Zahmel v Griffin No. DCCIV-94-721 Judgment No. D3600
[1997] SADC 3600
•8 May 1997
Court
DISTRICT COURT OF SOUTH AUSTRALIA
Judgment of His Honour Judge Pirone
Hearing
13/03/97 to 14/03/97, 17/03/97 to 20/03/97.
Catchwords
Personal injuries-motor vehicle accident-42 year old plaintiff nurse at trial travelling as passenger in 4 wheel drive-head-on collision-plaintiff's vehicle damaged beyond repair-plaintiff hospitalised initially for three days and on several occasions thereafter-multiple injuries to multiple parts of the body-various problems developed during recovery period-plaintiff suffering from relevant pre-existing conditions-plaintiff's complaints found to have a small organic basis and a very large psychiatric/psychological component-non-organic aspects likely to resolve shortly after finalisation of litigation-significant improvement in organically based complaints expected to occur soon thereafter-plaintiff has been subjected to several surgical procedures-she has undergone excessive (but as advised) medical and paramedical treatment-most of that treatment was to no avail and/or with counter productive results-plaintiff has suffered significant pain and discomfort for many years-her ability to lead a normal life has been significantly impaired-she has permanent fat necrosis of her right breast requiring regular monitoring and probable further surgery-she has been totally incapacitated for work to date-incapacity for work likely to continue for a further 18-24 months-economic loss: past $78,000:future $52,000: total non-economic loss on numeral 17 under Section 35a of the Wrongs Act $24,310: Beck v Farrelly $1,000: future medical expenses $3,000:total award excluding special damages$158,310.
Materials Considered
• Wrongs Act 1936 35a(1)(d), referred to.
• Lunn Civil Procedure South Australia Volume 1 at page 8550;
• Holyoak v Ivanoff Unrep.Judgment S5213 delivered 18.8.95.;
• Ivkovic v Rinaldi and Ivkovic (1980) 25 SASR 516;
• Arthur Robinson (Grafton) Pty.Ltd. v Carter (1968) 122 CLR 649 @ 659;
• Bresatz v Przibilla (1962) 108 CLR 541 @ 544;
• Sager v Morten and Morrison 5 SASR 150;
• Mann v Elbourne 8 SASR 298;
• Malec v J.C. Hutton Pty.Ltd. (1990) 169 CLR 638 @ 639-640 and 643;
• Mallett v McMontagle [1970] AC 166 @ 176;
• Matthew v Flood [1939] SASR 389 @ 392;
• Burford v Steer (1984) 118 LSJS 139, applied.
• Jones v Dunkel (1959) 101 CLR 305;
• Ramsay v Watson (1961) 108 CLR 642 @ 645;
• Scuteri v Wood (1987) 137 LSJS 7 @ 9;
• Assessment of Damages for Personal Injury and Death 3rd Edition 1990;
• Lewis v Todd [1980] 2 SCR 694 @ 714;
• Medlin v SGIC 127 ALR 180;
• Bruno v Davies (1988) 144 LSJS 226;
• Vail v Formato 10 MVR 12;
• Walker v Briddon Unrep.Judgment of the Full Court No. 9412 delivered 19/10/86, considered.
Representation
Plaintiff JOHN GLOWIK:
Counsel: Mr. R. W. Evans on instructions - Solicitors: Peter Scragg
Defendant NATASHA GLOWIK:
Counsel: Mr.D'A.F. Stratford and with him Mr. D.J. Blight on instructions - Solicitors: Ward &; Partners
DCCIV-94-721
Judgment No. D3600
8 May 1997
(Civil)
ZAHMEL v GRIFFIN
Civil
Judge Pirone
The plaintiff's claim is for damages for personal injuries and consequential loss and expenses suffered as a result of a motor vehicular collision which occurred on 31st day of March 1994 when the vehicle in which the plaintiff was travelling as passenger was involved in a head-on collision with a vehicle driven by the defendant on South Road, at a point between Normanville and Seacombe Valley.
The question of liability has been resolved.The plaintiff is to recover 100% of her damages to be assessed.The matter comes before me for an assessment of those damages.
In relation to that issue the parties are at loggerheads as to what, if any, injuryor injuries the plaintiff did suffer in the subject incident and as to what, if any, effect the plaintiff's injuries have had, and/or will continue to have, upon the plaintiff's enjoyment of life and earning capacity.
It was the plaintiff's case, as pleaded, that as a result of the subject incident she sustained multiple and serious injuries to various parts of her body.Those injuries are particularised in paragraph 3 of the statement of claim as follows:-
"The plaintiff ... sustained soft tissue injuriesto her neck and back, broken right wrist, bruising and lacerations to her chest, hips, forearms, elbow, knee, leg and ankle, lacerations to her tongue and injury to her teeth on the left hand side of her mouth, aggravation of a previous injury to her right shoulder, a blow to her left elbow, and injuries to both of her knees."
The plaintiff's own evidence as to what injuries were, in fact, suffered by her in the subject accident was somewhat at variance with the pleading to which I have referred.Her evidence was inter alia as follows:-
"Q. You were involved in a collision on 31 March 1994.
A. That's correct.
Q. What injuries did you receive as a result of that collision.
A. If I start at the top, a tongue that was bitten, sore neck, seatbelt burns to the neck.
Q. What part of the neck.
A. The left side.Chest bruising, bruised right breast, bruising - extensive bruising to the - across the abdomen, laceration or a tear in the left knee, sore hip, especially right, bruised ankles, sore left and right wrist - the right one was fractured.
Q. Did you have pain or discomfort immediately following the collision.
A. Yes, I did.
Q. What areas were affected, that is, at the time of the collision.
A. At the time of the collision my main areas of pain were my chest, right wrist and abdomen, neck.
Q. How long after the collision did you feel those symptoms.
A. Immediate."
I note that although there is a substantial volume of evidence before me in relation to treatment which the plaintiff is said to have received with respect to her left shoulder and her left wrist, neither the left shoulder nor the left wrist have been mentioned under "Particulars of Plaintiff's Injuries". Submissions were made to me by counsel for the defendant in relation to each of those limbs in the course of his final address.I was invited to find that the plaintiff had not suffered any injury to either of those limbs.Counsel for the plaintiff responded but only in relation to the left shoulder.He reminded me of the plaintiff's complaint to Mr. Brown in relation to that shoulder when first seen by that specialist shortly after the accident.Counsel also referred me to Rule 46.15 and the particulars which the plaintiff had provided to the defendant thereunder.I was invited to look at and have regard to those particulars although they had not been formally tendered as evidence before me. I was referred to the decision of Perry J. in Holyoak v Ivanoff Judgment No. S521318th August 1995 unreported as authority for the proposition that Rule 46.15 particulars are to be treated as an extension of the pleadings and may be looked at by the trial judge as part of the pleadings even if they are not tendered in evidence.That view is supported by the learned authors of Civil Procedure in South Australia by His Honour Judge Lunn at page 8550 in volume 1 of that work.Counsel for the defendant did not make any submissions to the contrary.I accept the submission of counsel for the plaintiff and hold that the plaintiff's pleadings are to be read as including an alleged injury to the plaintiff's left shoulder.I reject the submission of counsel for the defendant to the contrary.
With respect to the left wrist the position is different.True it is that there is abundant evidence before me of treatment having been undergone by the plaintiff with respect to that wrist.It is also true that when the plaintiff was asked to describe the injuries that she had sustained in the subject accident she answered inter alia at page 28 of the transcript:-
"sore left and right wrist - the right one was fractured'
but there is no reference to the left wrist either in the statement of claim under the heading "Particulars of Plaintiff's Injuries" or in the Rule 46.15 Particulars.
Counsel for the defendant urged me to find that the plaintiff had not injured her left wrist in the subject accident.Counsel for the plaintiff urged me to find otherwise but did not apply to amend either the plaintiff's Statement of Claim or the particulars of the plaintiff's injuries at any stage of the proceedings.I have borne all of that in mind in reaching my final conclusion. For the time being I simply hold that the plaintiff has not pleaded any injury to her left wrist.
The plaintiff goes on to say in her Statement of Claim that the injuries allegedly suffered by her in the subject accident and their sequelae have not only interfered with the normal enjoyment of her life, but also that they have reduced her earning capacity to a substantial extent.
It was the contention of the plaintiff that each of the alleged effects will endure for the rest of her life and accordingly, therefore, that she is entitled to substantial damages for economic as well as for non-economic loss.
The defendant, on the other hand, relies upon the pre-existing condition of the plaintiff and says that the subject incident has had no appreciable effect upon the alleged present condition of the plaintiff and that the plaintiff is now substantially as she always was, or as she would have been in any event, notwithstanding and irrespective of the consequences of that incident.
The issues that I am called upon to resolve on the question of quantum, therefore, with respect to economic and non-economic loss in relation to the past and in particular with respect to the future are basically these:-
1What injury or injuries did the plaintiff suffer as a result of the subject incident.
2Were the plaintiff's injuries, or any of them, and if so which, of a temporary or of a permanent nature.
3What, if any, effect did those injuries have and will continue to have upon the plaintiff's earning capacity and/or upon the enjoyment of her life having regard to the pre-existing condition of the plaintiff.
It is obvious that in order to decide the issues that I am called upon to determine, it is necessary for me to have regard to the plaintiff's pre-existing condition.It is to that question that I now turn my attention and make the following findings of fact being satisfied as to each of them on the balance of probabilities.
The plaintiff suffered a twisting injury to her right knee on 19th May 1987. She was diagnosed as having suffered traumatic synovitis for which she was prescribed anti-inflammatory medication and rest.She was off work until 3rd June 1987.
The plaintiff was involved in a motor vehicle accident on 12th June 1987.She was the driver.She collided with the rear of a stationary vehicle.As a result of that accident she suffered soft tissue injuries to her neck, right upper chest, right shoulder, elbow and thumb.She was still complaining of symptoms in her right shoulder, anterior chest and neck as at October 1987. She was seen by Mr. Brown, an orthopaedic surgeon.The specialist thought she had some evidence of acromio-clavicular joint problem as well as supraspinatus tendonitis.X-rays were taken of the cervical spine and right shoulder.They were reported as normal but the plaintiff's symptoms persisted.In order to alleviate the problem the subacromial space of the plaintiff's right shoulder was injected with local anaesthetic and steroid.On 8th March 1988 Mr. Brown thought that she had a very positive bursitis impingement sign and may have to do a coracoacromial release but concluded that in the presence of associated cervical spine discomfort the proposed surgical intervention could not be guaranteed to completely relieve her symptoms.The plaintiff continued to complain of pain in the right shoulder and in April 1988 she underwent the recommended surgery on that shoulder.The surgery was undertaken by Mr. Brown. He performed an acromioplasty coraco chromial ligament resection and bursectomy.At operation the bursa was found to be grossly thickened.The whole subchromial area was very tight.
In the meantime the plaintiff had developed symptoms of depression.She was subsequently treated for that condition by Dr. Anne Williams, a psychiatrist. By July 1988 she was back at work but could not lift heavy weights from above her head.She still had some weakness in that shoulder by the end of October of that year.
On 8th September 1992 the plaintiff fell onto her right arm.She experienced pain in her right thumb, wrist, elbow and shoulder.She was diagnosed by Dr. Matto as having suffered soft tissue injuries.She was treated with rest and anti-inflammatory medication.
