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Vikuckis v Townsville and District Junior Rugby League Incorporated

 

[2002] QSC 268

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Vikuckis v Townsville and District Junior Rugby League Incorporated [2002] QSC 268

PARTIES:

VALDA MAY VIKUCKIS
(plaintiff)
v
TOWNSVILLE AND DISTRICT JUNIOR RUGBY LEAGUE INCORPORATED
(first defendant)
COUNCIL OF THE CITY OF THURINGOWA
(second defendant)

FILE NO/S:

SC No 343 of 1999

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

5 September 2002

DELIVERED AT:

Brisbane

HEARING DATE:

22-26 July, 2 August 2002

JUDGE:

Atkinson J

ORDER:

Judgment for defendants

CATCHWORDS:

NEGLIGENCE – PERSONAL INJURIES – PROOF – WEIGHT AND CREDIBILITY OF WITNESSES – PROOF OF NEGLIGENCE – where plaintiff volunteer timekeeper fell and broke ankle at football ground – where plaintiff alleged her foot was caught in a concealed trap – whether lessees of football ground were liable for injury

DAMAGES – ASSESSMENT OF DAMAGES – ECONOMIC LOSS – FUTURE ECONOMIC LOSS – INTEREST – MEASURE OF DAMAGE – PERSONAL INJURY – PAIN AND SUFFERING – GRIFFITHS V KERKEMEYER – LOSS OF AMENITIES – LOSS OF EARNING CAPACITY – where plaintiff volunteer timekeeper fell and broke ankle at football ground – whether damages recoverable (quantum of damages)

Wyong Shire Council v Shirt (1980) 146 CLR 40, applied

Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9, applied

COUNSEL:

S Durward SC for the plaintiff

R Myers for the defendant

SOLICITORS:

Wilson Ryan & Grose for the plaintiff

Carter Newell for the defendants

  1. Rugby League is one of the most popular sports played in Townsville.[1]  The city is the base of one of the teams in the National Rugby League Competition and it appears to have a thriving junior rugby league competition.  The first defendant, the Townsville and District Junior Rugby League Incorporated (the “Junior Rugby League Club”), is the lessee and occupier of football grounds and associated club houses and spectator area (the “football grounds”) on land owned by the second defendant, the Council of the City of Thuringowa (the “Council”).  The plaintiff’s case was essentially conducted against the first defendant only.  The defendants were not separately represented.
  1. The sport, like most junior sports, relies heavily on the assistance given by volunteers. The plaintiff, Valda Vikuckis, was one such enthusiastic volunteer who, amongst other activities, worked as the timekeeper during junior rugby league games at the football grounds. Like many others, her interest arose from the involvement of her children in playing football.
  1. During the football season, junior rugby league matches were conducted every Friday night. One such evening was 3 May 1996. Mrs Vikuckis was timekeeping on that evening and at the conclusion of the games she walked down the spectator mound, fell and fractured her right tibia and fibula. So much is agreed between the parties. The question to be determined, however, is whether or not the fall was caused by the negligence or other breach of duty of the Junior Rugby League Club or the Council and if so, the extent of the damages attributable to Mrs Vikuckis’ injury.
  1. The defendants are only liable if the injury to Mrs Vikuckis was caused by a breach of duty owed towards her by them.[2]  If Mrs Vikuckis was injured as a result of a mishap where no fault can be attributed to another person, then there will be no liability.
  1. Mrs Vikuckis alleges that between about 9.00 and 9.30pm, she was walking down a spectators’ mound at the football grounds when her foot caught in or on a concrete recess in the ground and she fell heavily onto the mound, thereby suffering the injury. It is common ground that if that did happen it constituted a concealed trap or danger for which the Junior Rugby League Club was responsible and the first defendant would be liable for the plaintiff’s injury. Much of the trial was concerned with the question as to whether or not that was what happened and whether or not the evidence supporting this version was reliable. The issue of the extent of her injury and its impact on her life was primarily relevant to the quantum of damages but it was also relevant to the issue of liability because of the impact of the evidence of witnesses as to both liability and quantum on their credibility. In order to determine those matters one must consider the evidence given by the various witnesses as to the nature of the football grounds and what occurred on that night and thereafter.
  1. The football grounds are at Kern Brothers Drive in the suburb of Kirwan in Townsville. The grounds contain a number of ovals, the most important of which is the number one oval (“the oval”). That oval is situated on the Kern Brothers Drive (“the road”) side of the grounds and its length runs parallel to the road. On the side of the oval next to the road there is a mound that has been constructed along the length of the oval for spectators, players and officials to watch matches. During night matches, the grounds are illuminated by flood lights. The timekeeper for the match, who notes the time and various other details of the match, usually sits on a chair at a table at the top of the mound, situated at the point of the half-way line of the number one oval. On either side of the timekeeper there is normally a chair for the St John’s ambulance officers, a chair for each coach and a long form of about 4 metres in length, of the sort that used to be common in primary schools, along which players sit.  Players also sit in front of that form on the mound.  Spectators sit at various places along the mound.
  1. At regular intervals along the mound are advertising signs parallel to the number one oval and Kern Brothers Drive. At the relevant time, there were sixteen advertising signs. The middle of the sign in the centre was at the half-way line. The signs were each about 2.53 metres in length and were about 5.1 metres apart. These signs were originally put at the bottom of the mound but as a player was injured and suffered concussion when he collided with one of those signs, they were moved about 1½ metres further up the mound in June 1995. When they were moved some of the signs came out with concrete attached, some came out clean and some with the concrete broken up. Any concrete on the surface was removed and the holes were backfilled with dirt and tamped down by foot. There were very shallow depressions where some of the posts for the signs had been.
  1. At one end of the oval was an amenities block and a club house containing a canteen, office and bar area and a car park, which was behind a fence.
  1. The last football game on 3 May finished between 9.00 and 9.30pm. At the conclusion of the game Mrs Vikuckis was sitting at her table, having completed the timekeeping. The ambulance officers, coach and players were seated on either side of her as previously described. There were a number of spectators on the mound and the flood lights at the ground were illuminated. On the opposite side of the oval another dedicated volunteer worker, Brian Zielke, had been watching the match. He was the person whose responsibility it was to turn the lights on and off and he had not yet left his position to turn off the lights. In the club house were the honorary Secretary and the Registrar of the Junior Rugby League Club who were waiting to be given the results of the match by Mrs Vikuckis and who had other matters to attend to before they closed the grounds for the night.
  1. Mrs Vikuckis gathered together the score sheets and other materials she had, put them, as she usually did, in a basket, rose from her seat and walked along the top of the mound parallel to the road, behind the players, ambulance officers and the coach who were seated to her right. She walked about 5 metres and then turned to her left to head diagonally down the mound towards the club house. Because of the position of the advertising signs, she was required to pass either to the right or the left of an advertising sign on her way. As she approached the bottom of the mound she fell and suffered the injury to which I have earlier referred.
  1. The evidence as to the way in which Mrs Vikuckis was injured came from the plaintiff herself, her husband and a number of witnesses called either for the plaintiff or the defendant as well as the medical evidence from which one might be able to deduce the way in which she fell.
  1. The liability of the Junior Rugby League Club for that fall depends on the determination of a number of contested facts, including whether or not the lights at the ground were still illuminated when she fell and whether the fall was caused by slipping on wet grass or was caused by her foot being caught on concrete which was at or just below ground level. The question of liability depends on precisely what happened on that night. As the report of the plaintiff’s expert witness points out, many thousands of people are injured by falls each year.[3]  The mere fact that she fell on the mound does not establish liability.

