Slight v Ben-Mac Pty Ltd

[1996] QSC 129

IN THE SUPREME COURT

OF QUEENSLAND
  No. 1971 of 1994

[Slight v. Ben-Mac Pty Ltd]

BETWEEN:
  SANDY ROBYN SLIGHT
  Plaintiff

AND:
  BEN-MAC PTY LTD (formerly STOCKMAN'S
  AUSTRALIAN CAFE PTY LTD) (ACN 011 051 871)
  Defendant

JUDGMENT  -  THOMAS J.

Delivered:19 July 1996

CATCHWORDS:     DAMAGES - Back injury - Van Gervan v. Fenton discussed - Quantum

Counsel:Mr P de Plater for the Plaintiff

Mr J Rolls for the Defendant

Solicitors:MacGillivrays for the Plaintiff

Mullins & Mullins for the Defendant

Hearing Date:   11 and 12 July 1996

IN THE SUPREME COURT

OF QUEENSLAND
  No. 1971 of 1994

[Slight v. Ben-Mac Pty Ltd]

BETWEEN:
  SANDY ROBYN SLIGHT

Plaintiff
AND:
  BEN-MAC PTY LTD (formerly STOCKMAN'S
  AUSTRALIAN CAFE PTY LTD) (ACN 011 051 871)
  Defendant

JUDGMENT  -  THOMAS J.

Delivered 19 July 1996

Liability is admitted, and my only task is to assess the plaintiff's damages.
           The plaintiff was born on 18 April 1966 and was twenty-five years old when she commenced working as a chef at a restaurant called "Eat Street" at Marina Mirage, Main Beach.  She worked long hours and performed strenuous tasks including the lifting of heavy pots and bags of produce.  This ultimately produced a ruptured lumbo-sacral disc.  The first occasion when serious symptoms appeared was 29 March 1992.
           There was a short but unsuccessful return to work under a workers' compensation rehabilitation scheme in July 1992.  She underwent surgery in September 1992 during which the ruptured lumbo-sacral disc was removed.  After a few weeks there was some easing of pain and she commenced intensive physiotherapy and conscientiously endeavoured to recover her strength and mobility.  In February 1993 she commenced a full-time TAFE course which would, if completed result in an associate diploma in business and hospitality.  However she found that some of the practical work required of participants in the course, including some serving and waitressing functions, beyond her and she dropped out of the course after six weeks.
           Apparently she was suffering from a recurrent disc prolapse and symptoms similar to her original symptoms returned.  The defendant accepts responsibility for those consequences.  She was generally disabled, as persons with serious back disabilities are disabled.  Not only was she unable to cope with work, but her housework and her relationship with her fiance with whom she lived also suffered.
           On 29 July 1993 she underwent further surgery, this time by a neurosurgeon Dr Tan.  There was further removal of the right L5-FS1 disc.  Once again the pain in her leg disappeared, although some back pain remained.  By February 1994 she was looking forward to finding a job.  April of that year she attempted work as a supervisor in a restaurant, in the expectation that she would not be required to carry trays or be involved in other than very light physical work.  However the employer desired her to do more than escort patrons to tables and generally supervise.  After two or three weeks she found the bending and lifting tasks beyond her and she ceased that employment.
           From time to time she received physiotherapy and she undertook gymnasium exercises.  In an attempt to get back into the workforce she undertook a six-weeks word-processing and computer related course, this time completing it.  However she has not yet made any successful return to remunerative employment.
           Her fiance (Paul) found the additional domestic tasks and the additional need to nurse the plaintiff from time to time beyond him, and in October 1993 their relationship terminated.  The plaintiff moved out of the premises they had occupied.
           In August 1994 the plaintiff fell pregnant to another man and in May 1995 gave birth to a baby daughter (Holly).  In general her complaints of pain have increased from this time.  She has been unable to get back into the workforce, although she undoubtedly retains some earning capacity.  She complains fairly extensively of constant low back pain and right leg pain although it is fair to say that overall the leg pain has improved.  She also suffers from time to time from headaches, and takes two Panadein Forte tablets per night.
           There is some variation in assessment of her overall level of incapacity.  Dr John Gallagher, who examined her when she was eight months pregnant and who conceded that his opportunity for examination and formation of opinion was quite limited, opined an overall bodily disability of ten percent.  Dr Tan who has been associated with her over an extended period, and who performed the second operation, opined an overall twenty-five percent loss of bodily function.  Dr Salzman, a clinical neuropsychologist, in an interesting report regarded a significant degree of her pain and response as somatic, stating that she has a somatoform pain disorder (exhibit 6, page 5).  His experience is that when hyperactive highly motivated people with active minds are physically incapacitated they tend to develop significant psycho-pathology.  Such people commonly keep their stress and anxiety under control by the maintenance of activity (especially work), and when that outlet is no longer available, stress builds up and is manifested in irritability, anger and a somatoform pain disorder.  There is in the present case no suggestion of any lack of genuineness in the plaintiff.  There is certainly an adequate physical basis for her complaints, and if this psychological opinion explains part of her symptomatology, the consequences and the effect upon her life remain much the same.
           In addition to suffering from fairly constant pain, the plaintiff cannot sit for very long.  She has given different estimates of the period during which she can sustain sitting, suggesting an hour on some occasions, and twenty to thirty minutes in evidence.  Similarly, she cannot stand for very long periods.  She can probably stand for an hour without pain, but it is desirable that she keeps moving to some extent.  She suffers from one or two serious headaches each week.  Her housework is affected, and she finds that it takes her nearly all day to achieve what she formerly could achieve in an hour or so.  The lifting and tending of her one year old child (now twelve kilograms) increases her pain.
           There is very little conflict in the evidence, and it will be convenient to mention other relevant factors in the course of considering the various heads of damage.

