Stebbings v State of Tasmania
[2000] TASSC 118
•25 August 2000
[2000] TASSC 118
CITATION: Stebbings v State of Tasmania [2000] TASSC 118
PARTIES: STEBBINGS, Margaret
v
STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 181/1998
DELIVERED ON: 25 August 2000
DELIVERED AT: Hobart
HEARING DATES: 30, 31 March, 3, 6 April 2000
JUDGMENT OF: Evans J
CATCHWORDS:
Damages - Particular awards of general damages - Tasmania - Back injury - Elbow injury - Woman aged 52 at trial - Soft tissue damage - Award $32,100 including $16,000 for pain and suffering and $1,500 for loss of earning capacity.
Aust Dig [61]
Employment law - The contract of service and rights, duties and liabilities as between employer and employee - Liability of employer for injury to employee at common law - Safe place of work - Plaintiff slipped on recently mopped, wet floor - Failure to provide relevant instructions or warning signs.
Aust Dig [32]
REPRESENTATION:
Counsel:
Plaintiff: D J Barclay with E K MacLaine-Cross
Defendant: P Turner with C E Kelly
Solicitors:
Plaintiff: Bartletts
Defendant: Director of Public Prosecutions
Judgment Number: [2000] TASSC 118
Number of Paragraphs: 60
Serial No 118/2000
File No 181/1998
MARGARET STEBBINGS v STATE OF TASMANIA
REASONS FOR JUDGMENT EVANS J
25 August 2000
The plaintiff sues the defendant for damages for injuries she suffered on 7 July 1996 when, in the course of her employment with the defendant, she slipped and fell.
The incident
The plaintiff was employed by the defendant as an enrolled nurse at the West Coast Hospital, Queenstown. She says that shortly prior to 10am on the day of her fall, she assisted an elderly in-patient of the Lyell Unit of the hospital, Mrs Carvel, to shower and accompanied her back to her room. As the plaintiff did so, she carried Mr Carvel's toiletries, night attire and towel. The passageway along which the plaintiff walked to Mrs Carvel's room was carpeted. As the plaintiff stepped from the passageway onto the heavy duty vinyl floor in Mrs Carvel's room, she says, she slipped and fell backwards onto her buttocks and right elbow. She also bumped her head. Upon falling, she noted that the floor was wet, it having recently been wet mopped. She had not noticed this before she fell. Mrs Carvel occupied room 4 of the Lyell Unit.
On the day of the plaintiff's fall the floors in the Lyell Unit were cleaned by Frances Beams, a domestic cleaner. She had been employed in that position by the defendant for about four years prior to the incident. Her evidence is that, consistent with hospital practice, on the day of the incident she vacuumed, wet mopped, dried and polished the floors in each Lyell Unit room. This was done daily. Having wet mopped the floor in room 5, which is on the opposite side of the passageway from the room then occupied by Mrs Carvel, she left room 5 to go for a dry mop which was some distance away. Before leaving she placed her wet mop and bucket in the passageway to the side of the door to room 5. As she walked along the passageway from room 5, she passed the plaintiff who was walking in the opposite direction. She spoke to the plaintiff and said words to the effect: "Be careful, the floor is wet". The plaintiff did not respond to her or acknowledge her in any way. As she returned to room 5 after collecting the dry mop, she again met the plaintiff in the passage. The plaintiff told Mrs Beams she had slipped and hurt her coccyx and took Mrs Beams into room 5 and pointed out where she had fallen.
The plaintiff has no recall of seeing a mop or bucket in the vicinity of the room where she fell. She denies meeting Mrs Beams in the passageway either shortly prior to or shortly after her fall or conversing with Mrs Beams as Mrs Beams relates. Their evidence is also at odds in relation to the room in which the plaintiff fell and other matters such as the footwear the plaintiff was wearing and what, if anything, the plaintiff was carrying. The plaintiff says she did not see Mrs Beams on the day of her fall until some time after it had occurred. She says that following her fall she went to the nurses station and completed an accident report form about it. She then returned to Mrs Carvel's room to make Mrs Carvel's bed and, at that time, met and spoke to Mrs Beams for the first time that day.
