Stokes, Anne Elizabeth v Blueline Laundry Inc

[1998] TASSC 114

114/1998

PARTIES:  STOKES, Anne Elizabeth
  v
  BLUELINE LAUNDRY INC

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  471/1995
DELIVERED:  24 September 1998
HEARING DATE/S:  9 - 11, 14 September 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

Torts - Negligence - Essentials of action for negligence - Standard of care - Generally - Employer/employee - Response of the reasonable employer to the foreseeable risk - Worker in a laundry.

Wyong Shire Council v Shirt (1979 - 1980) 146 CLR 40, applied.

Aust Dig Torts [46]

REPRESENTATION:

Counsel:
             Plaintiff:  K E Read
             Defendant:  G W Tremayne
Solicitors:
             Plaintiff:  Jennings Elliott
             Defendant:  Griffits & Jackson

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  114/1998
Number of pages:  11

Serial No 114/1998
File No 471/1995

ANNE ELIZABETH STOKES v BLUELINE LAUNDRY INC

REASONS FOR JUDGMENT  UNDERWOOD J

24 September 1998

The plaintiff

Mrs Stokes has led an unremarkable, but far from easy life.  Born in Hobart, she left school with her Schools Board Certificate at the age of 16.  She married young and had three children.  All of them are now grown up.  Sadly, the plaintiff's husband was an alcoholic and she had to earn the money and bring up the children, largely without the support of her husband.  The plaintiff stayed with her husband for twenty-six years.  She said, "it was a very hard marriage and I stayed in there because I just believed it was the right thing to do." 

In 1977, the plaintiff went to work at the Hobart Clinic as a housekeeper.  She became relieving manager there and together with the medical practitioners, became involved in patient counselling in family groups.  She described herself as the "general house mother" at the Clinic.  The plaintiff worked at the Hobart Clinic for about ten years.  The caring aspect of her job gave her a great deal of emotional satisfaction. 

In about 1987 the plaintiff left the Hobart Clinic and started work for the defendant in its laundry run under the auspices of the Catholic Church.  A considerable number of the employees at the laundry are intellectually and/or physically disabled.  The year after she started, the plaintiff was made a supervisor.  She became involved in the lives of the disabled workers.  Backed by the Lions and Apex Clubs, she worked on committees that organised competitive sports for the disabled.  She said, "it was just so wonderful to be able to involve myself in something that gave me some rewards."   As was the case at the Hobart Clinic, the plaintiff gained a great deal of satisfaction from the care and support she gave the disabled.

Not long after her marriage ended, the plaintiff started a new relationship with a man who also worked at the defendant's laundry.  It was and is a good relationship.  The plaintiff said that, "it was just lovely finding a partner that spoilt you and looked after you."  All of that changed as a result of a very minor injury at work on 8 April 1992.  On that day, the plaintiff suffered a slight injury to her shoulder which had unexpected, disastrous consequences for her.  The injury and its sequelae have dramatically reduced the plaintiff's capacities and diminished the quality of her life.

By these proceedings, the plaintiff claims that the personal injury she suffered on 8 April 1992 was caused by the negligence of the defendant and that she is entitled to recover damages for that injury and the consequential loss and damage.

The laundry

There was little dispute over the facts surrounding the plaintiff's accident.  The essence of the dispute between the parties on the issue of liability was the proper inference to be drawn from those facts. 

The defendant did the laundry for hospitals, casinos, hotels and the like.  It employed both able bodied and disabled persons.  On arrival at the laundry, the washing was sorted onto the laundry floor and bagged up into appropriate washes and labelled.  After washing, the laundry was again sorted and taken to the roller ironers, one of which was called the "Louise roller ironer".  This machine was used to iron and fold damp sheets, pillow cases, aprons, "theatre greens" and the like.  The expression "theatre greens" was used in the laundry to describe the loose green garments worn by the staff in hospital operating theatres.  The trousers of these garments have a draw string at the top which, as will be seen, has some significance in this case.

