Trimble v Amalgamated Food & Poultry Pty Ltd
[2002] QDC 4
•16/01/2002
IN THE DISTRICT COURT [2002] QDC 004
OF QUEENSLAND
BRISBANE REGISTRY
No. 5199/1997
BETWEEN: KAREENA ELEANOR TRIMBLE
Plaintiff
AND: AMALGAMATED FOOD & POULTRY PTY. LTD.
First defendant
AND: PREMAYDENA PTY. LTD.
Second defendant
BEFORE HIS HONOUR JUDGE I. McG. WYLIE Q.C.
JUDGMENT
Delivered: 16 January 2002
ISSUES FOR RESOLUTION
The plaintiff slipped when she was walking on the concreted walkway of the Rochedale Shopping Centre. That centre was owned by the second defendant. The plaintiff was walking from a pharmacy (where she had made a purchase) to a newsagency (where she intended to make a further purchase) and was passing to the rear of a Red Rooster store, owned by the first defendant, when she slipped. The walkway gave public access to other shops in that part of the centre but not to the Red Rooster store which had only a small unmarked door at its rear. The practice of the management of the Red Rooster store was to use the walkway at the rear of the store for the receipt of goods, including dressed chicken carcasses (both fresh and frozen), for the storage of rubbish in waste bags, and for the storage of used cooking fats pending removal. I accept the plaintiff’s evidence that, in the area where she slipped, she saw crates “nearly to the ceiling” and an “oily greasy moisture” on the concrete walkway which was “sort of oozing” or “dribbling out towards – across the footpath towards the” paved courtyard of the centre.
As the plaintiff claims damages for personal injury against the defendants or one of them, the issues which remain for resolution are these:
(i) were the defendants, or was one of them, negligent and so in breach of the duty of care to take reasonable care for the safety of the plaintiff whilst she was walking along the walkway;
(ii) was the plaintiff herself guilty of negligence and want of reasonable care for her own safety;
(iii) what injury or injuries did the plaintiff suffer;
(iv) what is the amount of the plaintiff’s loss and damage?
The defendants no longer require determination of the question of inter se contribution which was raised but was not formally disposed of.
NEGLIGENCE OF THE FIRST DEFENDANT
I commence this discussion by noting that I have disregarded the contents of the final sentences on the first page of, and on page 8 (lines 6 to 9) of the written submissions of counsel for the defendants. I do not recall Liza Jacobs (or the store manager of the Red Rooster) as a witness on any of the nine hearing days nor as I recall any evidence such as is suggested in those sentences. There is indeed no evidence of such a person in the official transcript, my notes or my associate’s minutes.
I have already stated that I accept that there was an oleaginous substance on the pathway in the area where the plaintiff slipped. I find that, on the balance of probability, the plaintiff slipped when, as she walked along, one of her shoes came into contact with that substance with the result that she “did a forward split” and went down to ground on her side. I am satisfied that the substance emanated from the matter the first defendant stored on the walkway.
Pursuant to the lease of the shop to the first defendant the walkway was part of the common area and, by clause 10.11 of that agreement it was the responsibility of the second defendant to keep all common areas clean and tidy. By what right the first defendant utilised part of the walkway at the rear of its store I was not told. The fact is that the second defendant did make use of that part for a purpose beneficial to its business. I am also satisfied that it knew or ought to have known that at all relevant times the pathway was used, or available for use, by persons making their ways to and from shops in the centre including the shops neighbouring its own. The very layout of the centre, quite apart from the plan which is Schedule I to the lease of the shop makes that conclusion clear, as does the consideration that the time when the plaintiff experienced her slip – shortly before 9 a.m. on not only a Saturday morning but also on Christmas Eve - renders it likely that persons would be or could be using the walkway to move about the centre.
I hold that by placing goods on the walkway the first defendant assumed the duty of care owed to those persons who thereafter used the walkway and were injured by or because of that placement. The duty arose because the first defendant should have foreseen that carelessness on its part, including on the part of its employees, might be likely to cause damage to the plaintiff as a user of the walkway.
There was evidence from two tenants of the shopping centre as to the first defendant’s practice and the foreseeability of a slip by a pedestrian. Mrs Sliwka had been the tenant of shop 23 in the centre for ten years or so and, being at work on the morning of December 24 that year, was able to look across the courtyard to the rear of the first defendant’s shop. She saw the plaintiff lying down and then getting up from the ground although she was unable to state whether there were any articles outside the first defendant’s shop at that time. The substance of her evidence is that she said that on “at least three” times before December 24, 1994 she had seen people slip in the position the plaintiff was that morning and that, on one occasion before that morning, she had gone to the first defendant’s front counter “to tell them there was a problem at their back door”. That led to “the staff (coming) out to investigate what the problem was”. Cross-examination however resulted in a different account:
“Did you ever see that done – the sanitisation or the water sanitisation poured over? -- Yes I have. I have seen them out there cleaning.
And how often did you see that? - Not very often. Not on a routine basis.
...
...
You have seen three people slip? -- Yes, I have.
Was this before 1994? - I’m not really sure on that.
Since 1994? - Yes I would have to say since 94.
After Ms Trimble’s accident? - Yes.”
Mrs Sliwka’s evidence was also that at times prior to the plaintiff’s slip she had observed the concrete to be “oily and slippery” with the oil and slipperiness coming “from stock or used stock and a machine ... that oil machine ... They fill it with the old oil out of the shop, the unused oil”.
(I am sure she meant “the used oil”.)
She also said that at times prior to the plaintiff’s slip she had seen “crates and things” piled against the shop wall as in photograph 4 of exhibit 3, including the shopping trolley. She then gave these answers:
“Have you made any observations about whether any of those items were responsible for any leak or oil being on – yes, food, yes, as in the shopping trolley with bags in, yes we have ...
What has your observation been? We have seen the dripping on to the walkway.
... Does it remain sort of stationed on the walkway or has it at times --? -- It stays. It stays on the walkway until somebody comes and cleans it.”
The second witness was Mrs Fortuna who had been the tenant of a coffee shop in the centre from September 1993 until June 1995. She did not see the plaintiff slip but did see her “being picked up”: she was at the front of her coffee shop and so across the courtyard from the Red Rooster store. She said that at times prior to that occasion she had seen on the footpath outside the Red Rooster store “fatty substances” which had spilt from “the trolley”. But her main complaint was that, although there was (in the words of the defendants’ counsel) “an eyesore of material and leaky stuff” at the back of Red Rooster, the “fatty stuff” spilt whilst the trolley with “garbage bins” and “some sort of containers” was being pushed across the pav ed courtyard and past her shop on its way to the garbage bins.