In one sense, little turns on whether the plaintiff fell in the room occupied by Mrs Carvel (room 4), as the plaintiff asserts, or room 5, which Mrs Beams says the plaintiff pointed out to her as the room in which she fell. If Mrs Beams is correct, the plaintiff in any event fell upon a floor which had recently been wet mopped. That the plaintiff's fall was on a floor that had recently been wet mopped was accepted in an accident investigation report completed by her supervisor the day after the incident.
Credibility
The plaintiff acknowledges that she does not have a good memory and this was demonstrated by some aspects of her evidence. Her recall of the numbering of the rooms in the Lyell Unit was wrong (she recalls Mrs Carvel's room as being number 5 when it was number 4), and I am satisfied that she was in error when she said that she consulted Dr McGushin on the day of her fall and undertook an x-ray following the consultation. It is apparent from Dr McGushin's medical certificate, the radiology account and the report of the radiologist that this occurred on 23 July 1996. Whilst errors such as these demonstrate that the plaintiff's recall is unreliable as to some details, I am satisfied of the soundness of the substance of her evidence. I consider the plaintiff to be an honest witness. Whilst counsel for the defendant submitted that she was not a good historian and her evidence was unreliable, he disavowed any suggestion that she was a dishonest witness.
Support for the plaintiff's evidence that she fell in Mrs Carvel's room is to be found in the accident report she completed on the day of the accident. In that report she stated the room in which she fell was room 4 and that she slipped and fell as she walked into the room to attend to Mrs Carvel. About a fortnight later the plaintiff completed a report for workers compensation purposes in which she said that Mrs Carvel witnessed her fall. I accept that the plaintiff fell in room 4, Mrs Carvel's room. It is highly unlikely that the plaintiff would have been mistaken about the room in which she fell so shortly after the incident. There is no apparent reason for the plaintiff to have deliberately mis-stated the room in which she fell and none has been suggested.
At the time of the incident no enquiries were made of Mrs Beams in relation to her knowledge of its occurrence and she did not complete any reports or the like about it. In the circumstances, she had no reason to make a mental note of what had occurred and she gave the matter no further thought until about three years later when she was asked if she had any knowledge of it.
In my view, the plaintiff's recall of the circumstances surrounding her fall is likely to be far more focused and reliable than that of Mrs Beams, in part because she was obliged to complete two forms referable to what had occurred within a short time of the incident. On the other hand, Mrs Beams was not called on to revive her memory of the events of the day of the fall until about three years later. In these circumstances, and as the documents completed by the plaintiff tend to confirm her evidence, I accept the plaintiff's evidence of the events of that day in preference to that of Mrs Beams. I find that the plaintiff fell when she slipped on the recently wet mopped floor in room 4 which was then occupied by Mrs Carvel.
Liability
Mrs Beams says that she wet mopped the floors with a mixture of water and detergent which, in her experience, formed a slippery combination. On an occasion prior to the plaintiff's fall, Mrs Beams had slipped on a wet mopped floor. Mrs Beams also worked in the general area of the hospital as distinct from the Lyell Unit. For the purposes of her work in that area, the defendant had provided her with a sign which read, "Walk this side". She had also obtained a sign that read, "Careful of floors". She had not received any instruction about the use of these signs. No warning signs were provided for her to use when working in the Lyell Unit. At the time of the plaintiff's fall, Mrs Beams had never received any instruction from the defendant on the precautions she should take to ensure that people did not slip on floors she had wet mopped.
