Wilson v CMS Morgen Ltd & anor (No 1)

[2008] NSWDC 50

CITATION:	Wilson v CMS Morgen Ltd & anor (No 1) [2008] NSWDC 50
HEARING DATE(S):	10 March 2008
EX TEMPORE JUDGMENT DATE:	14 March 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	The matter is adjourned to 20 March 2008 for argument on costs and entry of final orders.
CATCHWORDS:	Personal injury - Allegations of pre-existing medical condition
PARTIES:	Bubbles WILSON CMS MORGEN LTD DAVID CAMPBELL BUILDING SERVICES P/L
FILE NUMBER(S):	Newcastle 561/06
COUNSEL:	Plaintiff - T R Edwards Defendants - D A Priestley
SOLICITORS:	Plaintiff - Bale Boshev 1st Defendant - Thompson Cooper Lawyers 2nd Defendant - Curwood Lawyers

JUDGMENT

1 Bubbles Wilson claims that she was injured when a panel of gyprock fell on her head while she was shopping in the Bi-Lo supermarket at Maitland on 22 February 2006.

2 She claimed against the first defendant as the owner of the premises and against the second defendant as the first defendant’s tenant in occupation of the premises. The defendants were jointly represented. They asked the Court to order that their cross claims be dismissed. Although breach of the duty of care was denied on the pleadings of the hearing, the defendants admitted liability. I was not asked to apportion liability between them.

3 The issues therefore related to assessment and were:

(1) whether the injuries and disabilities suffered by the plaintiff were sufficiently serious to warrant any award of non-economic loss;

(2) the effect of the injuries and disabilities on the plaintiff’s past and future income earning capacity;

(3) the need, if any, generated by the injuries and disabilities for domestic assistance; and

(4) the need, if any, generated by the injuries and disabilities for future treatment.

Background to the assessment

4 At the time of the injury the plaintiff was thirty nine years old, she is now forty one. She is married with two sons, now aged eighteen and fifteen. She was apparently in good health at the time of the incident, although she suffered from a depressive condition diagnosed when she was aged twenty one. Her depression was controlled by medication although she conceded that from time to time she had what she described as down days. The plaintiff denied any other relevant pre-existing health condition.

5 The defendants drew attention to entries in the notes of Dr Castleman. There was an entry dated January 2001 which noted that the plaintiff was working as a night filler at a Coles supermarket and had developed pain in her shoulder girdle, especially affecting her right shoulder. Dr Castleman ordered x-rays of the cervical spine and the right shoulder and an ultrasound of the right shoulder and noted a preliminary diagnosis of tendonitis. Celebrex was prescribed. The ultrasound indicated that the appearance of the plaintiff’s cervical spine was normal but there was a slight impingement in the right shoulder and a slight fluid accumulation in the biceps of the tendon sheath. There was no indication in Dr Castleman’s notes of any change to his preliminary diagnosis or of any further complaint of, or treatment for, any condition affecting the plaintiff’s right shoulder prior to the incident that occurred five years later on 22 February 2006. I am satisfied therefore that the plaintiff at the time of this incident was not suffering from any condition affecting her right shoulder.

6 The defendants pointed to complaints relating to the plaintiff’s neck that were recorded by Dr Castleman in May 2001, December 2002 and March 2003 and said to have been recorded by Dr Nanda in November 2003, April 2005 and November 2005. The plaintiff said she remembered none of these instances of alleged neck pain. She stated that she had, from time to time, complained of various symptoms associated with colds and infections. The notes to which I was referred, where it was possible to make out any reference to the plaintiff’s neck, do indeed make that reference in association with other complaints of symptoms of colds, coughs, nausea and vomiting.

7 The notes made by Dr Nanda in April and November 2005 are illegible and I could not make out any word which appeared to refer to the plaintiff’s neck. In the circumstances, I do not accept that Dr Nanda’s notes of April and November 2005 provided evidence of any complaints of neck pain. I do not accept that complaints of muscle spasm and sore neck in 2002-2003, when associated with symptoms of other conditions, established that the plaintiff suffered from any pre-existing condition affecting her neck.

8 It was mutually agreed between the plaintiff and Mr Wilson, that one of the parents would always remain at home until their two sons had reached adult age. At the time of the incident the plaintiff was in fulltime employment. Mr Wilson was at home recovering from a work related injury.