The first defendant adduced no evidence for consideration on the issue of its negligence. The plaintiff has the onus of proof on that issue. The first defendant did not admit negligence and its counsel’s oral submissions included the statement that negligence “wasn’t strenuously opposed”. There was, then, in the combined evidence of Mesdames Sliwka and Fortuna, sufficient to satisfy me that the practice of the first defendant was to treat the walkway, or part therof, as its to utilise in the ways I referred to in paragraph 1 and in the ways those two witnesses mentioned. Not only was an oleaginous substance present at the time of the plaintiff’s slip but I am also satisfied that such a substance was quite regularly present there on a public walkway. Further I am satisfied the first defendant’s servants and agents in its shop knew that the substance was regularly present on the public walkway but the evidence suggests the opposite of a system providing for regular inspections of the area and, if necessary, washing and degreasing the area. The evidence suggests a much more desultory approach. It is difficult to avoid the conclusion that, for the greater part, the first defendant was dependent upon the early morning (pre 7.30 am) sweeping and cleaning of the walkway by the shopping centre’s cleaners, who were employed by the second defendant.
I conclude that the first defendant must be described as the direct cause of an oleaginous substance being present on the walkway. It placed it out there, became aware of the propensity for the substance to leak out and lie upon the walkway and clearly failed, it can be said, to have ensured that it was kept in impermeable, leak proof containers. To have properly used such containers would, more probably than not, have resulted in the area not becoming “contaminated with chicken fat or other slippery substances” to quote from particular (c) in paragraph 10 of the plaint. By not having adopted what I consider to have been a relatively inexpensive and effective solution to the problem it created, the first defendant then failed to implement an adequate and effective system of regular inspections and, if required, degreasing and cleaning. I am satisfied that the first defendant was negligent and in breach of the duty of care it owed the plaintiff as a member of the public using the walkway. In reaching that conclusion I have borne in mind the classic statement of Mason J. (as he then was) in Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 at pp. 47-48. I consider that a reasonable person in the first defendant’s position would have foreseen that its conduct involved the risk of slipping and of some injury to persons using the walkway and then respondent to that risk. The responses which I have advanced in this judgment are I consider neither expensive nor difficult ones.
NEGLIGENCE OF THE SECOND DEFENDANT
There was no evidence that a human agent of the body corporate which is the second defendant had actual knowledge of the first defendant’s practice and thus use of the walkway. The plaintiff’s evidence that she was aware that there had been complaints about the rear of the Red Rooster store including one that one person had slipped was far too imprecise and is incapable of demonstrating knowledge of the existence of a problem by the second defendant. Mrs Sliwka’s evidence was that at that time there was no resident centre management; there were cleaning contractors of an early morning but it seems they had already gone before she arrived at 8.30 a.m. She was unable therefore to describe their duties with respect to the concrete walkway; her approach was “We are more or less responsible for our own – if it’s untidy, you clean it.” Mrs Sliwka said there were “meetings in respect to improvements” held maybe once every six months but, asked whether the cleaning aspect was specifically discussed, she could only say,
“I’m not sure at this stage. Not to my knowledge.”
Apart from that, Mrs Sliwka gave no evidence as to whether a representative of the second defendant attended those meetings or whether the second defendant, if not present, was informed of the proceedings thereat.
Because her coffee shop opened at 6 a.m. Mrs Fontana was able to say that in December 1994 the shopping centre had “regular caretakers ... daily caretakers” who usually by 7.30 a.m. would have completely finished washing and hosing of “the whole shopping centre front and back” including the walkway in front of the Red Rooster shop. She said those cleaners finished around 12.30 p.m. (but she “couldn’t be certain”) but neither they nor “management” did any further washing or sweeping of the area after 7.30 a.m. She acknowledged that she had seen the cleaners “using soap and water and hosing it down afterwards” both in front of her shop and outside the Red Rooster store. Mrs Fontana gave no evidence of meetings with, or complaints to the second defendant.
The second defendant has formally admitted that it was the occupier of the walkway and responsible for the cleaning of such walkway. That admission was sought and made with obvious regard to the provisions of clauses 1.06 and 10.11 of the lease of space within the shopping centre. Its appearance and defence denied paragraph 11 of the plaint alleging that it owed the plaintiff a duty to exercise reasonable care for her safety and/or to exercise reasonable care to ensure that the walkway was maintained in a clean and safe condition so as not to be a risk of injury to her. I am content to adopt that précis of paragraph 11 as a sufficient statement of the existing common law duty of care. The plaintiff was upon the centre’s walkway not only as a tenant or director of the tenant but, for the time being, also as a bona fide customer of one and intending to be a customer of an other tenant. She was a clear beneficiary of the duty of care to be exercised by the second defendant.
In deciding whether the second defendant breached the duty of care, I start from the viewpoint of an objective, reasonable lessor. The shopping centre walkway was cleaned each working day at sometime before 7.30 a.m. and so before the time when, I am emboldened to speculate, much business was being done. The evidence I did hear did not suggest that, after 7.30 a.m. and before 12.30 p.m., the cleaners made any check of the walkways for the purpose of determining whether they remained clear; it did suggest that the walkways were not revisited until early the next working day. In many places that may not be a significant lapse. Here I consider that it was. The lease of Shop 15 had commenced on October 19, 1989 and the permissible use thereof was “Retailing of barbequed or fried chicken and other associated products including seafood, desserts, vegetables, salads and beverages.” So, the use of cooking fat or oil was clearly contemplated and, thinking onwards, so too should have been the matter of storage of used fat and oil and of disposal thereof. That question should have been in the forefront of any reasonable person’s considerations once it became clear that the first defendant’s management practice was to use the public walkway for storage of its fat and oil and other garbage before later taking it away to that point provided within the centre for garbage disposal and, in the factual context of this action, also to permit the seepage or escape onto the public walkway of oleaginous material. The second defendant did not adduce evidence as to its actual knowledge of and response to the consequence of the first defendant’s management practice other than by cross-examination of Mesdames Sliwka and Fortuna. There is no reason to believe that the presence of the oily substance on the walkway on that particular morning was quite by chance and for the first time. If it was in ignorance of the actual management practice and its consequences to the public walkway, it was not having due regard to its duty to those who were expected to use the walkway to move about the centre either as customers or workers there. If it knew of the practice and its consequences and did nothing to prevent it, it was not having regard to its duty of care. The lease document (exhibit 2) shows, in clause 10.01, that the lessee was merely permitted to “pass and repass” when using common areas; in clause 10.04, that –
“The Lessee shall not obstruct or permit to be obstructed ... any part of the common areas ... by leaving or placing therein any article or thing ....”
whilst clause 10.13 permitted the lessor to promulgate rules and regulations with respect to (i) the use safety care and cleanliness of the common areas, (ii) the comfort of persons lawfully using the same, and (iii) the location of garbage and refuse therein pending its removal. Resort to and enforcement of the powers expressly or implicitly conferred by that clause provided, in my view, a positive first step towards prohibiting the depositing of rubbish on the walkway or, if permitted, requiring that it be in spill and leakproof containers. There is no evidence that action was taken under any of those powers.
