "my footing has moved from the ramp ... during wet conditions".
It was submitted for the defence that having regard to this oral testimony it should not be found that the ramp was generally slippery ie in dry conditions as well as wet.
It is clear enough I think that answers to interrogatories are informal admissions only and may therefore be explained or qualified by other evidence at the trial (see Cross on Evidence 3rd Ausn Edn paras2.28 and 9.6).
However regard must be had to the whole of the evidence bearing upon the ramp's condition at the relevant time and in this respect the evidence of Mr Roger Locke should not be left out of account. He inspected the ramp on 6 April 1990. He described the surface as "a fairly open textured bitumen surface, most likely an asphalt". He took no measurements of friction factors but "it was quite apparent that the footpath" (ie the bitumen strip referred to previously) "was much more skid resistant than the road surface itself". He found the slope to be "1 vertically to 6.4 horizontally at one location and 1 vertically to 6.6 horizontally at the other" giving an average slope of about 8.75o .
He referred to an Australian Standards Association Code for walkways, stairways and ramps in which it is suggested that an uncleated walkway is suitable only up to a slope of 7o or 1:8. Above that slope there should be cleating. He concluded, "It appears to me that in light of the information in the Code and the Building Regulations that this ramp would be too steep to provide safe regular access."
When asked in cross examination he said that he found the road surface slippery when dry whilst wearing leather soled shoes. He said, "I found it quite easy to slide the foot along it".
I should add that I visited the scene with counsel and whilst I must say that the ramp did not appear to be particularly steep to my unpractised eye I can appreciate that female staff members walking on the original surface in high heels may have difficulty in maintaining a sound footing even in dry conditions. Even disregarding the nature and slope of the surface it seems to me a singularly inappropriate means of entry to a modern building for large numbers of employees, bearing in mind the lack of clear differentiation between the footway and the road surface and the extent to which commercial vehicles move up and down the ramp. This however is by the way.
The central question is whether or not the defendant failed in its duty of care or breached its agreement with the plaintiff. The observations of Mason J in Wyong Council v Shirt (1980) 146 CLR 40 at pp47 – 8 are particularly apt in considering this question. His Honour there pointed out that a risk which is unlikely to occur may still be reasonably foreseeable. Although there is no evidence that other employees had injured themselves whilst using the ramp there is strong evidence that it was a source of complaint and was regarded as a potential danger particularly when wet. There is no evidence to suggest that the plaintiff was hurrying, was unusually clumsy or was wearing inappropriate footwear. In my opinion the probability is that her fall was caused by a combination of the excessive slope on the ramp and the smooth surface. Certainly the plaintiff may not have fallen had she been maintaining a loose grip upon the handrail as she descended the ramp but I regard this as relevant to contribution rather than the defendant's primary liability because it must have been foreseen that employees would not always avail themselves of the support and, in any event, there must be occasions when it is impracticable for them to do so, for example when carrying something in both hands.
In my opinion the defendant should have foreseen the risk of injury to an employee using the ramp even in dry conditions and should have taken steps to guard against such an eventuality.
Resealing the area adjacent to the handrail was an obvious method of confronting and avoiding the problem and this solution was in fact essayed soon after the plaintiff's unfortunate experience.
I am therefore of the view that the defendant was negligent and is liable to the plaintiff. By failing to use the handrail except in grabbing for it as a last resort to prevent her from falling I think the plaintiff must share in the responsibility for her accident. Had she kept her left hand upon it as she walked down the ramp she may well have regained her footing without falling to the ground.
However consistently with the principles of comparative responsibility discussed in cases involving apportionment between employer and employee I think the defendant must bear a substantially higher degree of responsibility. I assess the defendant as being four–fifths to blame and the plaintiff one–fifth. Accordingly, the plaintiff will recover 80% of her damages.
