Taylor v ACI Operations Pty Ltd - [2002] WADC 191

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TAYLOR -v- ACI OPERATIONS PTY LTD & ORS [2002] WADC 191

CORAM: BLAXELL DCJ

HEARD: 16-20 JULY 2001, 31 JULY 2002

DELIVERED : 4 SEPTEMBER 2002

FILE NO/S: CIV 3293 of 1998

BETWEEN: JANICE TAYLOR
Plaintiff
AND
ACI OPERATIONS PTY LTD
First Defendant
G & M ATWELL PTY LTD T/AS ATWELL BUILDING COMPANY
Second Defendant
M B S RESOURCE SERVICES PTY LTD
Third Defendant
GARY LINDSAY BROWN
Fourth Defendant

Catchwords:

Assessment of damages for personal injuries - Acceleration in degenerative condition in right hip as a result of fall in course of employment - Turns on own facts

Legislation:

Nil

Result:

Damages assessed at $160,265.50

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
First Defendant             :     Mr A J Power
Second Defendant         :     Mr M H Zilko
Third Defendant           :     Mr C C Rimmer
Fourth Defendant          :     No appearance

Solicitors:

Plaintiff:     D'Angelo & Partners
First Defendant             :     Phillips Fox
Second Defendant         :     Basile Hawkins
Third Defendant           :     Jackson McDonald
Fourth Defendant          :     No appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

BLAXELL DCJ: The plaintiff in this action claims damages for personal injuries sustained in an accident in the course of her employment on 4 September 1997. At that time the plaintiff was employed as a cleaning supervisor and was required to attend the premises of her employer's customers to monitor after hours cleaning operations and to deliver cleaning chemicals. One of the premises regularly attended by the plaintiff for this purpose was a factory in Canning Vale operated by the first defendant.
The plaintiff customarily gained access to the first defendant's factory via a narrow alleyway. On 4 September 1997 construction work had commenced at the factory for the purpose of erecting a roof over the alleyway. The first defendant had contracted this construction work to the second defendant who in turn had engaged the third defendant as a subcontractor. The third defendant had further subcontracted part of the work to the fourth defendant who had dug some holes in the alleyway in order to erect supports for the roofing.
On the night of 4 September 1997 the plaintiff was walking along the alleyway when she fell into one of the holes dug by the fourth defendant. The hole was unguarded and there was no sign or other warning to alert the plaintiff to the presence of the hazard.
At the commencement of the trial there were substantial issues as to liability and as to contribution amongst the defendants. Unfortunately, the trial could not be completed within the allotted time, but during the subsequent adjournment all issues of liability and contribution were settled amongst the parties. Accordingly the matter now comes to be determined by way of a simple assessment of the plaintiff's damages.
The injuries allegedly sustained by the plaintiff in the accident were to her low back and right hip. She claims that these injuries resulted in (inter alia) a substantial loss in her earning capacity and a need for ongoing gratuitous services. The assessment of damages is complicated by the fact that the plaintiff had a pre‑existing degenerative condition of her right hip.

The plaintiff's evidence

The plaintiff was aged 37 years at the date of the accident, is now 42 years, and is married with two adult children. She left school after Year 10, completed a secretarial course, and was then employed in clerical work for two years. She ceased this work as a result of her marriage but subsequently (in 1979) took up part‑time cleaning.
Over the following years the plaintiff progressed to full‑time cleaning work and to the supervisory position that she held at the date of the accident. Although this last position did not involve a great deal of physical work, it is the plaintiff's evidence that she was accustomed to "rolling up her sleeves" as and when necessary.
Prior to the accident the plaintiff had attended the first defendant's premises "up to 100 times". She was very familiar with the alleyway and did not expect to come across any hazard. However, as she approached the end of the alleyway on 4 September 1997 her left foot went into a hole in the bitumen which was approximately one foot deep and one foot in diameter.
As a result of stepping into the hole the plaintiff fell backwards fairly heavily landing on her buttocks. She then pulled herself up slowly, tested her leg and hobbled around to the cleaning room where she took off her left shoe and ran cold water over her ankle which was quite painful. Her evidence is clearly to the effect that there were symptoms in her left leg at that time.
The plaintiff had been scheduled to take holidays over the following week and was able to rest her left leg during this period. She also attended her general practitioner, Dr Withers, and was prescribed anti‑inflammatory and pain killing medications.
According to the plaintiff during the first week after the accident she had a painful lower back and had difficulty in keeping it upright. She also had difficulty sitting, and her left foot was swollen and aching. There was also a "very huge bruise" on her left buttock.
At the end of the one week's holiday the plaintiff returned to work on light duties. She had difficulties in performing her normal work but received assistance from fellow employees and from her son (who voluntarily accompanied her on her rounds). However, on 24 November 1997 the plaintiff was retrenched by her employer.
Subsequently the plaintiff made strenuous attempts to find light duties employment within her physical capabilities but had very limited success. Apart from workers' compensation payments which the plaintiff received for a limited period as a result of her accident, she has had to subsist upon social security benefits.
It is the plaintiff's evidence that prior to the accident she sometimes had a slight limp because of arthritis in her left knee. As already noted the accident caused symptoms were initially pain in the low back and left ankle. As I understand her evidence the left ankle soon resolved, but the low back symptoms have continued. At some stage she also developed problems in the right leg and/or right hip, but her evidence as to the time of onset of these symptoms is not at all clear.
As a result of the accident the plaintiff has had difficulty in bending, lifting and carrying heavy items. She also avoids sitting on hard surfaces because this causes her low back and right leg to go numb. The plaintiff also feels inhibited in walking up and down stairs. The plaintiff's symptoms have interfered with her ability to perform housework, but she still carries out light activities such as washing dishes, mopping and intermittent vacuuming. However, the plaintiff now relies upon other members of her family to assist with heavier household tasks.