The laundry destined to go through the Louise roller ironer was brought in trolleys to what was called the top end of the machine. The staff pulled the damp laundry out of a trolley and piece by piece, shook it free and placed it flat upon what might conveniently be described as a conveyor belt.  This belt carried each piece of laundry along to a series of large rollers which ironed it and, presumably, dried it at the same time.  Once a garment was ironed flat and dried, a conveyor belt carried it a short distance to the folding section of the Louise roller ironer.  This part of the machine can be configured at the touch of a button to fold articles in different ways, depending upon whether they are sheets or pillows cases, and the like.  Basically, this part of the machine consisted of a series of rollers that pulled and vacuumed sucked the sheets and other articles backwards and forwards and up and down, folding them as it did so.

It was not uncommon for an article to become caught in the folding section of the Louise roller ironer.  Particularly susceptible to getting caught were theatre greens because the draw strings in the trousers had a tendency to wrap themselves around a roller and jam the machine.  To minimise the occurrence of this, the staff were required to ensure that the draw strings on theatre greens were placed on top of the trousers and not left lying to one side when the greens were placed on the conveyer at the top end of the machine.

When an article became jammed in the machine, the practice at the laundry was to stop the machine and for a supervisor to see if he or she could free the blockage.  If this was not possible, the practice was to shut the machine down completely and send for the fitters who were employed at the laundry to come and dismantle the machine sufficiently to free the jammed article.

The accident

About 8am on 8 April 1992, the plaintiff noticed that the staff were feeding theatre greens from Calvary Hospital in at the top end of the Louise roller ironer but nothing was coming out the other, or bottom end of the machine.  The plaintiff said that the able bodied person in charge of the disabled workers at the top end of the machine was not there.  The plaintiff decided to investigate the cause of the problem.  The machine was stopped.  The plaintiff got under the machine at the point where the conveyor passes the work from the ironing-drying section, to the folding section.  It was quite easy for the plaintiff to do this as the conveyor at that point sloped down from about head height over a distance of a few feet to about four feet above the ground where the work is delivered to the rollers in the folding section.  The plaintiff said that she got in under the conveyor and then squatted or knelt down underneath the first roller on the folding section and looked up to see if she could detect the cause of the problem.  She saw a pair of theatre greens wound around a roller so she reached up and tried to pull them free.  She gave them several tugs but was not successful.  Accordingly, the plaintiff clambered out from underneath the machine, shut it down completely and sent a message for the fitters to come and attend to the problem.  It was the kind of thing the plaintiff had done many times in the past.  She said that nine times out of ten she was able to fix the problem and it had not been necessary to send for the fitters.  After the plaintiff had got out from under the machine, she experienced no pain, but about an hour and a half later, she began to feel, not pain, but discomfort in her right shoulder.  She made an accident report to another supervisor.  Dr Francis, rheumatologist, subsequently diagnosed a subacromion impingement arising from a relatively minor traumatic incident to the rotator cuff, but without any evidence of rotator cuff tear.

The plaintiff said that when she got under the first roller on the folding section of the machine, she was crouched on her knees.  A former worker at the laundry said that the space there was about three or four feet high.  The plaintiff described how she was squatting or kneeling under the rollers and at the same time twisted to the right, looking up as she tugged at the garment with her right hand to see if she could release it.  In her evidence, the plaintiff said that it was like getting under the witness box and looking up to see the under side.  Dr Francis said, and I accept, that the position and the movements of the plaintiff under the machine were such that they could have caused the injury to the rotator cuff.  I find that the plaintiff did sustain that injury on 8 April 1992 when she was under the Louise roller ironer, tugging at the theatre greens, trying to free them.

The plaintiff continued at work for about a month after the accident.  She said that during that month her right shoulder was "uncomfortable".  She recalled that on 18 May 1992, she was lifting damp laundry out of the trolleys onto the top end of the roller ironer and by the end of the day, the pain in her shoulder had become "intolerable".  The next day the plaintiff consulted a general practitioner, Dr Tucker, and was certified unfit for work.  Except for short periods, the plaintiff has not worked since.