I am satisfied that the second defendant has been shown to have breached the duty of care it owed the plaintiff as a person walking along that walkway. I am further satisfied that the ways in which action could have been taken by the second defendant were such that, in an inexpensive way, the risk of slipping caused by the leaking or spilling of oil or fat could have been eliminated or almost so.
WHAT HAPPENED
The plaintiff was wearing wedge-heeled shoes. Shortly before 9 a.m. she had crossed the courtyard from the hairdressing salon where she was to work, made a purchase at the pharmacy and was using the walkway to the newsagency where she intended also to make a purchase. I am unable to make any finding that she was walking in a manner that was other than normal. The plaintiff was questioned by counsel for the defendants –
“Now on this occasion – correct me if I am wrong – you got something at the chemist shop and then you were going to go quickly to the paper shop and buy a Scratchie were you not? --- Yes.”
There was also a question some 16 lines long (see transcript pages 109-100) in the course of which counsel said –
“I think you conceded that you were walking – and you were going to quickly go and get a scratchy and go back to the salon...”
That question came in the end not to be considered and came to be replaced by a question which asked the plaintiff whether she saw the fatty moisture on the ground. Counsel some minutes later asked this question –
“Despite knowing that you walked past to go and quickly get a scratchy, but you weren’t looking at the floor, is that right?’
and the plaintiff was sufficiently alert to respond –
“If I said quickly – I don’t know whether I did – I walked and I was not looking at the floor, no, correct.”
I set the references to “going quickly” out in order to demonstrate that the plaintiff did not acknowledge that she was walking quickly or at a quick pace. Rather, as I understood her answers she was saying that the distance to the newsagency and then the brief time required to purchase a preprinted ticket were such as to be described as a “quick” – brief or short, may be better – detour on the return journey to the hairdressing salon.
Exhibit 14 consists of two photographs taken by Ms Healan on November 7, 1995 which she described as depicting the scene at the rear of the Red Rooster shop as she had seen it before December 24, 1994. These photographs depict a large area of staining in the area adjacent to crates, a trolley and a large plastic bag placed next to the wall of the Red Rooster shop. Two thin lines of staining run from that large area across the walkway; join a short distance from the edge of the walkway and then continue to the edge. The photographs are of the relevant area some 10 ½ months after the incident and were taken during daylight. I accept Ms Healan’s evidence that the staining photographed was “slippery” or “gluggy. It wasn’t water”. In the absence of any objection to the admission of the photographs and of any evidence that they do not correctly depict the condition of the walkway as the result of the first defendant’s practice, I conclude that they more probably do. The consequence is that it is also more than probable that there was one thin stream of oleaginous substance of a width of, it appears, up to 15 centimetres. I have taken the diameter of the wheels of the shopping trolley next to the edge of the walkway as my guide. Any other stream of the same substance might also have been no wider to judge by the shape of the outer edge of the large pool.
Howsoever the substance flowed across the walkway would also have been determined by the surface of the walkway at that location. General experience of footpaths and concrete surfaces demonstrates that the path and location of any liquid upon the surface will depend on the level of the finished surface and, further, that a perfect evenness is unlikely.
The plaintiff simply described what happened to her as she was walking in this way:
“The next thing I did a forward split with a decided jerking movement and very forward split. I don’t recall ever having my legs that far apart forwards like that, and then I went down on to my side but ... I didn’t crash on the floor.”
She saw that where she slipped there was “oily, greasy moisture” on the concrete and that it was “dribbling ... across the footpath towards the pavers” and was coming from the plastic crates and waste bags stacked against the back wall of the Red Rooster shop.
I accept that evidence and, in particular, also I accept the evidence of Mr Chaseling as to the effect the presence of chicken fat on the concrete surface would have upon the coefficient of friction, especially where “there is a rapid change from a high coefficient to a much lower value, as stride patterns established on a high friction surface can lead to slips on an adjacent low-friction surface.” This spillage can be considered to have been such as to have resulted in a localised reduction in the coefficient of friction and also in the particularly hazardous situation where there was a rapid change from a high to a lower coefficient because stride patterns established on a high-friction surface can lead to slips on an adjacent low-friction surface. I find that has happened to the plaintiff: as she was walking along the walkway she had the misfortune to have one heel land on such oleaginous substance which reduced the co-efficient at that point to such a level that it was unsafe to those using the walkway. I also record my opinion that, however valuable may have been Mr Chaseling’s expertise, what he was saying is something which falls within ordinary human experience and within the foresight of reasonable men and women.
WAS THERE CONTRIBUTORY NEGLIGENCE?
The first defendant alleged that the plaintiff contributed to the occurrence of the incident by (so far as relevant) failing to look where she was going, failing to step over or around the spillage and not walking through it, and failing to foresee that she was likely to fall if she walked on the spillage.
The plaintiff’s evidence was that, as she walked from one store to the other, she did not look at the surface of the walkway at the rear of the Red Rooster store and that:
“I am only aware that can I recall now having to walk further out of the rear door of the chemist shop than you would normally have to do.”
I cannot satisfy myself that, on the balance of probabilities, as she walked past the rear of the Red Rooster store, but before she slipped, the plaintiff noticed the presence of the “crates and oozing material and various things there”. The likelihood is that she did not recall to her mind that there had been complaints, of which she was aware, about the rear of the Red Rooster store and “junk and rubbish there” and a report that one person had slipped there. But even had she become aware of the presence of those objects, I am not persuaded that such presence should have immediately alerted her to the need to be alert to the possible presence of seepage from that rubbish across the walkway and of the need to alter her strides in order not to step on the seepage. I am not persuaded that the plaintiff was in any respect guilty of any failure to take care for her own health and safety. Her standard of care was that of the ordinary person and such a person “is presumed to be free both from over-apprehension and from over-confidence” (Glascow Corporation v Muir [1943] A.C. 448 at p. 459 per Lord Macmillan) and –
“an ordinary careful man does not take precautions against every foreseeable risk ... life would be almost impossible if he were to attempt to take precautions against every risk which he can foresee. He takes precautions which are reasonably likely to happen.”
(Bolton v Stone [1951] A.C. 850 at p. 863 per Lord Oaksey).
I am satisfied that the possibility of danger emerging to herself from the presence of chicken fat or other oily substance was something that would not have occurred to the mind of an ordinary person on that morning. The plaintiff was not shown to have been so interested in the daily practices of the several tenants of the shopping centre and especially of the second defendant that she should have been “unduly timorous and imagine every path beset by lions” (Lord Macmillan supra). She was, in my view, as an ordinary shopper, trapped by the negligence and breach of duty of the defendants.
SUMMARY
I hold each of the defendants liable to the plaintiff for the consequences of her slip. I find that she was not guilty of any contributory negligence.
