Voznaks v. Jupiters Ltd
[2007] QDC 251
•17 May 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Voznaks v Jupiters Ltd [2007] QDC 251
PARTIES:
KARA VOZNAKS
Plaintiffv
JUPITERS LTD
First DefendantFILE NO/S:
BD 3240 of 2005
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
17 May 2007
DELIVERED AT:
Brisbane
HEARING DATE:
2-3 April 2007
JUDGE:
O’Sullivan DCJ
ORDER:
I order the defendant to pay the plaintiff damages of $120,170.16, and costs assessed on a standard basis from 11 August 2005.
CATCHWORDS:
Personal injuries; fall because of water on floor; security officer at Casino; injury to wrist; future prospects with Queensland Police Force.
COUNSEL:
R Lynch for plaintiff; G Diehm for defendant.
SOLICITORS:
Gouldson Legal for plaintiff; Bruce Thomas Lawyers for defendant.
The plaintiff claims damages against the defendant arising out of an accident on 9 April 2004 at the Treasury Casino.
At about 9.30 am on that day the plaintiff, who was employed as a security officer, was walking towards the staff eating area when she exited a lift at the basement level; as she stepped out of the lift she slipped on water; she put her hands out in front of her, and immediately felt pain in her right arm.
As a result of the accident she suffered a partial scapho-lunate ligament injury to the right arm.
Both liability and quantum are an issue.
The defendant denies liability for the accident, as pleaded in paragraph 7 of the Defence. In particular, the defendant erected ‘slippery when wet’ warning signs outside the lift which it says were plainly visible to employees upon exiting the lift.
The defendant pleads in the alternative that if it is found negligent, the plaintiff’s contributory negligence is 25%.
Photographs were tendered which show the lift, the water and the sign. The plaintiff gave evidence that the photographs were taken by the second-in-charge officer after the yellow sign had been moved towards the centre, as it appears in the photograph which was tendered.
The plaintiff gave evidence that after she had fallen she noticed towels on the left hand side on exiting the lift and also a yellow warning sign which was right next to the wall on the right hand side on exiting the lift. She had not noticed the towels or the sign as she got out of the lift prior to falling.
Counsel for the plaintiff submitted that it was incumbent on the defendant to take measures which could have included warning the plaintiff of the existence of the water leak at the 7.00 am muster when she commenced work that morning; posting a sign on the interior of the lift so that the plaintiff was aware of the danger before she exited it; engaging a plumber to fix the leak; utilising a make-shift system to catch the leaking water. He further submitted that the placement of the sign was of no utility to someone exiting the lift.
I find that the defendant was negligent.
I find that there was no contributory negligence on the part of the plaintiff.
Quantum
Pain and Suffering
The plaintiff suffered pain for some time after the accident, was on painkillers and was unable to do ‘pretty much most things’ (T18). She returned to live with her parents so her mother could help her and her dog.
She was off work for 2 months. For some months after her return, she was on light duties which included office duties and checking IDs. When she returned to full duties, she would use her non-injured hand and would avoid heavy lifting. She had difficulty with the 12 hour shifts required as a full-time employee so she changed to being a casual employee from 14 March 2005. She returned to being a full-time permanent employee on 16 January 2006 because she was not getting enough hours as a casual employee.
Currently she tries to swap shifts to do work such as the staff entry. When she is on general duties as a security officer, she tries to avoid physical restraints on males (especially wrist locks), attempts to swap shifts to go to quieter aspects of the job, and always carries things in her left hand. She gave evidence that she required hospital treatment on one occasion after being involved with an eviction. On four occasions since returning to work from workers compensation rehabilitation, she has had to take days off because of problems with her right wrist.
The defendant produced a DVD showing security officers, including the plaintiff, removing patrons from the casino.
Currently, she has ‘an aching sort of pain and a locking sensation’ (T23). The pain varies, from every day for a two week period to a couple of times a week. The locking sensation is usually after she has used her wrist for a long period of time. She continues to take pain killers.
Because of her wrist injury, the plaintiff no longer engages in karate and kick-boxing, which she previously enjoyed (she taught martial arts for a while). She has difficulties with grappling, wrist locks, holds and restraints as well as punching, sparring, and the actual pad work.
Since the accident, she no longer plays basketball and other sports she formerly enjoyed, and does not go to the gym because she avoids upper body exercise such as weights.
She experiences pain in her wrist which has at times woken her up at night.
She continues to have difficulties with general cleaning like vacuuming, opening jars, twisting door handles, and even brushing her teeth.