Mr Vikuckis’ investigations

  1. The manner of Mrs Vikuckis’ fall was, as she and her husband knew, critical to the question of liability of the defendants. If she merely slipped on grass that was wet from dew then there was no breach of duty by either of the defendants and she would not be able to recover compensation of any kind for her fall and subsequent injury. There was no dispute that there was heavy dew on the ground that evening.
  1. Mr and Mrs Vikuckis both knew that the advertising signs had been moved. Mr Vikuckis’ attention had been drawn to it not long before his wife’s fall by a conversation he had with another man at the field, Derrick Bryant.  They were old drinking friends who also saw each other at the football.  Mr Bryant said that, a week or two before Mrs Vikuckis was injured, he saw a round post hole in the ground down from the mound with nothing in it.  It was between the 50 and 20 metre line at the car park end.  He did not remember seeing any concrete in the hole.  Mr Vikuckis said that about two weeks before Mrs Vikuckis fell, he had been walking with Mr Bryant along the mound from the car park end watching the game when he noticed traces of cement block on the lower part of the mound about half way between the car park end of the ground and the centre line.  In cross-examination, he improved his evidence to say that he could see 6 inches of concrete protruding lengthwise from black soil.  It was, he said, about half an inch above ground level.
  1. Immediately after her fall, Mrs Vikuckis was admitted to hospital where she remained until 22 May 1996.  Even before she left the hospital Mr Vikuckis saw solicitors and went out to the Junior Rugby League ground with his son to try to find something at the ground that could have been responsible for Mrs Vikuckis’ fall.  Mrs Vikuckis herself went to see her solicitors on the day she was discharged from the Park Haven Hospital.  No-one should be criticised for seeking legal advice but in her case it was part of a pattern of fabrication and exaggeration which followed her fall.  Mr Vikuckis said that the solicitor he saw asked him for proof of the claim, so he went to the ground and took photographs.
  1. Mr Vikuckis gave evidence that eight or nine days after his wife’s fall, he and his son Geoffrey returned to the football ground and “looked for a hole, something that she got her heel caught in”. He said he found something – “a slab of concrete with a square hole in it about an inch deep”. In cross-examination he said that the “concrete itself was up fairly high, about an inch or two inches, with the grass over the top of it … It wasn’t really buried under the ground at all, and there’s about a foot hole in it – an inch hole deep – an inch hole. It was about an inch deep.” When asked, “So the hole was an inch deep?”, he added, “At least.” He said his son, Geoffrey, had also seen this hole. He said he slipped on it himself, pulled the “shaggy” grass aside and photographed it.
  1. Four photographs taken by Mr Vikuckis were tendered in evidence. One shows the area of the mound where the centre advertising sign and the next sign closer to the club buildings were situated. No hole or concrete is discernable in that photograph. The other three photographs show some white material which might be concrete on a grassy surface. There is no evidence in those photographs of shaggy grass having been pulled aside. There is also nothing in those three photographs which shows precisely where they were taken. Geoffrey said that the photographs were of two holes not one. He did not know where the holes were at the ground but thought they were close together. Robert Vikuckis gave evidence that the photographs were of one hole only. The photographs had no evidentiary value as to the location of any concrete or hole at the ground and neither did the evidence of Robert or Geoffrey Vikuckis.

Other investigations

  1. In July and August 1997, Ian Parkin, a loss adjuster, went out to the football ground to investigate the claim. Using the photographs taken by Mr Vikuckis he prodded the ground looking for a piece of concrete. None could be found.
  1. In July 2002, just before the trial of this action, Geoffrey McDonald, an ergonomic and safety consultant retained by the plaintiff, visited the football ground for the purpose of conducting investigations and preparing a report. He found a piece of buried concrete which he excavated. This was not in the position where Mr Vikuckis purported to see concrete when he visited the ground soon after Mrs Vikuckis’ fall or where Mrs Vikuckis said she fell.  Rather it was in the place where the car park end of the sign next to the centre sign would have been before it was moved further up the embankment.  In addition, the concrete he uncovered was buried a couple of inches under the ground and represented no unusual danger to pedestrians.

Mrs Vikuckis’ veracity

Age

  1. The difficulty with accepting the plaintiff’s testimony arose from the first item of evidence led from her. When asked her age, she said she was 61 years old having been born on 23 May 1941. She said that until her father died, she had believed that she was born five years later on 23 May 1946. She was, she said, five years older than she had thought she was. She explained this unusual state of affairs by saying that after her father’s death, six or seven years earlier, two of her brothers found their birth certificates amongst their father’s belongings, which revealed their true dates of birth. After the death of one of her brothers, five years ago, his widow gave Mrs Vikuckis her birth certificate. She then found out that she was born in 1941 not 1946. She said she informed her solicitors of that as soon as she found out in about February 1997.
  1. She explained that as a child she lived an isolated life in the country not going to school until she was 13, although she now realised she must have been 18. This explanation might have been plausible until it was revealed in cross-examination that in numerous documents, which came into existence prior to 1997 when she said she found out her true birth date, her birth date was correctly recorded as 23 May 1941 and not 23 May 1946.
  1. These documents included her 1992 and 1994 tax returns[4] and many medical records including that from her first visit to Townsville General Hospital on 30 August 1984, the records of Dr Maguire dating from 20 April 1988, Dr Keyes’ records from 1988, Dr Schaeffer’s records from 1988, the records of Healthlink Family Medical Centre from 1992, Park Haven X-Ray from 1994 and many others.  On 12 September 1994, her gastroenterologist, Dr Fairley specifically recorded not only that she was born on 23 May 1941 but commenced his written report by noting she was 53 years old.  Even the letter prepared by her solicitors which she signed on 28 October 1996 authorising her treating orthopaedic surgeon, Dr Low, to provide her medical records to them, recorded her date of birth as 23 May 1941.
  1. Mrs Vikuckis said in evidence that she could not be blamed for the fact that, in spite of telling people that she was born on 23 May 1946, for some inexplicable reason, all of these people misunderstood what she said and extraordinarily all mistakenly guessed and recorded her correct birth date of 23 May 1941.  Mrs Vikuckis was being deliberately untruthful about this matter.  Perhaps she obtained her original birth certificate after her brother’s funeral, perhaps not, but at all relevant times she knew her true date of birth.  She was the source of that information to her tax accountant, solicitors and medical practitioners well before, on her version, she knew the truth.
  1. Why was she lying? She lied about her age in her job application to the Townsville General Hospital (the “hospital”) in 1985. I presume, although she denied it, that she thought she would be more likely to gain employment if she pretended to be 39 years rather than 44 years old.  Rather that admit to this, perhaps understandable, untruth, she then lied on oath in court in an attempt to provide some explanation for her age on that application.  It is also the case that she had attempted to gain advantage out of pretending she was younger than she was, by persisting in claiming a further five years loss of income earning capacity in her Statement of Loss and Damage filed in this court until early 2002.  While the original lie in her job application may have been understandable, the absurd lies under oath in court were not.  It is a matter for others to determine whether or not they represent a criminal offence.  It is sufficient for me to record that this lie was one of a number which cast the most serious doubts on her credibility and the veracity of her claim.