The evidence of other lay witnesses

Mr Derek Perrin was a friend and fellow employee of the plaintiff for approximately 20 years. He has testified as to her excellent work attitudes prior to the accident, and the deterioration in her mental and physical demeanour subsequently.
Mrs Mary Cork has a long history of work in the cleaning industry and is currently a manager/supervisor. She once supervised the plaintiff for approximately 10 years and considered her to be "an excellent worker". However, having seen the plaintiff in recent times it is Mrs Cork's evidence that she "wouldn't employ Janice now". Based upon the plaintiff's physical appearance Mrs Cork does not believe that she "can do the job or work the hours".
It is also Mrs Cork's evidence that there is a physical component to the job of cleaning supervisor. This is because the supervisor has to teach cleaners and show them how to use machines. Furthermore, when a cleaner is away sick, the supervisor is obliged to step in and do that employee's work. In her present position Mrs Cork has to undertake physical work approximately once or twice a week.
Mrs Jan Dunn was one of the cleaners supervised by the plaintiff at the time of the accident. Mrs Dunn confirms that the plaintiff as supervisor used to get involved in hands on physical work including helping to carry a heavy polisher up some stairs.
The plaintiff's husband (Mr Keith Taylor) and son (Mr Graham Taylor) have both testified as to the deterioration in her personality and work capacity as a result of the accident injuries. Mr Graham Taylor has also provided details of the voluntary assistance he gave to his mother following the accident and prior to her retrenchment.
The first defendant called the general manager of the plaintiff's former employer, Mrs Paula Squibb. Prior to the accident Mrs Squibb observed that the plaintiff always had a "slight uneven walk", and subsequently this was "obviously a bit worse". Apart from this Mrs Squibb was not aware of any difficulties that the plaintiff had in performing her duties, but the latter did say occasionally that she had a "pinching feeling in her hip".
According to Mrs Squibb, the plaintiff "loved her job" and in physical terms was a very competent worker. However, the plaintiff did not have professional qualifications and it was for this reason that her employment was terminated in November 1997. The plaintiff was then replaced with a human relations expert with a commerce degree. At the present time Mrs Squibb's company employs two area supervisors (who are more or less equivalent to the plaintiff's former position) and these people each earn $600 gross per week together with allowances for petrol and mobile phone use.