As the plaintiff's employer, the defendant was contractually obliged to provide her with a safe place of work and to take reasonable care for her safety. At the time of the plaintiff's fall, the risk of people slipping on wet floors was well known, if not notorious. As the floors in the Lyell Unit were wet mopped daily, they constituted a real risk to the plaintiff and others who frequented those premises. The defendant was obliged to identify this risk, take steps to alleviate it and monitor compliance with those steps. In breach of that obligation, the defendant failed to do any of these things. Mrs Beams was not given any relevant instructions. She was not provided with warning signs or otherwise directed to ensure that the attention of people was drawn to wet floors. In the absence of warning signs, an obvious precaution for Mrs Beams to have taken when leaving a wet mopped room was to obstruct entry into the room by placing her mop and bucket in the doorway. This was not her practice. Had it been so, the plaintiff's fall may have been avoided.
Plainly the defendant breached its obligations to the plaintiff referable to her safety and this breach caused her injury in that she slipped on a recently wet mopped floor.
As explained, I prefer the evidence of the plaintiff to that of Mrs Beams in relation to the events of the day of the plaintiff's fall. I do not accept that Mrs Beams made the plaintiff aware that the floor in the room to which she was going was wet. However, the plaintiff knew the floors were washed regularly and she should have foreseen that the floor in Mrs Carvel's room might have been wet. That she did not do so does not absolve the defendant from liability for the consequences of its breach of its obligations to the plaintiff. The plaintiff's failure to anticipate and pay regard to the possibility that the floor was wet would be pertinent if the defendant could rely on the plaintiff's contributory negligence to reduce her damages. As the plaintiff's cause of action is founded in contract, albeit a contractual obligation which is concurrent with a tortious duty of care, the defendant cannot rely on contributory negligence and has properly abandoned that plea.
Background
The plaintiff is 52 years of age, her date of birth being 29 January 1948. She was born and educated on the west coast of Tasmania. She left high school when 16 years of age at the completion of Grade 10 and obtained work in a take away shop. Shortly thereafter she obtained employment with the West Coast Hospital, Queenstown, where she trained to be an auxiliary nurse (now termed an enrolled nurse). She worked at the hospital over a period of about eight to nine years during which she was away from work for, in total, a little less than two years for the birth of her two children. She terminated her employment with the hospital in about 1974 when her family moved to Devonport. She then obtained employment in a variety of positions, including full-time work as an enrolled nurse at the Mersey General Hospital, Latrobe, part-time work in a doctor's surgery and weekend work at the Meercroft Home for the Aged. She ultimately obtained full-time employment at the Ulverstone Hospital as an enrolled nurse and worked there for five to six years. When that hospital was about to close, she obtained employment at Tasman House in Devonport which provides care for the aged.
Whilst she was working at the Ulverstone Hospital, her husband developed rheumatoid arthritis. As a consequence of this, as well as a heart problem, he has for some time been unfit for work. The effect of these conditions on his physical capacity varies from day to day. On a good day he is reasonably physically capable. He is able to perform domestic chores. He endeavours to relieve the plaintiff from heavy tasks. He hangs out and collects the washing, does the vacuuming, makes the bed, does any necessary carrying, prepares vegetables and the like. He drives whenever he and the plaintiff travel significant distances.
Towards the middle of 1992, the plaintiff and her husband decided to move to Queensland in the hope that a change of weather would improve his condition. They moved to Tannum Sands near Gladstone in Queensland where their son was residing. For about a year the plaintiff was unemployed. There was little work available at Tannum Sands so she and her husband moved to Brisbane where she obtained full time work at the Autumn Lodge Nursing Home. When funds were short, on rare occasions, the plaintiff supplemented her income by obtaining shiftwork via the Oxley Nursing Service. Although she found work at Autumn Lodge physically arduous, she persisted with this employment for about three years as she was the sole provider for her and her husband.
In early 1996 they returned to Devonport as their daughter was to have a baby. The plaintiff was unable to find work as an enrolled nurse on the north west coast of Tasmania as she was not medication endorsed. Within about a month of returning to Devonport, she obtained casual employment back at the West Coast Hospital, Queenstown, on 1 June 1996.
Injuries and sequellae
The plaintiff says that when she fell she was shaken up and hurt all over. Her tail bone was her sorest part. Her right elbow was also sore. In the accident report she completed that day she said that when she fell, she hit the back of her head and hurt herself in the area of her sacral coccyx.