The final episode before the subject accident occurred on 18th December 1992. On that occasion she fell in a Woolworths store.What occurred was described as follows in the plaintiff's Rule 46.15 Particulars sworn on 8th December 1994:-
"Attendant ... grabbed my left wrist and twisted as I fell.My right wrist hit a checkout.... My left wrist was fractured.My right wrist strained."
What the plaintiff stated in her Rule 46.15 Particulars, however,does not appear to be the complete picture.She saw Dr. Matto in relation to that fall on 22nd December 1992.Dr. Matto said in his report dated 29th April 1996 that in addition to the above injuries the plaintiff also suffered "injury to the right upper limb with bruising to the forearm" and that she complained "of painful right elbow, wrist and thumb' as well as "pain in the left thumb".She was diagnosed as having suffered "a soft tissue, ligament strain".She subsequently saw Mr. Brown who upon review suspected a "minor crack fracture of the left distal radius".Mr. Brown has subsequently reported that when he reviewed the plaintiff on 16th April, 1993 she presented with "bilateral wrist and thumb pains".He further reported that the plaintiff:-
"complains of dull constant pain on the dorsum of the right thumb radiating into the thenar area and this is worse with gripping things.The left has similar problems and has occasional episodes of locking in extension."
The last review of the plaintiff prior to the subject accident was on 11th May 1993.On that occasion the specialist reported inter alia as follows:-
"Her left shoulder is still a little sore and I think that she has a degree of tendonitis in this area.Her left wrist is also quite sore and the scan seems to confirm a minor crack fracture of the left distal radius."
Mr. Brown was cross-examined on the question of whether or not as a result of that fall the plaintiff had also injured her left shoulder,His evidence at pages 389 to 390 was as follows:-
"Q. In addition to problems with both wrists following that fall, she suffered a problem with her left shoulder.
A. Yes, the reference to that is that she was - her left arm was grabbed by a passer-by to prevent her from falling and she had quite a lot of traction on this.That's the reference that I've got there.Most of the examination pertains to the wrists;there's nothing commenting about the shoulder.
Q. The letter of 16 April 1993 refers primarily to the injuries sustained to the wrists and the letter of 11 May 1993 refers to wrist problems and a problem with respect to the left shoulder.
A. That's correct.
Q. All I am interested to confirm with you is that the left shoulder injury complained of on 11 May 1993 also relates to the fall dealt with in the report of 16 April 1993.
A. Yes, I believe it does.There's not a reference in the letter of 16 April specifically to the shoulder, but only to the mechanism by which the shoulder could have been injured.
Q. Do you have any other notes of your consultation on 11 May 1993 apart from the letter to Dr Matto of that date.
A. No, there is no reference to the shoulder until the entry of 11.5.1993;it says: 'Left shoulder sore over the deltoid, wrists still sore, scan confirms fractured left distal radius, off since 6.5.93, sore with driving'.My letters are normally dictated immediately after each consultation.
Q. You refer to a degree of tendinitis in the left shoulder.Is that something that is likely to have been caused by the trauma of the fall in December of 1992.
A. Quite likely."
Each of Dr. Matto and Mr. Brown gave evidence of the plaintiff's medical history as known to them as well as of the complaints that they had received from the plaintiff from time to time and of the treatment that each of them had offered her in relation to those complaints.Having regard tothe totality of the evidence that I have read and heard, and particularly on the contents of the reports issued, and the evidence given by Dr. Matto and Mr. Brown respectively, I am satisfied to the appropriate degree, and find, that, prior to the accident which is the subject of these proceedings, the plaintiff had suffered from, and had been treated for, inter alia, depressive illnesses, teeth grinding/clenching, and problems with inter alia her neck, chest, wrists, arms, right shoulder, left shoulder and knee.I find that all of that was as a consequence of one or more or all of the incidents to which I have referred and because of the state of her health in general.
I am also satisfied to the appropriate degree, and find, that the plaintiff has a substantial history (which history extends over a long period of time before the subject accident) of symptoms similar to, or not dissimilar from, many of the symptoms of which the plaintiff has complained as allegedly flowing from some of the injuries said to have been suffered by her in the subject accident to some of the same part or parts of her body.
I shall now direct my attention to the determination of the issues to which I have referred.In determining those issues, of course, I have remembered that the defendant must take the plaintiff as she finds her and that the plaintiff is entitled to recover damages for the full effects of the injuries suffered by her even though those effects are or may be more severe by reason of her pre-existing condition.I have also reminded myself, however, that it is for the plaintiff to prove what she says is her present condition and that it is also for the plaintiff to prove the causal link between that condition and the injuries allegedly suffered by her in the subject incident.This is because as it was said by the Chief Justice in Walker v Briddon (Unreported Judgment of the Full Court No. 9412 delivered on 9 October 1986):-
"...liability of the [defendant] is confined to the effects of the injury sustained in the accident;such liability does not extend to disabilities which result from the pre-existing condition alone, nor to disabilities which would supervene irrespective of the occurrence of the accident."
It is clear that some of the issues which I am called upon to determine involve, at least in part, the question of causation.On that question, as well as on the other questions which I am called upon to decide, I have heard inter alia viva voce evidence from several medical practitioners.I have received and read reports from those practitioners, as well as from others who, with the consent of counsel, were not called as witnesses but whose reports were tendered on the basis that the contents thereof be treated by me as their respective evidence, if they had been called as witnesses.
Although there are some understandable differences in the views expressed by the various medical practitioners whose evidence I have heard and read, be it viva voce or by way of their reports as tendered, I accept that all of them were competent in their respective fields and were doing their best to assist the court.I have carefully considered what each of them has to say but I have not relied exclusively upon the evidence of any one of them in making my findings.
Before reaching my final conclusion on whether or not I could or should accept any part of the evidence of any witness (including the plaintiff's) as a reliable basis on which I could make relevant findings of fact, I have reminded myself of what was said (obviously in another context) by Dixon J. (as he then was) in Jones v Dunkel (1959) 101 CLR 305, and by the same Justice in Briginshaw v Briginshaw (1938) 60 CLR 336.
In Jones' case (supra) His Honour said:-
"... the law ... does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others.The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied."
In the case of Briginshaw (supra) His Honour said:-
"... when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality."
I have also had regard to what was said by Bright J. in Dibbins v Dibbins 80 L.S.J.S. 165 and in particular to His Honour's dictum that:-
"... if the doctors disagree the judge still has to decide, and he may not make it his first concern to assess the relative credibility of the doctors.I think he may first assess the evidence of the patient."
And finally I have referred to the words of White J. in May v Faraq Action No. 2614 of 1988 (Judgment No. 1753 delivered on 1 July 1989) whereHis Honour said at page 9:-
"It is the function of the trial judge (and not of the respective medical experts) to determine the nature and extent of the damage caused to the plaintiff as a whole person following an accident such as this.It is not sufficient discharge of the judicial function to prefer one expert or group of experts to another.It is necessary for the judge to go further and to examine, from the legal point of view, what each of the experts has contributed, within the limits of his knowledge of the facts and his expertise, to the total picture;and to make reasoned findings insofar as is practicable as to the losses flowing from compensable injuries.At times it is not practicable to distinguish between causes or to apportion losses between causes.In such cases it may be necessary to resort to the broad assessment of damages based upon the concept of the plaintiff's loss of the chance to go on enjoying life within the pre-accident limits and exercising earning capacity within such limits free of the burden imposed by the injuries sustained in the accident in question.It is necessary in the course of any of these exercises to hold a fair balance between plaintiff and defendant, to bear in mind the relevant onus of proof and to lay at the defendant's door responsibility only for those damages for which the defendant is responsible.The principle embodied or reflected in the Latin tag omnia praesumuntur contra spoliatorem should be applied in a sensible but restrained way.The presumption is only an aid to proof.It does not take the place of proof.Too uncritical overworking of the presumption has led to all kinds of uncaused effects arising after accidents being attributed to the accident.An accident is often used as a peg upon which all after-effects are to be hung, regardless of the cause.Post hoc ergo propter hoc is not a valid form of reasoning.A reasonable practical compromise can usually be worked out by the trial judge."
In accordance with the principles to which I have referred it becomes necessary for me to assess the credibility of the plaintiff before proceeding any further.
The plaintiff was in and out of the witness box on numerous occasions.On each occasion I observed her most carefully.She appeared to be quite depressed. There is no doubt in my mind that in fact she was.She became tearful on a number of occasions.On one occasion I adjourned the Court to permit her to recompose herself.Her tearfulness was also quite evident during her stay in Court after giving her evidence and whilst the various medical practitioners who were called on behalf of each party were being examined and cross-examined.
I took particular note of the plaintiff's posture in the witness box and of the movements that she made of her neck, shoulders and body in general. Having regard to the posture which she adopted from time to time, and to the movements that I saw her make of her neck and body, I must say that at the end of the day I was somewhat unsure as to what might have been the probable extent of her true disability.She did not impress me, at least as I saw her at that time, as being a person who was suffering from significant physical discomfort in her neck or in her shoulders or indeed in any other part of her body.
It was for those reasons and because of the nature of the case and of the medical evidence which was placed before me that I have dwelt long and hard on all aspects of the matter before finally assessing the plaintiff's credit.In arriving at that final conclusion I must say, with respect, that I was aided, to a very large extent, by the words of King CJ in Ivkovic v Rinaldi and Ivkovic (1980) 25 S.A.S.R. 516.What the learned Chief Justice said at page 518 was this:-
"Cases in which the pain and disability of which a plaintiff complains have no organic cause but are alleged to be the result of an accident-caused hysteria or neurosis, are amongst the most difficult which courts have to try.It is necessary for a trial Judge to avoid pre-conceived scepticism and to be entirely open to conviction of the genuineness of the alleged pain and disability.He should not be too ready to reject otherwise convincing medical opinions that the complaints are genuine on the strength of impressions gained by him of the plaintiff under the artificial conditions of the witness box. Nevertheless a trial judge has a serious responsibility to insist on proper proof of the genuineness of such complaints.It is important to the community that justice be not mocked by the success of false claims put forward under the guise of psychologically caused disability.A trial judge gains assistance, often considerable assistance, from the opinions of medical experts, especially careful and competent psychiatrists, as to the genuineness of the complaints. Finally, however, a judge must reach his own conclusion on the whole of the evidence including his assessment of a plaintiff.Much depends upon the truthfulness of a plaintiff.If a judge is convinced that a plaintiff is untrustworthy, the medical evidence, based as it must be in this class of case to a considerable extent on the complaints made by that plaintiff, must come under close scrutiny.It must never be forgotten that, important as expert medical opinion is, the law entrusts the responsibility of decision not to medical experts but to a judge.In discharging that responsibility a judge has the great advantage of hearing all the evidence and, in particular, of having the veracity of a plaintiff tested in the witness box.He is not entitled to abdicate the responsibility of reaching his own conclusion on the whole of the evidence as to the genuineness of a claim by reliance upon the opinions of expert witnesses, however qualified they might be."