The matters discussed by Cosgrove J in Marks v The Attorney–General for the State of Tasmania No 33/1985 and in my own decision of Jenkins v Hansen & Yuncken (Tas) Pty Ltd No 2/1989 have assisted me in considering these issues.
I now proceed to consider the question of damages.
I should commence I think by disposing of issues which arose but were not strenuously contested during the course of the trial.
Following the initial injury the plaintiff returned to her former employment as a bar maid at the Casino. On 31 October 1981 whilst removing a tray of clean glasses from the dishwasher she "sort of felt something a bit funny in my back". Her back became very painful again and she was taken to the Royal Hobart Hospital for outpatient treatment.
One of the medical witnesses, Mr Schaeffer seemed at first to suggest that this was the onset of a new and distinct injury but I am satisfied on the basis of the overwhelming weight of opinion expressed by the medical experts that this was simply an aggravation of the pre–existing injury.
A more contentious problem became apparent in relation to an event which occurred after the plaintiff had returned to live at her parents' home in Adelaide in 1984. The plaintiff's father had been hosing down an area in front of the house paved in slate and it became very slippery "like an ice skating rink almost". The plaintiff slipped and landed on her buttocks.
Prior to this the plaintiff's back had improved somewhat and she was experiencing only intermittent pain from her injured back.
Following this fall "it actually went back to being very bad – like when I first did it sort of thing. It took me back quite a way". This condition developed immediately after the fall and it was necessary for the plaintiff to seek medical advice from Mr Atkinson.
It was not argued that this incident amounted to a "novus actus interveniens" or a fresh injury to the plaintiff's back so there is no need to spend much time debating the issue. It was certainly not suggested by counsel for the plaintiff nor by the plaintiff herself that she was predisposed to slipping or falling as a result of her original fall in July 1981. Nonetheless I am affirmatively satisfied by the evidence of Mr Atkinson and Mr W B Law that the painful spinal symptoms which became re–established after this accident should properly be regarded as an exacerbation or aggravation of the original injury rather than the product of a fresh lesion. I reach the same conclusion in respect of increased pain which the plaintiff experienced following a hard landing on her coccyx following a "slippery dip" ride in Easter 1988.
In short the plaintiff's symptoms of pain and restricted movement in the lower back which have been experienced by her since 15 July 1981 are all, in my opinion, to be regarded as compensable sequelae of the original fall on that date.
There was some dispute between Mr Schaeffer, the defendant's medical expert, and the doctors called by the plaintiff as to whether or not the plaintiff had suffered a demonstrable organic injury when she fell. Mr Schaeffer suggested that a discogram performed upon the plaintiff's intervertebral disc at L5/S1 was of very doubtful validity as a diagnostic procedure. He suggested that the extravasation of dye from the interior of the disc could be attributed to "needle tracking" ie the flow under pressure of dye back along the puncture caused by the needle which had injected the dye into the interior of the disc. Whilst I cannot completely discard this as a possibility I am satisfied that there was no evidence upon which Mr Schaeffer could have reached this conclusion on the material which he had.
The weight of the medical evidence satisfies me on the balance of probabilities that the plaintiff's disc at L5/S1 has been injured and that the mechanisms producing her pain are those described by Mr Atkinson as follows:
"I think there are numerous mechanisms; the posterior annulus of the disc has a profuse nerve supply, and it's probably the major source of pain. The facet joints, which are behind the spinal column are obliged to take up an increased load when the disc is not functioning properly, and I am sure they produce symptoms.
I think there is muscle spasm associated with trying to protect those points and that produces pain. I guess there could be some irritation of the sciatic nerve – I didn't really find that here, though I think as a disc collapses the holes, the foramena, where the nerves come out, become compromised and those nerves can be irritated. I think there is referred pain that goes down the muscles of the leg from the posterior annulus. I think it's a fairly complex source of pain".