She remained at work and completed her shift. The next day she was still sore everywhere. Her main area of pain was in the lower back. Her elbow was also painful. At the time of her fall she was staying at her brother-in-law's home in Queenstown. That morning she returned to Devonport. Her brother-in-law drove her to the Cradle Mountain turn-off where they met her husband who then drove her for the balance of the journey. The journey was painful. She found it difficult to get in and out of the vehicles. To reduce her pain she sat on a cushion and propped her right elbow on a cushion.
At Devonport she attended her general practitioner, Dr Beaton, who prescribed anti-inflammatory tablets. She also took pain relief tablets and used a methyl salve rub. Initially, she found most movement difficult. She suffered pain when she rolled over in bed or moved about, such as when she went to the bathroom. She was unable to attend to household duties. Gradually her condition improved, although her tail bone remained very sore and her right elbow was a continuing problem.
After about two to three weeks she was able to return to her work at the West Coast Hospital as a casual employee. She stayed in the home of her brother-in-law at Queenstown for the duration of each block of work. Her husband and brother-in-law co-operated to drive her between Devonport and Queenstown. She was anxious to get extra shifts and move from casual to full-time employment. For this reason she did not mention her discomfort when at work. She was concerned that to do so might militate against her obtaining a full-time position which she needed as she was the sole provider for her and her husband.
After a few months, she secured a full-time position with the West Coast Hospital. She remained in that position for about a year. During that period she continued to suffer from pain in the area of her tail bone and right elbow. She described the pain as an ongoing nagging pain in both areas. Whilst working at the West Coast Hospital, she successfully completed a course to obtain medication endorsement. This increased the employment opportunities available to her in the nursing labour market.
When working at the West Coast Hospital she took Panadol or Panadeine for pain relief during the day, and Panadeine Forte on occasions at night. She used rubs which she describes as "Goanna Oil" and "Deep Heat", and her sister and husband on occasions massaged her using an anti-inflammatory rub. She took Diagesic. She says she did her best to cope as she needed the money.
In February 1997 she was off work for a short period when she underwent a colonoscopy. Early in 1997 she had about ten weeks off work in order to attend to her husband when he suffered a heart attack. Later that year she was off work for about four days because of general joint pain which she did not attribute to the injuries she suffered in her fall.
Due to the inconvenience of travelling between Devonport and Queenstown and a desire to return to the warmer climate of Queensland, she resigned her employment on 24 October 1997. On returning to Brisbane in November 1997, she obtained casual employment with Autumn Lodge, where she had previously worked. The work there was heavy and she found it difficult to cope with the lifting and dragging it required. After about five weeks she obtained casual nursing work with the Morton Bay Nursing Home until 14 April 1998, when she secured a full-time position at the Princess Alexandra Hospital.
Treatment
During the fortnight immediately following the accident, the plaintiff consulted Doctor Beaton on two occasions and Doctor McGushin on one occasion. She made no specific complaint to either of them in relation to her elbow. As to her coccyx, Doctor Beaton told her she had suffered a soft tissue injury that would take time to heal.
In April 1997, she consulted Doctor Beaton in relation to general joint pain in her hands and feet and underwent nerve conduction tests referable to the same. Her concerns at this time were apparently unrelated to the injuries she suffered in her fall. No specific reference was made to her coccyx or her right elbow.
On 23 September 1997, she consulted Doctor Beaton's partner, Doctor Broun, in relation to generalised joint pain. Whilst she made reference to her right elbow pain, she did not expressly relate that pain to her fall.
On 7 October 1997, Doctor Beaton certified the plaintiff unfit for work for four days due to polyarthralgia, that is, pain affecting several joints. It is apparent that the plaintiff's primary concern at that time continued to be generalised joint pain. She, in substance, says that a short time thereafter she ceased suffering from generalised joint pain and her focus returned to the pain caused by the injuries she suffered in her fall.
