Anderson v Australia Meat Holdings Pty Ltd
[2000] QDC 223
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- Unreported Judgment
- Anderson v Australia Meat Holdings Pty Ltd[2000] QDC 223
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Anderson v Australia Meat Holdings Pty Ltd[2000] QDC 223
Anderson v Australia Meat Holdings Pty Ltd[2000] QDC 223
DISTRICT COURT | No D337 of 1997 |
CIVIL JURISDICTION
JUDGE C F WALL QC
KAYLEEN JEWEL ANDERSON | Plaintiff |
and
AUSTRALIA MEAT HOLDINGS PTY LTD 011 062 338 | Defendant |
TOWNSVILLE
DATE 19/07/2000
JUDGMENT
HIS HONOUR: The plaintiff has applied for the costs order I made on 10 July to be varied so that the defendant is ordered to pay the plaintiff's costs up to and including 18 May 2000 on a standard basis and thereafter on an indemnity basis. She does so on the basis of a Calderbank letter dated 18 May 2000 which was sent by facsimile by her solicitors to the solicitors for the defendant on the morning of 18 May 2000.
The letter was in the following terms:
“We refer to the above and to our previous offer to settle this matter for $80,000.00 plus costs. Please be advised we hold instructions from our client that this offer is only to remain open until 4.00pm today, after which time it is withdrawn.”
By a telephone call at 2.05 p.m. on 18 May the defendant's solicitor rejected the offer.
Judgment was given for the plaintiff against the defendant on 10 July for $99.663.36.
Mr Drew for the defendant conceded that the Uniform Civil Procedure Rules did not exclude as relevant to costs forms of offers other than the formal offers to settle provided for in the Rules. That was a correct concession. I agree with the remarks of Mr Justice Mackenzie in Coomera Resort Pty Ltd v. Kolback Securities Limited and others, unreported, Brisbane, 23 December 1998, number 1321 of 1994, that “...in an appropriate case the existence of a without prejudice offer to settle may be a relevant factor in determining costs.”
A Calderbank offer is “but one factor only in the exercise of the discretion to award indemnity costs”. See Naomi Marble and Granite Pty Ltd v. FAI General Insurance Company Limited, (No. 2) (1999), 1 Qd. R. 518 at 525.
Like Mr Justice Shepherdson in Naomi Marble and Granite at page 527, I agree that the approach which should be taken is that suggested by Mr Justice Rolfe in Multicon Engineering Pty Ltd v. Federal Airports Corporation (1996), 138 ALR 425 at 433 and 451-2.
The onus is on the defendant here to show that its decision to reject the plaintiff's offer was not unreasonable, otherwise it should be ordered to pay indemnity costs. Mr Drew accepted this test. The defendant is required to show good reason for rejecting the offer. Each case must be determined having regard to its particular facts and I must be satisfied that an order for indemnity costs is not appropriate. See per Mr Justice Rolfe at page 452. In Calderbank v. Calderbank (1975), 3 All ER 333 at 343, Lord Justice Cairns referred to the offer as one which in the circumstances of the case the husband “ought to have accepted”.
Mr Drew relied on the following matters as showing that it was not unreasonable for the defendant to have rejected the plaintiff's offer:
- (1)The history of the action and various amendments to the plaintiff's pleadings;
- (2)The different dates of the action relied upon by the plaintiff, including the date in her statement in Exhibit 2;
- (3)Initial confusion about which stairs were involved;
- (4)The estimated date of the accident given in Exhibit 8. The mistake in this document was not apparent until the trial, as was conceded by Mr Pope who appeared for the plaintiff;
- (5)Admission number 2 in Exhibit 9A;
- (6)The proofs of evidence of Mr Corstiaans and Mr Twist in the possession of the defendant;
- (7)The short time available to accept the offer and the absence on leave at the time of the “proper officer” of the defendant who could provide instructions;
- (8)The facts referred to by Ms Karpeles in paragraphs 6 and 7 of her affidavit as follows:
“6. At the time of the offer issues relating to the date of injury and the nature of the stairs were very live and unresolved. These issues were not resolved until a determination had been made by the court and judgment was handed down. The defendant was not in a position to reasonably formulate the correct position regarding these issues until it had heard the plaintiff's evidence and the evidence of the plaintiff's liability witnesses.