On behalf of the defendant, Mr Tremayne submitted that I should not be satisfied on the balance of probabilities that the subacromion impingement was caused on 8 April 1992.  He submitted that it was just as likely that it occurred on 18 May 1992 after a hard day of lifting damp washing onto the top end of the Louise roller ironer.  I do not accept that submission.  Although Dr Francis conceded that it was possible that the injury he had diagnosed occurred on 18 May 1992, and not 8 April 1992, he did not think that this was likely.  The plaintiff said, and I accept, that between 8 April and 18 May 1992 she experienced discomfort in her shoulder when she was at work.  Dr Francis said that was consistent with the occurrence of a minor injury on 8 April.  He said that he would have expected activity to produce discomfort and he thought that the repetitive lifting work on 18 May 1992 probably exacerbated the symptoms.  With respect to this, Dr Francis demonstrated how the activity that the plaintiff said she undertook at work on 18 May would cause an exacerbation of symptoms arising from a subacromion impingement.  After being pressed about this matter by Mr Tremayne, Dr Francis said:

"I mean it is possible that just the activity of the lifting was sufficient to precipitate the outcome.  It is more likely, however, that there was an initiating event that precipitated the outcome and that's what my clinical judgment has been."

With respect to that precipitating event, Dr Francis said it could have been relatively minor, a slight disruption of the acromio-clavicular joint which causes a degree of swelling and closes the space down.  He said that commonly, secondary to this swelling, bursitis occurs and that is the likely situation in the plaintiff's case. 

The physiological insult sustained by the plaintiff was minor.  However, there was a bad outcome.  Her autonomic nerves reacted to the minor injury, causing the plaintiff to suffer considerable chronic pain.  Psychological symptoms developed secondary to the pain with catastrophic consequences for the plaintiff. 

Was the defendant in breach of the duty of care it owed the plaintiff?

It was, of course, properly conceded that the defendant owed the plaintiff a non-delegable duty of care.  For the plaintiff, Mr Read submitted that it was reasonably foreseeable that the plaintiff, or a person in the same class as the plaintiff, might suffer an injury by doing the sort of work she was doing when trying to clear the blockage.  I accept that submission.  The likelihood of the occurrence of an injury whilst crouched under the machine tugging down on jammed articles could not be described as fanciful or far-fetched.  Mr Read next submitted that the defendant was in breach of its duty by adopting or permitting the practice of employees getting underneath the Louise roller ironer and tugging on jammed articles to see if they could be freed.  The question is whether the plaintiff has established on the balance of probabilities, that the defendant's response to that risk of injury was less than would have been the response of a reasonable employer placed in the same situation as the defendant.  As to this, I make no apology for setting out the frequently cited passage from the judgment of Mason J (as he then was) in Wyong Shire Council v Shirt (1979 - 1980) 146 CLR 40 at 47 - 48:

"If the answer be in the affirmative, [that there is a foreseeable risk of injury] it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

After careful consideration, I have reached the conclusion that I am not satisfied to the requisite degree that a prudent employer in the position of the defendant would have done something that the defendant did not do in order to avoid the risk of injury.  Once the machine was turned off, there was no risk of injury being caused by moving parts.  Although the space was cramped and confined, a reasonable employer would expect an experienced supervisor, such as the plaintiff, to climb into the space to investigate the cause of the jam.  Someone had to do that or the laundry would cease to operate all together.  If the plaintiff had sent for a fitter instead of going under herself, the first thing the fitter would have done was just what the plaintiff did; climb underneath the machine and investigate the cause of the jam.  It was suggested during the course of submissions that a prudent employer would have instructed employees to confine their investigation of a jam to a visual inspection only and directed employees not to try and free any garment by tugging on it.  Such a suggestion is unrealistic and not one that would have been adopted by a reasonable employer in the light of the uncontradicted evidence that "nine times out of ten" the tugging freed the garment.  Such an investigation would have achieved nothing because, regardless of its outcome, the fitters would have to be sent for and an obvious way for a fitter to try and remove the jammed garment would be to pull at it.

The activity of the plaintiff under the machine was not one that was inherently dangerous and the risk of injury was slight.  Further, the risk of serious injury being caused by an employee doing what the plaintiff was doing was, in my view, remote.  But for the unfortunate sympathetic nerve reaction, it is likely that the plaintiff would have quickly made a full recovery from the impingement.  To apply the words of Mason J (supra), "the magnitude of the risk and the degree of its probability were both slight".  The employer is not an insurer of his employees, obliged to safeguard them from all perils.  See Vozza v Tooth & Co Limited (1964 - 1965) 112 CLR 316 at 318.