After moving to Brisbane in November 1997, she consulted a general practitioner, Doctor Wollard, in relation to her right elbow pain. He gave her acupuncture on four occasions and ultimately injected her right elbow with cortisone. This treatment was not successful. She was referred to an orthopaedic surgeon, Mr Nutting. It is clear that at this time the plaintiff attributed her right elbow problems to the fall as Mr Nutting's account was forwarded to the defendant for payment as a workers compensation expense. The plaintiff also consulted Doctor Paul McConnel, a general practitioner in relation to her back and elbow pain. He recommended that she undertake sports rehabilitation involving physiotherapy. She made enquiries about doing so but the cost was beyond her means.
The plaintiff made no complaint to any doctor to the effect that she had injured her elbow in the fall until about 18 months after that occurrence. The defendant contends that this delay, coupled with the plaintiff's failure to mention injuring her elbow when she completed an accident report immediately after her fall, casts doubt on the veracity of her claim to have injured her elbow when she fell. The plaintiff's complaint as to long term back pain is also open to question because of the substantial period that elapsed before she again sought treatment for her back pain after attending two doctors during the two weeks immediately following her fall. Notwithstanding these matters, I accept the plaintiff's evidence that she injured her right elbow and back when she fell and has since suffered symptoms in those areas. Support for her evidence is provided by her husband and brother-in-law. The latter gave evidence of her complaints about injuring her back and elbow on the day of the incident and the steps he took to assist her in relation to pain she was suffering in those areas when he drove her part of the way from Queenstown to Devonport on the following day. The plaintiff's husband, in substance, says that since the fall she has continually complained about pain in the area of her lower back and right elbow and he has assisted her by applying rubs in those areas. He mainly assists her in relation to her lower back as she is reluctant to allow him to apply ointment to her elbow or massage her in that area because it is tender and he is too rough.
Soft tissue injuries are the precipitating causes of the plaintiff's pain. It is apparent she recognises that little can be done to alleviate her pain besides those things she is able to do without involving a medical practitioner. She does not need a prescription in order to procure pain relief tablets. She obtains the rubs and the like which she uses from her husband. She is reluctant to take prescription drugs which make her drowsy and may interfere with her work. These matters explain her failure to seek treatment from medical practitioners. Whilst I am not persuaded that her failure to pursue medical treatment shows that her complaints are unfounded, I am satisfied that it indicates that her symptoms are moderate and not severe.
Expert witnesses
At the request of the defendant, the plaintiff was examined on 16 November 1998, by Doctor David Burke, a specialist in rehabilitation medicine. Upon examination, he found that she had moderately severe tenderness to palpation in a localised area over the upper radio-ulnar joint of her right elbow. Pain in the vicinity of the joint was elicited by both active and passive supination of her forearm. She complained of pain on full supination of the forearm. She was tender to palpation over the coccyx. So far as he could tell, her complaints were genuine. On the basis of his examination and the tenderness he found, he concluded that she had injured her radio-ulnar joint rather than her elbow joint. He attributed her pain to a soft tissue injury which he said was likely to be due to a forced rotation of her forearm rather than a direct injury to the joint. Pain from such an injury can be immediate, although not infrequently it develops over the next day or so. He looked specifically for any indication that she had lateral epicondylitis and did not find any signs of that condition. He, in substance, said that her complaints of pain as a consequence of her right arm and lower back injuries were consistent with his assessment of her. As to her pain, he said:
"On the assumption that she suffered a soft tissue injury to the coccyx, there was no fracture, I would have expected that pain to have resolved by the time I saw her well and truly. In fact it should have resolved after two to three months perhaps. With the other injury to the elbow region I am presuming that she had some damage to the capsule of the radio-ulnar joint or perhaps the muscles around that area, and again such a soft tissue injury should resolve over a two to three month period. The fact that she still has pain in both these areas so long after would suggest to me that there probably isn't an organic explanation for this. Particularly as there is no evidence of fracture in either region but that she has now developed what we usually describe as chronic pain syndrome which is hard to describe because people do have chronic pain and this can go on for many many years, in fact for long term, without there being necessarily specific organic basis for it. This is not to say that it's imagined. There is often psychological components to this ongoing pain syndrome but there isn't an organic explanation for it any more, although it started off that way of course."