Following her fall on 15 July 1981 the plaintiff attended the Royal Hobart Hospital outpatients department. She was sent home to rest with some Panadol and Valium tablets. During the next three weeks before returning to work she experienced pain of varying intensity. She stayed at her brother's flat in West Hobart and for most of this time, she was heavily dependent upon him and friends to assist her in moving around to the toilet and shower and in preparing food. Mrs Langridge referred her for medical treatment to Dr Beaumont in Battery Point and she received ultra sound treatment every two or three days until she was ready to resume her employment. When she returned to work the bar "usefuls" (ie the young men who emptied ashtrays, cleared away used glasses and so on) were attentive and helpful to the plaintiff in lifting trays of glasses and performing any other heavy tasks which she would normally have done.
However their initial enthusiasm diminished before long and the plaintiff found that she was expected to perform all her previous duties unaided. Her back still gave trouble from time to time and she had several days off work. She ceased working at the Casino after she strained her back again on the 31 October 1981 and hasn't worked there since. Following this incident she was referred to Mr R W L Turner, an orthopaedic specialist. A fusion operation was discussed but the plaintiff rejected this. She wore a rigid body brace for about two months and, not surprisingly, found it very uncomfortable. The defendant's insurers referred the plaintiff to Mr W B Law, another orthopaedic specialist and he in turn referred her to Dr Michael Jackson for pain management. At this stage the plaintiff described her condition in the following terms:
"....the really bad pain wasn't there all the time, it wasn't there 24 hours per day 7 days per week, but it was there for the majority of the time, and if it wasn't really bad it would just be an ache..."
Dr Jackson administered a series of epidural blocks and facet blocks. These gave transitory relief for a few days only.
The plaintiff said that her symptoms continued unchanged through 1982 but "at times they were less than before and then it would be from being good, like relatively good, to very bad". During this time the plaintiff was in receipt of weekly worker's compensation payments which continued until 16 November 1984 when she accepted a lump sum redemption of future entitlements. She asked Mrs Langridge if there was any prospect of undertaking a trainee management course at the Casino but was informed that no such position was available.
In March 1983 she returned to Adelaide and commenced living with her parents where she consulted Mr Robert Atkinson another orthopaedic surgeon. He referred her to a physiotherapist from whom she received treatment, initially 2 or 3 times a week and then less frequently over a period of about 1 year. Before undertaking this treatment the plaintiff said that her symptoms were "fairly bad". She had pain in the back and the leg. She sometimes had to kneel at the dinner table to eat and on occasions she found it more comfortable to lie down than to sit.
The treatment by the physiotherapist, Miss Anderson, proved most beneficial and the intensity and frequency of the plaintiff's back pain decreased. She was however consuming a substantial quantity of Digesic tablets and she has continued to take them, though much less frequently until the present time. Her main source of analgesic pain control is now Panadeine.
To avoid the necessity of travelling long distances to see Miss Anderson the plaintiff sought treatment from another physiotherapist, Mr Williamson. Her visits to him became intermittent and in 1987 she ceased seeing him at all.
Since that time she has seen two chiropractors for her pain management. She finds this treatment beneficial and she has chiropractic consultations fairly regularly. The present cost to her is $22.00 per visit. In addition her husband massages her lumbar spine with a herbal preparation called comfrey ointment. The plaintiff says that she derives substantial benefit from this; in particular it helps relieve "swelling" in her back which according to the medical evidence is caused by her back muscles in the region of the injured disc going into spasm.
Describing her current symptoms the plaintiff said:
"There's always at least a little ache, I can always feel it, and at times its a bit of a stab and a bit more ... it's probably two weeks out of like two months that it would be really bad. Other times it's sort of manageable so long as I can lie down or rest it or John" (her husband) "does the rubbing or I go to a chiropractor to relieve it a bit. When things are really bad I've got to stay in bed. I can't get to the toilet by myself. I can't walk if its really bad and then as its decreasing I can sort of shuffle around".