Relationship with her husband

  1. Mrs Vikuckis also gave evidence about her present relationship with her husband which cast serious doubts on her credibility as a witness. She married her present husband, Robert Vikuckis, on 13 September 1980. At that time, he was divorced with four children. After their marriage, they had another child, Geoffrey. She said that while they both still lived at their home at 135 Mill Drive, Kirwan, they no longer lived together as husband and wife. She said that they drifted apart because of his four children and while they remained friends they lived separate lives. It was important to maintain this story as she had obtained a Commonwealth pension because of it between 1997 and 2000.
  1. In support of this version was the fact that because of pain and the discomfort of her long leg plaster, she had difficulty sleeping when she first came home from hospital. Mr Vikuckis moved into the spare bedroom the night after her return from hospital and has remained there. Since her fall, they no longer have a sexual relationship. On the other hand, Mr Vikuckis supports Mrs Vikuckis financially and pays all her bills.  Their home is in joint names and the mortgage repayments are made from one of their joint bank accounts.  The relationship remains one of mutual support.  A surveillance video taken of them shows obvious affection between them.
  1. Yet when she applied for a pension on 31 October 1997, she told the Department of Social Security (DSS) that she had been living separately and apart from her husband under the same roof since 1989.  This was patently untrue.  She told Dr Gibberd, an orthopaedic surgeon who saw her on 23 April 1996 in reference to a workers’ compensation claim, that her husband had left her.  She again gave similar information when she failed to pay the doctor’s bill.  He then forgave payment of the bill.
  1. Even Mr Vikuckis, keen in every other way to give evidence in support of his wife’s claim, spoke of his love for his wife.  In the application to the DSS it appears she falsely denied having a joint bank account with her husband.  She claimed that he would provide no care, support or help to her in circumstances of illness, personal crisis, money problems or family disputes and yet in the action before the court she claimed for care provided gratuitously by him.

Weight

  1. Even on relatively trivial matters, the plaintiff was unable to be truthful in her testimony. Mrs Vikuckis gave evidence that before her fall she weighed 65 kilograms.  She said that after the fall, her weight went up to 80 kilograms.  She told Dr Morris, an orthopaedic surgeon retained by the defendant, that prior to her fall she weighed 64 kilograms.  He measured her weight at 4 May 2001, as 82 kilograms.
  1. However, the records of doctors who saw her prior to her fall do not bear out the suggestion that it led to a weight gain. Dr Maguire, who saw her in April 1988, records that she was quite obese. On 12 September 1994, Dr Fairley recorded her weight as 86.6 kilograms, noting that she said she had lost 16 kilograms.  Her general practitioner, Dr Crawshaw, recorded her weight on 9 December 1994 as 90.3 kilograms.  Dr Gibberd, who saw her only a fortnight before her fall, noted that she was obese.

The lighting

  1. A question which is relevant to the potential liability of the Junior Rugby League Club was whether the lights illuminating the grounds had been switched off when Mrs Vikuckis fell. She was adamant in her evidence that the lights were switched off as soon as she rang the bell which signalled full time in the last football game.
  1. Mr Vikuckis gave evidence that he had attended the football ground that night as a spectator and, before the end of the last match, he had, in accordance with his usual practice, left the oval and gone out to warm up the car before she came over to it. The car park is at the end of the field next to the club house buildings. He was some 70-80 metres away from her. He said he saw his wife walk down the mound and fall. He said it was obvious to him that she stepped in a hole. He said he got out of his car, yelled at someone to turn on the lights and ran over to her. The lights went out, he said, after she started walking down the mound but before she fell. Nevertheless he had, he said, a clear and indeed detailed view of her fall because of the moonlight in spite of the fact that he was at least 70 metres away and the very bright floodlights had just been extinguished. He said the lights remained off for 15-20 minutes. This evidence was inherently contradictory. Mr Vikuckis wished to give evidence that he saw the exact way his wife fell to support their version that her foot was stuck in a hole and that had caused her fall, but he also wanted to allege that the Junior Rugby League Club was negligent because they extinguished the lights so that she would not be able to see where she was going in the dark.
  1. The switch for the lights is situated in a locked room in the amenities block. The person responsible for turning the lights on and off that night was Brian Zielke. At the time Mrs Vikuckis fell, he had not yet turned off the lights. He was just moving from his position on the opposite side of the field, where he had been watching the match, towards the club house and amenities block when he saw Mrs Vikuckis fall and heard her scream. He ran across the oval to where she was.
  1. Mervyn Ackers, a player and spectator who was called by the plaintiff, gave evidence that the lights were still illuminated when Mrs Vikuckis fell. The Registrar, Mrs McDonald, who was in the office, looked out when she was told Mrs Vikuckis had been injured and saw the people on the embankment.  The lights had not been turned off as she would not otherwise have been able to observe the scene on the embankment.  The club’s honorary secretary walked over to where Mrs Vikuckis lay injured.  Her evidence too was that the lights were still illuminated.
  1. There was some suggestion that the lights were turned off and later turned back on but I do not accept this suggestion. The only source of this suggestion was Mr and Mrs Vikuckis whose evidence on this, as on many other topics, was unreliable.  Mr Zielke was of the view that if the lights were turned on again quickly particularly on a cold night such as this was, they would have exploded.  I am satisfied that neither he nor anyone else turned the lights off or on again before Mrs Vikuckis left the grounds in her husband’s car. 
  1. It follows in my view that the lights on the ground were still illuminated. However, I do not accept that Mr Vikuckis saw his wife fall. Like his wife, he was an unreliable witness, more concerned with creating a compensable injury than telling the truth. It is more likely that his attention was attracted to her fall by her screams and the general commotion that ensued.
  1. I accept the unchallenged expert evidence of Geoffrey Hodge, a consulting engineer who visited the field after dark on 6 May 1998, that the illumination given by the lights at the ground was very even and provided more than adequate lighting for the safe movement of the public around the perimeter of the field.
  1. Although it was not specifically pleaded by the plaintiff, the question of whether the slope of the mound was too steep to be safe was traversed in evidence. It is as well, therefore, to record that I accept the evidence of the forensic consulting engineer, Dr Frank Grigg, that the slope was similar to, or less than, the slope on spectator mounds found at several other well-known sports grounds.  It was not inherently unsafe.  In any event, counsel for the plaintiff in his final submissions quite properly did not suggest any reliance on the steepness of the slope but said that the plaintiff’s case was predicated upon her contact with a hole in the ground.

Footwear

  1. Another question for determination is what footwear Mrs Vikuckis was wearing. In opening, counsel for the plaintiff said that he had a photograph of a similar pair of sandals to those she was wearing on the night. When shown that photograph in evidence-in-chief she said that the sandals in the photograph differed from the ones she had been wearing in that the soles of the photographed sandals were smooth whereas the soles of the sandals she had been wearing had rippled rubber soles. This was an opportunistic but unnecessary distinction to make since the sandals in the photograph do in fact have rippled soles. She then volunteered that she used to wear those sandals to work. That appears again to have been opportunistic and most unlikely given the usual requirements for enclosed footwear in such an environment. However, I do not consider that they were inappropriate footwear for attending an evening football match in the tropics.
  1. Mr Vikuckis gave evidence that he showed the sandals Mrs Vikuckis was wearing to her previous solicitors. The photograph of the sandals which were tendered appear to have been taken in a professional manner, I infer by the solicitors when Mr Vikuckis took some sandals in to show them to the solicitors. Those sandals are old and worn but otherwise undamaged. But Mr Vikuckis wished to give evidence that the heel had been ripped from the right sandal, consistent with Mrs Vikuckis falling in a hole, so he denied any knowledge of how the photographs came into existence. He also gave evidence that in spite of knowing of the forensic value of these damaged sandals, he must have inadvertently thrown them out as they had, conveniently, disappeared.
  1. Geoffrey Vikuckis gave evidence that the sandal had a broken strap after her fall. Brian Zielke gave evidence, which I accept, that he picked up her sandal after she fell and noticed that the back strap had broken where it was attached by stitching to the sole. This is consistent with damage which might have occurred from her slipping, rather than having her heel caught in a hole as she alleged.