The physical activity and effort required of the plaintiff to get under the Louise roller ironer and tug at the jammed garment was the sort of physical activity and effort that employees have been, and still are, reasonably required to do in the course of their employment every day in a wide variety of work places.  Painters get into confined spaces and work overhead. Sailors do the same thing.  Mechanics and plumbers are all reasonably required to get into cramped spaces and work overhead pulling down on fixtures and fittings.  It might be said that the risk of injury could have been avoided by the fitters dismantling the machine from the top instead of trying to free the blockage by pulling at any jammed garment, but no reasonable employer would have taken that course when it knew that "nine times out of ten" a few tugs would solve the problem and enable the production line to resume work.

For those reasons, I am not satisfied that the defendant is liable to pay damages to the plaintiff for the injury she sustained on 8 April 1992 and its consequences.  However, in case appellate review of that finding produces a different result, I shall proceed to assess the plaintiff's damages.

The injury

After the plaintiff saw Dr Tucker on 19 May 1992, she had some ultrasound treatment to the right shoulder, but apparently to no avail.  The right arm was put in a sling, but this did not help either.  Physiotherapy was tried, but again there was no improvement to the level of pain in the right shoulder.  In June 1992, the plaintiff returned to work with her arm in a sling.  Matters got worse.  Symptoms of weakness, sweatiness and blueness in the right hand developed.  I accept Dr Francis' opinion that this is an atypic autonomic nerve response to the subacromion impingement.  There was not much work the plaintiff could do in the laundry with her arm in a sling, so she again went off work sick.  Depression began to set in. 

About a month later, in August 1992, she returned to the laundry to work for two days a week on a trial basis.  The laundry was then investigating the feasibility of some new packaging procedures and the training of disabled people to do this work.  The plaintiff was given this job.  It involved no physical work for her.  She said it was "wonderful" to get back to work.  However, the trial program ended in about December 1992 and as the symptoms had not improved, the plaintiff went off work again.  In January 1993, the plaintiff first consulted Dr Francis.  He prescribed ultrasound, physiotherapy, Naprosyn and an injection of steroids into the shoulder.  He was then optimistic about the plaintiff returning to work in the immediate future. 

About the time the plaintiff consulted Dr Francis for the first time, the defendant employed a new manager, Mrs Scott.  She said that she arranged for a meeting between her and the plaintiff to take place in March 1993.  She said that the object of that meeting was to discuss the plaintiff's future employment with the laundry.  Mrs Scott said that the plaintiff agreed to attend the meeting but did not in fact do so.  The plaintiff denied that there was any meeting in March that she was supposed to attend.  She said that at that time she was off work, in receipt of weekly payments and hopeful of making a recovery. 

Mr Tremayne submitted that I should find that the plaintiff failed to attend a meeting arranged by her employer and designed to get her back into the work force.  I accept Mrs Scott's evidence that she did arrange a meeting and I also accept her evidence that the plaintiff failed to attend it.  However, I am unable to make any finding with respect to the reason for the plaintiff's failure to attend this meeting.  Even if the plaintiff's failure to attend had been without good reason, that alone would not clothe with success Mr Tremayne's submission that the plaintiff has failed to mitigate her loss.  There was no evidence that had the plaintiff attended a meeting with her employer in March 1992 it is likely that she would then, or later, have returned to work.  Mr Tremayne did not put to the plaintiff that she was capable of working, nor did he suggest to her in cross-examination that she was malingering.  In evidence-in-chief she was asked if she was prepared to work and she said, "how could I work, the way I am?  I used to be so capable."  This evidence was not challenged.

The plaintiff's history and the satisfaction that she gained from her employment leads to only one conclusion: if she could have gone back to her work in the laundry, she would have done so.  I reject the submission that the plaintiff has failed to mitigate her loss.

Mrs Scott left the defendant's employ in April 1993.  In August of that year, the then manager wrote to the plaintiff a letter which some might think was somewhat peremptory in the circumstances.  It reads (formal parts omitted):

"I am currently reviewing the matter of your on-going Contract of Employment.

For the record, you have been absent from work since 18 May, 1992.

Bayview has had no positive indication as to whether you are able to resume your contracted duties or whether you are unable to return.