With these guidelines in mind, and after taking all other relevant matters into account, I must say that at the end of the day I am satisfied and accept that the plaintiff is basically telling the truth on all aspects of the case, although part of her evidence demonstrates an element of exaggeration or at times perhaps even gross exaggeration.My final impression of her was that she was an honest witness, upon whose evidence I could safely rely, notwithstanding that at times she was given to stretching and/or exaggerating the perception which she had of her bodily feelings, and the consequences which flowed from them.I have taken that factor into account when making my findings.I am satisfied that to the extent that she engaged in exaggeration, she did so unconsciously and not with an intent calculated to deceive or deliberately mislead.I remain of that opinion even though at the end of the day I gained the distinct impression that because of her psychological and/or psychiatric condition she appeared to be using the subject accident as a peg upon which all after effects of the accident, whatever they may be and however she may perceive them to be, are to be hung.
With all of these considerations in mind and, having re-read and noted the transcript of evidence and the exhibits tendered by the parties, after giving due weight to each of the arguments advanced, and to the submissions made by their counsel,and after making full use of the opportunity to see the evidence unfold in sequence, to absorb it in detail and to reflect upon it in its entirety, I now find the following facts being satisfied as to each of them on the balance of probabilities.
The plaintiff was born on 16th day of September 1954.She was married in 1974. She has two children.The eldest child was born in December 1976.The youngest was born in March 1983.
The plaintiff left school after completing Year 11.Thereafter she worked as a laboratory technician.In 1973 she commenced training as a nurse in Sydney. Her course was interrupted by her return to Queensland where she lived with her parents.Whilst in Queensland she worked in various occupations for some three or four years.She did so until the birth of her first child.In 1977 she undertook a three year training course in general nursing at the Mackay base hospital.She completed that course in 1980 and received her certificate as a registered nurse.Soon afterwards she began training as a midwife.She completed that course and received the relevant certificate as a registered midwife in 1981.Thereafter she worked in labour and nursery wards.She did so until January 1983 when she took leave pending the birth of her second child in March of 1983.
The plaintiff returned to work on a part time basis shortly afterwards .She resumed full time duties as from October 1984.She left Queensland in June 1985 to come to South Australia and work at the Flinders Medical Centre in order to acquire expert skills in neonatal work.She undertook a one year course for that purpose.She qualified in June of 1986.
After completing that course the plaintiff was offered a position at Flinders Medical Centre.She accepted the offer that had been made to her and worked in the neonatal intensive care centre of the Flinders Medical Centre until September 1986.
In September 1986 the plaintiff transferred to the Queen Victoria Hospital where she commenced duties as a registered nurse/midwife.Her duties involved patient care on a one to one basis, dealing with prematurely born babies, handling babies born with some disability, resuscitation procedures and inserting intravenous drips and central lines.She assisted in retrieval operations as well as in training new nursing staff and in the performance of some administrative tasks.
In 1991 the plaintiff was promoted to the position of clinical nurse.The duties of that position have been described as follows:-
"Q. At times were you an acting clinical nurse.
A.. Yes I was.
Q. In what situations.
A. When the permanent clinical nurses were on holidays or on leave, I would be promoted up into that area to cover for them.
Q. What was the significance of being a clinical nurse as compared with a neonatal nurse.
A. It's just the added responsibility of the day to day running as in co-ordinating the shifts, as well as being a role model and a leader for the permanent staff, and ensuring that nursing care standards were maintained."
Initially the position of clinical nurse was of a temporary nature.Eventually it became permanent but the plaintiff had other plans and did not take it.She had an eye to the future and was looking to transfer to a level 2 type of nursing where the opportunity for promotion would be greater.That opportunity presented itself in 1994 at the Modbury Hospital.The plaintiff applied for the position of clinical nurse working in the nursery and neonatal section. She was interviewed on 29th March 1994.She was successful.The position was formally offered to her by written document dated 14 April 1994 (Exhibit D6). The plaintiff was to commence on 1st May 1994 working 38 hours per week rostered over seven days at a salary:-
"as assessed on proven experience relevant qualifications and awards."
The relevant award was the "Nurses (SA Public Sector) Award 1991".That document has been tendered in evidence before me.
Exhibit D15 shows, and I find, that the plaintiff's net weekly wages with the Queen Victoria Hospital, as at 31st March 1994, were $752.95 and that her employment with that hospital was formally terminated (due to the plaintiff transferring to the Modbury Hospital) with effect 16th April 1994.
The position that the plaintiff held at the Queen Victoria Hospital was a level 1 position working reduced hours.The new position at Modbury Hospital was a year 3 level 2 position working full time.At the end of the year there was to be an automatic movement to year 4.The plaintiff had an expectation of a possible promotion to a level 3 position in the fullness of time.The new position which the plaintiff was to take at the Modbury Hospital involved full time work, an increase in salary and greater chances of a possible promotion to a level 3.
It is common ground, of course, that because of the injuries suffered by the plaintiff in the subject accident, the plaintiff was unable to take up her position as from 1st May 1994.She did, however, make an attempt at returning to work in mid-May of that year.She did so on doctors' advice.She attended at Modbury Hospital on 17th May 1994 and undertook a three day orientation programme.
The plaintiff's attendance at work on that occasion did not involve the plaintiff having to perform work duties, but it did require her to demonstrate her ability at undertaking resuscitation procedures.Those procedures involved her having to perform small activities.She found that she could not cope with those activities.She discussed the problem with her medical advisers and although she was advised to expect some discomfort and some exacerbation of her symptoms, she decided against remaining at work on that occasion because she simply could not cope.The plaintiff made a further attempt at returning to work in July 1994.On that occasion she persevered from the 12th to 28th July 1994.She worked in the nursery as a clinical nurse level 2, attending to babies in humid cribs and attaching them to their mothers' breasts.She gave up at that timebecause once again on her evidence she could not cope with the activities that she was required to perform.Her evidence was as follows:-
"Q. Were you able to cope with that.
A. No I wasn't.
Q. For any particular reason or reasons.
A. Mainly my wrist, because I really needed to wear a wrist guard and that wasn't possible, doing that type of work, putting the babies at risk with cross-infection and the walking, they were the two main things.
Q. Anything to do with your shoulders at that time, that is July of 1994.
A. Yes there was.
Q. What was the problem with the shoulders.
A. It was just turning the babies in the cots, turning them over to reposition them.Lifting them from one cot to a trolley."
It is common ground that the plaintiff has not attempted any further return to work after July 1994.Her reason for not doing so, in her own words,was "because of the ongoing treatment and the pain, lack of function" (page 47).
Modbury Hospital was privatised in February 1995 when it was taken over by Healthscope.The plaintiff was subsequently interviewed by the new management. In the course of that interview she was advised that because of her injuries, and because of the uncertainty as to when she might be certified fit to return to her normal duties, she would no longer be offered employment by Healthscope. Thereafter the plaintiff went into redeployment with the Health Commission. The Commission's obligation is to redeploy but not to rehabilitate the plaintiff.What this means is that the Commission has an obligation to find a position for the plaintiff at the same level that she was engaged to work at the Modbury Hospital, namely level 2 working 38 hours a week.
The plaintiff has made other attempts at finding alternative work.She has approached the Queen Victoria Hospital and subsequently the Women's and Children's Hospital with the view of securing a level 2 or a level 3 position. She was advised that they would be prepared to offer her a level 1 position in a level 2 or level 3 nursery if she could work a minimum of two shifts per week.The plaintiff says that the acceptance of such an offer would involve a demotion in status and more physical work because the position would involve neonatal work at a lower level of pay but with greater physical demands.Her evidence was that she discussed the matter with her doctors back in 1994 and was advised that, in their view, it was unlikely that she would be able to perform the duties required of that position on a full time basis.
The plaintiff is intent on retraining and rehabilitating herself with the view of returning to work in some suitable alternative employment.In February 1997 she undertook a course in child adolescent family health services "C.A.F.H.S." for that purpose.She described the work involved in that position in these words:-
"A. It's not in an acute setting so therefore it's not as stressful and as physically demanding although there is some physical demands of the position but it's mainly mental type - as in counselling and advice giving rather than acute care giving."
I heard evidence from Nanette Davies, Director of Nursing.She was questioned about the duties, responsibilities and tasks required to be performed by CAFHS nurses.Her evidence at pages 245 et.seq. was inter alia as follows:-
"Q. Can you briefly outline those to his Honour.
A. I guess a nurse gets involved with a new family when she receives notification of the baby's birth and from then on she is involved with that family when a parent attends a well baby clinic, she may then see a child in kindergarten, she may visit schools, she may do a whole range of duties associated with health and well-being of children in families."
In terms of functions and tasks the witness's evidence continued as follows:-
"A. A typical day would start at 8.30 at a child health centre, she would have appointments up until lunch time.She may then have an open clinic where parents can drop in with babies.In the afternoon she may go and do home visits, she may follow up families at risk that have been referred from Family and Community Services.She may do a kindergarten screening visit, tere's a whole variety of tasks, no one day is ever the same."
Mrs. Davies confirmed in cross-examination that posture-wise nurses would not be stuck in one position for any length of time.In her own words, they are "sometimes sitting, sometimes standing, sometimes doing something on the floor and so on" (Page 256).
Mrs. Davies was questioned in relation to the nature and extent of any manual work which a CAFHS nurse may be required to perform.Her evidence on that topic was as follows:-
"A. Yes, I often think nurses are a bit like pack horses.
Q. What about the CAFHS nurses.
A. When we look at the number of injuries relating to work related factors, the main factor seems to be lifting things in and out of boots, car boots. Some of the cars are extremely difficult to lift up and over that rim.I guess what makes a CAFHS nurse different these days to years ago is the fact we are much more mobile.Years ago we tended to sit in a clinic and wait for clients to come to us, these days we tend to take services to them.So they do have a lot of carrying of equipment.I did jot down a couple of things that you might be interested in.This is a typical picture of what nurses carry.They carry portable scales which weigh about 10k.They have a briefcase with all their paperwork and equipment, about 11 k, a vision box for testinga child's vision is 3k, an audiometer for testing hearing is 2.We have also started to do vaccinations so we carry eskies with vaccines and that can be up to 8k.Then we run parent education courses and sometimes nurses are also required to lift video equipment which is quite heavy and that's about 20k.
Q. Does that include a video monitor or screen.
A. It's a screen, it's an all in one unit for playing tapes.Then of course we have children to lift and if you look at a typical child up to the age of about nine months you're looking at an 11k baby to lift, so there is a lot of lifting.
Q. Is that done frequently or regularly through the day.
A. Yes, certainly twice a day.Setting up in the morning and then unloading again at night.
Q. A bit like a travelling salesman.
A. Absolutely.
Q. Working out of the boot of a car.
A. We sell health, we hope we do anyway.
Q. It involves driving from the centre to the home and so on.
A. Yes, it does.
Q. You mentioned high risk areas, what do you actually mean by that.Who is it a risk to.
A. Because of the lifting.
Q. In terms of high risk area, what does that mean.
A. Your are talking about client risk?
Q. Yes.
A. We do get referrals from FACS, Family and Community Services, where a mother may have an intellectual disability, who may be on drugs, the baby may be failure to thrive.We do home visits in certainly less than ideal circumstances and that's what I mean by high risk.