The plaintiff’s account of her fall

  1. Mrs Vikuckis said that when she fell she felt her right heel go down and “wouldn’t stop”. She demonstrated that her left leg went out in front of her and she fell backwards onto her back. She said, “My heel was down something. I don’t know how big a hole it was or – it was sort of stuck.” She said she felt tremendous pain. By the time she saw Dr Morris, an orthopaedic surgeon retained by the defendant, her story had been embellished to include the detail that one of the ambulance people lifted her leg out of a hole. No other evidence, for example from one of the ambulance officers, was called which would support that. On the contrary, the accident report from the St John’s Ambulance officer records “slipped on wet grass; hurt ® lower leg.”
  1. She said she was attended by the three ambulance officers who were there and a young player, Mervyn Ackers. In cross-examination she said she was comforted by two unknown women. She at first denied Mr Zielke came near her but then contradicted herself by saying that he came over and said to her, “Hey, Val, you can’t claim compo for this.” I accept his denial of having said that. Nevertheless, I accept that he did go over to her as soon as she fell.

Where did Mrs Vikuckis fall?

  1. The most significant question to be determined is where Mrs Vikuckis was when she fell. She produced photographs which showed her standing between the advertising sign in the centre of the oval and the next sign closer to the car park end of the field. She was closer to the latter sign and slightly down the slope on the mound. Curiously this was not where she said she fell but rather she said it was near where she fell. Yet there seemed to be no logical explanation for her appearance in the photograph except for her to show where she fell. Once she realised that there was and never had been any concealed concrete or other kind of trap at the place where she was photographed standing, she was happy to give evidence that it was only near where she fell. This evidence was as unlikely and unconvincing as much of the other evidence she gave.
  1. At her request she was given a photograph in cross-examination to show the passage she took and where she fell. Upon invitation she drew a line showing where she walked. Immediately she realised that did not suit her case, she redrew the line twice to endeavour to make it conform with evidence which might make the Junior Rugby League Club liable.
  1. Mervyn Ackers had been at the ground that night as a spectator. He was sitting on the mound somewhere between the 10 and 50 metre lines at the car park end of number one oval when Mrs Vikuckis fell slightly to his left about 5 metres away. He immediately heard her yelling very loudly in pain. Although he saw her fall, he was, not surprisingly after such a long time since the events in question, very uncertain as to where he was. He offered a number of different estimates during cross-examination. I was not assisted by his evidence as to where she fell.
  1. Mr Zielke was able to give satisfactory evidence as to where Mrs Vikuckis fell. His evidence was that she fell on the car park side of the sign next to the one in the centre. He said he sat on the car park end of that sign and talked to her for several minutes after she fell, trying for the most part to comfort her and calm her down. She was about ¾ of a metre to the left or car park side of the sign to the left of photograph 1 in exhibit 1. Mr Zielke did not leave until Mrs Vikuckis was taken from the football ground to the hospital by her husband. Mr Zielke had a good recollection of what occurred on that night and no animus against Mrs Vikuckis. He was a reliable witness and I am able to accept his evidence.
  1. If she fell, as I accept, in the position described by Mr Zielke, then her right foot could not have, and did not, come in contact with any hole or depression or concrete that may have been left by the removal of any of the advertising signs. She walked on the diagonal from the top of the mound about 5 metres from the centre past the car park side of the advertising sign second from the centre line. The buried concrete where that sign had been was directly in front of that sign and not on the diagonal along which she was walking. She would therefore have passed to the right or the car park side of the buried concrete uncovered by Mr McDonald and nowhere near the concrete which Mr Vikuckis purported to photograph. As she fell she twisted her foot and suffered the injury which has been described. Even the plaintiff’s expert witness on liability agreed that a person walking diagonally down an embankment could easily twist his or her foot and fall without there being a hole or indentation in the surface. This is what happened. It was an unfortunate accident. No liability can be attributed to either defendant.
  1. After her fall, the ambulance officers present put her leg into a splint to protect it. Her husband drove across the field, put her in his car, with assistance from others including Mr Zielke, and took her to the Townsville General Hospital for treatment. On the way, they stopped to pick up their son, Geoffrey.
  1. I have concluded that neither defendant was responsible for Mrs Vikuckis’ injury. Nevertheless, I have considered the question of the quantum of damages that would have been awarded had I found in favour of the plaintiff on the liability issue. The two issues are, however, not unrelated because much of the evidence on quantum reflected on the plaintiff’s credit as a witness.

Treatment at Townsville General Hospital

  1. At the hospital, Mrs Vikuckis was given painkillers and x-rayed. The hospital notes record, consistent with what had happened, that she fell down an embankment, that her right leg twisted awkwardly and that she had severe pain in her leg. She had sustained a spiral fracture of the right tibia and fibula with significant swelling and some displacement of the fracture segments. She was taken to the operating theatre in the early hours of 4 May 1996 for a closed reduction and manipulation of the fracture under anaesthesia and the application of a long leg cast.  She woke in extreme pain.  Because of swelling, the plaster was cut and split around the toes.  The surgeon subsequently operated on her leg a week after the accident on 10 May 1996 to change the cast.  The operative notes record that the reduction was adequate and she was comfortable post-operatively.

Treatment by Dr Low

  1. After that operation, Mrs Vikuckis was discharged at her request from that hospital and admitted to Park Haven Private Hospital on 11 May 1996 where she stayed until 22 May 1996. Her discharge summary dated 22 May 1996 correctly notes her date of birth of 23 May 1941 and her age of 54 years. At that hospital, Dr Low, an orthopaedic surgeon, performed another operation on her leg on Monday, 13 May 1996 to fix the tibia with plates and screws. She had fever postoperatively but that responded to antibiotic treatment. She received physiotherapy at the hospital. All the medical experts called agreed that she had an excellent surgical result. Dr Low said in evidence that he regarded her subsequent failure to progress as a “mystery”. Radiological reports on 21 April 1997 and 23 February 2000 showed a soundly united lower tibia and good alignment.
  1. Dr Low expressed the opinion in oral evidence that while her injury was consistent with her having stepped in a hole and that although such an event would be more likely to produce this type of fracture, the fracture from which she suffered could also have resulted from a slip on a surface such as dewy grass as in fact happened. He agreed that it was not necessary for her to have stepped in a hole, in order to suffer this injury. Another orthopaedic surgeon, Dr Morris, agreed that the fracture from which she suffered could result from the foot twisting as she slipped or fell.

Convalescence

  1. After Mrs Vikuckis’ discharge from Park Haven Hospital, she went home. She said she stayed in the upstairs part of the house. She used a hired wheelchair from 22 May till 6 September 1996 while her leg was in a plaster or plastic cast.  She had some physiotherapy but did not continue because she did not regard it as successful.  She has had no physiotherapy for at least four years.  Dr Low advised her to be as active as possible.
  1. In October 1996, she made a complaint to the Health Rights Commission demanding compensation for what she perceived to be the inadequacies of her treatment at the Townsville General Hospital. In that complaint she described the incident on 3 May 1996 as a heavy fall with no reference to falling in or as a result of a hole.
  1. At the end of October 1996, she was mobilised on crutches but ceased using them after 3 months because of her discomfort. She then started to use a walking stick. It appears that, from the beginning of 1997, she was able to walk with the aid of a walking stick and yet when she appeared in court in July 2002, she was in a wheelchair. No medical explanation could be given for such behaviour. Mr Vikuckis said it was his idea to buy her a wheelchair which he had purchased in August 2001.  In my view, the explanation for her appearance in court in a wheelchair was that Mr and Mrs Vikuckis were deliberately exaggerating the extent of her disability in an attempt to increase her damages.
  1. Video surveillance evidence was produced which confirmed that impression. It showed that on 4 May 2001, when she came to Brisbane for a medical appointment, Mrs Vikuckis was quite mobile with the aid of a walking stick, particularly at Brisbane airport security which seemed to be the only time when she was completely unaware of the surveillance. Other surveillance during May and November 2001 showed she had no trouble getting out of the back seat of a taxi, standing or sitting still for prolonged periods, getting into and out of and driving a four wheel drive vehicle and even, on one memorable occasion in late November 2001, nailing in a fence paling which had fallen off. She had a slight limp but her slow gait was in all other ways quite similar to that of her son. All of this was in spite of the fact that she was aware of the surveillance.
  1. On one of these occasions Mr Vikuckis came out on the balcony to sweep, very ineffectually, presumably to support the claim for gratuitous care. However, the ineffectual nature of the sweeping suggested it was not an activity which he often, if ever, undertook. Mr Vikuckis was seen watching the video from outside the courtroom as it was being played in court. That is likely to be the reason why in his evidence given later he denied that he used to sweep, but said that he did the vacuuming and not the sweeping.