He said that such pain was very difficult to treat after a long period of time and acknowledged that she was likely to suffer from pain for an indefinite period.
Doctor Trevor Myers, a consultant physician, examined the plaintiff at the request of her solicitors on 3 August 1999. His examination of her right elbow revealed marked tenderness over her right lateral epicondyle, significant he thought of epicondylitis in that region. Certain movements of her forearm made the pain worse. Examination of her back revealed exquisite tenderness over her coccyx, there was also tenderness along the right side of her sacrum. He concluded that, as a result of her fall, she injured her right elbow and was suffering from right lateral epicondylitis and had injured her right sacrum and coccyx. He said the injuries were causing severe and persistent pain. As to her back pain, he said that no particular treatment had been successful or seems likely to be successful in alleviating the pain. He also reported that the plaintiff was suffering from a degree of depression as a consequence of her injuries. He reviewed the plaintiff on 3 March 2000 and said there was no improvement in her condition and her symptoms were likely to be permanent. He said that work involving lifting patients or manipulating them in and out of lifting devices was quite a heavy task and would be very difficult for the plaintiff to perform.
Doctor Myers' diagnosis of lateral epicondylitis is based on his understanding that the plaintiff suffered an acute trauma to her right elbow at the time of her fall which caused her immediate pain sufficient to warrant her complaining about the pain at that time. He would have expected that following her fall there would have been signs of pain and swelling in the vicinity of her elbow. When Doctor Myers examined the plaintiff he was not aware of Doctor Burke's different diagnosis in relation to her elbow problem. My impression is that he did not give specific attention to the possibility that the cause of the plaintiff's elbow symptoms may have been a soft tissue injury to her upper radio-ulnar joint.
On balance, I favour Doctor Burke's diagnosis in relation to the origins of the plaintiff's elbow pain to that of Doctor Myers' diagnosis of lateral epicondylitis. The evidence as to the onset of the plaintiff's elbow pain is more consistent with a soft tissue injury of the nature described by Doctor Burke than a direct injury as a result of acute trauma as envisaged by Doctor Myers. Had the latter occurred, it is likely that there would have been visual signs of swelling and bruising to the plaintiff's elbow which was not the case. Had the plaintiff suffered such an injury, it is unlikely that she would have failed to refer to it in the accident report she completed immediately following her fall. Doctor Burke specifically looked for evidence of lateral epicondylitis when he examined the plaintiff and he did not find any. The plaintiff did not exhibit any tenderness over her lateral epicondyle and she did not complain of pain in that area when he tested her in a manner that usually elicited pain if there was inflammation in that area. In Doctor Burke's experience, lateral epicondylitis is usually caused by repetitive strain. He had no experience of it being caused by an isolated trauma and considered such a cause to be unlikely.
Whilst I accept Doctor Burke's diagnosis in relation to the origins of the plaintiff's elbow pain, little turns on the difference between his diagnosis and that of Doctor Myers. They both relate her elbow pain to her fall and they are both of the view that her ongoing symptoms are likely to trouble her indefinitely.
Doctor Michael Duke, a consultant psychiatrist, examined the plaintiff at the request of her solicitors on 10 November 1999. He said she complained of low energy levels, feeling very tired, weekly headaches, being irritable with her husband and disturbed sleep. Her mood was rated at about six or seven out of ten where nought was suicidal and ten was as happy as one can be. He diagnosed her as suffering from a mild mood disorder with depressive symptoms which are related to the chronic pain from which she suffered as a consequence of her injury. He says the likelihood is that her mood disorder will be improved by standard anti-depressants. The plaintiff is concerned about taking anti-depressants as they may affect her when driving or working.
I deduce from Doctor Duke's evidence that the plaintiff is down in the dumps. Her condition is no different than one would expect in relation to a person suffering from chronic pain, save that her condition is more than transient unhappiness and is long standing. I have little doubt that the plaintiff's concern for her husband and her added responsibilities as a consequence of his disabilities contribute to her mental state.