Q. Is that a bit like the locum problem that we've read about recently.
A. Yes.These days we always have two nurses doing home visits together. It's a sad indictment.
Q. Does that involve also work with Aboriginal children.
A. Yes, our service is totally inclusive of all children and babies.
Q. What type of lifting might be involved in that type of high risk work.
A. Just the same, yes.
Q. Are you on your feet much during the day.
A. In between clients, yes, certainly.It's also a matter of getting down on the floor with children to check for dislocated hips.It's a matter of checking children's coordination by demonstrating particular manoeuvres to them.There's a lot of movement associated with working in a clinic."
In order to qualify as a CAFHS nurse the student nurse must undergo a twelve month part time course at Flinders University.The plaintiff has undertaken the relevant course and expects to qualify by May 1988.
I note on the plaintiff's evidence that whilst attending that course at university she has had difficulties getting in and out of her car and with carrying books to and from the classroom.I have heard, and note, firstly that she has now been allocated a temporary disabled parking facility near the classroom, and further that she has used her car as a locker and uses a trolley to transport her books thereby facilitating her attendances at the university.
Mrs. Davies went on to say that in the early part of the training the student is very much in the role of an observer but towards the end of it lifting would be involved and there would be much more hands on work.
Mrs. Davies was questioned about salary levels and opportunity for promotion. As I understood her evidence, hospitals' nursing staff fall within levels 1 to 5.Generally speaking all nurses except nurses in child and youth health come in at level 1, and work their way up.There are only two persons employed at levels 4 and 5.One of them occupies the position of director of nursing.The other is her assistant.Level 3 nurses are called clinical nurse managers. Nurses in child and youth health, such as CAFHS nurses, come in at level 2. There are presently some 220 of them.There is a very low turnover in terms of staff.If a student qualifies that student would remain at level 2 unless he or she were "lucky enough to get a promotion" to level 3.In Mrs. Davies' words opportunities for such promotions "are few and far between" (page 250).
In relation to salary Mrs. Davies said that the nursing industry is covered by the Nurses Public Sector Award.Under that award a level 3 nurse earns about $45,000.00 per annum, with no overtime and no penalty rates.
By contrast, a level 2 nurse earns about $38,000 per annum.
Completion of the course at Flinders University qualifies the student for the position but does not necessarily guarantee employment.In the last three years only about ten new graduates out of a potential pool of about sixty have been engaged.Graduates see completion of the course "as a ticket in terms of greater experience".Some of them will use it to travel and work overseas. Others apply that greater experience in whatever work they had been doing before undertaking the course.
Mrs. Davies was questioned on the plaintiff's chances of being engaged, having regard to her alleged physical disability.Her evidence was as follows:-
"Q. If a person had some physical disability, would that be a consideration as to whether they were employed as a CAFHS nurse;that's assuming they qualified.
A. Everybody's selected on merit.We follow the merit principle and clearly the person has to be able to do the job, so within the constraints and the requirements of the position, we don't discriminate on physical disability, no.
Q. From your nursing experience as well as your administrative experience and if you'd assume that Mrs. Zahmel has a number of sequelae from a motor vehicle accident that affects her capacity to work as a nurse, I think it would be fair to say that principally, there's restriction as a result of her left shoulder injury whereby she can't externally abduct beyond shoulder height, so she finds it difficult to, for example, put clothes into the clothes dryer on the wall, or keep her hands out in front of her at shoulder level or above and has some restriction in both wrists, perhaps not to the same extent, but some stiffness and lack of range of movement.Would that be a disadvantage as far as getting a job as a CAFHS nurse is concerned.
A. I think there would be some question over whether or not she could perform the whole range of duties and I'd certainly be interested to see what happens as this year goes on and she's a student.
Q. Can you say whether the recruitment process would be sympathetic to someone who wanted to get into the work with those disabilities or if you have several others applying for the same position who had no restriction at all.
A. I can just say again that we select on merit and if she was able to convince us that she could perform the whole range of duties, she certainly would be considered."
I accept the evidence of Ms. Davies and make findings in terms thereof.
I shall now turn my attention to the nature and extent of the injuries allegedly sustained by the plaintiff in the subject accident and the treatment that she received for them.
Immediately after the collision in question the plaintiff was conveyed by ambulance to the Flinders Medical Centre.She was admitted and remained an in-patient of that hospital for some three days before discharging herself.
It has been reported that upon examination the plaintiff was found to be suffering from a fracture of the right wrist, a laceration to the left knee, severe and extensive bruising to the right breast and abdomen, seat belt burn to the left side of the neck, a bite to the tongue, soreness to the left side of the jaw, soreness in the neck and soreness to the thoracic spine and chest.
Whilst in hospital the plaintiff underwent multiple x-ray investigations but nothing of consequence was revealed in relation to her chest and the cervical spine. X-rays of the right arm, on the other hand, showed a possible crack of the triquetrum.A plaster slab was applied to the right arm.I note that the plaintiff is right-hand dominant.The laceration to the plaintiff's left knee was sutured.
Upon her discharge from hospital the plaintiff saw her general practitioner who was, and still is, a Dr. Matto.I have received his reports and I have heard his evidence.Shortly afterwards Dr. Matto referred the plaintiff to Mr. Christopher Brown, an orthopaedic surgeon.I have received his reports and I have heard his evidence as well.
Mr. Brown saw the plaintiff on 5th April, 1994.On that occasion she presented with neck, right hand, left shoulder and left elbow problems.In a report dated 28th November 1994 Mr. Brown assessed the plaintiff as having suffered a crush injury to the chest and soft tissue injuries to the cervical spine, to both shoulders and to the arm.He thought that there was a right wrist injury as well as an injury to the soft tissues of the lower lumbar spine probably superimposed upon some dessication of the discs.It was his opinion that there also appeared to be "a more local lesion on the right hip". Initially the specialist treated the plaintiff for the right hand injury.That treatment involved the application of a plaster cast to her hand.Some five weeks later the plaster cast was replaced with a fibre glass cast.She was also provided with a neck brace and was referred to physiotherapy in relation to both her arm and her neck.Mr. Brown was of the view that the injury to the right shoulder was superimposed upon previous injury to that shoulder.I am satisfied and find that the specialist was referring to the shoulder injury suffered by the plaintiff in the June 1987 motor vehicle accident.
The plaintiff continued to see Mr. Brown, initially at weekly intervals, and then fortnightly.She did so for some four months.
In the course of her recovery period the plaintiff developed a number of problems.
Some of her problems on presentation involved her neck and elbow.Those problems flared up again soon afterwards.She was x-rayed on 12th April 1994. Those x-rays did not show any significant abnormality in either area.Pain persisted but it was settling.Improvement continued in relation to the neck problem.The plaintiff says and I accept that she achieved substantial recovery within a period of some months after the accident.(Page 288).
In about May 1994 the plaintiff began to experience pain in her groin. The problem did not abate: Further investigations were carried out by means of an ultra sound.Those investigations showed a condition whereby an abdominal muscle was partially torn from the pubic bone.The condition eventually stabilised but recurred in February 1997 shortly after the plaintiff started her CAFHS course at Flinders University.The plaintiff says that the recurrence was brought about by her getting in and out of her car and by her carrying books to and from the classroom.
Another problem that was experienced by the plaintiff was with respect to her vocal cords and with her voice.
In March 1995 the plaintiff had an arthroscopic chromeoplasty to the left shoulder.She also underwent surgery for the removal of a lump from her right breast.Because she underwent two lots of surgery, repositioning of the tubes was required.Following the endo-tracheal anaesthetic the right vocal cord was damaged.The plaintiff had a sore throat for many months.On occasions she was vomiting blood.Her voice faded.She was referred to Dr. Vercoe an E.N.T. specialist.She underwent speech therapy for a period of some nine months. The condition improved:the improvement was gradual.Stability was not reached until about March of 1996.
As a result of the impact the plaintiff suffered injury to her left jaw.It seemed to her, at the time, as if she had cracked a tooth.She saw Dr. Matto and later a Dr. Ricci.
In June 1994the plaintiff saw Dr. Wilkinson.That specialist prepared a splint or mouth guard to prevent teeth clenching and to ease her pain.She wore the splint at night.She says that she still uses it three times a week.
The condition continued to trouble her for some months.As an example of that, she gave evidence of an incident which occurred in September1995.Her evidence was as follows:-
"Q. Can you recall an incident in September '95 when you woke up one morning and your jaw was locked.
A. Yes I can.
Q. Just tell his Honour something about that.
A. My jaw had locked in an open position and I was unable to close it.I had been warned against over opening my mouth and wriggling, sideway movement.I tried everything to get it uncaught and in the end I shook it from side to side and uncatched it and then contacted Dr. Wilkinson and he commenced anti-inflammatories."
As a result of the impact the plaintiff suffered severe bruising of the right breast.When the bruising settled down the plaintiff became aware of the presence of a lump in her breast.She saw Dr. Matto about it and was referred to Dr. Greg Otto.That occurred in about June 1994.
In relation to that part of the plaintiff's body, I am satisfied to the appropriate degree on the evidence before me and find as follows.
Upon examination Dr. Otto found a large round lesion in the outer part of the right breast.He diagnosed the plaintiff's condition as fat necrosis of the breast.In his view, which I accept, the fat necrosis was a direct consequence of the seat belt injury which she suffered upon impact.The specialist aspirated the lesion and found oily fluid and dark blood.The lump resolved. Thereafter the plaintiff developed multiple lumps in her right breast. Ultrasonic examinations revealed the presence of many cystic areas.They were aspirated from time to time with similar results.The plaintiff underwent a mammogram.In March 1995 she underwent further surgery for the removal of other lumps and for the aspiration of cysts.
The damage to the plaintiff's breasts has been extensive.She has quite a degree of breast pain and multiple lumps throughout the breast.The pain will be a permanent problem for her although it should gradually improve over the years.The lumpiness in the breast is also likely to be permanent.
As a result of the injuries to her breast the plaintiff needs regular surveillance for at least five years in order to distinguish cysts from other more worrying lesion which may occur.She is and remains troubled by that thought.As for the future she may require surgery for the removal of the cysts, in addition to regular half-yearly checks at a cost of about $40 each, and regular yearly mammography at a cost of approximately $80 each.The cost of surgery is in the vicinity of $1,000.Her disability is permanent.
Anotherproblem said to have been developed by the plaintiff after the subject incident is loss of memory and general forgetfulness.
In June 1994 the plaintiff underwent a CT scan of the head but nothing abnormal was found.In late 1996 she was referred to Dr. Mark Reid, a neuropsychologist.I have not heard from that specialist, nor have I seen any of his reports.
In the course of giving evidence the plaintiff did not appear to me to be suffering from any such alleged disability.I am not satisfied that she suffers from such a disability and find accordingly.In any event I further find that neither of the alleged conditions is causally related to the subject accident and its sequelae.
One of the injuries allegedly suffered by the plaintiff, as pleaded, is an "aggravation of a previous injury to her right shoulder".Counsel for the defendant submits that the injury as pleaded has not been proved because there is no evidence of any aggravation of that limb by any medical practitioner.I reject that contention.I accept the opinion of Mr. Brown as expressed in his evidence, particularly at page 392 where he said:-
"I think she probably was in a fairly forceful accident.I suspect that she probably tore some scar tissue in and around the old operation site, or has inflamed the area sufficient to produce increased symptoms."