Work history

  1. It is necessary when considering Mrs Vikuckis’ claim for economic loss and loss of income earning capacity to review her employment history prior to the injury. Mrs Vikuckis gave evidence of a steady work history.  She said she commenced work in her teens at a laundry in Toowoomba.  She remained there after her first marriage.  She went to Cunnamulla for 12 months with her husband after the birth of her first child.  Within a week of the birth of her second child, she obtained work in a café and then her husband’s uncle found her work as a trainee nurse at Baillie Henderson Hospital.  She transferred to Royal Brisbane Hospital where she stayed after the death by suicide of her first husband.  She then received a widow’s pension.
  1. She moved to Townsville to live with her present husband, Robert, as a housekeeper and then two years later, in 1980, they married. She was unable to find work. After Geoffrey’s birth, she worked in a Chinese restaurant which she left when Robert was transferred to Adelaide. She said she was unable to obtain work there “because you are Army” so she delivered junk mail. When they returned to Townsville, she worked again for little pay at the Chinese restaurant, then took a job as a cleaner at Heatley High School. She then applied twice for and, on the second occasion, obtained a job at the Townsville General Hospital. Her application, dated 31 March 1985, gave her age as 39 and her personal details which she filled in and signed showed her date of birth as 23 May 1946.
  1. Mrs Vikuckis worked at the hospital from 1985 until June 1997.  She was charged with receiving a widow’s pension some time after she began working at the hospital.  There were three reasons why she was not eligible to receive such a pension.  She had remarried, her husband was in full-time paid employment, and she was also in full-time paid employment.  Any one of those factors would have disqualified her from receiving this pension.  She said she was obliged to repay all of the money she had wrongly received.  No evidence was led as to whether or not she was convicted as a result of this dishonest behaviour.
  1. She commenced work as a domestic, with duties including cleaning and serving meals to patients. She worked an early shift from 6.00am to 3.00pm or a late shift that commenced at 10.30am and finished at 7.30pm. She commenced as a casual worker and then became a full-time permanent employee after a few months. She usually worked from Sunday to Thursday.
  1. She had some medical problems which were due to or which she wished to attribute to her employment. These included injuries to her feet and legs. In April 1988, the surgeon Dr Maguire treated her for “unusual” abdominal pain which she seemed “quite determined … [was] related to work practice.” He did not support that causation and reported to her general practitioner that it was a fairly unsatisfactory consultation. On 20 July 1994, a podiatrist reported that Mrs Vikuckis said she hit a trolley against her right foot in January 1994, had some physiotherapy but had reinjured her foot at work, and by July had severe left foot pain and recent right foot pain secondary to limping with the pain in the left foot.  Her general practitioner’s medical history shows that in November 1994, she had an infected right lower leg.
  1. On 1 July 1995, the hospital introduced a new work system known as the Daniels system. The domestics were given the opportunity to take a voluntary redundancy or to go to the cleaning or catering staff. Mrs Vikuckis elected to go on the catering staff. They were invited to submit their preferred work roster. As Mrs Vikuckis failed to submit a preferred roster, she was allocated a roster. She went to see Ms Stark and tearfully, but probably untruthfully, told her that Mr Vikuckis was dying of cancer.  When she objected to her roster, it was given to another employee.  Mrs Vikuckis would not accept any roster offered to her by her supervisor.
  1. Mrs Vikuckis had an extremely poor relationship with her supervisor, Janiece Stark. Eventually the Director of Business Services, Robert Akers, was obliged to intervene. Mrs Vikuckis sought his assistance to intervene so that she could have a roster created for her to suit her personal requirements. He had a number of meetings with Mrs Vikuckis and with Ms Stark to try to resolve Mrs Vikuckis’ difficulties. Many alternative rosters were offered to her but none of them was acceptable to her.
  1. Mrs Vikuckis, apparently untruthfully, told him that she had to have Fridays rostered off as she had counselling sessions with the Vietnam Veterans group because she suffered from domestic violence from her husband. She had, again apparently untruthfully, told Ms Stark that she needed Fridays off because both she and her son needed counselling as her first husband had died from cancer and now her second husband was dying of cancer.
  1. Mrs Vikuckis told Ms Stark she wanted early shifts on Tuesday and Thursday nights to attend a TAFE course leading to qualification as a librarian. Mrs Vikuckis said that while her son, Geoffrey, was a student at Heatley High School and even after he left, she used to go to the school once a month to cover books in the library.  That appeared to be the extent of her experience of a librarian’s duties.  However, she untruthfully told Ms Stark that she had been studying to become a librarian for about 12 months before deferring that study 6 months earlier.  In court, she attempted to explain this by saying that what she meant was that she had completed all the practical requirements and only needed to complete the formal requirements.  That was not true and I do not accept that it is what she said.
  1. On 5 July 1995, an incident occurred which resulted in meals for patients being late. Sandra Chapman, who was the acting evening supervisor, resigned from that position as she did not want to be responsible for supervising Mrs Vikuckis.  The hospital records show that Mrs Vikuckis took sick leave from 6 to 19 July 1995.
  1. On 25 July 1995, Mrs Vikuckis tearfully but falsely told Ms Stark that her son had tried to cut his throat with a knife in her presence because her roster had not enabled her to attend a parent/teacher evening. She told Mr Akers on the telephone that her son had attempted suicide. In his evidence, her son denied that this occurred.
  1. At a meeting at the hospital between Mr Akers, Ms Stark, Mrs Vikuckis and her union representative, which took place on 26 July 1995, Mrs Vikuckis behaved in an abusive and threatening way. She threatened to sue Mr Akers personally and to physically assault Ms Stark. Mr Akers immediately warned her about her unacceptable behaviour.
  1. On 1 August 1995, the Chief Executive Officer of the hospital wrote to her about her refusal to comply with directions and her unacceptable attitude. He gave her seven days to show why she should not be disciplined. He arranged counselling for her. No reply was received and on 7 August 1995, Mrs Vikuckis went on workers’ compensation until 10 August 1995. On 9 August 1995, her general practitioner, Dr Keyes, gave her a medical certificate which said she had been developing major stress anxiety symptoms relating to her work.  On 20 August 1995, Mrs Vikuckis had a day of annual leave.
  1. On 22 August 1995, she was officially reprimanded and informed by the Chief Executive Officer of the hospital that any further incidents would result in disciplinary action which might include dismissal.
  1. Mrs Vikuckis took sick leave from 4 to 8 September. On 5 September 1995, Mrs Vikuckis made a further workers’ compensation claim for stress which was rejected by WorkCover.  Her appeal to the Industrial Magistrate was unsuccessful.  She said she wanted a transfer to the Nursing Home but no position was available there.
  1. On 6 September, she made a formal complaint of victimisation against Ms Stark which was rejected by Mr Akers. She untruthfully told Mr Akers that she had been studying at TAFE to become a librarian for 2½ years and only needed another 1½ years to complete the course.  He said he offered her study assistance which she rejected.  Mr Akers had grave doubts as to the truth of what she was saying.  She applied for urgent long service leave to get her husband’s affairs in order, which was granted even though Mr Akers also had grave reservations as to the truth of her story.  She took long service leave from 9 September to 6 October.
  1. She complained to her local member of parliament who referred her complaint to the Health Minister. The Minister found nothing in her grievance.
  1. On 27 September 1995, Dr Keyes provided another medical certificate about depression and anxiety from which Mrs Vikuckis suffered and her desire to transfer from catering to cleaning.  From 9 to 20 October, Mrs Vikuckis was on annual leave.  On 3 November, Mrs Vikuckis took unpaid special leave.  On 29 and 30 November, she took sick leave.  From 16 December 1995 to 5 January 1996, she was on annual leave.
  1. On 31 January 1996, Mrs Vikuckis again refused to obey a lawful direction.  On 15 February 1996, there was a meeting at the hospital between Mr Akers, Ms Stark, Mrs Vikuckis and her union representative.  Mrs Vikuckis made various complaints about other members of staff and also complained of another workplace injury where she said she had twisted her leg.
  1. On 22 February 1996, Mrs Vikuckis was asked to show cause why her employment should not be terminated. In her reply, she falsely denied receipt of the letters relating to the warning and reprimand she had received. She made a number of complaints of unfair treatment.
  1. As a result of a meeting at the Regional Office of Queensland Health on 15 March 1996, the Acting Regional Director gave Mrs Vikuckis another formal reprimand on 20 March 1996 in respect of verbal abuse of a superior and unacceptable workplace behaviour. Her return to duty was to be subject to monthly review for three months in respect of performance and behaviour and also subject to a satisfactory medical certificate. In the meantime she remained suspended from duties. On the same day, Mrs Vikuckis consulted Dr Keyes who gave her a medical certificate to return to work so long as heavy lifting was avoided as she still had some residual problems with her back which had been initially injured at work two years previously and which she had exacerbated in 1995 while lifting trolleys.  He referred also to neck pain which she attributed to a motor vehicle accident on the way to work.
  1. On 21 March 1996, Mrs Vikuckis rang Ms Stark, who was with the union representative, about her return to work and was rude to Ms Stark. Both Ms Stark and the union representative signed a letter to the CEO about Ms Stark’s unwillingness to have Mrs Vikuckis working in the catering department. It was accompanied by a petition by many fellow members of the staff and union members to the effect that working with Mrs Vikuckis would bring “disruption, unrest, animosity and lower the level of morale as it has done so in the past.” Her supervisors also wrote a letter setting out the reasons why they believed they would be unable to work with Mrs Vikuckis. One of the reasons offered was, “She constantly tells lies and contradicts herself making it very difficult to believe and work with her.”
  1. On 28 March 1996, she went on workers’ compensation for a back injury. A report from Queensland Diagnostic Imaging of this date, however, does not support the view that her back pain was work-related. She appeared to have bilateral renal calculi and degenerative disc disease at C4-5 and C5-6. Dr Keyes, whom she saw on that day and who gave a clearance to return to work on 6 May 1996, noted at the time that she appeared to be “over-reacting”. He said in a report dated 26 September 2000 to Mrs Vikuckis’ solicitors, “It was never easy to determine her clinical signs as there has been a history of personality conflicts and a psychiatric referral.”  He said that it was clear to him that unless she was able to return to work at that time she would lose her job.  However, in his experience it was never possible to find her a job about which she did not complain of some physical symptom as a result of doing it even though he could find no objective clinical support for the symptoms from which she claimed to suffer.
  1. When the orthopaedic surgeon, Dr Gibberd, examined her on 23 April 1996 in relation to her workers’ compensation claim, she told him she had a long history of lower back pain. X-rays showed marked degenerative changes in the cervical spine and mild degenerative changes in the low lumbar spine. His conclusion was stated as follows:

“So in summary, I believe this woman when seen had minimal symptoms, however six weeks ago when she left work she may have had back pain which I believe would have been due to disc degenerative disease aggravated by the repetitive heavy lifting of the equipment.  When seen I felt she was probably fit for all duties but definitely fit for all duties if she no longer had to do the pot wash.  If she has to do the pot wash I believe there is a reasonable chance of recurrence of her symptoms, whether that be organic or psychological will always be difficult to really assess.

 

Concerning treatment, I think it would be beneficial for her to get back into the work force as quickly as possible and I would regard her [fit] to do all her domestic duties except for pot wash for about a month and then she will be fit for all duties.  I think while this friction persists between her and her supervisor the chances of her being gainfully employed [for] a prolonged period should be considered a little remote.  I think she would also benefit from weight reduction and a general get fit programme.”

  1. In all, Mrs Vikuckis worked for less than two months during the period 1 July 1995 to 3 May 1997. When she was injured on 3 May 1996, she was still on workers’ compensation purportedly for a back injury. She was scheduled to return to work on 6 May 1996. At that point Mr Akers was not sanguine about her prospects of retaining her employment. He gave a number of reasons which support that view.

“I think she had alienated a vast number of her colleagues, certainly all of her supervisors.  She’d developed quite a belligerent attitude towards supervision.  She was on occasions threatening to sue various individuals or the health service if she was assigned tasks which were not within her understanding, within her capacity, and generally she had – she – quite frankly, she had lost my confidence through her – through her antics at work and through the fact that I’d come to the conclusion she was not being honest with me.  She had been reprimanded on a number of occasions.  The triggers were there to terminate her employment on the next occasion she digressed.”

  1. On 6 February 1997, nine months after her leg injury, Mrs Vikuckis returned to work on a rehabilitation programme. In her first meeting with Kerry Garbutt, a caring and experienced occupational therapist who gave evidence at the hearing of this matter, and who supervised her return to work, Mrs Vikuckis told her that she was able to walk about four hours a day without difficulty and that she used a walking stick outdoors but did not require it indoors. Her capacities were carefully assessed.
  1. She was given work which was well within her capabilities but she complained bitterly about being made to work too hard. Her claims about being made to work too hard were spurious. Rather the occupational therapist and supervisors went out of their way to accommodate her actual and perceived needs and to meet her every complaint but it was never possible to satisfy her. No doubt Mrs Vikuckis was keen to keep her job but she was not at all keen to work.  Once she realised that the purpose of the rehabilitation programme was to return her to work within her capabilities in her previous position, she refused to continue.
  1. Mrs Garbutt reported on the outcome of the rehabilitation programme on 12 March 1997:

“Her physical capacities when at work have been inconsistent.  For example she has demonstrated the ability to stand to do some tasks, however states she is unable to stand to do other similar tasks.

 

Her productivity levels have varied dramatically from week to week.  For example she has demonstrated the ability to work efficiently on some days, followed by marked reductions in output the next.

 

I do not believe this is due to her physical injury, but to her reluctance to participate fully in the agreed rehabilitation program and to carry out certain work tasks allocated.

 

Generally, her behaviours at work within the context of her rehabilitation program have been disruptive, and characterised by lack of co-operation with supervisors and the outlined program.

 

All attempts have been made to assist Ms Vikuckis with her return to work.  Her duties and work environment have been modified to accommodate her injuries.

 

Her compliance with the agreed program however, has now become an issue and its continuation at this stage is not recommended.”