THE IMMEDIATE AFTERMATH
The plaintiff was helped to her feet and immediately went to complain to staff of the Red Rooster store. She then returned to her hairdressing salon and sat down to compose herself. She cleaned chicken fat off her skirt and shoes and lower forearm and washed her hands. She had a “lot of pain” in her lower abdomen and groin and described the pain as “very similar to having had a hysterectomy” – “as though it had all been ripped apart”. She was able to cut a customer’s hair by adopting the unusual course for her of sitting on a chair. She did not attend to any other customers that morning; she simply sat at the nailbar holding her head in case “somebody desperately needed me”. I accept that she would have attended other customers that day but others attended to them. I accept that she developed a severe headache and that the pain in her lower abdomen continued. She went home at about midday. She said that –
“By the time I got home, I would have to describe my body as starting to spasm from pain ... the headache had become quite severe and my body was spasming ... shaking that was happening, but not like a nervous shake.”
She said she had severe pain in her lower abdomen, groin, head, neck and
shoulders.
She went to see Dr Yau at the Chatswood Medical Centre. Dr Yau noted that
“She was in a lot of pain, lying on her stomach and hardly moving, so it was impossible to adequately examine her ...”.
He referred the plaintiff to the Logan Hospital, to which she was driven. The referral letter drew attention to a history of “degenerative condition of C5-6-7” – “she probably needs an x ray of her lumbar spine to exclude bony damage”. Dr Yau had no recollection of that consultation apart from his notes and letter of that day.
The plaintiff attended the Logan Hospital complaining of severe low back and upper leg pain; she was only comfortable when lying on her abdomen. She was given an analgesic injection to ease her pain. An examination showed tenderness over the upper region of the sacrum and bilaterally over the adductor tendons of the upper thighs. X-rays showed no fractures of the pelvis or of the lumbar spine. The diagnosis was of a soft tissue injury caused by tendon and ligament strain associated with sudden severe muscle contraction. Analgesia and anti-inflammatory treatment were prescribed. The plaintiff was returned to the care of her family doctor. X-rays of the cervical spine were not taken at that time. There was also an x-ray of the skull which showed there was no vault trauma. Why that x-ray was taken was never explained and no inference of any sort can be drawn from it.
The plaintiff was driven to her home and then went to bed. She could not get out of bed the next morning (Christmas Day) but on the following day (Boxing Day) –
“I just seemed to be lying around or going back to bed. I wasn’t able to do anything.”
On the evening of the next day – also a public holiday in 1994 – she fulfilled a pre-existing commitment to attend a meeting at a Gold Coast hairdressing salon, being dressed and driven to and from the meeting by her daughter. I accept that, save for “some interjecting”, she took no real part in a meeting in which she was to have played a leading role. Her description of her pain at that time is that, notwithstanding the painkillers she was taking, she had a lot of pain in her lower abdomen, groin, and head, neck and shoulders. She said –
“My head didn’t want to stay up, and I couldn’t understand why ... I just wanted to lie down because it didn’t want to stay up. It had trouble staying up ... It kept falling forward.”
She spent most of the following days in bed. When the tablets given to her by the Logan Hospital ran out, she consulted Dr Tan on December 30, 1994.
DR TAN’S ROLE
Dr Tan is a general practitioner who had treated the plaintiff on what may be described as a regular basis since May 14, 1984. It may be noted that at that time the plaintiff was already taking Tofranil (25 mg) and Naprosyn (25 mg) although Dr Tan has forgotten why she was taking them. It may also be noted that those are “fairly mild” doses of those drugs and that Dr Tan simply continued over the years thereafter to prescribe those drugs in order that the plaintiff could remain at what Dr Tan, assenting to the description provided by Mr Crowley Q.C. , described as “a high-powered, successful professional”. The plaintiff’s evidence was
“I couldn’t say exactly other than that I took them because my life was very high-powered and I wanted to always be on top.”
On June 24, 1988 the plaintiff saw Dr Tan complaining of pains in her right shoulder. On examination she had decreased rotation of the head and neck and pain in the neck which went down her right arm. She was using a soft neck collar. X-rays were taken and the plaintiff was referred to a physiotherapist. The plaintiff returned to Dr Tan on July 18, 1988; he found tenderness in her right thumb and index finger and tenderness on touching her right upper arm. The plaintiff was referred to the orthopaedic surgeon Dr Dickinson.
Dr Dickinson’s opinion was:
“I think the collar which she has is ideal treatment and she should persist with this. As well, I think she needs a sleeping tablet which I have prescribed, and I have given her some analgesics. ... I think that the physiotherapy is probably doing her some harm at this stage, and I have ceased it.
I think that she needs to just simply wait the passage of time, with her collar, her analgesics and her hypnotics and I am sure that things will gradually settle down.”.
Dr Dickinson’s notes do not refer to any further consultation with the
plaintiff.
The plaintiff’s evidence was that she had helped her sister “shift” on the weekend prior to the appearance of her neck symptoms.
There is no evidence that the plaintiff experienced further symptoms in her head and/or her neck. Given her regular contact with Dr Tan over the next seven years, his notes of the visits by the plaintiff contain no suggestion of any neck problem or indeed any spinal problem. Had there been, Mr Di Carlo would surely have highlighted that!
Dr Tan recorded the plaintiff’s complain on her visit of December 30, 1994 as “low back pain, muscular strain” when she slipped and nearly fell. He said that he “would have recorded” a complaint about her neck had one been made or the wearing of a neck collar had she been wearing one. He said, and I accept, that there was no complaint about any other area of the plaintiff’s body. On examination Dr Tan found that there was full range of movement in the flexion, extension and lateral flexion of the plaintiff’s lower back. The plaintiff’s evidence in chief was that Dr Tan gave her painkillers and suggested bed rest “when I was at my worst but to keep active when I was able to and that suited me fine.” I accept the accuracy of Dr Tan’s report dated April 17, 1995 addressed to the plaintiff’s solicitors. Referring to this consultation, he wrote –
“A diagnosis of muscular strain to her lower back and lower abdominal muscles was made.
Treatment recommended was Panadol tablets for pain relief and Dencorub linament.
It would appear that no further treatment would be required as she has not complained of any persistent or intermittent pains in her back or lower abdomen.”
When that report was written the plaintiff’s only other visit to Dr Tan had taken place on March 24, 1995. That was for a blood pressure check-up. I accept his evidence that the plaintiff made a complaint about dermatitis on her right arm and made no complaint about neck pain or lumbar pain or groin pain or anything else. That non-complaint is a stark contrast to the plaintiff’s evidence which I summarise in this way –
(i) After December 30, 1994 “when I felt better, do as much as possible ... do some appointments, see some appointments, try to do the housekeeping, or the general chores” but she “certainly wasn’t able” from the time of the slip to lift a two litre bottle of milk “because it pulled on my neck area and my groin”. She was driven about by her daughter. She had pain in her arm and neck and shoulders when holding the telephone to her ear.