I also accept Mr. Brown's opinion as contained in his report dated 28th November 1994 and find that as a result of the subject accident the plaintiff sustained a soft tissue injury to her right shoulder, which injury was superimposed upon a previous injury which the plaintiff had suffered to that limb in the 1987 accident. I interpret Mr. Brown's opinion as meaning that the plaintiff suffered an aggravation ofthe pre-existing injury to that shoulder and on that basis I am satisfied that the allegation has been proved.
Another injury said to have been suffered by the plaintiff is to the left shoulder.In relation to that shoulder I have already made a finding that the plaintiff's pleadings are to be read as alleging an injury to that shoulder.
In relation to that shoulder I make the following further findings.
Mr. Brown examined the plaintiff on 5th April 1994.On examination he found that the range of motion in each shoulder was limited.His view was that there was a considerable amount of muscle spasm and tenderness on the para cervical muscles bilaterally and extending out to the trapezius.He concluded that both shoulders were uncomfortable to move and further that the left was worse than the right.
Mr. Brown was further examined on the question of causation in relation to the alleged injuries to both shoulders.His evidence at pages 392 to 393 was as follows:-
"A. I think she probably was in a fairly forceful accident.I suspect that she probably tore some scar tissue in and around the old operation site, or has inflamed the area sufficient to produce increased symptoms.
Q. Would you hold that opinion even though there had been no complaints with respect to the right shoulder of any significance for some time following the accident of 31 March 1994.
A. I think it's more likely that she has - that the previous accident has contributed to some extent to the problem in the right shoulder, but I think it's more likely to be a combination of factors.It may be that had she had no previous operation she wouldn't have had any - the force wouldn't have been enough to give symptoms, but there's no way of really knowing that.
Q. You see we have the earlier accident in 1987 when the shoulder was injured, we have the invasive operation that you conducted on the shoulder in I believe 1988 and we have the further fall at Woolworths in December of 1992 and then we have a period where there are very limited complaints - I hesitate to say no complaints, very limited complaints with respect to the right shoulder for some months following the accident of 31 March 1994.I ask you again why would the operation of 18 October 1994 be related to an injury that was sustained in the accident of 31 March 1994.
A.. I think there are a number of factors.I'm not saying that the - the shoulder certainly wasn't normal to start off with the accident in 1994 and she certainly had a string of other injuries to it.It was a forceful accident, certainly sufficient to throw against a seat belt enough to get fat necrosis in the breast and that's a lot of force so how they - in a history of some complaints with the shoulder and a history of an accident compatible with a large amount of force being thrown on the shoulder and there's also a history of symptoms in the left shoulder which may have led to increased use of the right shoulder so my opinion is that the motor vehicle accident in 1994 has contributed to some extent to symptoms and pathology in the right shoulder but I'm not saying that it's the only cause of any pathology."
.
I accept Mr. Brown's evidence and find that as a result of the subject accident the plaintiff suffered soft tissue injuries to both shoulders.
The plaintiff's symptoms of pain and restriction of movement in the right shoulder persisted.On 29th July 1994 Mr. Brown made arrangements for an ultrasound of the right shoulder.The technician noted clicking and catching on the initial scans but Mr. Brown could not verify that that was so on viewing.At about that time the plaintiff was to have an arthroscope of the wrist.The specialist took advantage of that opportunity and suggested that the shoulder be injected at the same time.That was done at some time in August 1994.The procedure improved the condition of the shoulder but only temporarily.It soon deteriorated.On the plaintiff's evidence the shoulder was actually worse by 7th October 1994.Mr. Brown thought that because of the apparent impingement the plaintiff was getting close to needing a decompressure.He carried out an open acromioplasty of the right shoulder in the same month.In the course of that procedure, part of the bone, as well as the bursa, was removed and a ligament was excised.The plaintiff progressed well after surgery.She made slow but steady progress.The shoulder, however, was still a little sore by January 1995.The range of motion was good but she continued to complain of pain.Inmid 1996 Mr. Brown referred her to the pain clinic.I refer to the treatment that the plaintiff received from the pain clinic elsewhere in these reasons.She says that the condition has not improved notwithstanding all the treatment that she has undergone.Mr. Brown appears to support that view.
With respect to the left shoulder, Mr. Brown found that it was uncomfortable but fairly stable.He saw the plaintiff for review in January 1995.His view was that the shoulder had neither improved nor deteriorated in the months prior to January 1995,the plaintiff says that it began to give her some problems in February 1995.Her further evidence was that it got worse by the end of the month.An ultrasound was carried out.That investigation says Mr. Brown showed significant bursitis and impingement.Mr. Brown suggested that she undergo an acromioplasty.He recommended that it be carried out at the same time that she was due to undergo surgery with respect to her breast.Both surgical procedures were carried out on 7th March 1995.I have referred elsewhere to certain complications of that surgery.
Following the March 1995 surgery the condition of the plaintiff's left shoulder settled and by July 1995 it was much improved.Unfortunately she hurt it again she says whilst doing some gym work with a lateral pull machine.Mr. Brown injected it at the acromio clavicular joint on 19th December 1995.Her symptoms persisted, and as I have already noted she was referred to the pain clinic in mid 1996. I propose to refer to the treatment that the plaintiff received at the pain clinic later in these reasons.
Mr. Brown was cross-examined on what might have been expected of the right shoulder at some time in the future as a result of the 1987 accident/1988 surgery even without the 1994 accident.His evidence at pages 393 to 396 was as follows:-
"Q. Given the X-ray picture of 12 April 1994 and the history of the earlier problems that I've canvassed, that is the problems prior to 31 March 1994, what do you say would have been the outlook with respect to the right shoulder in any event.
A. I think it probably in the absence of a major blow or force upon it, may have stayed asymptomatic for years or in fact forever.On the other hand, a large amount of repetitive work may have triggered some symptoms at a later stage or even relatively soon.My feeling is that in the absence of major trauma, it probably would have been longer rather than shorter.
Q. Of course between your operation in 1988 and the X-ray in April of 1994, there had been the development of calcification, hadn't there.
A. That's correct.
Q. Why wouldn't the calcification buildup continue.
A. The calcification I think is probably in the remnant of the old ligaments so it's actually not - I mean it's not uncommon to get calcification post operatively in that area.It's not the calcification that you get say in a tendonitis, it's a calcification in an area where you've done a partial resection of scar tissue.
Q. I am going to suggest this to you that regardless of this accident on 31 March 1994, that because of the previous history of injury and so on to the right shoulder, that there would have been some gradual loss of strength in any event.
A. It's possible.
Q. And some gradual loss of movement.
A. I think in the absence of any other injury I think what she had at that stage is what she would have run with for a long time.
Q. And some gradual increase in pain.
A. She would probably more likely to get long term degeneration in the shoulder than if she had had nothing done but how likely that is is anyone's guess.
Q. And some increasing difficulty in lifting things out in front of her and above shoulder height.
A. No, I think the right shoulder was probably fairly stable and that it would have actually needed something to really flare it up to a great extent.Now that doesn't say that there's not some chance that it would have developed further problems but I think it's more likely that it would have needed some trauma.It could have been a slip at work or it could have been a bang in a car or she could have dropped the washing on it or something like that.
Q. Could it also have been brought on by repetitive movements.
A. It's possible.
Q. I want to put this to you, that regardless of the accident of 31 March 1994 that Mrs Zahmel would have experienced symptoms in her shoulder in any event. What do you say to that.
A. I think it's possible.I don't think it is highly likely without other superimposed injuries.
Q. I put this to you, that decompression surgery to the shoulder in itself can make a shoulder more vulnerable to increased degeneration in the joint.
A. I don't believe that decompression per se will produce increased degeneration in the shoulder joint.It may produce some degeneration in the acromiaclavicular joint, which is not the same thing.
Q. What would be the effect of some degeneration of the acromiaclavicular joint.
A. You can get pain over the very top of the shoulder;pain with crossing the arm across the body; clicking.
Q.Some restriction of movement.
A. Restriction of motion across the body because you compress the joint when you do that.
Q. Some loss of strength.
A. It could have, yes.
Q. I want to suggest this to you, that specific trauma to the shoulder would not be necessary for the increase of symptoms in the shoulder joint in any event.
A. It is much more likely that a specific injury would have been required to increase the symptoms in the shoulder.
Q. It may be more likely but would you agree with the proposition that it's not necessary.
A. It's not necessary, no."
I have given due weight to this evidence when considering what if any allowance I should make for contingencies.
I shall now direct my further attention to the plaintiff's problems with her hip.
The hip had become much more painful by 23rd May 1994.At that time it was the major cause of the plaintiff's discomfort.She had a significant trochanteric bursitis.She underwent some specific therapy for it and was injected with cortisone in June 1994.
The symptoms persisted.On a couple of occasions she had a sensation of the hip collapsing on her.In August 1994 Mr. Brown made arrangements for a M.R.I. of the lumbar spine and hips but, as the medical practitioner himself says, only for the purpose of reassuring her.As expected, the M.R.I. showed no major abnormalities either in the hip or in the spine.According to Mr. Brown the only real problem was some very minor dessication of some of the lower discs.He thought that the plaintiff's problem was essentially of a soft tissue nature and that it was in the lumbar spine with the possibility of some facet joint strain.There was certainly no intrinsic disc pathology.He recommended that she continue with a programme of pool and hydro work and referred her for assessment to Dr. Van Der Berg, a rheumatologist.
By 7th October 1994 the hip was continuing to trouble the plaintiff.Mr. Brown arranged for a bone scan of the lumbar sacral area.By 22nd May 1995 he thought that she may have a snapping iliopsos lesion.He recommended stretching exercises but also thought that she may need an ultrasound directed injection into the affected area.The exercises undertaken by the plaintiff aggravated her condition and for that reason arrangements were made in July 1995 for the giving of the ultrasound directed injection.Following that procedure, pain was relieved but only whilst the local anaesthetic was working. It returned soon afterwards.Such a result, in Mr. Brown's view, confirmed that the lesion was coming from a snapping psoas tendon over the bursa.
Following the hip arthrogram the plaintiff was admitted to the Kiandra Hospital where she remained an inpatient for five days for the management and relief of pain which she described as being "excruciating".She was given pethadine for it.In July 1995 she was referred to Mr. Atkinson for a second opinion.Mr. Atkinson found no definite evidence of pathology.In his view the problem was musculo skeletal and suggested firstly that she should lose some weight and secondly that she would be best off pursuing her own gym and hydrotherapy programme with no further physiotherapy or other active management from health carers.The plaintiff says that the problem did not abate.In August 1995 she was referred to Dr. Cleland, another rheumatologist for yet another opinion. By the month of December 1995 the plaintiff still had some residual symptoms but by then the condition was much improved.I note that on her evidence even now she suffers pain on prolonged standing, and depending on the type of seat she uses, she also experiences pain on prolonged sitting.
I have already briefly referred to the plaintiff's problems with her arms and in particular in relation to her wrists.I shall now consider that topic more fully.