  1. Mrs Vikuckis was sent to the Government Medical Officer, a general practitioner, Dr Ward. Bizarrely Mrs Vikuckis took offence at his request to conduct an ordinary, non-intrusive medical examination. She permitted him only to examine the lower part of her right leg. On 6 May 1997, he recommended she be retired on the ground of ill-health. She expressed extreme displeasure about this turn of events at the trial of her claim. She was also angry about the fact that her superannuation pension was adversely affected when she was forced to reveal her true age.
  1. On 17 June and 11 August 1997, Mrs Vikuckis was again reviewed by Dr Gibberd, on this occasion for the Government Superannuation Office. He accepted that she did have some leg pain as a result of the fracture to her tibia and fibula but was also of the view that “the manner in which she feels this pain has been magnified by the complete unhappiness at work and conflict that is present.” She gave an inherently inconsistent story of only being able to stand for five minutes at a time but being able to walk for three hours a day. In oral evidence, Dr Gibberd said that walking would put more strain on an injured leg than would standing and that one would expect that a person who could not stand for more than five minutes at a time would only be able to walk for three minutes at a time. On 17 June, he expressed the view that she was fit for light duties, however if the conflict at the hospital remained, that conflict together with her leg pain would be sufficient for her to be retired on a combination of medical and psychiatric grounds.
  1. On 11 August 1997, Mrs Vikuckis saw Dr Gibberd again because she wanted to be regarded as unemployable to access her superannuation. She therefore wanted Dr Gibberd to refer to the neck and back pain as well as the leg pain in his report.  He made a note that she had no desire to work.  Dr Gibberd’s report to her general practitioner on that day says that she felt that her back pain was her major problem.  Mrs Vikuckis was very depressed, he recorded, as a result of being “sacked from her work” and “marital problems”.  She complained bitterly of pain saying that her back pain was worse than her leg pain which was worse than her neck pain.  He concluded his report to the Government Superannuation Office by saying:

“When seen I believe due to a combination of her organic low lumbar back pain, cervical pain and leg pain and associated depression that this woman probably should be regarded as being unemployable.

 

This woman has no special skills.  She is aged over fifty.   She has chronic back and neck conditions and therefore I think the chances of her ever being employed in the future should be regarded as remote, even though physically she would be fit for light duties.

In evidence he said he had seen many fractured tibias and fibulas but he had never seen such an injury give sufficient pain to make someone unemployable.

  1. On 15 December 1997, Mrs Vikuckis made a signed statement for the Workers’ Compensation Board seeking to reopen her claim for compensation for the back injury she alleged she sustained on 27 March 1996. She disclosed the injury to the right leg suffered as the result of the fall at the Junior Rugby League Club but then said that she carried a walking stick for “back pain, and not the right leg injury.” She unconvincingly denied saying that. That statement is consistent with what she told Dr Gibberd that her back pain was worse than her leg pain which was worse than her neck pain. It is also consistent with a person who at that time was concerned with maximising the prospect of a workers’ compensation claim and the amount of such compensation. It was not, however, consistent with the picture she wanted to paint in this court of a person who was severely disabled because of her fall and consequent right leg injury.
  1. Mrs Vikuckis said that had the accident not occurred she would have continued to work at the Townsville Hospital until the age of 65. Whether or not she intended to work at the hospital after 1996, in my view, it is more likely than not that she would have been dismissed from that employment during 1996. Her attitude and the likely circumstances of her dismissal would have made gaining other remunerative employment most difficult.
  1. Mrs Vikuckis claimed that her intention was to open a café after she retired at the age of 65. However, she appeared to have none of the personal, social or work skills that would have made it at all likely that she would have opened a café. This was not in fact her expectation or even a pipedream or hope. It was an invention cynically designed to increase her future economic loss.
  1. After she was retired on the grounds of ill-health she at first sought sickness benefits. She then applied for and was granted a widow’s pension on the basis, as I have already mentioned, that she was living separately and apart from her husband under the same roof. She then received a disability support pension which, for a reason not explained to the court, ceased towards the end of 2001.

Gratuitous care

  1. Mrs Vikuckis said that when she went home from hospital her son pushed her to the toilet in the wheelchair and would then push her back to her bed. Her husband or son would put her into the car and drive her to the doctor’s surgery. She found she could not get into the shower on her own or do household tasks such as sweeping, mopping, washing walls and windows, cooking, ironing or mowing. She had previously done all the housework. In order to examine the nature and extent of gratuitous care provided, it is necessary to further examine the evidence of Robert and Geoffrey Vikuckis.
  1. At the time of her injury, Mr Vikuckis was working at Jupiters Casino in Townsville in charge of stores. He worked there from 1986 when he retired from the Army as a warrant officer. He earns a salary at the casino and has a service pension.
  1. Geoffrey is the son of both Mr and Mrs Vikuckis. In 1996, he was 16 and had left school. In 1995 he had been a student at Ignatius Park College but had left at the end of Year 10. He had not done well academically and had many absences. When the year co-ordinator at Ignatius Park College offered him a place to repeat Year 10 rather than a place in Year 11, Mrs Vikuckis took him out of school. She said she could not help it if her solicitors wrongly wrote in her Statement of Loss and Damage that her son had been in Grade 11 at Ignatius Park College when she was injured and left school and stayed home to look after her. However, in my view, the solicitors gave that information conscientiously believing it to be her instructions and it was of course, as it is required to be, signed and dated by the plaintiff. This is just another example of her carelessness with the truth and seeking to blame others when she was confronted with her lack of honesty.
  1. In April 1996, Geoffrey had commenced study by correspondence school. This study was to involve sending in written work and attending TAFE once a month to see a teacher. Mrs Vikuckis said in her evidence that Geoffrey stopped correspondence school because he had to look after her but this was far from the whole story. As Mr Vikuckis said, “He wasn’t keen on this home study stuff at all.”  Geoffrey was not a keen student.  Although he said he had done some written work, he had not submitted any between the time when he commenced correspondence school and when his mother was injured on 3 May 1996.
  1. Mrs Vikuckis said that Geoffrey used to do the washing, the ironing, the cooking and tried to clean. She said that once he got his learner’s licence, Geoffrey used to drive her to medical appointments and pay the household bills.
  1. Mr Vikuckis said after his wife came home from hospital he was working at the casino and started for the first time doing cooking, vacuuming, cleaning toilets and bathrooms and taking his wife to the shower. He said he alternated these jobs with his son. He said he did these tasks before and after work and on the weekend. He would take all of one day on the weekend to do the ironing and although agreeing that he was experienced at ironing from his position in the Army, he said, rather illogically, he managed to learn to iron with a few burns. He said he also did the laundry and cleaning, cooking and mowing. He estimated that these tasks took 10 hours on the weekend and an hour a day during the week.
  1. He then amplified his evidence as to what he did after his wife’s return from hospital in cross-examination. He said he rose at 5.30am to pick up the clothes and magazines his son left lying about. He would then make himself coffee and breakfast for his wife and make sure his son was up. He would then iron a shirt for work. He then left home at 6.30 to be at work by 7.00am. His extra duties in the morning that his wife used to perform took about 15 or 20 minutes.
  1. When he arrived home from work, he would pick up the dirty clothes and towels his son threw on the floor of his room. He would put out his wife’s dirty washing. Sometimes he did a load of washing. He would cook and clean up after dinner, clean the toilet with a brush once a week, and make sure his son had clean clothes for the next day. He would iron one set of shorts and a T-shirt for his son to wear around the house during the week. All of this took about an hour every evening.
  1. Geoffrey said that looking after his mother after she was discharged from hospital occupied about eight to nine hours a day. He said he helped his mother around the house by preparing breakfast, lunch and dinner, washing clothes and sheets every second day, ironing, picking up after himself, wheeling his mother to and from the toilet and taking her to doctors and her solicitors by taxi. He said the most demanding task was taking his mother around town in her wheelchair. As 1996 went on, he said she became more needy. He did concede that he also did many things for himself during the day. I did not get the impression that Geoffrey was being deliberately untruthful. A 16 year old lad, like Geoffrey, unused to such responsibility, found looking after his mother, whom he obviously cared about, took up a great deal of time. He no doubt regarded it as even more onerous and time-consuming that it actually was.
  1. In March 1997, Geoffrey obtained full-time employment at the casino and in January 2001 he took a job as a mess assistant at Lavarack Barracks. At present he said that he and his father would take the washing downstairs to the laundry and he cooked his own meals because his working hours meant he often got home very late. He gave an example in cross-examination of an average day in the preceding week. He got out of bed at 11.00am and then attended to his own life. He was not obliged to do anything for his mother.
  1. In my view very little of what was done around the house by Robert or Geoffrey Vikuckis after about 9 months, from the time of her return home from hospital after her fall to February 1997 to when she returned to work, can or should be attributed to her injury. She needed extensive assistance for the first months when she was in a wheelchair and then a decreasing amount of assistance over the ensuing period.
  1. The rate to be applied to gratuitous care was agreed at $11 an hour. It would be appropriate to allow $11,090.00 for gratuitous care. This reflects the calculation by the plaintiff’s legal representatives at 28 hours per week for 13 weeks; 21 hours per week for 13 weeks; 7 hours per week for 13 weeks and then 1 hour per week for the period up to trial together with interest. Nothing should be allowed for future care.