(ii) In February 1995 she was driven to Charleville by her sister. There she did not fulfil her commitments to her satisfaction and got by by resting between her appointments. On the return trip her sister suffered a suspected heart attack at Roma. The plaintiff drove the five hour journey back to Brisbane. She felt “dreadful” and had “a lot of pain” in her head, shoulders, neck and groin. When she arrived home,
“I went straight inside, took some painkillers and went to bed which is where I stayed for days ... four or five, I think.”
(iii)She did not – “definitely not” – start to get better during March 1995. “It was deteriorating as of that trip”. “It was getting worse in my neck, head, shoulders and arms”. Of the groin and abdomen, she said:
“Groin area and abdomen were still there. Not as bad as the first week or so, but still there and very awkward.”
(That would appear to be the last reference to any problem in that area.)
(iv) In March 1995 she also had “coughing fits” and “an allergy” on her arm.
I am puzzled as to why the plaintiff did not contact Dr Tan, who knew her well as a patient, and seek his advice about her neck, head, shoulder and arm problems earlier than she did.
The plaintiff’s next visit to Dr Tan on April 27, 1995 may be described as the starting point for the investigation of the cause of the problem in her neck. I accept the accuracy of Dr Tan’s notes and evidence:
“Mrs Trimble complained of pain in her neck and the upper back and she says that it started at 9 a.m. that morning and it became steadily worse, and the pain was going down both arms ... she had numbness in both her hands – both hands and fingers. There were no pins and needles. She had full range of movement in moving her arms and I sent her for x-ray and then I referred her to see Dr Peter McCombe.”
Dr Tan’s letter dated November 11, 1998 also contains this additional information about the visit of April l27, 1995:
“Her neck movement was restricted and rotation of her head was 30 degrees to the left and 5 degrees to the right.”
X-rays taken on April 27, 1995 were reported upon as follows:
Cervical Spine - There were moderately sized osteophytes at the anterior margins of the C5-C7 and C6-C7 discs but there was no significant narrowing of the discs themselves. There was some minor change in the C5-C6 unco-vertebral joints which was not associated with any obvious significant narrowing of the adjacent intervertebral foramina. The radiologist’s impression was that the plaintiff exhibited mild lower cervical spondylosis.
Thoracic spine – There were osteophytes at the disc margins throughout the thoracic regions consistent with mild diffuse spondylosis. There was no significant disc narrowing and no evidence of vertebral fracture.
Interestingly, an x-ray of the plaintiff’s cervical spine on June 25, 1988 was reported upon thus:
“There is narrowing of C5-6 and C6-7 intervertebral discs with marginal spondylosis and a small bone fragment separated from the antero-inferior aspect of the body of C5.
...
CONCLUSION: Narrowed C5-6 C6-7 intervertebral discs with associated spondylosis.”
Dr Tan said that the plaintiff returned to him on May 4, 1995. She said that the pain in her neck had improved; it was less but there was still some pain going down her left arm; she had been using a neck brace for seven days. He prescribed the painkiller Mersyndol Forte and referred her to a physiotherapist. The plaintiff’s evidence was that she visited the physiotherapist once or twice a week for a couple of weeks but obtained no relief in her neck from doing so.
DR McCOMBE
Dr McCombe first saw the plaintiff on May 25, 1995. He performed a cervical myelogram which showed a very large left sided C6-7 disc herniation with compression of the spinal cord as well as the left C7 nerve root while on the right there appeared to be a small disc herniation with compression of the right C6 root. As the only painful symptoms were on the left, an anterior C6-7 discectomy was performed, associated with fusion on June 8, 1995. Multiple disc fragments were removed and as well half of the neurocentral joint was removed on the left. Bone graft was taken from the right iliac crest and an Orion plate applied. Post-operatively, there was “very dramatic” improvement of the pain in the left arm and neck but residual neck stiffness never really disappeared.
On June 22, 1995, because of some right ram pain with C6 numbness, it was decided that the plaintiff should undergo a posterior discectomy for the presumed C5-6 herniation on the right. That was performed on September 1, 1995. As the disc was felt to be a firm, hard one, discectomy was not possible and a foraminotomy was performed. The result was some partial reduction in her right arm symptoms but the right arm pain then returned and the neck pain continued.
An MRI scan in 1996 did not demonstrate a significant C5-6 disc herniation. A further cervical myelogram a month later suggested in fact there was a right sided C5-6 intradural extra medullary anterior to the C6 nerve root. Dr McCombe reported:
“In retrospect the original interpretation of the 1995 myelogram was incorrect and it was felt this represented an intradural tumour, probably a right C6 schwannoma. The differential diagnosis would have been that of an intradural sequestrated disc fragment.”
CAUSATION
As already noted, the plaintiff’s slip took the form of her doing a forward split as she went to the walkway. The plaintiff said she “went to the ground but I didn’t hit it with force” or “I did the splits so, I then subsided that way”. What she was sure of was that she “didn’t hit my neck or my head.” The issue falling for decision relates not to the lower back pain and groin pain which the plaintiff experienced for a time but to the neck and cervical problems which I accept first came to attention of Dr Tan on April 27, 1995 as something that had started that morning – some four months after the slip.
Dr McCombe sought to provide assistance on the issue I have to determine in his report dated June 22, 1997 under the heading “Opinion” I quote the first four paragraphs thereof –
“Opinion
Prior to the accident in question your client suffered from some right sided C6 numbness. This had been present for some six to eight years and had at its onset been associated with some head and neck pain. Subsequent diagnosis suggests that a small benign tumour is invading/compressing the right C6 nerve root. This was almost certainly responsible for her symptoms of right C6 numbness. Her history is however that there was no pain in the right arm prior to the accident in question and indeed that she carried out quite a full life of business activities and social life prior to the accident in question. The fall clearly caused her to have a C6/7 (the disc below the C6 tumour level) herniation. This herniation was very large and was causing compression of the spinal cord and the left C7 nerve root. This pathology was dealt with by surgical means with good resolution of the left arm symptoms though there was a persisting complaint of quite marked neck stiffness and to some extent neck pain. At some stage after her procedure she began to experience some right arm symptoms. Because of the severity of the left arm symptoms it is difficult for her to say whether these symptoms were in fact present after the accident and whether they were present and simply over shadowed by the severe pain in the left arm.
A period of some weeks to one or two months elapsed after her first operation before her right arm pain became severe. It was felt that this was caused by a right C5/6 disc herniation that was of long standing and that this was aggravated by the fall in question. Surgery was performed on this because of complaint of arm pain and there was prior to the accident in question only a complaint of right arm numbness. It transpired that no disc herniation was present and the original myelographic findings were misinterpreted and it was clear that these in fact were due to an intradural tumour. This tumour is almost certainly benign and is showing no evidence, at this stage of expansion or growth though this is being followed up and she should have another MRI scan some time this year.
In the absence of tumour growth it is necessary to explain the appearance of pain in the right arm following the accident in question. This could have been caused by some compression of the nerve and tumour at the time of the accident in question or due to and extra requirement for movement being placed on this motion segment due to the necessity to fuse the adjacent (C6/7 level) as a result of the large disc herniation at that level.