On presenting herself to Mr. Brown on 5th April 1994 the plaintiff's arms were bruised.There was prominent bruising over the left arm and forearm.The right wrist was in a plaster slab.There was bruising over the left clavicle and a seat belt abrasion over the front of the chest.Mr. Brown assessed her as having suffered soft tissue injuries to inter alia the arm and a fracture of the right wrist.He applied a fibreglass cast to the right wrist and prescribed physiotherapy.The plaintiff was X-rayed on 12th April 1994.Those X-rays showed no significant abnormalities save and except that the right shoulder showed some calcification which he attributed to the old operation on that shoulder.By the 13th May 1994 the right wrist was painful over the radial side as well as over the ulnar side.New X-rays showed some irregularities of the medial border of the triquetrum indicating a mild fracture.The wrist was still sore.By 20th June 1994 Mr. Brown made arrangements for the plaintiff to have a pneumarthrogram.On 29th July 1994 he thought that she may need an arthroscopy of the wrist.That procedure was carried out on 16th August 1994.It showed a torn fibro cartilage which Mr. Brown trimmed back.
The plaintiff was reviewed on 23rd January 1995.On that occasion Mr. Brown found the left wrist uncomfortable but stable.There had been no improvement or deterioration in that wrist during the months preceding that review.
The specialist was cross-examined on when the plaintiff had first complained to him about the left wrist.His evidence at page 384 was as follows:-
"Q. Can you tell me when you first received a complaint from Mrs Zahmel about her left wrist.
A. There was reference to an x-ray of the wrist on 13 May 1994 and obviously that is an x-ray of the wrist - similar to a previous study indicating a minor fracture.So there has obviously been some wrist x-rays done prior to 30 May 1994.She was obviously complaining of wrist pain at least on 13 May 1994 and by implications sometime a little before that.
Q. We know, don't we, that there was suspected fracture in the right wrist in the accident of 31 March 1994.So we can assume that there was some problem with that wrist from the date of the accident.But my question is directed to the left wrist.What I want to know is when you first received a complaint from Mrs Zahmel about a problem in her left wrist.
A. There are references to wrist pain but not which one.No, it is not clear when that first is - I'll just keep looking to see if I've got it mentioned here.23 January 1995 there is a comment left wrist and left shoulder are also uncomfortable but these seem to be fairly stable and have not really improved or deteriorated in recent months.That was a letter of 23 January 1995.
Q. Is that the first complaint then that you have had from Mrs Zahmel of a problem in her left wrist.
A. No.It is the first time I have written down left wrist specifically.
Q. But you have a recollection of her complaining to you about the left wrist before that date.
A. I have no recollection that far back.
Q. Is that the first date you have a written note of Mrs. Zahmel complaining to you about the left wrist.
A. Based on my letters there yes."
As far as the right wrist was concerned it was found to be quite sore at the review that took place on 23rd January 1995.There had been very little improvement since arthroscopy.It was for that reason that Mr. Brown referred the plaintiff to Dr. Bain for management and treatment.
Mr. Brown was cross-examined on the question of causation with respect to the alleged injuries to the plaintiff's wrists.His evidence at page 397 was as follows:-
"Q. Given the history of what occurred following the fall at Woolworths in December of 1992, and what you found on your subsequent consultation with Mrs Zahmel, isn't it probable that her problems in her wrists to a large extent are related to the fall and not to the accident of March of 1994.
A. No way of telling but I would certainly think that the fall and what I've written down there about that is quite likely to produce some of the damage to the wrists.
Q. Again, what do you say the outlook would have been for the wrists, given your findings on examination, and regardless of the accident of 31 March 1994.
A. I think if she's done a large amount of repetitive work with her wrists, irrespective of the accident in 1994 I think she may well have had some problems with the wrists.I think the accident has just made them come up faster and worse."
The specialist agreed in cross-examination (page 400) that the plaintiff's presentation had had a significant psychological component and that she had "a significant illness behaviour problem" which had been caused by, or had been contributed to by the continued high amount of medical, paramedical and physiotherapy and other treatment.He agreed that she had received no significant apparent benefit. It was put to the specialist that the treatment which she had received had been counter productive.He said (page 401) "Yes in retrospect I suspect it has been counter productive; of course you never know at the time that it is...".Mr. Brown further conceded that in retrospect Mr. Atkinson was probably correct in saying that the plaintiff was best off pursuing her own gym and hydrotherapy program with no further physiotherapy or other active management from health carers.His further evidence at page 401 was as follows:-
"Q. In retrospect I suppose Mr Atkinson was right.
A . No.He has implied there is no underlying residual pathology and that I disagree with.There is some underlying residual organic pathology is my belief.Her response to that and the management of that, is a large problem, I don't believe that without very strong indications, further surgery or aggressive treatment is likely to be of benefit;I think that getting her back to some form of gainful employment would be of immense psychological benefit, and with due respect, I think that the settlement of the claim one way or the other will assist by taking the psychological stressors off her."
Mr. Brown referred the plaintiff to Mr. Bain.
Mr. Bain first saw the plaintiff on 25th January 1995.He saw her in relation to both wrists.He diagnosed the plaintiff as suffering from bilateral flexor carpi-radialis tendonitis and tears of the triangular fibrocartilage. On 5th June 1995 he performed bilateral wrist arthroscopy and debrided the triangular fibrocartilage.The plaintiff's problems did not resolve.On 25th September Dr. Bain operated on the right wrist and released the flexor carpi-radialis tendon on that wrist.He performed similar surgery on the left wriston 23rd October 1995.
Post operatively the plaintiff made steady progress with regard to pain in both her wrists and hands.Her condition had stabilised by March 1996.She still had some discomfort as at that time but improvement was continuing.The prognosis was generally good.No further treatment was recommended.Mr. Bain considered that as from 19th January 1996 the plaintiff did not require any further physiotherapy with respect to either of her hands.Mr. Bain has not seen the plaintiff since 13th March 1996.
Mr. Bain was asked in chief to comment on the plaintiff's ability to return to work.
In his report dated 8th April 1996 Dr. Bain offered his opinion in these words:-
"... may be able to return to work in the capacity of her normal employment. However she is likely to require at least another six months before she is able to do this."
In his evidence Mr. Bain confirmed that what he was talking about in his report was work as a clinical nurse in the neonatal division of the Queen Victoria Hospital (p. 108).Having been told that in that capacity the plaintiff was required to carry out quite intricate procedures such as putting in central lines, i.e. a catheter and arterial lines in newborn children,Mr Bain expressed the view that the plaintiff's wrist injuries would probably create some difficulties for her in carrying out that type of work and thought that if she had pain performing those activities he would advise her to avoid them.He did not think that she would be ill advised to carry out that work. He thought that she should attempt it before making an assessment and agreed with the plaintiff's counsel that "at this stage it is impossible to say whether she could or she couldn't".
Mr. Bain was asked to comment on the question of causation with respect to the plaintiff's alleged injuries to her wrists.
In his report dated 8th April 1996 Mr. Bain referred to the plaintiff's fall in December 1992 and said:-
"I do not believe that a fracture of the wrist which was said to occur in December 1995 is likely to have been fracture in relation to the left wrist symptoms.Therefore I believe that any pre-existing condition is of no significance."
The specialist qualified his opinion in Court by saying this at page 110:-
"A. If I could just quantify that as well; I have documented that she had no pain before her motor vehicle accident in the wrist, because I specifically asked her that, the injury in '92, then her symptoms resolved, no pain before the motor vehicle accident and then pain immediately following the motor vehicle accident.
Q. That enabled you to come to that view did it.
A. That is what that would be based on."
Mr. Bain, of course,was cross-examined on the question of causation.He was provided with certain history of which he admitted that he had not been aware and agreed that "the data would need to be looked at accurately", that "it would need to be taken into context" and that the view which he had expressed in his report on the question of causation might be different if he were to be given extra information indicating that prior to the subject motor vehicle accident the plaintiff had experienced problems in her wrists.
Counsel for the plaintiff attempted to re-examine the specialist in a manner that was thought to be objectionable.Objection was in fact raised by counsel for the defendant.I heard submissions and upheld the objection but on counsel's application I granted leave to the plaintiff to further examine the witness. I also granted leave to the defendant to pursue the matter further. The witness was not further examined by the plaintiff on that occasion, nor was he recalled for that purpose.In the circumstances I infer that had Dr. Bain been further examined by the plaintiff on the question of causation with respect to the plaintiff's alleged injuries to her wrists, the specialist would not have assisted her case.
Mr. Bain was questioned on the plaintiff's residual disabilities flowing from the condition of her wrists.His view was that she would experience pain in her wrists if she were to engage in craft work such as embroidery or stitching either frequently or on a repeated basis and for long periods of time.She would also suffer from symptoms of pain on carrying out repetitive activities and/or when lifting patients or lifting objects above say 5 kilograms.I accept that evidence and make findings in terms thereof.
The plaintiff says that she has had trouble with her thumbs in that the right thumb often remains flexed and the left thumb is extended.It was thought that she was suffering from the condition often referred to as "trigger thumbs". Mr. Bain was questioned about that topic.His view was that the plaintiff's symptoms were not always typical of that condition and did not think that she was suffering from it.In any event his opinion, which I accept, was that the alleged condition is a common phenomenon that occurs in the community and that it is neither directly nor indirectly related to the subject motor vehicle accident.I make an appropriate finding in those terms.
I shall now direct my attention to the plaintiff's claim for past and future economic loss in the light of the findings that I have already made and those to which I shall refer hereafter.
In making my award for past economic loss I bear in mind that in accordance with the provisions of Section 35a(1)(d) of the Wrongs Act the plaintiff is not entitled to an award in respect of the first week of her incapacity for work. I have given effect to that provision noting that on the material before me and depending on what findings I make, the appropriate amount has been agreed.
I also bear in mind that in making my award for past economic loss the plaintiff attended at work in May 1994 as well as in July 1994.The net amount that she earned for those two periods has been agreed at $582 and $2,397 respectively.I have deducted these amounts from the award which I would otherwise have made.
The parties are agreed that the starting point for the calculation of the plaintiff's economic loss for the past as well as for the future is to be on the basis that she would have commenced her duties at the Modbury Hospital on 1st May 1994 and that she would have remained working at that hospital.On the material before me I am satisfied and find that as a Level 2 Year 3 nurse performing neonatal and associated work on a full time basis, the plaintiff would have earned in the region of a net $31,553 per annum, or about $607 per week inclusive of penalty rates for week-end and night shift work if she had chosen to take full advantage of those opportunities.I have found elsewhere that she would not have done so.
I have also found that upon the completion of the first year's work the plaintiff would have been classed and remunerated as a Level 2 Year 4 nurse.I am satisfied and find that thereupon and thereafter (everything else being the same)the plaintiff would have earned in the region of a net $32,105 per annum or $617 per week on the same basis.
I am satisfied that if the plaintiff were to be employed as a Level 2 CAFHS nurse she could only be so employed at some time after completing the qualifying course in May 1988.On the material before me I am further satisfied that, if she were to be so employed, her net weekly earning for work on a full time and part time basis respectively for years 1 to 4 and thereafter would be as follows:-
Year Full Time Part Time
1 $ 503 S 294
2 $ 513 $ 301
3 $ 523 $ 307
4 $ 534 $ 314
After Year 4 $ 534 $ 314
I make the following further findings.
Immediately before the accident the plaintiff had applied, and had been accepted, for the position of clinical nurse working in the nursery and neonatal section of the Modbury Hospital.That position involved full time work as opposed to reduced hours as she had been working in her position at the Queen Victoria HospitalThe new position also involved an increase in salary and greater chances for a possible promotion.The plaintiff, of course, was unable to take up her new position because of the injuries that she sustained in the subject accident.She was subsequently told that she would not be offered employment by the new management.She must be compensated for the loss of that chance.