From a legal perspective, Bayview is able to deem your Contract of Employment to be at an end, as it is frustrated through your inability to perform your contracted duties.

Unless you are able to present proof indicating that you are able to resume your contracted duties within 14 days of this date, then termination of your Contract of Employment will occur from that date.  Accrued benefits including Annual Leave will be paid at that time.

Regrettably Bayview has no other alternative given your lengthy absence, however this will not prejudice your on-going Workers Compensation claim."

The plaintiff said, and I accept, that until she received this letter, she always thought that her symptoms would improve and she would get back to work.  She said in evidence that she was "devastated" when she got the letter, "I just think it was the end, I really dropped my bundle, it's very painful when I read it."  Her evidence about this provoked tears which I had no reason to doubt were other than genuine and spontaneous.

The plaintiff started taking painkillers and using an anti-inflammatory cream, Feldene but to little effect.  On 23 February 1995, the plaintiff first consulted the psychiatrist, Dr Burgess.  Dr Burgess knew the plaintiff quite well from the days when she worked at the Hobart Clinic.  There followed some twenty-one consultations for treatment, the last being on 12 June 1996.  In Dr Burgess' opinion, the plaintiff had a strong personality and had "always coped with a lot of different stressors and a lot of other life events".  However, Dr Burgess considered that the incident at work on 8 April 1992 and the letter in August the following year were stressors with which she could not cope.  He said:

"I would say in almost a remarkable sort of way she'd been remarkably strong, but this incident at Bay View I suppose you could say it was like the straw that broke the camel's back.  She really seemed to be brought undone and all her coping strategies that she'd used previously for some of these other events just weren't working any more."

Dr Burgess diagnosed the plaintiff as suffering from an adjustment disorder with depression caused by the injury she had suffered at work.

On behalf of the defendant, no attack was mounted upon the diagnosis of an adjustment disorder with depression, nor was it put to the plaintiff that she did not suffer from symptoms of these conditions.  It was the cause or stressor for the conditions that excited the attention of the defence.  In answer to questions put in cross-examination, the plaintiff gave evidence that in July 1992, she and her partner were evicted from the home which they rented from the Housing Department.  They left owing money, but the amount was uncertain.  Shortly after the plaintiff and her partner had been evicted from this house, they borrowed $64,000 from a building society and with it, the two of them bought a house at Carlton Beach.  The plaintiff agreed that by July the following year, she and her partner were $1,300 in arrears with the mortgage payments. At the end of 1994 the mortgagee sold the house at a loss.  The plaintiff and her partner owed the building society $17,802.  There was no prospect of either of them paying that money and ultimately the plaintiff was declared bankrupt.

In cross-examination, the plaintiff agreed that this had been a worrying time for her and that she had lain awake at night worrying about how she could pay her debts.  During the same period, the plaintiff's son was injured in an accident at Mount Isa and a friend of his died in a car accident.  The plaintiff said that "naturally" she was worried about her son and "upset" over his friend's death. 

The plaintiff did not mention any of these matters to Dr Burgess or the consulting psychiatrist, Professor Jones, to whom the defendant's solicitors sent the plaintiff for examination.  As to this, she said:

"I try and keep my private and personal life separate from my workers compensation area.  I try and keep them in different compartments because that is the only way I can cope.

I don’t consider that some of my really personal things have anything to do with anybody.  I don't tell every Tom, Dick and Harry my most personal and private things.  I went to Dr Burgess regarding my accident.  I talked about the things that are concerning that.  And the same with Dr Francis."

The plaintiff's evidence about her financial problems was put to Dr Burgess in cross-examination and he was asked whether he thought that the plaintiff's financial and other worries could have been a cause or stressor for her adjustment disorder and depression either instead of, or as well as, the pain and inability to work.  Dr Burgess did not think so.  Important to his opinion in this respect was his knowledge of the plaintiff's pre-morbid condition.  He said that he had worked at the Hobart Clinic with the plaintiff for a number of years and found her to have been a hard working and highly regarded member of staff.  He did not think she was "predisposed to psychological problems".  He said that "she invested in her work role and in caring and helping in terms of her work."  He said that the plaintiff needed to feel that she was making a contribution and helping others.  He concluded that the loss of her ability to do that probably affected her more than it would a person who "wasn't so heavily invested in work."  Dr Burgess agreed with Mr Tremayne that financial problems could be a trigger for adjustment disorder and depression but, generally speaking, he considered that "people sort of live with their financial things and usually, its relationship things that are prominently depressing unless they've been embezzling or something in which case it's a different story."  Then Dr Burgess said:

"… what Anne would struggle with over and over again was issues relating to her injury, the limitations in things she was now able to do because of problems with her shoulder, mood states and so on. I mean I accept hypothetically that the financial thing is a  valid stressor in some people.  I just don't believe that it applies in Anne's case.

Why not? … Because firstly she didn't seem to be talking to me about it or emphasising it and I believe that the relationship of trust was such that if she was worrying about something she would tell me, and secondly, knowing those facts I just don't buy it, I don't buy that it's - you know it's of relevance in her case."

I accept that evidence.  It was not put to the plaintiff that she had deliberately withheld information from Dr Burgess about her financial problems in order to promote her claim against the defendant.  The evidence shows that the plaintiff and Dr Burgess knew each other well and there was an atmosphere of mutual trust between them.  Presumably the plaintiff consulted Dr Burgess because she thought he would be able to assist her with her adjustment disorder and depression.  Had she perceived her financial concerns to be of importance to her depression, it is most unlikely that she would have withheld information about them from Dr Burgess over the sixteen months during which she was consulting him.  No reason was suggested for the plaintiff withholding the information and none is apparent to me, other than that in the plaintiff's mind, her financial and other worries were of little significance compared to her pain, disability and altered mood states. 

Professor Jones gave evidence for the defendant.  His initial diagnosis was substantially in accord with that made by Dr Burgess.  However, when Professor Jones learnt of the plaintiff's financial worries, he said that he was no longer satisfied that the plaintiff's minor injury at work and the loss of her caring role were the sole causes of the perpetuation of her psychological symptoms.  He said that had he known about the plaintiff's financial problems when he examined her, he would have explored them with her to see if he considered them to be a relevant stressor.  As I understand Professor Jones' evidence, it was not that the accident at work was not the cause of her psychological problems, it was to the effect that the accident may not be the cause or the sole cause of those problems.

Professor Jones was, in my view, disadvantaged in that he had no first hand knowledge of the plaintiff's pre-morbid personality and he only had an opportunity to speak to her for one hour on a single visit.  Asked in cross-examination if he thought that by reason of more contact over a longer period Dr Burgess was better situated to form an opinion about the plaintiff, he said, rather patronisingly, I thought, "Well, I suppose one has to measure quality against quantity."

Professor Jones' understanding of the plaintiff's condition was that there was no physical cause for the plaintiff's psychological state.  His understanding in this respect is contrary to the uncontradicted evidence of Dr Francis and wrong.  Symptoms of pain and discomfort are due to the subacromion impingement and autonomic nerve reaction.  He agreed with Mr Read in cross-examination that if there was a physiological reason for the plaintiff's pain and discomfort, that could itself be a cause of adjustment disorder and depression.  The value of Professor Jones' opinion is diminished by his ignorance of a significant causative factor.

I am satisfied that Dr Burgess acquired a very deep and detailed understanding of the plaintiff, both before her accident and after she consulted him in 1995.  It was an understanding denied Professor Jones by reason of his limited contact with the plaintiff.  Accordingly, I prefer Dr Burgess' opinion over that of Professor Jones where the two are in conflict. 

The plaintiff returned to Dr Francis on 17 November 1995 and again on 1 December that year.  In his report of 22 January 1996, Dr Francis wrote:

"The outcome I witnessed on the 17th of November was really quite disastrous.  She was now complaining of increased pain and disability involving her right shoulder region.  There was a spread of symptoms into her right arm with features of sympathetic over activity involving the right hand.

There was now overt evidence of more anxiety and frank depression.

I noted that she was taking Epilim for her pain process and Aurorix 600 mgs per day for the treatment of her depression.  She was under the care of a psychiatrist."