ISSUE 1 - NON-ECONOMIC LOSS

9 The plaintiff said that the gyprock panel fell on her head as she walked into the Bi-Lo store. Photograph, Exhibit A, indicated that the panel that fell was of substantial size. She was knocked to the ground. The plaintiff was assisted to her feet by Bi-Lo staff, who took her to the manager’s office. The plaintiff agreed that she told the Bi-Lo staff that she was not in pain but she claimed that at this time she was in shock. An ambulance was called and the plaintiff was taken to Maitland Hospital where she was examined and released without x-ray. The plaintiff said her pain developed overnight. She went to her general practitioner, Dr Nanda, the following day because she was feeling sore in her head, neck, right shoulder and back. In effect, she said, from the top of her head to her waist.

10 She said her physical condition and the consequences of living with significant pain led to a decrease in her social activity and a less than perfectly clean house. As a result her depressive condition was exacerbated and her pre-incident medication of 100 milligrams per day of Zoloft was increased to 200 milligrams.

11 Dr Nanda organised x-rays and a CT scan and referred her to Dr Ghabrial in May 2006. At this time she said she was still suffering from pain in her neck, shoulder and low back and from headaches. She had physiotherapy for a few months twice a week, being unable to afford the three times weekly treatment recommended. She said physiotherapy provided her with short term relief only. In May 2005 she received a cortisone injection in the right shoulder at the recommendation of Dr Ghabrial from which she obtained fifteen months relief of her symptoms.

12 She has also been referred to Dr Schwarzer, a pain management specialist, who saw her in August 2007. Dr Schwarzer undertook diagnostic injections with the intention of determining whether the zygapophyseal joints were the source of her pain. The plaintiff said she obtained twenty four hours complete relief of head and neck pain as a result of those injections. Dr Schwarzer decided that the block was diagnostically positive and has offered the plaintiff treatment that it was said would provide her with up to nine months relief. This treatment will cost $2,125 and is currently beyond the plaintiff’s financial capacity.

13 The plaintiff stated that her current physical condition was that her right shoulder had improved, although it remained painful at times, depending upon the level of her activity. She said she had some difficulty lifting her hand above her head but agreed that she could undertake activities such as hanging out washing, cleaning the outside of her house with a long-handled broom and using a leaf scoop to clear leaves from an above ground pool. She agreed that she uses the pool for exercise and that this includes swimming backstroke in order to build up her shoulder muscles. She stated that these activities caused the development of pain for which she needed medication and hot and cold packs.

14 The plaintiff said she suffers from neck pain three or four days a week and headaches almost daily. The headaches develop during the day. She said she has back pain in her lower spine which is almost constant. These symptoms affect her capacity to work, to do her housework and to undertake gardening. She described her sitting tolerance as two hours, standing as one to two hours and driving as one to two hours. She takes pain relieving and anti-inflammatory medication and medication to assist her to sleep. As already noted her dose of anti-depressant medication has been increased.

15 In assessing the plaintiff’s damages I have noted that there are two overlapping areas of concern, namely her physical condition and her psychiatric condition.

16 Dr Ghabrial was the first orthopaedic specialist consulted. He, having reviewed an MRI scan, diagnosed soft tissue injuries to the neck and back and traumatic supraspinatus tendinopathy sub-deltoid bursitis of the right arm. His opinion in June 2006 was that her symptoms were likely to settle within six months. As noted he referred the plaintiff for cortisone injection in her right shoulder. He suggested that she consult him further if her symptoms had not resolved. There was no evidence that the plaintiff did further consult Dr Ghabrial.

17 Dr Cummine, Dr Zeman and Dr Kerridge examined the plaintiff on behalf of the defendant. They all offered the opinion that the injuries were soft tissue in nature. Each of these doctors set out details of their examination of the plaintiff and on each occasion that examination indicated that she had pain free ranges of movement in the affected areas of her spine. Dr Cummine and Dr Zeman concluded that the plaintiff was fully recovered. Dr Kerridge accepted that she had some ongoing symptoms. Dr Zeman requested information concerning the size of the gyprock panel and the height from which it fell but there was no indication that this information was provided to him.