Both counsel have made substantial submissions as to how I should approach the performance of my task in fixing my award.Submissions have also been made in relation to the various contingencies to which I must have regard in making that award.Counsel's submissions are relevant to the assessment of the plaintiff's damages for both past and future economic loss.I think it is appropriate for me, therefore, to say something as to how I have approached my task and as to the contingencies or "vicissitudes" to which I have had regard in arriving at my award particularly for future economic loss, although the principles to which I refer apply also with respect to the past.
I have remembered that calculation of future economic loss must take account of the various possibilities which might otherwise have adversely affected the plaintiff's earning capacity.In that respectI have remembered for example as Professor Luntz notes in his work on Assessment of Damages for Personal Injury and Death (3rd ed. 1990) at p. 285 that, death apart "sickness, accident, unemployment and industrial disputes are the four major contingencies which expose employees to the risk of loss of income".
The principle by which I must be guided and the relevant considerations which I must bear in mind were identified by Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 659 as follows:-
"Ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis, so that industries move their location, or are superseded by new and different techniques, the onset and effect of automation and the mere daily vicissitudes of life are not adequately reflected by merely - and blindly - taking some percentage reduction of a sum which ignores them."
Not all contingencies, however, are adverse.Some of them are favourable. As Windeyer J pointed out in Bresatz v Przibilla (1962) 108 CLR 541 at 544 "all 'contingencies' are not adverse:all 'vicissitudes' are not harmful".And so it is that in calculating future economic loss positive considerations which might have resulted in advancement and increased earnings must also be taken into account.
Finally I have remembered that generally speaking contingencies are to be considered in terms of their likely impact on the earning capacity of the person who has been injured and not necessarily by reference to the workforce generally.Lewis v Todd [1980] 2 SCR 694 at 714.
Having made these general comments, I have remembered that a plaintiff is entitled to be compensated for all loss of earning capacity Sager v Morten and Morrison 5 S.A.S.R. 150, as well as for the loss of a chance Burford v Steer
(1984) 118 L.S.J.S.139.
On my findings the plaintiff has clearly qualified for an award under each of those headings.The issue that remains to be determined is the quantum of that entitlement.
In determining that quantum I have had particular regard to the established facts of the past and to the probabilities of the future Mann v Ellbourne 8 S.A.S.R. 298.I bear in mind that before the accident the plaintiff had a good work record.Her work history with the Queen Victoria Hospital, however, satisfies me to the appropriate degree that she had chosen to exercise her earning capacity in a part time fashion only and that she had taken time off work on several occasions.The plaintiff explained why that had been so.Her counsel urged me to accept her explanation and find that after May 1994 those reasons were non-existent and that her resolve to work full time would be maintained.I accept that some of the reasons for the plaintiff having worked part time before the accident would no longer have applied after May 1994.I further accept that from time to timethe plaintiff would have had periods of full time work but the established facts of the past, in my opinion, make it less probable or unlikely that by the end of March 1994 the plaintiff had so changed her ways and patterns or that her circumstances had so changed that on and after May 1994 she would have worked full time and with no time off until age 60.I am not satisfied that she would have done so.In my judgment her prior work pattern would have been likely to have continued with the result that she would have continued to take time off work from time to time and that although the greatest majority of her period at work would have been on full time and at normal weekly hours, a substantial part of it would have been on a part time/reduced hours basis.
As to her working life, the plaintiff says, and I accept, that she had intended to work until age 60 with the possibility of working for some time past that age if a change in her personal circumstances should have warranted that course.
I am satisfied that in her new position at the Modbury Hospital the plaintiff would have had the opportunity of working permanent night and/or week-end shifts.I think that she would have taken advantage of that opportunity from time to time.I am of the opinion, however, that in the main she would not have done so.
If the plaintiff had been able to take up her position with Modbury Hospital she would have commenced at Level 2 Year 3.I am satisfied that she would automatically have been classified as a Level 2 Year 4 nurse at completion of the first year's work.The plaintiff has lost that opportunity and must be compensated for it.
I am satisfied that one of the reasons why the plaintiff was wanting to move to the Modbury Hospital from the Queen Victoria Hospital was because of her perception that her chances of promotion to a Level 3 (higher) position were greater.I am also satisfied that the possibility for her to do so in fact existed but, in my judgment, the chances of her being able to do so were minimal and therefore, in my finding, it was unlikely that she would have reached her goal to advance to a Level 3 position in the reasonably near future.
Apart from the injuries which the plaintiff sustained in the subject accident I am satisfied that she has a significant medical history.I accept the evidence of Dr. Matto and that of Mr. Brownin that respect and reiterate the findings that I have already made elsewhere.
Post accident the plaintiff was diagnosed as suffering from a benign tumour which required removal and therefore surgery, hospitalisation and convalescence.Although there is insufficient evidence before me to enable me to make precise findings, it is clear that the plaintiff would have been disabled and therefore unable to work for some time.
Pre accident the plaintiff at times suffered with 'flu, herpes and the like. In my opinion a person afflicted by any such condition would be discouraged, if not prevented, from working in a neonatal nursery dealing with premature babies.In my judgment that would have applied to the plaintiff if any such condition were to recur.
I have already referred to the plaintiff's pre-existing condition, especially in relation to her wrists and shoulders.I accept that the plaintiff had had no apparently significant problems with any of those limbs for a little under a year prior to the subject accident, but I cannot totally discard the possibility that those problems might have recurred at some future time in any event by other life events, either in non-compensable circumstances or as a result of degeneration.
In the process of assessing damages for personal injuries in those cases where a court has been called upon to assess future possibilities and past hypothetical situations, the court has frequently assessed those damages by reference to the probabilities of what will happen or what would have happened.
In the case of Malec v J.C. Hutton Pty Ltd (1990) 169 C.L.R. 638 the High Court drew a distinction between, on the one hand proof of historical facts - what had happened - and, on the other hand, proof of future possibilities and past hypothetical situations.The civil standard of proof applies to the first category but not to the second.In Malec's case (supra) Deane, Gaudron and McHugh JJ explained at page 643 the way in which the matter is to be approached in these terms:-
"If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring ...say less than 1 per cent-or so high as to be practically certain-say over 99 per cent-the court will take that chance into account in assessing the damages.Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring.Thus, the court assesses the degree of probabilities that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability."
In the same case Dawson J. made the following observations at pages 639 to 640.
"Hypothetical situations of the past are analogous to future possibilities:in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur.Both are to be distinguished from events which are alleged to have actually occurred in the past."
Further guidance on the topic had been offered by -Lord Diplock in Mallett v McMontagle [1970] A.C. 166 at page 176 in these terms:-
"The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was.In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain.But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."
I refer finally on this topic to the words of Deane Gaudron and McHugh J in Malec's case (supra) at pages 642 to 643 where their Honours said:-
"When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred.A common law court determines on the balance of probabilities whether an event has occurred.If the probability of the event having occurred is greater than if not having occurred, the occurrence of the event is treated as certain;if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach.But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different.The future may be predicted and the hypothetical may be conjectured."
and, of course, I have had regard to the recent decision of the High Court in Medlin v SGIC 127 ALR 180.
I have given effect to the guidance offered by the words which I have quoted from the cases to which I have referred.
The evidence before me leaves me in no uncertainty that the plaintiff has been totally incapacitated for work to date.In my judgment that incapacity has been caused by many factors.I am satisfied and find that the majority of those factors are causally linked to the injuries which the plaintiff sustained in the subject accident and their sequelae.
There is no doubt in my mind that one of the factors which has caused the plaintiff's incapacity to date is the stress, strain and uncertainty connected with the results of the present litigation.Another factor, in my judgment, is her perception of pain and what she sees as being the restrictions in the functioning of her arms/shoulders, particularly when lifting heavy objects or working with her arms outstretched, or performing activities above shoulder height.
The surgical procedures that the plaintiff has undergone, not so much with respect to her wrists, but particularly in relation to her shoulders of course, have left her with a degree of weakness and/or loss of power/strength in those limbs.Apart from that impediment, however, and based on Mr. Cornish's evidence especially at page 469, which evidence I accept, in my judgment there is no reason why the plaintiff should not get full use of the shoulders.I accept that she has a general reduction in capacity in the shoulders but again, accepting Mr. Cornish's evidence as I do, in my judgment the amount of recovery is commensurate with her own efforts to recover function.As the specialist put it, and I find, "there is no in-built impediment of range in that shoulder".I am satisfied that the only impediment is to the absolute restoration of power.The wrists, of course, on the plaintiff's own evidence, are not the source of any major problem or difficulty.
The totality of the evidence before me leaves me in no doubt that the plaintiff's perception of her present problems with and limitation of function in her shoulders, as well as the pain that she says that she experiences, has a small organic but predominantly a non-organic basis.The organic basis, in my view, results from and is made up of the extensive and severe surgical invasions and the consequent production and presence of scar tissue resulting therefrom.The non-organic component, on the other hand, is multifactorial.
I have already referred to the present litigation as being one of those factors.Another such factor is the plaintiff's perceived inability to return to work performing functions of her choice, especially in the neonatal nursery. Her weight and her apparent inability to reduce it is yet another factor.As to that I am satisfied that the question of weight was a problem with the plaintiff even before the subject accident.I do not accept that her present problem in that regard is directly related to the subject accident and its sequelae.I find that it is not so related.
In my opinion the most active of the non-organic components of the plaintiff's perceived present problems relates to her being locked in what has been referred to in evidence as "illness behaviour".That "illness behaviour" in my judgment has been caused by the extraordinary amount of medical, paramedical, surgical and other treatment to which the plaintiff has been subjected from time to time.Most of that treatment, in my opinion, has been to no avail and, in fact, counter-productive because I think that it has had the effect of rewarding the plaintiff's illness behaviour, thereby making her worse.
There is no doubt in my mind that on the circumstances as presented to me, the plaintiff would be best off pursuing her own gym and hydrotherapy program with no further active management from health carers save and except for practitioners in the field of psychiatry.
I am satisfied that the psychiatric/psychological component of the plaintiff's non-organic complaints/disability transcends all others.Dr. Kutlaca has given firm, clear and unambiguous evidence in that regard.The specialist has not been contradicted.His views remain unchallenged.He was called by the plaintiff.Dr. Kutlaca impressed me most favourably.I have no hesitation in accepting his evidence as given.On Dr. Kutlaca's evidence I find that as a result of the subject accident the plaintiff suffered from post traumatic stress disorder, that the condition was temporary and that the plaintiff is likely to improve almost immediately after the conclusion of the present litigation.Dr. Kutlaca says, and I accept, that it is entirely possible that once the plaintiff's case has been finalised, she may tend to avoid contact with most or all medical practitioners.The psychiatric further evidence, which I accept, is that the sooner the plaintiff gets this litigation behind her, the more quickly she is likely to improve, and further, that the more quickly she improves in the psychiatric or psychological sense the easier it will be for her to return to the work force.
In a report dated 18th June 1996 Dr. Kutlaca thought that the plaintiff was not "presently suffering from psychopathology which would prevent her from returning to the work force beyond distress and depression appropriate to her post accident organic status" and that she was "presently fit for employment in terms of her psychopathology generally".I accept that opinion but because the specialist has recommended that the plaintiff continue to take Prozak for some six to nine months after completion of litigation, I am prepared to say that that would be the time at which the non-organic factors would cease to operate upon the plaintiff; and that that would be the time from which, she would be able to return to the work force.