Whilst her reluctance to take medication to relieve her condition is explicable and understandable, it is also indicative of the mild nature of this complaint. If her mood disorder was a significant cause for concern, I have little doubt that she would have at least tried the medication offered. I do not consider her mood disorder to be of significance.
Current situation
The plaintiff suffers from a nagging pain in the coccyx area and up the right side of her buttocks. When pain develops, it takes about 20 - 30 minutes to abate, depending upon what precipitates it. Pain is brought on by bending, lifting and activities such as long car trips. When she travels a long way (the trip to visit her children takes six to seven hours) she sits on a cushion. She is comfortable driving herself on short journeys. After driving for more than 10 to 15 minutes, she suffers throbbing back pain. She drives herself to and from work.
Her right elbow is painful when bumped or when used in a variety of ways, including lifting, twisting and stretching. Activities which cause pain include turning a door handle, hand washing clothes, carrying heavy objects or reaching for items. She tries to protect her right arm by using her left arm when possible, but this is difficult as she is right-handed.
Although physically restricted, she enjoys gardening and performing household chores. With the support of her husband, she is able to minimise the need to perform tasks which are likely to precipitate pain.
Whilst activities such as those mentioned may bring on pain, the onset and degree of her pain varies from day to day, unrelated to anything in particular. She quite often has bad periods. During bad periods, she goes to work but feels miserable. I categorise the degree of her pain as moderate rather than severe.
She does not sleep well at night and is moody. Her circumstances get her down.
She continues to use rubs provided for her husband's arthritis to relieve her symptoms. She takes Panadeine or Panadol tablets daily. Her estimates of the level of her consumption varied. I am satisfied that she takes about 24 tablets a fortnight. She takes Panadeine Forte at night when she is having a really bad time, but not if she is working the next day as it makes her drowsy. She wears a tennis elbow support on her right elbow when she does anything at home which may aggravate her elbow. She does not wear the elbow support at work as she is concerned that someone might see it.
The plaintiff works in the brain rehabilitation unit at the Princess Alexandra Hospital. The patients are mainly young people who have been injured in car accidents. A prime objective of their rehabilitation is to help them return home. None of the patients are bed bound and a lot of them are sufficiently ambulatory to attend to themselves. She does not find the work arduous as wardsmen are available to assist with lifting and the hospital is well equipped with lifting devices and related aids. She describes work at the Princess Alexandra Hospital as the lightest nursing work she has had. Whilst I accept that this is so, I do not consider that the work she is performing is particularly light. Doctor Burke, who works in a brain injury rehabilitation unit which is similar to the unit in which the plaintiff is employed, says that although the nursing work in a rehabilitation unit is not as heavy as that performed in a geriatric ward, it still requires lifting and helping patients with their physical needs. He expects that the plaintiff's symptoms would cause her difficulty with the heavier aspects of her work.
Pain and suffering and loss of amenities
I am satisfied that within two or three weeks of the plaintiff's accident she recovered from the disabling pain initially caused by the fall. Thereafter, to varying degrees, she has been subject to pain in the region of her coccyx and the region of her elbow as referred to. This pain is chronic and is likely to continue indefinitely. As a consequence of the pain she feels down in the dumps. I find that her mental state is no more than is to be expected for someone in her circumstances, save that it is not transient.
Her current life expectancy is 31 years. Her symptoms will continue to impact on her enjoyment of life and the activities she is able to perform in much the same way as they have to date. She will continue to resort to pain relief medication, rubs and the like to alleviate her symptoms.
I assess her damages for pain and suffering and loss of amenities at $16,000.
Future pain relief expenses
A claim for special damages is made in relation to the plaintiff's future need for Panadol or Panadeine tablets. I assess this need to be much the same as her present consumption, about 24 tablets per fortnight. Her evidence is that Panadol is the cheaper product and she purchases a packet of 24 tablets for $3.50. A loss of $1.75 per week for 31 years, discounted at 7 per cent, capitalises at $1,185. I allow $1,100 for this claim.