She has lost confidence, especially at work, because she is incapable of doing holds and restraints.
Dr Robinson, Upper Hand and Limb Surgeon, prepared reports dated 8 December 2004 and 26 April 2005. He noted that there was no obvious fracture to the wrist and it was placed in a splint. In his first report he noted that she had an intermittent discomfort in her wrist aggravated by physical activity. He assessed in accordance with the AMA guides to the evaluation of permanent impairment, fifth edition. Using s 16.9 (wrist motion impairment), he concluded she had no measurable loss of wrist motion. Using s 16.7 (impairments of the upper extremities due to other disorders, carpal instability pp 502-3), he concluded she has 8% impairment of upper extremity function. In his report dated 26 April 2005, he opined that the plaintiff would by then have reached maximum medical improvement and he would not expect any further improvement. He noted that the injury has caused a slight alteration to the bio-mechanics of the bones in the wrist and she has ongoing impairment related to this.
Dr Stephen Coleman, Orthopaedic Surgeon, examined the plaintiff on behalf of the defendant and prepared four reports dated 5 May 2005, 17 November 2005, 29 August 2006 and 3 October 2006, and he viewed the DVD. He opined in his report of 3 October 2006 that:
‘Her impairment was assessed on the symptoms of clicking and intermittent pain due to apparent instability of the wrist joint. She had a full range of movement and there was no impairment due to reduced movement. …The impairment of instability related to the AMA 5 Guides is an assessment made on the symptoms and the radiological findings of an increased scapho-lunate gap on her right wrist with stress views. The MRI scan also suggests there has been a partial tear of the scapho-lunate ligament.’
In his report dated 29 August 2006, he opined there is no permanent impairment regarding objective deficit of range of movement as it has now returned to the normal ranges as described in the AMA 5 Guides, Ch. 16. There was also no assessable permanent impairment due to grip strength deficit of the right hand. He noted that although it was over two years since the injury, the plaintiff had not fully recovered as expected and described assisting symptoms of instability of the wrist, and continuing symptoms of carpal instability (‘pain with lifting and clicking of the wrist’). He assessed her impairment due to carpal instability as in the mild category with the maximum of 8% loss of function of the upper limb, which equates to 5% whole person impairment.
Suitability for Employment as a Police Officer
The plaintiff gave evidence that her ‘career goal’ was to join the Queensland Police Force (T10). She applied on two occasions, and was encouraged to re-apply; then the accident supervened.
After the accident she considered that she would no longer be able to perform her duties as a police officer because the police force would involve using more holds, and they would be more vigorous than what is required as a security officer. There is more help at the Casino; generally speaking, there are 13-15 security officers on duty at the Casino.
In his report dated 3 October 2006, Dr Coleman opined as follows:-
‘She may have difficulty passing the medical for similar reasons to the security work because of discomfort with certain postures and activities requiring gripping and straining her right wrist. There are no medical reasons that she should not continue with such employment. The evidence of the video would suggest that she could return to work as a police officer if she desires.’
Dr Hoskins, Director, Queensland Health Clinical Forensic Medicine Unit, gave evidence concerning the physical and medical requirements for entry to the Queensland Police Force. He was given the DVD, and he was made aware that the plaintiff had applied on two prior occasions to join the Police Force, but not since the date of the accident, and that she had successfully applied to join the military police (Australian Army Reserve).
In his report dated 15 March 2007, he stated that the physical and medical requirements for entry to the Queensland Police Force are no more onerous than those of the Australian Defence Forces, and in some regards, particularly in regard to physical fitness, the ADF requirements are more stringent. He acknowledged in cross-examination that he had no direct knowledge or experience of ADF requirements.
He noted that in the case of a wrist injury the biggest concern would be the ability to perform restraints (especially wrist locks) and the danger of being injured when wrist locks are being practised on the person. He noted the plaintiff’s ability to perform restraints using wrist locks in the course of her actions shown on the DVD.
Dr Hoskins concluded in his report that ‘based on the information supplied it is my view that it is far more likely than not that the plaintiff would not be rejected on medical grounds, so far as her wrist injury is concerned, for entry to the Queensland Police Service’ (paragraph 14).
During cross-examination, he agreed that it would be necessary for him (or one of his staff) to examine the plaintiff before she would be permitted to enter the Police Force. He said: ‘It’s impossible to be 100 per cent certain but I have had regard in forming the view that I’ve formed to the fairly recent medical that was performed for similar duties in relation to the ADF’ (T69).