Asked where she experiences pain she said:
"At the base of the spine I get a lot of, anyway, just – normal pain. I get a lot of coccyx pain, a lot of pain in the lower back area down my legs and through my hips – the coccyx pain is actually quite major these days".
Prior to taking employment at the Casino in 1981, the plaintiff had held numerous other position such as waitressing, sales assistant and staff liaison work; but mainly she had been employed as a barmaid. She was, she said, only out of work when she wanted to be for the purpose of travelling or taking a holiday. She had planned to become involved in hotel management or convention organisation, promotions or similar work in the hospitality industry. Since returning to Adelaide in 1983 she has worked at Bertie's Restaurant as a hostess for a period of approximately six weeks in 1985, and then in 1986 she took up a public relations position with the State Opera of South Australia. This was a contract position lasting approximately 17 months. At the expiration of this period, her contract was not renewed. When she commenced this job, her back was "manageable". She missed some days during the course of her employment and on occasions during the course of opera performances she would lie down in the foyer of the theatre to gain relief from her sore back.
In May 1989 she took a job with the South Australian Council of Pensioner and Retired Persons Associations Incorporated working approximately five hours per day. She has had some days off but generally speaking has managed to cope well with this employment.
In August/September 1988 she formed a partnership with her husband called "A Personal Touch Catering". During the year ended 30 June 1989 her net share of profit was only $140.00. However the business has expanded somewhat this year and the firm's profit was estimated by her to be approximately $1,000.00 at the date of trial. She and her husband plan to expand this business if possible, and he is hopeful that he will be able to give up his present work as a self–employed painting contractor to assist in the business.
The plaintiff claims that apart from the employment mentioned, she has attempted to secure other employment since going to Adelaide. However a perusal of the list of the enquiries which she has made tends to indicate to me that she has concentrated upon public relations and promotional–style positions for which she may not be adequately qualified and consequently I think it would be unreasonable to regard her lack of employment during the whole of this period as attributable to her back disability.
In all I heard medical evidence from four doctors, Mr Robert Atkinson, Mr R W L Turner, Mr W B Law and Mr H R Schaeffer. They were all of the view that the plaintiff is not a candidate for back surgery and that she should be able to handle most spheres of employment, apart from those requiring constant heavy lifting, bending or twisting. Some doubt was expressed as to whether she could move with the speed required in waitressing work, but it was generally thought that she should be able to cope with the job of bar attendant. I have some reservations about this as I think she will need a sympathetic employer and an ability to take a break from time to time to rest her back. Although it was submitted that she was consciously exaggerating her pain for the purposes of this litigation, I do not believe this to be the case. I think she genuinely gets relief from using a director's chair, even though the orthopaedic specialists were unable to see how it could afford her relief. I think the answer to this problem is to be found in the unpadded canvas seat which I think would afford some relief to her coccygeal pain and the high wooden arms upon which she can rest her elbows and take some of the weight from her back. Obviously the chair is not orthopaedically ideal, but I think that she has adjusted her sitting posture to take full benefit of those features which I have mentioned. I therefore do not accept defence counsel's submission that the chair is just a "prop".
I paid careful attention to the plaintiff as she was giving her evidence and I have re–read her evidence in light of the medical witnesses who followed her in the witness box. I am left with the distinct impression that although she has discomfort and pain which is sometimes debilitating, this is neither as constant nor severe as her description tends to suggest. This does not mean that I regard her as deliberately falsifying the picture of her disability. It is, if anything, a recognition that the method of leading evidence from injured plaintiffs tends to place added emphasis to the bad times rather than providing a clear balance between the bad and the good.
Because of the plaintiff's diverse employment history and the limited fields in which she has sought and obtained employment since the accident, I do not regard it as appropriate to simply look at what she could have earned had she remained at the Casino between 1981 and the present time, and deduct from that amount the income which she has actually received to produce a net figure for recoverable loss of past earning capacity.