Loss of earning capacity
The plaintiff makes no claim for past loss of earnings. A claim is however made that the impact of her injuries on her earning capacity will cause her loss in the future.
The plaintiff says she could not work in the general area of a hospital as an enrolled nurse as the work would be too heavy for her and would cause her a lot of pain and discomfort. Specifically she says that she could not lift patients or raise the back of their beds as required. She doubts that she could now perform the work she was performing at the West Coast Hospital. She says that the work she was performing at the Autumn Lodge Nursing Home when she returned to Queensland from Tasmania was too arduous for her and she was in lots of pain at the end of each shift. It was for this reason that she ceased working at Autumn Lodge and eventually found her present employment at the Princess Alexandra Hospital.
She is concerned that changes at the Princess Alexandra Hospital could result in her being moved to a different work area where she may be unable to cope. She says she will work for as long as she is able. Her work record demonstrates her enthusiasm for work and her capacity to find work. Needs arising from her husband's disability give impetus to her desire to remain in employment. I consider it likely that she will continue to work until she is between 60 and 65 years of age.
I am satisfied that as a consequence of the disabilities from which she suffers arising from the accident, the plaintiff has a reduced earning capacity. She is no longer able to perform heavy manual work, which includes some aspects of nursing. This reduces the opportunities available to her in the employment market and may discourage a potential employer from engaging her.
The plaintiff has been able to work at the Princess Alexandra Hospital for about two years without having any time off work because of her disabilities. I consider it likely that the plaintiff's current employment will remain available to her and she will be able to perform the work until she chooses to retire. As to her current employment remaining available, my expectation is that she is a well regarded employee and her employer will continue her employment for so long as appropriate work can be found. I do not consider it likely that the work she is now performing will cease to be available at the Princess Alexandra Hospital within the plaintiff's working life.
Whilst satisfied that it is probable that the plaintiff's disabilities will not cause her to lose income in the future, I do not discount the possibility that they will cause her loss, as mere speculation. The volatility of today's employment market cannot be overlooked. It may be that contrary to my expectations, the burden of working with her disabilities may prompt the plaintiff to retire earlier than she otherwise would have. Should she suffer a comparatively minor further injury, that injury, coupled with her present disabilities, may bring about her early retirement. If, contrary to my expectation, the nature of the plaintiff's work changes and she is unable to continue with her present employment, she will suffer loss during the period it takes her to find suitable alternative employment. That is a loss for which the defendant would be responsible. Again, if contrary to my expectation, the plaintiff's employment is terminated, she will suffer loss until she finds other work. To the extent that the delay in her finding suitable employment results from her disabilities, that loss would be the responsibility of the defendant. In either event, as a consequence of her disabilities, she may not be able to find suitable alternative work, or may only be able to find work which is less remunerative than the sort of work she could have performed if she did not have a reduced capacity for work. I do not propose detailing further examples of the wide variety of ways in which the plaintiff may suffer loss in the future because of her reduced earning capacity. Of the possibilities, I consider that the most likely way in which the plaintiff may suffer loss is that her disabilities will cause her to retire prematurely. Possibilities of this nature warrant an award of damages for her lost earning capacity.
The plaintiff's after tax income from the Princess Alexandra Hospital for the financial year which ended on 30 June 1999 was $26,090. Her employer also made a superannuation payment to her interest equal to 8 per cent of her salary. The amount of that payment will increase to 9 per cent of her salary from 1 July 2002.
Doing the best I can and bearing in mind the wide variety of possibilities that could result in the plaintiff suffering loss as a consequence of her reduced earning capacity, I assess her loss under this head of damages at $15,000.
Conclusion
I have assessed the plaintiff's damages as follows:
Pain and suffering and loss of amenities of life
$16,000
Future pain relief expenses
$1,100
Loss of earning capacity
$15,000
TOTAL
$32,100
Judgment will be entered in favour of the plaintiff for the above amount.
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