On examination, Dr Francis noted minimal postural asymmetry with the right shoulder just a fraction lower than the left.  There were no neurological deficits in the upper limbs and no wasting.  There was a slight loss of external rotation, indicating some degree of subacromion impingement.  The right hand was colder and sweatier than the left, but did not appear swollen.  Even light touch over the right acromioclavicular joint was associated with complaint of pain.  He recommended continued psychiatric consultation. 

It appears that over the next twelve months, the plaintiff's condition improved somewhat in that although the pain level and dysfunction persisted, the plaintiff was able to make some significant decisions and take better control of her own life. 

In his report dated 28 November 1997, Dr Francis wrote:

"Her injury is minimal.  She has pain amplification associated with some degenerative change in the right acromioclavicular joint with some features of associated subacromion impingement.  She has chronic pain in association with activity but with no major risk of further trauma or injury to the right shoulder.  There is still some evidence of sympathetic over activity in the right hand associated with clumsiness, incoordination, coldness and sweating.  She does not how ever have a full blown reflex sympathetic dystrophy.  The changes in the right hand are less than when I saw her back in December of 1995."

The plaintiff's present condition

The plaintiff gave the following evidence with respect to her present condition.  The substance of her evidence concerning her physical disability and pain was put to Dr Francis and he expressed the opinion that both were consistent with being caused by the accident at work in April 1992 and the autonomic nerve response to it.  I accept that opinion and find that the plaintiff's physical disabilities and pain were caused by that injury.

The plaintiff said that her arm is uncomfortable and it affects her posture.  She did not describe the pain in the shoulder as acute, but she said that she was aware of it all the time.  She said that most household tasks, such as cleaning windows, hanging out washing and ironing, aggravate the pain in the shoulder.  She said that when she lifts her right arm to a certain degree, it feels as if something "catches".  She said that it is possible to lift the arm up, but it is not strong.  The right hand is sweaty and blue from time to time.  She said that this happens frequently.  She said that the right hand feels cold and sometimes swells up.  She said that she suffers from numbness and pins and needles in the right hand and it feels weaker to her.  She said that she seldom gets a good night's sleep.  She goes to bed about 7.30 but watches television until late.  She said that she is lucky to get three hours sleep a night.  She said that she suffers from poor appetite.  She said that her concentration is not good and described her mind as racing at "a 100 miles per hour sometimes".  She said that she had lost her concentration and "things go round and round in my brain".  She said that because she was so restless at night, she and her partner now sleep apart.  She said that she used to be resilient, but was no longer.  She said that she cried and felt depressed.  She said that sometimes, "I hate myself" and "I feel a failure".  She described her days as being long.

The future

With respect to the physical injury, no further treatment is advised.  The use of an anti-inflammatory cream and occasional analgesics are indicated where necessary.  Dr Francis' opinion was that there is likely to be little change in the physical symptoms, although he hoped that with a better psychological function the plaintiff may be able to return to some part-time employment, so long as it does not make major physical demands upon her.

With respect to her psychological state, Dr Burgess was of the opinion that the plaintiff would benefit from consultations with him over about the next twelve to eighteen months to help her manage her moods and mood state.  He described this as supportive therapy, perhaps on a fortnightly basis.  With respect to the prognosis, Dr Burgess said that in the long term, it had to be guarded.  He said, "I don't know if she will feel much better".  He expressed the opinion that the plaintiff was unfit to work and that she was likely to remain that way.  He described the twelve to eighteen month period of consultation as a learning period to enable the plaintiff to adjust to her shortcomings.  He said, "I don't think she is likely to return to work because she is too psychologically disabled."  I accept that opinion.  It does not conflict with the opinion of Dr Francis as he was not purporting to trespass into the field in which he was not an expert.

Damages — general

The plaintiff was 47 years old when the accident happened.  After what must have been a difficult life coping with an alcoholic husband and bringing up her children, the plaintiff found some contentment with a new partner.  The quality of life that she was then looking forward to has been substantially diminished by this accident.  Although I accept that counselling with Dr Burgess will assist her adjust to and cope with her disability, the long term future for the plaintiff is rather bleak.  Bearing in mind the awards of damages that follow under other heads, I assess the plaintiff's damages for pain, suffering and loss of amenities of life in the sum of $35,000.