On the other hand, as the calculations based upon these figures and incorporated in amended particulars of economic loss delivered by the plaintiff on 8 May 1990 have been agreed between the parties for the purposes of the present litigation, I think that the wages of a bar attendant over the relevant period may be taken as an appropriate yard stick for considering the value of the income which the plaintiff was capable of earning.
During the period from 1981 to 5 May 1990 the plaintiff could have earned $117,475.00 if employed continuously as a bar attendant. She has in fact earned $32,412.00 in income over that same period of time. Mathematically speaking there has been a short fall of $85,063.00. However, for the reasons stated, I do not regard this as being a loss which is fully recoverable as a consequence of the accident. In my opinion, it would be appropriate to allow the plaintiff the sum of $60,000.00 as net income lost during the period mentioned as a result of her disablement.
For the purpose of calculating the plaintiff's future economic loss, it has also been agreed between the parties that the present net weekly income of a bar attendant is $341.91.
It is submitted that as she is presently 32 years of age, if she continued to work until the age of 60, her loss calculated on the 3% discount tables would amount to $331,994.00. It is reasonable, I think, to use that figure as a starting point for assessment, and on the basis of my judgment that the plaintiff has lost one–third of her earning capacity as a result of the accident to reduce that figure to $110,664.66.
There are, however, other considerations to be borne in mind which I think should further discount this figure. The plaintiff is still a comparatively young woman, she has no children of her own and she was married only a few years ago. Whilst there is an increasing tendency for married women, even with young children, to return as quickly as possible to the workforce, it is plain that during the early years of a young family a woman's earning opportunities are restricted and her income–earning capacity is reduced.
There is also the probability, particularly in the current economic climate in this country, that someone with the plaintiff's past employment record would be unlikely to remain in constant full time employment. I think it highly likely that had she not been injured, she would have changed jobs with some frequency or taken part time employment only. For these reasons, I think it reasonable to further reduce the above sum by a factor of 20%, giving a total of $88,531.73 which I round down to $88,500.00.
There was also a claim under the Griffith v Kerkemeyer principle for services voluntarily rendered to the plaintiff by her brother, friends and, latterly by her parents and husband. The casual rates available for domestic assistance of the kind claimed by the plaintiff have been set out in para4 of the Memorandum of Agreed Facts dated 8 May 1990. In this case I find it particularly difficult to assess an appropriate sum. I am in no doubt that the plaintiff's brother and her friends rendered her valuable aid and attention during her initial period of recuperation following this injury. I think that they continued to do so from time to time during the period that she spent in Hobart before going to Adelaide. The extent to which her mother and father rendered her aid in Adelaide is by no means clear. Neither of them was called as a witness. Her husband did give evidence of the way in which he assists her in household tasks and otherwise from the time that they first started living together until the present. I think it fair to say, however, that a number of the tasks that he undertakes are those which one would normally expect a husband to perform in a modern marriage relationship. Bearing in mind the hourly rates agreed between the parties as representing fair remuneration for casual domestic services as set forth in para4 of the Memorandum of Agreed Facts and assessing as best I can a global sum to represent past compensation to the plaintiff in respect of the need for such services created by her injury, I assess the total sum of $10,000.00. In respect of the future component of this item, I assess an additional sum of $5,000.00 making a total of $15,000.00 in all.
It has also been agreed between the parties that the plaintiff has incurred the sum of $1,807.50 in respect of medical, physiotherapy and chiropractic expenses in the past. It has been agreed that the present cost of each visit by the plaintiff to a chiropractor is $22.00 and I am asked to infer that she will receive treatment such as this indefinitely in the future. It think it is reasonable to draw this inference, as during periods of severe pain the plaintiff seems to find considerable relief from chiropractic manipulation. However, there is little if any evidence from which I can assess the frequency with which this treatment is required. Doing the best I can, I propose to allow the sum of $2,500.00 for future treatment of this kind.