Pain, Suffering and Loss of Amenities
           The plaintiff was a young work-oriented woman twenty-five years old when she suffered her back condition.  Her chosen career was initially as a chef, but she had ambitions to improve herself, and there were reasonable possibilities for her in the restaurant and hospitality industry.  She has almost certainly lost a career in those directions, although some supervisory position may at some stage be found.  She was physically active, participating in netball, horse riding, swimming and dancing when she found time.  She cannot now do any of those activities except pool swimming.  She now does some light aerobics, but strenuous physical activity is not open to her.  The back condition has had a big impact on her life and will continue to do so.  Damages under this head will be assessed at $45,000.

Economic Loss

She had a promising career.  After leaving highschool (having obtained a TE score of probably around 800) she went to a technical college at Coorparoo for twelve months and then obtained an apprenticeship, qualifying as a chef in her own right some three or four years later.  She worked in various positions throughout this period, and subsequently, in various centres including Brisbane, Sydney and Cairns.  In a number of positions she was paid above award salary.  She had a good and fairly continuous work history, although in March 1991 she voluntarily gave up her employment for a period of six months, because she was suffering from a depression that required some treatment.  However after that she obtained further work including that with the defendant.  Over her nine months with the defendant her average net weekly earnings were approximately $372.  Her future contingencies include both upwards and downwards factors.  Because of her good work history, her age and ambition I am inclined to think that at least from time to time she had the prospect of earning at a higher rate than that just mentioned.  When she had acquired enough experience, supervisory jobs were likely to become available.  There is some evidence of emotional or depressive weakness, and of course that is a factor that could have interrupted her career from time to time.  She intended to have children in due course although she had not paid a great deal of attention to the prospect.  She considers that she would have started a family in her early thirties but did not intend this to interfere very greatly in the pursuit of her career.  She intended to put her babies into day-care at about age six months.  That may well have happened.  I am prepared to treat this plaintiff as a career oriented person but when assessing further economic loss will give some effect to the effect that interruptions from having children cause, and the cessation of employment from time to time.  In the hospitality industry, out of hours work might raise some problems concerning child-care, and there are other factors that could militate against a full-time career, including possible ill-health of children.  But on the whole these are problems that she had good chances of overcoming.

She does retain some residual earning capacity, although she has not been able to exercise it at all in the period since the accident, which is now a little over four years.  She has some academic aptitude, and the capacity to retrain, but her physical limitations will always operate against her.  She has the benefit of fairly wide experience in the food and drink industry.  To some extent shortage of money has stood in the way of successful rehabilitation up until now.  Her abilities are not necessarily limited to the hospitality industry.  She could perform clerical work.  Many possible areas have been suggested in the expert reports, and also by defence counsel during cross-examination.  The plaintiff made very fair concessions in this area, perhaps more than were realistic in some instances.  She is I think well motivated to obtain work and realises that it is in her own best interests to obtain it.  However she still has the initial hurdle of getting back into the workforce after the interruption of a career.  It is easier to mention the types of job that she might be able to do than to obtain them.  Many of the suggestions would involve retraining, either in house or by means of a general course.  Ideally she would like a supervisory job such as a maître-d in a restaurant.  She had hoped some day to have her own restaurant, and that remains a possibility.  However if she did run her own business she would still have the disadvantage of not being able to do all the physical tasks that she would wish.  Generally speaking, when she obtains employment, she will need a sympathetic employer who understands her limitations.
           In a case like the present it is impossible to make specific predictions.  The best I can do is to assess that for the future her earning capacity has been reduced by about fifty percent, or even a little more.  It is also difficult to evaluate the level of her probable earning capacity but for the accident.  I have been aided by various exercises suggested by counsel.  Taking into account the various contingencies that have been mentioned, for past economic loss I shall project the amount which she was earning with the defendant;  and for future economic loss will act on a higher figure, noting that the current award is $385 and the prospect that she would earn at a higher rate than this.  I shall however discount the period for factors such as lack of continuity, risk of unemployment and the like.
           The submission of plaintiff's counsel for past economic loss ($400 for 4.25 years less .5 year), namely $78,000, in my view errs slightly against the plaintiff through deduction of half a year, although it projects a rate slightly higher than that I have adopted.  It is however close to the mark, and I shall allow $80,000 for this component.  The figures submitted by defence counsel, after correction of a mathematical error also support this result.
           For future economic loss, on the footing that her earning capacity is represented by earnings of $420 per week net, continuously, for twenty years, the initial figure is $279,720.  Limitation to a period of twenty years contains some discounting.  A loss of fifty-five percent of this (a little more than half) is $153,846.
           Other examples are possible, but it seems to me that a fair allowance for future economic loss will be $150,000.