The exact method of pain production is a little unclear though as far as I can determine the right arm became symptomatic after the accident in question and therefore most likely the accident in question has directly or indirectly caused her previously asymptomatic condition of a C6 nerve root tumour to become symptomatic. The neck stiffness and pain is due most likely to the effects of the accident in question and of the necessity to fuse the C6/7 level and presumably some of the effects of an injury to the C5/6 motion segment. The only way in which the tumour itself could have inevitably caused the current situation of right arm pain would have been had it have been a slowly growing tumour and it is unclear at this stage whether this is the case. On the evidence so far of the size of the tumour on the two myelograms taken over a year apart there appears to be no increase in size so the only evidence that is available is that the tumour is of a static size. I believe that her level of whole body disability is that of 17 ½ per cent. I believe that this will be permanent.”
Dr McCombe returned to this issue in his report dated September 17, 2000. Again I quote his “Opinion” therein:
“As I understand it, there is some dispute about the relationship of her current symptoms to the accident in question in 1994. In particular the relevance of any pre-existing condition. Dr Morgan in his report has suggested that the fall was at least in part responsible for causing the C6/7 disc herniation though quoted, correctly in my view, that the mechanism of injury would not normally be sufficient to disrupt a completely non-degenerative and health discs The disc degeneration however in the mid-cervical spine at the C5/6 and C6/7 level occurs commonly in this age group and is present in between 40 and 60% of the population in their fifties. It is therefore of some importance to consider whether the presence of pre-existing cervical disc herniation of the C6/7 level is in fact “normal” or “abnormal”. It is certainly possible to have asymptomatic disc degeneration and in fact this is quite common. The majority of the population studies that have shown a high incidence of disc degeneration in this age group are in fact asymptomatic.
The other condition that clearly pre-dated the accident in 1994 is that of the probably tumour on the right C6 nerve root. This is probably a benign schwannoma and it caused symptoms from 1988 onwards with numbness in the distribution of that nerve root. In 1988 there was another accident where she sustained some neck pain that she said lasted only a few weeks. The neck pain settled. The only residual disability was that of the right C6 dermatomal numbness which I feel is due to the schwannoma on the C6 nerve root. She told me in my initial notes taken on 19.6.97 that prior to the accident she was working full time managing a hairdressing salon and network marketing and was working at least 40-50 hours a week. She was doing a lot of phone work and a lot of travel by car. Following the accident she became incapacitated.
It is not clear whether there is a dispute of fact about the symptoms that existed prior to the 1994 accident. If one assumes however that there is no dispute about this in that she was essentially asymptomatic (apart from the numbness in the right hand), prior to the 1994 accident it s necessary to consider what is the possible aetiology of these symptoms. I would consider that there are 3 possibilities and there is no clear way of knowing, which is correct, or whether all contribute somewhat.
The first possibility is that her continued neck pain and stiffness is as a direct result of the C6/7 disc herniation and subsequent surgery.
The fact that the surgery was successful at completely abolishing the severe left arm pain, in my view, makes this less likely. Surgery of the type that she has had when successful usually does not lead to severe residual neck pain and stiffness though this is possible. The second possible aetiology is that as well as disrupting the C6/7 disc during the fall that she sustained some form of generalised injury to the ligaments, joints, discs and other supporting structures to the neck of a “whiplash type”. This is certainly possible and her current symptoms are potentially consistent with this aetiology. It is however not common for disc herniations to occur with whiplash type injuries. They occur only in a few per cent of patients. Usually when a force is applied to a biological structure such the spine, it either results in a generalised injury to tissues or all the force is concentrated in one area, such as a disc or bone, and a focal injury occurs (such as the C6/7 disc herniation).
Lastly one must consider the possibility that the C5/6 level and the schwannoma on the C6 root is responsible for her symptoms. It is certainly clear to me that this was causing some numbness in the C6 dermatome prior to the accident in question and at some stage after the accident in question. Particularly after the surgery at the C6/7 level for left arm pain, the right arm pain became worse. It is possible that during the accident in question because the C6 nerve root was enlarged, and therefore there was less room within the bony intervertebral foramen, that sudden movements that would cause narrowing of this intervertebral foramen by movement of the adjacent point would have therefore caused a compressive injury to the tumour and underlying nerve root. In other words, this could have made a non-painful nerve root schwannoma into a painful schwannoma. This in my view could explain the mechanism of the production of the right arm pain though clearly this depends on the underlying pre-existing condition of the schwannoma on the C6 nerve root. It is difficult however to explain the degree of neck pain and stiffness that she has with this mechanism.
I find it difficult to determine which of the three possibility mechanists I have described is responsible for her ongoing symptoms. It is certainly possible that they are a combination of all three. I cannot think of any other plausible explanation for her symptoms.
All of the above hypotheses are based on the fact that she has sustained an injury in 1994, and with the exception of the whiplash hypothesis, presupposes to some extent some underlying pre-existing pathology of either cervical disc degeneration or some benign tumour of the C6 nerve root.
Had the injury however not occurred there is no reason to suspect that she would have ended up in her current condition either at all within her lifetime or within a period of 5-10 years following the accident.”
In oral evidence, Dr McCombe said that he could not discount the fact that there was, on the balance of probabilities, a very low growing schwannoma as opposed to a completely stagnant one, ie. some growth although minimal. That was given that there was numbness in the plaintiff’s right hand down to her thumb and ring finger. Neither could he say that he could not attribute some of what had occurred to the plaintiff to the schwannoma. Having been told of the plaintiff’s non-complaint of any neck problem to a medical practitioner before April 27, 1995, Dr McCombe said he would have to reappraise what he had written in his report dated June 22, 1997. He said:
“It may cast some doubt on the relationship between the C6/7 disc herniation (and the – sic) fall though I would say that it is normal for disc herniation symptoms to be delayed somewhat after onset because it doesn’t occur immediately. I am uncomfortable with it being some months after, very uncomfortable. Some days afterwards often up to two weeks or so is fairly normal, but so far we are sort of re-evaluating.”
He said that the complaint made to Dr Tan on May 27, 1995 would cause him to have some serious doubt as to the causal link between the fall and the onset of the neck problems.
Dr McCombe made it clear that he was particularly concerned by the loss of a temporal connection between the slip and the C6-7 disc degeneration and also any proposed aggravation of the underlying C5-6 problem. He made it clear that the opinion he had expressed in his report was based upon the history given to him by the plaintiff, viz “The next day she had pain in her neck and low back. The pain was quite severe”. He added:
“One of the hypotheses was she fell over at the time of the injury and the large nerve root in its spinal canal was damaged. If that hypothesis were correct I would expect her symptoms coming on within a period of days or weeks. If (they did not that hypothesis may not be correct.”