The medical evidence

The plaintiff's general practitioner at all material times was Dr Ken Withers, and he produced various relevant certificates and reports. He first examined the plaintiff after the accident on 9 September 1997 at which time she reported "pain in her left groin and pain on the right side of her lower back with walking". At the time of consultation the plaintiff also had sharp pain in her back on the right side.
Upon examination Dr Withers found that there was marked tenderness over the right sacro iliac joint and also pain in the back on movement of the right hip. He diagnosed a right sacro iliac strain for which he prescribed medication.
The tenderness in the right sacro iliac joint persisted and in November 1997 the plaintiff was referred for a bone scan which demonstrated "increased uptake over her right hip". An x‑ray showed degenerative change in the hip but the plaintiff's movement in the hip although restricted was not painful. There was a positive response to an injection into the sacro iliac joint in December 1997.
Dr Withers' evidence is to the effect that the plaintiff's symptoms fluctuated during early 1998 but eventually settled down to a situation where there was persistent back pain particularly when walking. Examination on these occasions revealed pain on forward flexion with persistent tenderness over the right sacro iliac joint. Throughout this period Dr Withers certified the plaintiff as being partially unfit for work.
In March 1998 the plaintiff was examined by the orthopaedic surgeon, Mr P H Hardcastle at the request of the first defendant's solicitors. When he examined the plaintiff on 19 March 1998 her main complaints were of right‑sided posterior buttock pain with some pain down the anterior aspect of her right leg below the knee, particularly with sitting and certain lying positions. Aggravating factors were walking too quickly, bending forward to pick up objects, and sitting on either firm chairs or ground.
Upon examination Mr Hardcastle found tenderness to the right of L5/S1 and symmetrical restrictions in movements in all directions of the right hip. His diagnosis was of:
"1.mechanical low back pain or sacro iliac pain on the right.
2.degenerative osteoarthritis in the right hip and possible soft tissue injuries as a result of the fall."
Mr Hardcastle was unable to provide a more specific diagnosis as to whether the main problem was in the sacro iliac joint or the low lumbar spine. In his view "the initial force of the impact appeared to be on the left but the sudden abducting force to her right hip and the compression as she landed on particularly her left buttock may have caused some soft tissue problems to the low lumbar spine and sacro iliac joint".
Mr Hardcastle considered the plaintiff to be fit for her previous occupation subject to limitations that she avoid walking long distances and avoid lifting weights off the ground at more than 1 - 2 kg on an occasional basis and between 5 – 15 kg from above knee height.
In July 1999 the first defendant's solicitors obtained a second opinion as to the plaintiff's condition from the orthopaedic specialist, Mr Nick Batalin. It was Mr Batalin's opinion that Dr Withers' initial diagnosis of right sacro iliac pain may well have been in error. In this regard the sacro iliac joint can be a "pathway" for referred pain from the hip joint. For this reason, the fact that the injection at the sacro iliac joint (in December 1997) relieved pain did not necessarily mean that that was the location of the pathology. Mr Batalin considered the plaintiff's presentation to be very complex, and in his view the effect of the injection could be indicative of either local pathology, a placebo effect, or referred pain from the hip or elsewhere. Mr Batalin also placed significance on the bone scan carried out on 28 November 1997. Although it is not possible for him to be 100 per cent sure, the results of the bone scan suggest that the plaintiff suffered injury to the hip rather than the back.
On 17 July 2000 the orthopaedic surgeon, Mr Barrie Slinger, examined the plaintiff at the request of her solicitors. Based on the history obtained and the results of his examination he diagnosed the plaintiff's problem as a degenerative right hip condition which had been made symptomatic by the accident. In his opinion, but for the accident the plaintiff would probably have continued to be free of symptoms for another 5 to 10 years. She would also most probably have needed a hip replacement operation within 10 years of the accident if it had not occurred.
Dr Alan Home is an occupational physician who examined the plaintiff on 30 April 1999, 26 June 2000 and 5 April 2001 at the request of the first defendant's solicitors. According to Dr Home, the plaintiff's right hip is the predominant cause of her symptoms. He is uncertain whether her low back symptoms are due to problems within the back or to postural pain brought on by the degenerative hip. It is also Dr Home's evidence that the fact that the injection into the sacro iliac joint relieved pain is indicative of pathology in that joint. In this regard it is possible that the fall on the left buttock caused injury to the right sacro iliac joint.
It is also Dr Home's opinion that the plaintiff's right hip condition would have disabled her within a short time of her accident even if she had not had her fall. He attributes her present symptoms to a progression in the degenerative changes rather than to the effects of the accident.
The rehabilitation specialist, Dr John K Ker, examined the plaintiff at the request of her solicitors in October 1999. He diagnosed her to be suffering from lower back pathology in part arising from the right sacro iliac joint, as well as from hip pathology. He considered it to be "entirely feasible" to relate the back pathology to the accident and quantified the resultant disability as amounting to a loss of 12 per cent of the function of the thoraco lumbar spine.
The various experts agree that the plaintiff is either now in need of, or will in time require replacement of, her right hip. Mr Slinger would prefer that the plaintiff defer hip replacement as long as possible given that such replacements generally last 15 – 20 years and that further replacements after that period are not always successful. Mr Hardcastle, on the other hand, considers that the plaintiff is in urgent need of a right hip replacement and that this should not be deferred. I understand Mr Batalin's evidence to be to the effect that it would be preferable for the plaintiff to have the hip replacement sooner rather than later provided, however, that she undergoes some weight loss.
Although a hip replacement operation would result in significant improvement in the plaintiff's physical functioning, the consensus of medical opinion appears to be that it would be advisable that she subsequently avoid heavy duty work. This is in order to prolong the period which would elapse (perhaps 15 – 20 years) before there would need to be a further replacement.