Griffiths v. Kerkemeyer

The evidence in respect of this claim, both for the need for care until now, and the future need for care, is not very satisfactory, and perhaps this was partly the result of the plaintiff's reluctance to say much about her domestic circumstances.  This makes assessment difficult.  The evidence satisfactorily establishes a need after the first injury, a need after her first surgery, and an especially acute need for assistance after her second surgery.  Curiously the submission on behalf of the plaintiff for damages up to the present was $10,000, and that on behalf of the defendant $13,700.  The parties agreed that the rate of $10 per hour should be applied to whatever hours such a need is shown.  She has shown a need for an hour or so per day between the end of March 1992 and September 1992;  a need of perhaps six hours a day whilst she recovered from the first surgery for a period of say six weeks;  then a diminishing need for assistance, probably coming back to one hour a day until the time of the second surgery (July 1993).  There is then a period during which her parents helped her for eight weeks when I think that six hours per day is reasonable.
           From October 1993 she moved to various flats and her evidence suggests that no evidence was needed during those periods.  There has been some confusion between her need for assistance and the question of who gave it when someone was there to give it.  The tests posed in Van Gervan v. Fenton (1992) 175 CLR 327 often render it difficult to extract evidence that enables the relevant needs to be measured. In the present case no satisfactory evidence was directed to the question of needs being established by loss of ability to provide countervailing services. Broadly speaking if a plaintiff concedes that she does not need assistance when she flats on their own, it is difficult to think that she needs assistance when she commences living with someone else, although human nature will lead the afflicted person to endeavour to obtain assistance from the companion. I do not wish to discuss speculative matters of this kind. I confess to great difficulty in being able to apply the principles of Van Gervan to the evidence in the present case, at least after October 1993.  There is however evidence of a general kind that some need for care or services to be provided gratuitously still exists, and counsel for the plaintiff sought to quantify this as half an hour per day for the rest of her life ($35 per week for forty years - $30,000).  Although at first glance that might appear to be a modest claim, it seems to me to be too high because the need is only intermittent on the evidence that has been given.  I shall however allow $20,000.
           With respect to past Griffiths v. Kerkemeyer damages, the evidence which I have set out justifies the submission of the plaintiff's counsel that $10,000 should be allowed.

Future Expenses
           It is necessary to mention only a few items with respect to which counsel were not in agreement.
           I shall allow future medication at $8000.  After this award the plaintiff will lose her pensioner status, and the Panadein Forte will cost $13 per packet.  If she does not continue with that medication, it is likely that she will take something else at similar expense.  The above figure is calculated on the footing of $9 per week for forty years.
           There is also a claim for future acupuncture.  She is currently receiving regular treatment of this kind, and Dr Tan says that it is reasonable that it should continue.  I do not however consider it to be necessarily a lifetime regime.  Even so, if she discontinues this, she may spend similar money upon consultations with GPs or upon paramedical assistance of other kinds.  I shall allow $6 per week for forty years - $5250.  The need for future beds and future back-braces is to some extent established although it is impossible to say how many will be purchased.  Provision should be made for two future beds at $850 each (with a discount for present payment in respect of future expenditure) and for five back-braces at $200 each (with a similar discount).  The amount allowed will be $1400.

Summary

Pain suffering and loss of amenities	45,000.00
Interest (on $15,000 less $9,085 W.C.B. payment received in April 1994) at 2 percent per annum for 4.25 years	503.00
Past economic loss	80,000.00
Interest ($80,000 less $50,400 W.C.B. payments) at 6 percent for 4.25 years	7,548.00
Future economic loss	150,000.00
Special damages paid by W.C.B.	20,423.95
Fox v. Wood damages	4,944.20
Agreed special damages	4,849.25
Interest on out-of-pocket expenses ($2643 at 12 percent for two and a half years)	793.00
Past Griffiths v. Kerkemeyer	10,000.00
Interest thereon at 2 percent for 4.25 years	850.00
Future Griffiths v. Kerkemeyer	20,000.00
Future counselling	2,720.00
Future rehabilitation	1,330.00
Future medication	8,000.00
Future acupuncture or other medical	5,250.00
Future beds and back-braces	1,400.00
Total	363,611.40
Less refund due to W.C.B.	62,053.37
Total	$301,558.03

There will be judgment for the plaintiff for $301,558.03.  Liberty to apply on questions of mathematics and interest.