He also said:
“What I would say is that I’m not happy that the schwannoma currently is contributing to her – much in the way of her neck pain but it could be. So I tend to look elsewhere for explanations of her neck pain. That’s the least of my likely hypotheses for neck pain. Whether or not the history has changed, it’s still, I would expect, causing arm pain. The current cause of the neck pain is more likely to be due to non-schwannoma related pathology of which the most likely culprit would be, I guess, disc degeneration which we knew was there and whether or not that’s been exacerbated by the fall is now open to some question if the history that you give me is correct.”
Dr Merry, a neurosurgeon who has been operating on cervical spines since 1967 and dealing with degenerative conditions of the spine such as disc problems and fusion, examined the plaintiff on July 15, 1999. His report of November 11, 1999 contains this “opinion”:
“There is some difficulty relating the C6-7 disc prolapse to the injury 24/12/94 especially when there was no initial complaint of neck pain. Ms Trimble refers to the presence of neck pain along with other areas of pain in approximately April 1995 when she consulted Dr Tan. I have no specific record of the duration of pain leading to that consultation. Dr McCombe in his report 18/12/96 refers to “she then had a fall and injured her neck and lower back. There was a great deal of left arm pain.”
The mechanism of injury was essentially directed to the lower back, pelvis and hips. There was no direct injury to the neck. It is possible however that indirect forces such as flexion, hyperextension and twisting were applied to the neck during the fall. Such forces could produce an annular tear with subsequent disc prolapse. This is more likely to occur in the presence of a pre-existing degenerative disc process. The known predisposing factors are, age over 35 years and a history of right upper limb pain in the right C6 nerve root approximately seven or eight years prior to the incident 24/12/94,
In relation to the C6-7 disc prolapse, there has been a resolution of symptoms in the left upper limb and does not represent any degree of permanent disability.
In relation to the C5-6 disc level lesion involving the right C6 nerve root, the following factors are considered:-
1.The presence of a right C6 nerve root disturbance seven to eight years prior to the incident 24/12/94 as noted from neck pain, right brachial neuralgia accompanied with numbness involving the right thumb and index finger and which later resolved. This would indicate a pre-existing condition.
2. The onset of right brachial neuralgia in either late June or
early July 1995, that is approximately six months after the incident 24/12/94. It is noted that the excision of the C6-7 disc prolapse 8/06/95 for left upper limb pain produced a good result. There is no record of pain in the right upper limb between the operation 8/06/95 until 22/06/95 as noted by Dr McCombe and for approximately six weeks as noted by Dr Coyne.
3. Surgical exploration of the C5-6 disc and intervertebral
foramen 1/09/95 by a posterior approach did not demonstrate
a disc prolapse or any abnormality of the right C6 nerve root
in the extradural component through to the intervertebral
foramen.
4. CT myelograms (initial study May 1995) and MRI scans
cervical spine (most recent 1/01/99) demonstrate a lesion that appears to be intradural but extramedullary (that is not within the spinal cord), the nature which is uncertain. It is in relation to the right C6 nerve root and could be either a fragment of extruded disc or a benign nerve root tumour such as a schwannoma.
I am of the opinion that the current presentation of the right upper limb and neck is not the result of the injury 24/12/94 when considering the presence of a pre-existing lesion, a late onset presentation after injury, the probable anatomical localization of the lesion within the dural tube and the nature of injury.
There are no significant residual symptoms in the lower back or inguinal regions.”
In his oral evidence, Dr Merry said that, on the basis that the first report of a neck problem to a medical practitioner was on April 27, 1995, it was his opinion that there was no causal link between the incident of December 24, 1994 and the symptoms complained of in April 1995. He expressed the opinion that the disc lesion at C6-7 requiring the operation by Dr McCombe was unrelated to the incident of December 24, 1994 as the material he had (and it was set out in his report) “does indicate that the degree of injury force did not produce the problems that existed in April ‘95”. He also said that, if the plaintiff had pre-existing spondylosis and had injured her neck as the result of the slip, he would expect pain to appear on about the same day or within a day or two but, if the pain did not appear for some four months he “would not be able to attribute the injury as a cause of that presentation. He also expressed the opinion that the five hour drive from Roma to Brisbane indicated that there was no significant cervical spine problem as a result of the incident “apart from perhaps that if there was a pre-existing condition then this pain can come on and off over time over the years”. But to him the indication was of no serious result causing symptoms. If there were, their onset should have been within the first few days or two weeks. Dr Merry also considered that the neck pain could be related to the pre-existing spondylosis and involvement of the nerve as part of the spondylite process. He stated that pain in the neck and upper thoracic spine can occur spontaneously without any pre-existing condition; if there is a pre-existing condition then the disc prolapse under those circumstances can be part of the progressive nature of the degenerative process.
Dr Merry considered that the plaintiff’s account (“My head didn’t want to stay up ... It had trouble staying up ... It kept falling forward) could be her description of the result of a jarring affect to the neck giving her some muscle spasm. He said that the x-rays of the cervical spine did not show “any marked degree of degeneration”. He did not believe that the lesion on the right side of the C6 nerve root was related to the slip, agreeing that his report did not address the left side. While his “opinion” in his report did not say whether the lesion on the left side was caused by the slip what his belief under examination in Court was that “you can have a disc prolapse of that nature without any trauma”. He would describe it as “spontaneous” and did not believe that the acute large disc prolapse was due to the slip “because of the time factor involved of three months or thereabouts, that sudden onset of pain at C6-7, whether there was pre-existing disease or not, particularly with pre-existing disease.”
I acknowledge that Dr Merry was subjected to a lengthy and dogged cross-examination and a re-examination which I have reread and reconsidered alongside the evidence of Drs McCombe and Morgan unlike the situation at a trial spread over some six months. I do not consider that there is any point in analysing that cross-examination and re-examination which in my view did not result in any significant alteration to Dr Merry’s opinion.
I turn now to Dr Morgan’s evidence. After examining the plaintiff he submitted a report dated December 24, 1999. He also submitted what may be called a supplementary report of August 13, 2001. I commence with the observation that, although the plaintiff formed an unfavourable view of Dr Morgan’s conduct at the examination (which her counsel was prepared to call “a personality clash or brusqueness”), there is nothing in the evidence which even suggests that Dr Morgan reached his conclusions in any way other than objectively and in a professional way. To summarise, Dr Morgan noted the absence of any mention of cervical or neck discomfort to Dr Yau, in the Logan Hospital report or during the consultation with Dr Tan before April 27, 1995. Indeed the plaintiff does not suggest that she did make any complaint before April 27. In my view, there having been no contact between her upper back, shoulders and head with the walkway surface, he was entitled to give weight to that circumstance when considering what might have been the slip’s consequence upon the plaintiff’s cervical spine. As demonstrated at the examination, the slip ended with the plaintiff subsiding slowly onto her left buttock or her left side. Drawing on his professional experience he was entitled to give weight to the circumstance that the provocation of a cervical malady could be expected to give rise to discomfort within hours or days and to the circumstance that, as the time from the occurrence of the slip to the time of onset of symptomatology increases, so too does the causal link between those two events become more tenuous. My view is that even were the plaintiff to be excused for not telling Dr Yau or the Logan Hospital that she had developed a severe headache well before she left the hairdressing salon and that her body was spasming or shaking and she had severe pain in her head, neck and shoulders, there is no reasonable excuse for her not telling Dr Tan of her pain in those areas when she visited him (whom she had been going to for over ten and a half years at that time) on December 30, 1994 and absolutely no excuse for not doing so on March 24, 1995. By that time the pain she had earlier suffered from in and about her groin area had ceased for some weeks and could not be said to have been masking any pain in the head, neck and shoulders. With respect to that, I would find it difficult to accept the validity of the suggested masking given that the plaintiff’s evidence was that she was aware from almost after the slip that she had pain in her head, neck and shoulders.