Findings of fact

I accept the evidence of the plaintiff that at the time of the accident she stepped into the one foot deep hole and fell heavily upon her left buttock. I find that at the same time there was a sudden abducting force on the right hip.
As a result of the accident the plaintiff soon developed symptoms in the low back and right hip which she had not experienced previously. The experts differ as to the pathology of these symptoms, but in my view Mr Batalin is correct in relying on the results of the bone scan in November 1997 as indicating the cause. I find that the primary cause of the plaintiff's accident related symptomatology were soft tissue injuries to the right hip which aggravated the pre‑existing degenerative condition in that area.
I find that but for the accident the plaintiff would most probably have developed significant symptoms in her right hip within approximately five years which would have prevented her from continuing with her occupation. In this regard I accept that the symptoms in the right hip (as caused by the accident, and as would have occurred without the accident) made it difficult for her to perform the physical aspects of her cleaning supervisory work.
I also accept the evidence of Messrs Hardcastle and Batalin that the plaintiff has now reached the stage that she is in need of a right hip replacement operation. I find that the accident has accelerated the need for this operation by approximately five years. The plaintiff's residual work capacity following this operation will be the same as it would have been following a later operation if the accident had not occurred.
I accept Mrs Squibb's evidence that the plaintiff was retrenched because of a change in the company's direction and the need for a more professionally qualified human resources manager. I nevertheless find that the plaintiff's work reputation was such that if the accident had not occurred, she would have had little trouble in finding alternative employment at a similar level of remuneration. However, the partial incapacity brought about by the accident made such an alternative unviable.
I also accept the evidence to the effect that as a result of her accident caused symptoms the plaintiff has been in need of gratuitous services provided by members of her family averaging approximately 1.5 hours per week. The aggravation to the right hip caused by the accident resulted in acceleration of the need for these gratuitous services by approximately five years.

The quantum of damages

My essential finding of fact is that the accident has brought about a state of affairs which would have occurred in any event within approximately five years. As it happens, this judgment is being delivered almost exactly five years after the accident. Accordingly the quantification of damages almost entirely involves a consideration of various aspects of past loss.
There is, however, one aspect of possible future loss which relates to the acceleration in the cycle of hip replacement operations. The consensus of the expert evidence is to the effect that any patient receiving a hip replacement will need further replacements at approximately every 15 years. The initial hip replacement operation will have approximately 90 per cent prospects of "success", whereas there are declining prospects of success with subsequent operations.

The plaintiff is presently 42 years of age and according to the Australian life tables has a life expectancy of approximately 38 years. Accordingly, after her initial hip replacement operation she can expect the need for a further two hip replacement operations. If on the other hand, the accident had not occurred, and she had undergone her first hip replacement operation at the age of 47 years, the situation would have remained the same. It follows in my view there is no basis for any claim for damages for future loss in this regard.
Turning now to the question of past loss in earning capacity, I am satisfied that the plaintiff has made reasonable efforts to find alternative employment that she is capable of performing. The plaintiff has verified that her taxation returns (Exhibit 1) correctly recorded her income at material times, and in this regard I find that the fuel and car allowances which she received from her employer were not income but were reimbursement of expenses.
At the date of the accident the plaintiff was in receipt of a net income of approximately $384.45 per week which continued until the date of her retrenchment in November 1997. I am not satisfied that if the accident had not occurred, the plaintiff would have been able to obtain a higher level of remuneration from any alternative employer, and in fact the plaintiff would most probably have experienced a period of unemployment. As against this and other unfavourable contingencies it is likely that the last five years would have seen a gradual increase in the plaintiff's net remuneration. Furthermore the plaintiff has lost superannuation at the rate of 8 per cent and is also entitled to interest on her lost earnings. Allowing for all of these factors I consider a reasonable assessment of damages for all aspects of the plaintiff's accident caused economic loss would be the sum of $110,000.
In respect of gratuitous services I consider it reasonable to value these at the rate of $14 net per hour for 1.5 hours per week over five years. I accordingly quantify the damages for gratuitous services in the sum of $5,460.
The only aspect of future loss will be an acceleration in the costs of three hip replacement operations. The evidence does not enable any precise calculation of this loss, but I consider it reasonable to allow the sum of $1,000 in this regard.
Finally, there should also be an award of damages for non‑economic loss which essentially comprises the pain and suffering brought about by an acceleration in symptoms by five years and the disruption to the plaintiff's life that this has caused. In my view a reasonable assessment of general damages in this regard would be the sum of $40,000.
I understand it to be common ground that the plaintiff is also entitled to repayment of workers' compensation statutory allowances totalling $3,805.50 by way of special damages. Accordingly the plaintiff is entitled to damages for the following amounts:
Loss in earning capacity  $110,000.00
Gratuitous services   $    5,460.00
Acceleration in future costs of treatment        $    1,000.00
Non‑economic loss  $ 40,000.00
Special damages  $    3,805.50
$160,265.50
There will be judgment for the plaintiff against the defendants in the sum of $160,265.50.