- At the time of the plaintiff's offer Thompson Hannan Lawyers could not advise the defendant as to the likely finding of the court in relation to the above issue and accordingly could not advise or recommend with any certainty the reasonableness of the plaintiff's offer given at that time.”
So far as the plaintiff is concerned, I said at page 4 of my judgment:
“I accept her when she said that her attendance on the nurse on 21 August 1995 was the first time in 1995 that she had seen the nurse about her right thumb and that attendance immediately followed her slip down the stairs. This is notwithstanding what she initially said in her statement, Exhibit 2, and the fact that the terms of that statement do indicate perhaps a willingness to be at least a little careless with the truth when necessary to suit her case.”
In relation to the admission, I found that no weight should be attached to it and that at best for the plaintiff, “it was carelessly made”. The reference to the stairs being “steel with holes in it” in paragraph 7 of the statement of David Donald which I referred to on page 6 of my judgment, was also likely to confuse and perhaps mislead the defendant.
Notwithstanding that I generally believed the plaintiff and her witnesses, I consider that for these various reasons, certainly when considered in combination with each other, the defendant was not acting unreasonably in treating her with “suspicion”, as was submitted by Mr Drew and in wishing to test her evidence, in wishing to put her to her proof.
I agree with the submission of Mr Drew that it was not unreasonable for the defendant to have had “legitimate concerns about the veracity of the plaintiff” at the time the offer was made and during the time it was open for acceptance. It is also relevant that this occurred in the context of the plaintiff's formal offer to settle for $120,000 on 29 November 1999, reducing to $80,000 on the eve of trial (and then open only for a very short time) and after the adjournment of the trial on 13 March 2000 as a result of a change in the nature of the case being advanced by the plaintiff.
The fact that the plaintiff had provided the defendant with liability statements some months before the commencment of the trial, if anything, probably reinforced the view held by the defendant rather than suggest probable success for the plaintiff on trial.
In my view, the defendant has established that it was not unreasonable for it to have rejected the offer. The application will be dismissed. The costs order I made on 10 July will stand.
...
I think this is in the nature of a separate application. The plaintiff has failed in it and I think the plaintiff should pay the defendant's costs of this application to be assessed on a standard basis unless agreed.
-----
DISTRICT COURT | No D377 of 1997 |
CIVIL JURISDICTION
JUDGE C F WALL QC
KAYLEEN JEWEL ANDERSON | Plaintiff |
and
AUSTRALIA MEAT HOLDINGS PTY LTD | Defendant |
TOWNSVILLE
DATE 10/07/2000
JUDGMENT
HIS HONOUR: I find that the stairs the plaintiff slipped on were checker plate. The defendant conceded that if they were checker plate there was a high, perhaps an unacceptably high risk of her slipping as she did and that it would certainly be open to find that the defendant was negligent.
I accept the evidence of the plaintiff and her witnesses as to the stairs. I do not think they were lying or making up their evidence or mistaken on important issues, but I do think that Mr Corstiaans and Mr Twist were mistaken. I think they are more likely to have been mistaken than the plaintiff and her witnesses. The evidence of Mr Corstiaans and Mr Twist did not leave me with any feeling of confidence as to their accuracy, recollection and reliability on the crucial issue of when the stairs were replaced and whether before replacement they were made of checker plate or punch plate.
I find the accident occurred on 21 August 1995. The plaintiff was not sure of the exact date but said she sought treatment straight away from the first aid room. The nurse's notes, Exhibit 7, confirm that the date of this attendance was most likely 21 August 1995. I am satisfied she made a mistake about the date in Exhibit 8. That form was completed on 6 October 1995 and she and the nurse then estimated the date by working backwards. She was mistaken. I accept her when she said that the nurse's entry for 21 August 1995 equates with her first presentation for such an injury and treatment in 1995, which was as a result of slipping on the stairs as she described. The same applies to what she said to Dr Peterson. Likewise, I am not satisfied that Dr McGucken would have recorded everything he was told by the plaintiff. His notes, he said, were only a very brief summary of what he was told. Her complaint to him on 28 August 1995, that she had been slicing and had pain in her right hand, is not inconsistent with her account of injuring her thumb on 21 August 1995. Dr McGucken conceded that his note was consistent with the plaintiff merely telling him that she worked as a slicer, as opposed to having received her injury whilst slicing.