The evidence of some other witnesses must be considered. Mr Torluccio was the plaintiff’s male intimate friend at the time of the slip. His English speaking ability was “a bit weak. Not at all. I don’t explain myself well enough.” He also explained that “it’s four, five, six years now. I couldn’t tell you exactly ...”. The most he did say was that, after December 24, 1994 “After then she not want to know anything, you know what I mean.” and “Because she feel tired all the time not want to go out all the time” and “she was tired all the time. She no want to do anything any more, she no feel too well ...” Their intimate relationship ceased although, as neighbours, they continued their friendship. Mr Torluccio said nothing about any complaint to him about headaches or neck and shoulder pain. The plaintiff’s daughter, Ms Trimble, was living with her family at another place and went to the plaintiff’s home on Christmas eve. She said her mother complained of pain “of her neck and head area and she also complained of her abdomen” and her mother’s hands “were up hanging on to her head and her neck”. From that, one would conclude that the pain of the neck and shoulder area was the worse. She said that her mother “definitely” complained about pain in 1995 up to her operation and “the main pain was the head and neck area”. She said that, after she slipped, her mother wore a cervical collar “pretty much within the first week after the slip” but only “from time to time when she really felt she couldn’t hold her head up any more” and that “continued on, on and off until she had the surgery”.
Given the absence of complaint by the plaintiff to the Logan Hospital, to Dr Yau and, especially, to Dr Tan and my acceptance of the accuracy of Dr Tan’s notes of December 30, 1994 and April 27 1995, I find that more probably than not the evidence of the plaintiff and of her daughter is incorrect and that on the balance of probabilities there was no causal connection between the slip on December 24, 1994 and the “sudden onset” of pain in the neck and upper thoracic spine on April 27, 1995. It is curious that the plaintiff went straight to Dr Tan and complained of her pain and did not mention it on her two previous visits. Her medical history over the previous decade does not suggest that she had any reticence or difficulty when visiting Dr Tan.
It follows that I accept the preponderance of the medical expert’s evidence and find that the slip did not on the balance of probabilities contribute to the subsequent problems in the cervical spine which required surgery. The plaintiff has not proven her case on the balance of probabilities in terms of satisfying me.
DAMAGES
I propose making a global award rather than seek to analyse the relevant evidence upon each heading appropriate to the injuries and their consequences.
I am prepared to accept that the pain that the plaintiff felt in the groin and lower body was sufficiently severe to call for the advice she was given at the Logan Hospital and, six days later, by Dr Tan. I consider, given the relatively little attention given to this question at trial, that any difficulties and consequences flowing from the slip should be seen as ended by early February 1995. No continuing or permanent consequences are suggested so far as that part of the plaintiff’s body be concerned. Because of the emphasis on head and neck pain in the period prior to her first operation by Dr McCombe, the plaintiff did not focus on the extent of pain and restriction of activity attributable to the slip. That there was some may be deducted from the fact that she was given painkillers by the Logan Hospital and by Dr Tan and was, after a week, advised by Dr Tan to alternate doing what she could and periods of rest. The brevity of the period I have chosen for recovery may also be deduced from the absence of any reference to lower body pain in Dr Tan’s notes of visits subsequent to December 30, 1994. I accept as reasonable her use of her mother’s services to drive her to see Dr Tan on December 30, 1994 and to and from the Gold Coast appointment early in the New Year. I am also prepared to accept that it was reasonable to utilise her daughter’s services in order that Christmas dinner could proceed as the plaintiff had planned and also to perform chores she was unable to carry out. So far as Dr Yau and Dr Tan as general medical practitioners be concerned I allow for their fees for one consultation each.
In allowing for the costs of the tablets and linament prescribed by Dr Tan, I note that the schedule of damages (ex. 22) records no purchase before February 15, 1995. I also allow travelling expenses for the visits to Drs Yau and Tan, to the hospital and to the chemist.
The matter of loss of income during the six week period referred to is one of difficulty. The plaintiff may be described as an entrepreneur whose activities were directed to producing income for a family trust from hairdressing salons and their sale and from her activity as a Neways distributor both personally and because of the level she held in the hierarchical structure used in that organisation whereby she could be rewarded for the efforts of other representatives. There was much evidence about Neways, its products and sales potential and about the plaintiff’s ability as a saleswoman. It is unnecessary to consider that evidence now that only a six week period is involved. It is sufficient to observe that (i) the Christmas-January period is notoriously one of slowdown in business activity, (ii) the evidence concentrated on the annual income of the trust and did not contain weekly or monthly income for the relevant period of six weeks, (iii) the plaintiff directed her personal endeavours mainly to Neways activity leaving her hairdressing salon and earnings there mainly to the staff, (iv) while the plaintiff might have been unable to make certain sales of Neways products to customers of her own in that time, her “overriding commission” as I call it, based on sales by others would continue, as would the income from the hairdressing salon; and (v) the plaintiff’s daughter may be described as standing in for her both at the salon and with Neways, although those gratuitous services have to be borne in mind under the Griffith v Kerkemeyer principle while avoiding doubly compensating the plaintiff. In the fiscal year ended June 30, 1994 the Trust’s nett loss for taxation was $69,128. In the following financial year the nett loss, for taxation was reduced to $44,937. Looking at the taxation returns for 1994 and 1995 the total business income (gross) in each year was $236,244 and $240,614 respectively which does not suggest that income was significantly affected by the absence of the plaintiff for the second half of 1994/95 – on her evidence, that is – and not merely for a short period such as a few weeks at the start of a new year. The income of a business such as the Trust would never be constant but the efforts of the plaintiff would not be the sole cause of any increase just as her absence for a time may not explain any drop in income. In the circumstances I consider that I should be most modest in any assessment of compensation for loss of income at earning capacity.
On an all-up basis, I award the plaintiff $7,500 as damages. As judgment is being delivered at a time almost seven years from the midway point of the six weeks I have taken as the recovery period, for the purposes of s. 47 of the Supreme Court Act 1995. I have calculated interest at the rate of 6% per annum for seven years - $3,150 and, if appropriate, will include that amount in the judgment.
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