I accept the plaintiff's evidence and that of her husband that she frequently uses comfrey ointment which costs her approximately $4.50 per week from which she derives some benefit. I also accept that she uses Panadeine tablets at an average cost of $2.50 per week. She has used Digesic tablets in the past and they cost $11.00 per packet, but as the plaintiff says, a packet of these strong tablets presently last her for a very long time. In my opinion, it would be unjustifiably generous to allow more than 50 cents per week for the cost of digesic. On the basis of the above figures, I propose to allow $7.50 per week as the future cost of this medication. The plaintiff has a life expectancy of about 46 years. On the 3% discount tables, the current value of $7.50 per week for 46 years is $9,840.00. Making an appropriate allowance for contingencies, I propose to allow the sum of $8,000.00 under this head.
As to pain, suffering and loss of amenities, the plaintiff gave evidence that prior to coming to Hobart in 1981, she was involved with the Adelaide Rowing Club and she intended to resume competitive rowing with the Buckingham Rowing Club in Hobart. She was also fond of walking, both generally and in the bush, and she participated socially in touch football, skating and occasional horse riding. She was fond of swimming when she lived in Adelaide before 1981, and used the pool at her parents' home. She has not participated in any of these activities since her accident with the exception of walking, but even this activity is limited at the present time. Oddly enough she has found that swimming exacerbates the pain in her back. Swimming is usually regarded as good therapy for a back injury, but the plaintiff's experience suggests that she should not be undertaking this activity in future. When she returned to live with her parents in Adelaide, she tried cycling in the hope of regaining her fitness, but she found this caused her back to "play up" so she stopped. Before the accident she tried scuba diving once and played ten pin bowling occasionally. As a result of an experience when she used scuba equipment for a promotional event in Adelaide, she has decided that further activity of this kind is out of the question. Similarly she has tried ten pin bowling once, but was unable to finish the game. She goes dancing with her husband from time to time, but as she said, "I always pay for it in the end". From this I infer that she experiences discomfort in the back after undertaking this activity.
As she and her husband are presently childless, it is not possible to say with any certainty how bearing children and caring for them will affect her back condition. However, I infer that if and when she has a young family, there will inevitably be physical stresses upon her lower back which will cause discomfort or pain. She said that she finds difficulty with numerous household tasks, such as vacuuming and hanging out the washing. She also finds it taxing to carry heavy bags of shopping. In addition to analgesics, chiropractic treatment and manipulation of her back by her husband, the plaintiff obtains some relief from back symptoms by taking a hot shower. She claims that she has suffered emotionally over the years and at one stage was drinking "far too much" in an attempt to overcome the pain in her back. She has also gained a good deal of weight. The plaintiff has been married since 1987 and although she and her husband enjoy a good relationship, her back condition interferes with their sexual activity to some extent. Generally speaking, however, her husband is very supportive and helpful to her. In my opinion, a proper amount for pain, suffering and loss of amenities is the sum of $30,000.00.
SUMMARY
1 Loss of past earning capacity
(including period covered by
weekly workers' compensation
payments) $60,000.00
2 Loss of future earning
capacity 88,500.00
3 Griffiths v Kerkemeyer
componentPast $10,000.00
Future 5,000.00 15,000.00
4 Past medical, physiotherapeutic
and chiropractic treatment paid
by plaintiff 1,807.50
5 Past hospital medical nursing
and ambulance expenses paid by
defendant's insurers 11,215.77
6 Future physiotherapeutic and
chiropractic expenses 2,500.00
7 Future pharmaceutical expenses
for analgesics and ointments 8,000.00
8 Pain suffering and loss of
amenities __30,000.00
$217,023.27
Less 20% contribution __43,404.65
$173,618.62
Less (i) Item 5 above $11,215.77
(ii) Workers'
compensation paid
as per paras2 &
3 of Memorandum of
Agreed Facts 5/5/1990 32,796.90 _44,012.67
$129,605.95
There will be judgment for the plaintiff for $129,605.95.
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