18 In a supplementary report prepared after he reviewed the general practitioner’s clinical notes, Dr Zeman concluded that the plaintiff had a history of previous neck complaints and that this incident had caused a temporary aggravation only of her continued pre-existing condition. This appeared to be at odds with his earlier opinion that the plaintiff had no obvious functional restrictions. Further, as already noted, I do not accept that these notes indicated that the plaintiff suffered from any relevant prior condition in her neck or shoulder.

19 Dr Sage for the plaintiff diagnosed compression strains in her neck and back and a right shoulder contusion or strain. His report was ambivalent as to whether the plaintiff’s condition was permanent.

20 It was put to the plaintiff that she was dishonestly bringing claims of ongoing symptoms. This was a proposition that she emphatically denied. No doctor suggested that the plaintiff did not have the symptoms of which she complained.

21 Concerns expressed in particular by Dr Zeman and Dr Kerridge were that there was little by way of clinical finding to support them. Dr Zeman suggested that her complaints were due to non-organic factors which could have arisen out of her chronic depression. Dr Kerridge said that the plaintiff did not appear to be exaggerating her symptoms. He made a point of stating that he was not implying that the plaintiff did not have symptoms and that he believed that she was completely genuine. He went so far as to state that she came across as an admirable person.

22 In respect of her psychiatric condition, Dr Akkerman examined the plaintiff on behalf of the defendant. He diagnosed that she was suffering from major depression and stated that she had suffered no psychiatric injury as a result of this incident. He also said that her condition had not deteriorated as a result of the incident. He made no reference to the increase in medication that had occurred since the plaintiff suffered injury.

23 Dr Parmegiani noted that the plaintiff’s symptoms of depression had increased in severity because she resented her enforced dependency upon her family; she was emotionally labile and she was socially withdrawn. She had gained weight and she suffered from insomnia and daytime tiredness. He reported that she stated that she was compulsively cleaning her house in an attempt to treat her depression, cleaning up to seven hours a day. His diagnosis was exacerbation of her major depressive disorder as a result of chronic pain and associated limitations, the loss of her employment and her loss of confidence and self esteem.

Findings

24 In the light of the medical opinion and in the absence of direct evidence that the plaintiff was feigning her symptoms, I have accepted her as a witness of credit. She presented in a straightforward fashion, making concessions against interests, where it was appropriate to do so. I find that on the balance of probabilities, the plaintiff’s continued symptoms are in the main, the result of the exacerbation of her pre-existing major depressive disorder.

25 I accept that Dr Akkerman was correct when he stated in his report that this incident had not caused the plaintiff’s psychiatric injury. He did point out however, in that report that the condition from which she suffered prior to the incident rendered her vulnerable to stressors that can increase its severity. I accept that this has occurred in this case.

26 In my view, Dr Akkerman overlooked the evidence that the plaintiff at the time of the incident was fully functional, working fulltime in a physically demanding but responsible position, and managing a household and family. She has since developed the problems identified by Dr Parmegiani. I find that these problems have had a substantial effect upon her quality of life.

27 In assessing her damages I have taken into account her pre-existing psychiatric disorder and the prospect that with treatment some further improvement may be expected.

28 I have assessed her non-economic loss at twenty three percent of a worst case and awarded her on that head the sum of $22,000.

ISSUE 2 - INCOME LOSS

29 I have noted already the arrangement between the plaintiff and Mr Wilson, that one parent would remain at home until her sons had reached adult age.

30 The plaintiff’s evidence was that she left school with a school certificate in year ten and worked in various clerical and unskilled labouring positions until the birth of her first child. She remained out of paid employment until 1999 when she commenced night fill work with a Coles supermarket on a casual basis at Baulkham Hills. She was later engaged on a permanent basis.

31 Mr Wilson was injured at work and unable to continue to earn income and the parties to the marriage swapped roles, with Mr Wilson remaining at home for the children and the plaintiff working fulltime on day shift.

32 She transferred to the Cessnock supermarket when her family moved to the area in 2003. She was trained in various positions within the supermarket of increasing responsibility. At the time of the incident she was employed as a bakehouse manager. She described this as a hands on position involving lifting of items, such as bags of flour weighing up to 12.5 kilograms. She also described other manual work involved. She undertook managerial functions such as rostering staff, stocktaking and ordering. The plaintiff said that she aspired ultimately to a position as a store manager.