During cross-examination, he agreed that the training at the Police Academy includes activities which require significant vigorous or repetitive use of force of both upper limbs, such as restraint and control, standing, open hand tactics, closed hand tactics, use of batons, ground restraint, dealing with unconscious or intoxicated persons, demonstrations and crowd control, and firearm use. He described the medical support given to recruits at the Police Academy.
I find that the plaintiff applied to the Army Reserve because she believed that she would no longer be able to perform her duties as a police officer because she could not do physical wrist-holds, holds, restraints, and weapons handling. When she applied to the ADF, she did not tell them the full extent of her wrist injury because she did not want them to know how much pain she was in (T27). She told Captain Carroll that she had a long term desire to join the ADF, and she could handle aggressive behaviour, because he wanted to hear that. She told him that she could easily cope with the physical components of the training. She told Carolyn Marchingo that she was still quite involved in martial arts and her fitness was quite good; she said that because it would benefit her chances of getting in.
The plaintiff passed a medical examination and no abnormal upper limb function was noted. She said that the testing hurt her. In the history, she disclosed that she had injured her right wrist and was off work for 6 weeks and had fully recovered. She ticked the box that she had no current medical condition or injury. Dr Tierney asked her to perform some push-ups which she did. She said it hurt but it was only three.
She gave evidence that she found the training difficult and it caused her a lot of pain in her wrist but she did not report any difficulties. She candidly acknowledged that irrespective of her wrist condition, she had decided that the Military Police is a career that she would never have pursued in any event. I agree with Counsel for the plaintiff that this illustrates that the plaintiff is not a person who is intent on maximising her damages claim.
The plaintiff was employed as a security officer at the Wickham Hotel in early 2005. She agreed that she said on her application form that she did not possess any health problems that may affect her work as a crowd controller. She said that she had problems with her injury, but she did not want to tell Pro Systems that.
I consider it of some importance that the instances shown on the DVD show the plaintiff restraining patrons with the assistance in all cases of a number of other security officers. In contrast, it is unlikely that she will have the same level of assistance when performing duties as a police officer and indeed she may find herself in situations where she must restrain unaccompanied or with the assistance of one other police officer.
I have considered the evidence concerning the plaintiff’s false answers to questions to various people, as outlined above, and in a statutory declaration, and her explanations for doing so. I have also considered the evidence that she completed the basic training course, underwent a medical examination, did push-ups, and was able to do a second job (although it was only for a short time). These issues all reflect on her credibility.
Overall, I find the plaintiff was an honest witness at trial, and I accept that she has the problems she described. I consider that the activities shown on the DVD are not inconsistent with her evidence.
Dr Robinson gave evidence that based on his examination, and having looked at the DVD, he considered the plaintiff will not have ongoing constant pain but episodes of intermittent exacerbations interspersed with periods of no pain. She will experience discomfort with certain activities, and particularly activities which involve rotation and twisting of the wrist under load.
He tested the plaintiff for grip strength, and assessed 30 kilograms of force for the left and 20 for the right. The figures for the left hand do not infringe AMA 5 Guides section 16.8B, but the figures for the right hand do. He did not rely just on the test results, but also assessed impairment based on carpel instability.
He was referred to the AMA Guides, and the average grip strengths for a female aged 20-29 of 24.6. He agreed that the plaintiff’s grip strength in her dominant hand exceeds the average, but considered it relevant to compare the grip strength of the non-dominant side, which would result in an expected grip strength of 35-36 kilograms.
He considered the plaintiff will have difficulty as a police officer in two particular respects, namely, the physical nature of the duties, and the discharge of firearms. He has observed that some police officers have significant problems going back to firing firearms after a wrist injury. He would predict the plaintiff may have some difficulty (T91).
Mr Hoey, Occupational Therapist, gave evidence concerning the plaintiff’s injury and her suitability for various occupational tasks. He concluded that she is unfit for heavy or repetitive lifting and has restrictions with forceful or repetitive use of the right hand. He performed grip strength tests using a dynamometer which resulted in the right hand of an 18 kilograms force and in the left hand a 38 kilograms force.
He gave evidence that the average grip strength for a woman in the plaintiff’s age group would be somewhere in the range of 40-50 kilograms force, in the dominant hand.
When asked about the plaintiff’s ability to complete 4 weeks of basic Army training, and the conclusion that occupationally there is nothing the plaintiff could not do as a result of her injury, he agreed, but said that ‘it would come down to what activity she could do with regards to pain and how much pain she’s prepared to work in’ (T64).