The next question for me to resolve is whether the plaintiff will, at about that time, be fit to return to work as a registered nurse, working in the neonatal nursery or as a C.A.F.H.S. nurse or in some other and more restricted capacity.In deciding this question I have carefully borne in mind what are said to be the onerous duties required to be performed by a neonatal nurse and the somewhat heavy nature of some of the duties involved in the work required to be performed by a C.A.F.H.S. nurse.
On the totality of the evidence presented to me, and after mature consideration, I have reached the conclusion that there is nothing in the nature and extent of the injuries suffered by the plaintiff in the subject accident, or their sequelae, which would prevent the plaintiff from working either as a registered nurse/midwife in the neonatal intensive care section of the hospital or as a C.A.F.H.S. nurse if she were minded and truly motivated to do so.I think, however, that she should complete her C.A.F.H.S. course (which is due to occur in May 1988) before undertaking work as a C.A.F.H.S. nurse if that were her choice.Regardless of which position the plaintiff should decide to fill I think that she should be reintroduced into the work force on a gradual basis and that she should do so after completing her psychiatric treatment but I reiterate my finding that there is nothing in the work caused injuries or their sequelae which in my judgment would prevent the plaintiff from performing the work involved in the position which she was due to fill in May 1994.True it is that some of the work of a neonatal nurse involves some heavy lifting and other activities with which the plaintiff is likely to encounter some difficulty, but accepting Dr. Atkinson's opinion as I do, in my judgment the plaintiff should avoid heavy lifting and other activities in any event because of her otherwise physical circumstances, and in spite of the subject accident and its consequences.Without wishing to be definitive, I refer to the question of her weight and to the condition of the wrists as two examples of her physical circumstances which would be likely to cause her difficulties in performing some of the work of a neonatal nurse.On the material before me and doing the best I can for the plaintiff, I propose to make an award compensating the plaintiff until the end of May 1999.
In order to assist me in quantifying the plaintiff's loss, I have been provided with the relevant award and with numerous other relevant documents, including various schedules showing different calculations as to how to fix the plaintiff's loss.I have had regard to each of them and now take this opportunity to publicly acknowledge counsels' valuable assistance in that regard.
I have borne the plaintiff's age in mind.I have remembered what may be considered to be the usual working life expectancy of a female person.I am conscious of the fact that the assessment which I am about to make is made once and for all.I have had regard to all the usual contingencies and I have made due allowance for each of them in each instance in accordance with the principles enunciated in the authorities to which I have referred.
At the end of the day I am convinced that my assessment cannot be precise, and that I can do no better than to adopt the "broad axe" approach, fortified as I am by the dictum of Menzies J. in Jones v Schiffmann (1971) 124 CLR 303 to the effect that, as His Honour said at page 308:-
"The assessment of damages, whether by a judge or by a jury, does sometimes, of necessity, involve what is guess work rather than estimation."
This, in my opinion, is such a case.I also bear in mind what was said by Cleland J. in Matthew v Flood [1939] SASR 389 at page 392, namely that:-
"When once the actual definite facts are established it becomes proper to draw from them all reasonable and proper inferences, and upon those inferences to arrive at a reasonable assessment of the damages by the use of the 'broad axe and a sound imagination'.It has been the practice to sometimes set out in detail, and calculate and assess, the various items which go to make up the assessment of the total damage, and for this purpose to 'descend to wearisome and possibly erroneous depths of analysis'.This seems to me to be an idle and futile attempt to give an appearance of certainty to an assessment which, after all, in its final results, depends upon a number of inherent incalculable uncertainties."
These words are apposite to the case before me.
Being guided by and adopting the principles to which I have referred, in my view justice will be done to each party if, doing the best I can with the material before me, after wielding the broad axe, after taking account of all relevant factors and having regard to all relevant contingencies, the plaintiff were to be awarded the sum of $130,000 for economic loss which I apportion as to the sum of $78,000 for the past and as to the sum of $52,000 for the future inclusive in each instance of the plaintiff's loss of a chance.
The plaintiff has claimed special damages.The quantum of those damages has been agreed at $30,929.64 in addition to amounts already paid.I have been provided with a schedule which is in evidence as Exhibit P17 showing the various components of the amount claimed.Liability for many items claimed has been denied.The defendant says that there is no nexus or link between the services rendered by many of the providers and the treatment of pain.The defendant makes specific reference to Dr. Glen Maguire as an example and says that there are many others.
I have no doubt that the plaintiff undertook the treatment for which charges have been made always, and only, upon the suggestion or recommendation of her advisers, but that of course is not enough for me to hold in her favour.It is for the plaintiff to prove the nature and extent of the losses suffered as a result of the accident.She must do so by acceptable evidence and adequate proof.I note that there is insufficient, and on occasions, absolutely no evidence before me as to the number of times that the plaintiff attended for the various types of treatment that she received, nor is there any evidence at all as to the details of the charges made or as to the reasonableness of those charges.Counsel for the plaintiff says that he could not have gone any further than he has done.I do not agree.
This case, in my opinion, well illustrates a trend which appears to have developed in recent times with regard to the proof of special damages.It seems to be assumed by many of those who advise plaintiffs that defendants will agree the special damages claimed when the matter comes to trial.Little seems to be done to seek that agreement in advance of the trial and, frequently, little or no evidence appears to have been marshalled to prove the expenses claimed in the event that agreement is not reached.I am reminded of the observations of Von Doussa J., speaking on behalf of the Full Court, albeit on another topic, in Giorginis v Kastrati (1988) 49 S.A.S.R. 371 at pp. 374-376. In that case, the learned judge was dealing with the question of proof of pre-accident earning capacity and the necessity for the plaintiff to produce documentary evidence in support of oral assertions.During the course of his remarks the learned judge said (at p.375):-
"If a plaintiff does not adduce evidence of this kind which is in his power or possession many uncertainties are likely to remain.It does not necessarily follow, as a matter of law or fact, that proof of the plaintiff's claim for lost earning capacity will fail.The evidence may nevertheless establish, on the balance of probabilities, the likelihood of some substantial element of loss, and the court will take that into account in assessing general damages; Russell v J Hargreaves and Sons Pty Ltd (1956) 30 ALJ 533.However, the assessment is likely to be a modest one having regard to the uncertainties unnecessarily left open by the evidence.The plaintiff will usually not be heard to complain on appeal that the loss may have been greater.In some cases the failure to adduce the supporting evidence may well cause the court to feel unable to accept the oral evidence of the plaintiff, at least at face value. The plaintiff and his advisers carry a heavy responsibility to ensure that this type of material is properly marshalled together in advance of the trial, and where it is not admitted, to have it introduced into evidence."
In my opinion these observations apply mutatis mutandis to the proof of special damages because, as I have already indicated, it is for the plaintiff to prove the nature and extent of the losses suffered as a result of the accident in which she was involved.If adequate proof is not provided, the plaintiff can hardly complain that the assessment is made at a lower figure than might have been allowed had the evidence been properly marshalled before and presented at trial.
In normal circumstances I would have made an award for special damages with these considerations in mind.In the circumstances, however, I am not prepared to do that at this stage because, having regard to some of the findings of fact that I have made, it is just not possible for me to make an award without further evidence.For those reasons I propose to defer the making of an award for special damages until after the parties and their advisers have had an opportunity of considering these reasons.I am hopeful that having done so, they may be able to reach agreement.In the event that they should not be able to do so I formally reserve leave to the plaintiff to bring the matter back before me for further consideration upon notice to the defendant and upon suitable arrangements being made with the registry for that purpose.
The plaintiff claims an allowance under the so-called Beck v Farrelly principle.I am satisfied and find that her husband and daughters assisted her in bathing, washing and dressing her for a period of some weeks after the accident.I further find that each of them assisted the plaintiff in the performance of usual household chores, normally performed by the plaintiff, and did so for months after the accident and in particular during the hospitalisation of the plaintiff and whilst the plaintiff was convalescing after undergoing operative treatment.
Bearing in mind the review of the authorities undertaken by White J. in Bruno v Davies (1988) 144 L.S.J.S. 226, I think that what the plaintiff's husband and daughters did in tending her after the accident was largely what would be expected of a close member of the family in the circumstances, and did not create such a need as would have justified the employment of paid assistance if the plaintiff's husband and/or daughters had not done what they did for her (Vail v Formato 10 MVR 12).Nevertheless, I am prepared to infer from the evidence that if the plaintiff's husband and/or daughters had not been available, some expense would indeed have been likely to have been incurred in providing for the plaintiff as well as her husband and daughters did.On a broad axe basis I allow $1000 under this heading.
The plaintiff claims an award for future medical expense.Her claim under that heading has been established.
I accept the evidence of Dr. Kutlaca, Dr. Wilkinson and Dr. Otto in that respect.I propose to make an award in terms of that evidence.I also propose to make a moderate allowance for periods of physiotherapy in the event of acute exacerbations of symptoms.
Doing the best I can with the material before me, I allow the plaintiff the sum of $3000 for future medical expenses.
For the reasons which I have attempted to give I assess the plaintiff's total damages at$158,310 which I summarise as follows:-
Past Economic Loss inclusive of damages for
loss of a chance$ 78,000
Future Economic Loss inclusive of damages for
loss of a chance$ 52,000
Beck v Farrelly award$1.000
Past and Future Non-Economic Loss$ 24,310
Future Medical Expense$3,000
$158,310
In fairness to counsel and lest it should be thought that I have overlooked them, before leaving this case I should say this.
Various points have been argued by counsel and submissions have been made in relation to each of them.
I have considered all of them but I have not found it necessary to deal individually with each of them or to specifically canvass each of them in detail.
I have deliberately recounted only some of those arguments and submissions and I have done so merely by way of examples.
Accordingly, therefore, when any point made by counsel has not been specifically mentioned by me in these reasons, it must be taken that I have reached the conclusion, after fully considering it that there is no substance in it.
For the reasons which I have attempted to give I propose to enter judgment for the plaintiff in the sum of $158,310 excluding special damages in respect of which I formally reserve leave to the parties to bring the matter before me on reasonable notice to each other and upon suitable arrangements being made with the registry for that purpose.The amount of the proposed judgment does not include interest.Before entering formal judgment as I have indicated I will hear counsel on the question of interest and on any other order that may be sought.
In Court 8.5.97.
Judgment for the plaintiff in the sum of $168,310 inclusive of interest but exclusive of special damages.Special damages and costs to be agreed.In default of agreement leave reserved to the parties to apply.
Later in Court Wednesday 4th June 1997
Judgment entered in the following terms:-
Special Damages agreed at $24,303.24.Judgment for the plaintiff in the total sum of $192,613.24 including interest and special damages.
Order:
1Defendant to pay plaintiff's costs of action to be agreed or taxed up to and including the 11th day of November 1996 and the defendant then to recover from the plaintiff her costs of action to be agreed or taxed after the 11th day of November 1996.
2Interest on the judgment sum not to be accrued until 14 days after receipt by the defendant of a notice issued by the managing director of the Health Insurance Commission pursuant to Section 24 and/or 25 of the Health and Other Services (Compensation) Act) 1995.
0
10
0