Past medical and other expenses

The plaintiff claimed the sum of $2,579.90 for past medical expenses incurred with respect to consultations with Dr Ashby, Dr Adcock, Dr Tucker and Dr Burgess.  The only evidence given in support of this head of claim was the cost of consultations with Dr Burgess.  It was agreed between the parties that the quantum of Dr Burgess' accounts was reasonable and accordingly, I assess the damages for past medical expenses in the sum of $2,308.  The plaintiff also claimed under this head of damages, $1,158.30 being the costs of travelling to visit medical practitioners.  Again, counsel were agreed that the rate for travelling is reasonable, but there was no evidence to support the distances travelled nor the total number of visits made.  However, I think that some amount should be allowed and, doing the best I can on the evidence available, I assess $800 as reasonable damages for travelling expenses to visit medical practitioners.

Future medical expenses

Under this head I assess as reasonable the sum of $3,900 being the cost of thirty visits to Dr Burgess.  Although this sum will be expended in the future, as the period is so short it is not appropriate to apply any discount to it.  The plaintiff will continue to use Feldene cream and analgesics.  Although there was agreement about the cost of both these items, there was not sufficient evidence about the rate at which they were used.  Again, doing the best I can on the evidence available, I assess the plaintiff's damages with respect to this aspect of this head of claim in the sum of $2,500.

The particulars of claim also claim for the cost of future visits to a general practitioner, but there was no evidence to support it and no submissions were made at the conclusion of the evidence that this claim should be allowed.

Lost earning capacity

With respect to the plaintiff's lost earning capacity from the date of the accident to 18 September 1998, the parties were agreed that if I was satisfied, as I am, that had the accident not intervened the plaintiff would have remained in her present employment, it should be assessed in the sum of $123,074.76. 

With respect to the future, the parties are similarly agreed upon the same basis that she would currently be earning a net wage of $377.38.  I find that it is more probable than not that had the accident not intervened, the plaintiff would have remained in her present employment, or some similar employment that involved a caring role.  The particulars of the plaintiff's claim limit the claim for damages for lost earning capacity from 18 September onwards until 2005 when the plaintiff will turn 60.  With respect to this, Mr Read submitted that any reduction for contingencies should be modest because the plaintiff is now aged 53 and there remains a little less than seven years during which any adverse contingencies could arise.  He also submitted that the plaintiff had a strong work history and it is unlikely that the laundry will go out of business.  I accept all those submissions.  A discount of 7 per cent has to be applied to this aspect of the plaintiff's claim.  The multiplier for six years is 257.  The multiplier for seven years is 291.  Applying a multiplier of 274 to a net weekly wage of $377.38 produces $103,402.12.

In addition to the factors urged by Mr Read with respect to the discount for contingencies, there is also a possibility that the plaintiff might, during the next seven years, gain a little part time employment.  Taking all these factors into account, I assess the plaintiff's damages for lost earning capacity until 18 September 1998 in the sum of $90,000.

Superannuation

The parties were agreed that if I was satisfied that had the accident not intervened, the plaintiff would have remained in her employment with the defendant until she was aged 60, the amount to be allowed for past and future loss of superannuation was $12,514.  Accordingly, I assess that sum as reasonable damages under this head.  In view of the parties' agreement, it does not seem to be appropriate to make any deduction for contingencies.

Taxation paid on workers compensation

The plaintiff has received weekly payments pursuant to the provisions of the Workers Rehabilitation and Compensation Act 1988. Those payments totalled $82,574. With respect to those payments, she has paid income tax of $15,689. That sum should be added to the plaintiff's claim for damages in accordance with the principles enunciated in Fox v Wood (1981 - 1982) 148 CLR 438.

Summary

General Damages	$ 35,000.00
Past medical expenses	3,108.00
Future medical expenses	6,400.00
Lost earning capacity	213,074.76
Superannuation	12,514.00
Fox v Wood	15,689.00
TOTAL	$285,785.76

From the assessed sum there needs to be deducted payments made pursuant to the Workers Rehabilitation and Compensation Act.  Counsel said that they wished to be heard with respect to that and I will do so if they wish, although in view of the conclusion I have reached on the issue of liability, it is perhaps unnecessary.

Conclusion

There will be judgment for the defendant against the plaintiff.