Pain and suffering

  1. There is no doubt that Mrs Vikuckis was badly injured when she fell at the football grounds and underwent much suffering particularly in the months immediately after she was injured. She has been left with a well-healed longitudinal scar of about 26cms on the lower front portion of her right leg. She still suffers some neuralgic pain and discomfort from the injury suffered on 3 May 1996. Dr Low referred her to a pain clinic but she refused to stay because of a personality clash. She has no significant wasting of her right leg. The fracture is clinically well-healed. When Dr Morris examined her, she had no dorsi flexion on the right foot.  Her plantar flexion was 20°.  She had half the normal range of inversion and eversion.
  1. The opinions of the orthopaedic surgeons as to the level of disability varied. On 9 May 1997, before her leg had settled, Dr Low, her treating orthopaedic surgeon, assessed her as having a 20% lower extremity impairment which is a 10% whole person impairment.  Dr Macfarlane’s opinion after seeing her on 6 October 2000 was that her bony injuries gave her a 10% impairment of the right leg which converted to a 4% impairment of the whole person.  He attributed a further 1% of impairment of the whole person due to the scarring and sensory changes leading to a total whole person impairment of 5%.  Dr Morris agreed that she had a whole person impairment of 5%.

Loss of amenities

  1. As far as leisure activities affected by her injury, I accept that she stopped playing tennis, which she used to do fortnightly. She stopped going to junior rugby league matches. However, it must also be noted that she seemed to be the cause of as much trouble to others in clubs as she was at work. On 12 September 1996, she was expelled from the Centrals Junior Rugby League Club on the grounds that she continually went against the best interests of the club and its committee members.  She gave a vindictive, self-serving and unconvincing explanation of this in court.  In my view, after she was mobilised with a walking stick, there was no physical impediment to her returning to junior Rugby League matches.
  1. She said she now fills her days crocheting, knitting or sleeping. However, she has consciously and to a certain extent perhaps unconsciously exaggerated the extent to which she is unable rather than unwilling to resume activities which she once undertook whether work or domestic activities. She has a consistent history of endeavouring to blame any injury, real or imagined, on a cause which might give rise to compensation.
  1. Some of her current incapacity is caused by unrelated health problems. She has suffered from high blood pressure since she was 13 and has poorly controlled diabetes which developed from November 1998. She also suffers from recurrent whopping cough, urinary tract infections, renal colic, back and neck pain, obesity, generalised osteoporosis, mixed dyslipidaemia and calcified aorta. She also has depression which can be partially attributed to her right leg injury.
  1. In the circumstances it would have been appropriate, had she been successful, to award damages for pain, suffering and loss of amenities of $25,000.00. Interest would have been allowed on 75% of that amount at 5% over 6 years and 4 months. That amount is $1,875.00.

Special damages

  1. Mrs Vikuckis claimed $4,949.50 for special damages which could be substantiated by receipts. Of this, $995.00 was for the purchase of a wheelchair in 2001. That amount should not be allowed. She also claimed $3,846.35 for special damages which could not be substantiated. Mr Vikuckis unwittingly undermined his wife’s claim to the unsubstantiated special damages by agreeing in cross-examination that he noticed his wife carefully keeping her receipts over the years. Nevertheless, I accept that approximately $200.00 was spent on the hire of a wheelchair after she left hospital in 1996 and it was necessary to purchase a walking stick for $20.00 in 1996. I would allow about half the amount of drugs claimed for pain relief for which no receipts were produced. That gives an amount of $1,800 for those drugs. The total that would have been allowed for special damages had Mrs Vikuckis been successful is $5,974.90. Interest of $773.00 would have to be allowed. In addition, there is $5,697.00 which would have to have been refunded. I would have been prepared to allow $2,000 for all future medication and treatment relating to her leg injury including orthoses. I do not accept that she would have agreed to undergo further surgery to remove the plate so no allowance should be made for the cost of such surgery.

Economic loss

  1. Dr Keyes was of the view, based on his experience of her until 1 June 1996, that there was no physical impediment to her employment but because of the conflict, which in my view, she engendered in the workplace, he was never able to propose a return to work which satisfied her.
  1. Her present incapacity to work is multi-factorial. She retains a physical capacity for lighter, unskilled work. Her personality and work history, however, make her a very difficult employment prospect. She has a number of unrelated medical conditions which also make it difficult for her to find or keep employment. Although the injury from her fall has added to this picture, without it, I believe it would be very difficult for her to obtain employment and most unlikely that she would keep any employment she did obtain. Accordingly it would be appropriate to award a global sum of say $20,000.00 in respect of past economic loss and loss of future income earning capacity to compensate her for the added disadvantage from which she suffers in the marketplace.

Quantum for damages

  1. The total quantum of damages that would have been awarded if the plaintiff had been successful may be set out as follows:
General damages $25,000.00
Interest $1,875.00
Special damages $12,444.90
Loss of income and income earning capacity $20,000.00
Past gratuitous care $11,090.00
Future medication $2,000.00
TOTAL $72,409.90

Conclusion

  1. It was accepted by the parties that if the plaintiff fell as she alleged by having her foot caught in concrete in a hole overgrown by grass, the first defendant would be liable. As she did not, the first defendant is not liable. Judgment should be given for the defendants.
  1. I shall hear submissions as to costs.

Footnotes

[1] The term Townsville is used to include the area within the local government boundaries of Townsville and Thuringowa.

[2] Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47; Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9.

[3] Of the 395,876 hospital separations in 1998-1999 in Australia caused by injury or poisoning, 112,181 or 28% are from falls.  This is by far the largest single cause of injury.

[4] Her 1993 tax return was missing.  Her 1995 and 1996 tax returns show her date of birth as 23 May 1946 and her tax returns from 1997 onwards revert to her correct birth date of 23 May 1941.

Close

Editorial Notes

  • Published Case Name:

    Vikuckis v Townsville and District Junior Rugby League Incorporated

  • Shortened Case Name:

    Vikuckis v Townsville and District Junior Rugby League Incorporated

  • MNC:

    [2002] QSC 268

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    05 Sep 2002

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status