Dr Coleman considered that the plaintiff could expect discomfort in the wrist with gripping or twisting activities of the right hand and wrist, but there is no medical reason that she could not do the work of a police officer. He conceded that: ‘There’s I guess a little bit more susceptibility to that in the police force than in the casino where other security guards are available’ (T100). He agreed that it comes down to a question of pain threshold, and the plaintiff’s ability to confidently carry out the duties, knowing that if she does something it’s going to cause her pain at a later time’(T101). He considered this to be the same situation as a security guard as shown on the DVD, although he conceded that the occasions of evicting from the Casino are spaced months apart, and she was in company with other security officers. He considered that the plaintiff would be better off continuing to work as a security officer than a police officer because of the availability of assistance (T101).
He expressed the same opinion as Dr Robinson, namely, that wrist problems can cause discomfort with firearms and he has seen that in police officer patients.
He considered that grip strength is generally regarded as an inaccurate and subjective assessment of impairment because it can be limited by pain and also by a person giving sudden maximal effort. The AMA 5 Guides advise users to give minimal importance to grip strength if other objective findings are present. He assessed the grip strength of the plaintiff on 29 August 2006, and found that for the right wrist it was 24, 20 and 20 kgs with rapid repetitive gripping, and 34, 30 and 30 kgs for the left. He noted there was a difference between the two sides which he said was more limited by pain with gripping than by true weakness or strength deficit. There were no other objective factors present, and he therefore gave no relevance to the grip strength findings, and referred to s 16.8A of the AMA 5 guidelines which has impairment ratings based on objective anatomic findings.
He opined that the plaintiff may get discomfort with forced extension of the wrist but she would not be doing any further damage to her wrist by doing such activities, and there is no medical restriction that she should not do a job such as a police officer.
I agree with Counsel for the defendant that the evidence in support of the plaintiff and her fitness to be a police officer depends whether she could not do that sort of work, or may have problems with it, which relies in the end on acceptance of the level of symptomatology that the plaintiff complains of with respect to her activities (T 108).
Counsel for the defendant focussed on the ‘objectively reliable evidence’ about the plaintiff’s fitness to be a police officer, reflecting the approach of Dr Coleman.
In contrast, the plaintiff’s case depends to a considerable extent on her descriptions of her pain and difficulty in performing certain tasks to avoid pain. I consider that pain threshold is as important as objectively reliable evidence in assessing the extent of the plaintiff’s incapacity as a result of the accident, and her fitness to be a police officer.
I agree with Counsel for the plaintiff that so far as the Queensland Police Force is concerned, there are three issues. Firstly, will she re-apply and will she pass the medical; secondly, will she be successful in her application; and thirdly, her suitability for operational duties, especially vigorous activities, and whether she would be a successful police officer, given that she is reliant on others. He answered these questions as follows: she is unlikely to apply because of her lack of confidence; even if she does, she may not pass the medical, but even if she does pass it, she would be limited in her ability to perform operational duties and her success would be reliant on others. He discounted his calculations by 40% to allow for contingencies. I agree with these answers, and the discount.
Pain and suffering
I assess general damages for pain and suffering at $30,000, together with interest at $900.
Past economic loss
I find that the plaintiff moved from full-time permanent to casual employment as a result of problems with her wrist injury. The agreed sum is $5,418.20. Weekly benefits paid are $2,736.42, and interest thereon is $541.82
The plaintiff is entitled to loss of superannuation entitlements at the statutory rate of 9%, $487.64.
Future economic loss
I find that the injury from the accident has deprived the plaintiff of the opportunity to be a successful member of the Queensland Police Force because of her limited ability to perform operational duties.
I find that she can fulfil the duties of a security officer at the Casino, although certain activities cause her pain.
I find that there are significant relevant differences between the work required of a security officer at the Casino and a member of the Queensland Police Force.
I accept the submission of Counsel for the plaintiff that the plaintiff has lost the potential to earn in the order of $135.00 after tax per week. He computes a total loss of $122,850.00 and discounts to $75,000. I accept the reasonableness of this figure.
Superannuation loss is $6,750.00.
Agreed figures
Out of pocket expenses $498.78
Interest thereon 74.82
Health Insurance Commission 498.90
Sums refundable to Jupiters Limited 4,444.56
WorkCover refund 7,180.98
I order the defendant to pay damages to the plaintiff in the sum of $120,170.16, together with costs assessed on a standard basis from 11 August 2005.
0
0
0