33 After the incident Coles gave the plaintiff a period within which to establish that she was fit to return to work. Her physiotherapist reported on 31 August 2006 that her employer required her to be fully fit before returning to work and that her employment would be reviewed in five weeks. Ms Meredith, the physiotherapist, expressed the opinion that it was unlikely that she could return to work fully fit in five weeks. The plaintiff was terminated from her position at Coles on 27 September 2006. She said she believed that at that time she was fit for alternative employment and asked for such employment, suggesting office work be provided. However she was told that none was available.

34 Financial pressures again dictated that she and Mr Wilson reverse roles. Mr Wilson, although not fully recovered, returned to fulltime work and the plaintiff agreed that at this point she remained at home by conscious choice. Her youngest son is now fifteen years old and she considers him to be sufficiently mature for her to return to work in a part time capacity. In the interim she has undertaken a short computer accounting course. She stated that she required more training in office skills before she could secure a position. The plaintiff maintained that she could work on a part time basis only because of her continuing complaints.

35 Dr Cummine and Dr Zeman stated that the plaintiff was fit for normal duties and her previous employment. Dr Sage disagreed stating that she could not return to her prior employment, although she could undertake clerical, sedentary work.

36 Mr Burchett, a vocational psychologist, assessed the plaintiff as intellectually above average and stated that she could return to employment as a retail supervisor, but noted her claimed physical limits. He suggested that she was fit for a number of clerical positions and also suggested employment such as bar attendant work and a checkout operator. These were positions which the plaintiff said she would not be able to manage with her current level of symptoms.

37 Dr Akkerman was of the view that there were no psychiatric restrictions upon her capacity to work.

Findings

38 Notwithstanding these medical opinions, my assessment of the plaintiff is that she was genuine in her statement that she continues to have symptoms and I accept that she will be limited to part time work whilst her current symptoms persist.

39 I have allowed for income loss the following:

1. For the past, the full loss to 1 November 2006 when the decision was made that Mr Wilson would return to work. That has been assessed as thirty six weeks at $570 per week in the sum of $20,520. I have allowed ten weeks at $200 in the sum of $2,000 being the period from 1 January 2008 to the date upon which the matter was heard, 10 March 2008, making a total of $22,700 for past income loss. Superannuation on that sum will be allowed at nine percent in the sum of $2,040.

2. For the future I have accepted that the plaintiff’s income loss as a result of this incident should be assessed at $200 per week, but I have applied a contingency figure of twenty percent to allow for the potential for her symptoms to improve. The amount allowed is $116,736. Superannuation on the future loss is allowed at nine percent in the sum of $10,506.

ISSUE 3 - DOMESTIC CARE

40 The plaintiff acknowledged that she continued to carry out her household duties but complained that they caused her an increase in her symptoms and the need for her to rest and take medication. The defendant’s medical experts did not consider that any was required. Dr Sage took a different view. In my view it would be appropriate to allow the plaintiff the two hours per week of commercially provided assistance on the basis that the evidence has satisfied me that some assistance with the heavier aspects of housework will be required. The amount allowed for domestic care is $38,460.

ISSUE 4 – OUT OF POCKET EXPENSES

41 Out of pocket expenses for the past are agreed in the sum of $7,758.60.

42 Dr Zeman did not accept that any further treatment was required and he did not accept that the treatment proposed by Dr Schwarzer was necessary. Dr Parmegiani recommended twelve to eighteen sessions with a specialist psychiatrist, but he did not provide an estimate of the cost of that treatment. He also suggested that the plaintiff’s anti-depressant medication be reviewed and he acknowledged that long term treatment with anti-depressants would have been a requirement, in any event, of the plaintiff’s pre-existing depressive illness. I have therefore not allowed in future medical expenses any amount for anti-depressant medication.

43 I have noted Dr Schwarzer’s estimate of the cost of radiofrequency neurotomy at $2,125 and I have noted the plaintiff’s evidence concerning the medication which she takes for pain relief.

44 I have allowed the sum of $2,500 for the plaintiff’s future medical expenses. Whether she applies that to the treatment proposed by Dr Schwarzer or to the psychiatric treatment recommended by Dr Parmigarni, is a matter for her choice.

45 There will be verdict in judgment for the plaintiff in the sum of $222,725.60.

46 I will suspend orders until 20 March 2008.

47 The matter is adjourned to 20 March 2008 at 9.30am to hear argument on costs and for the entry of final orders.

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