The stairs were located in the place shown in photograph 5, Exhibit 3, but the stairs shown in that photograph are not the same as the stairs the plaintiff slipped on. I accept her description of the accident, that she slipped on fat nearer the bottom than the top of the stairs and lost her footing. She grabbed the handrail with her right hand, but her hand slipped down it and her thumb caught on the join of the handrail and the bottom upright and was bent back, causing much pain. The stairs she said were checker plate not punch plate and the accident happened at about 9.30 a.m. at the morning tea break. She slipped when she stepped down onto the tread of the step.
It is clear from the various photographs, including photograph 5, Exhibit 3, that there would have been pieces of fat on the stairs at the time of the plaintiff's accident, in much the same way as is shown in the photographs. The plaintiff said she had never had pain in the base of her right thumb before the accident. She said that attendances on the nurse in 1994 for pain in her right thumb and wrist were for different pain than the type she suffered following the accident.
I accept her when she said that her attendance on the nurse on 21 August 1995 was the first time in 1995 that she had seen the nurse about her right thumb and that attendance immediately followed her slip down the stairs. This is notwithstanding what she initially said in her statement, Exhibit 2, and the fact that the terms of that statement do indicate perhaps a willingness to be at least a little careless with the truth when necessary to suit her case. I think that she was in fact probably experiencing problems of some type with her right hand, thumb and/or wrist before the accident but not of the severity she experienced as a result of and following the accident. She agreed that on occasions prior to 21 August 1995 her right wrist had been strapped to support the wrist at the base of the thumb. She said that after the accident it was strapped to support the thumb and the wrist.
The plaintiff disagreed with the description of the stairs put to her in cross-examination at pages 71 and 72 of the transcript and I accept what she there said.
Because of the nature and effect of the evidence she gave of her recollection on 6 October of when the fall happened when she saw Dr Peterson, I do not think that any weight should be attached to admission number 2 in Exhibit 9A. At best for her, it was carelessly made.
Marion Biffin supported the plaintiff as to the stairs and I accept what she said. She descended the stairs about two steps behind the plaintiff. She said they were “pretty slippery” when they had fat on them and the handrail went to the bottom. The stairs were changed some time after the plaintiff's accident, but she could not recall when. She was also “pretty sure” the stairs were checker plate. Checker plate was more slippery than punch plate. She described the stairs as being like a ladder which is also the description given by William Long. I also accept his evidence. He seemed to me to have a good recollection of facts and events. He said the stairs were steep with narrow treads. The stairs were changed, he said, about three years ago “during the slack, over the Christmas period”. They were checker plate with handrails going to the floor. I accept him when he said that he did not mean to refer to the stairs the plaintiff fell down as being the same as those he fell down in about July 1994.
Rhonda Murphy I thought had a reasonable recollection of events. She slipped on the same stairs in 1995 when she was about seven and a half months pregnant. Her baby was born in November 1995 and this fact was important so far as her recollection was concerned. The handrails and tread were different to the stairs shown in photo 5, Exhibit 3. She was not sure if they were checker plate or punch plate.
Stewart Morrison on the other hand did not seem to me to have a particularly good recollection. He said he was pretty sure the stairs were checker plate. He said the words in his statement in Exhibit 2, paragraph 5, “raised button-like tread” were not his words and in view of his evidence which I accept, I can only conclude that they were someone else's interpretation of what he meant and that a mistake has occurred. He said the stairs shown in photo 5, Exhibit 3, are not the same pattern and tread.
By reference to photograph 5, Exhibit 3, David Donald said he had slipped on the stairs in the location there shown. That happened about four years ago. They had different handrails and were made of checker plate when he slipped. There were also about five steps and they were steeper than the stairs shown in photograph 5. I accept his evidence. He started working at the meatworks in 1995 and the stairs were then checker plate. The reference in paragraph 7 of his statement in Exhibit 2 to the stairs being “steel with holes in it” was intended to refer to the stairs at the time he made his statement, namely 14 October 1999.
Patricia Wilson, the plaintiff's daughter, also worked at the meatworks starting in 1995. She used to talk to her mother each day at the foot of the stairs. She recalls the handrail being different to the one shown in photograph 5, Exhibit 3. On a day she cannot recall but which I find was 21 August 1995, her mother was not at their usual meeting place. She located her at the nurse's station.
I said earlier that I considered Mr Corstiaans and Mr Twist to be mistaken. Where their evidence conflicts with that of the plaintiff and her witnesses about the stairs, when they were replaced and whether they were checker plate or punch plate, I prefer the evidence of the latter which I thought was more based on personal recollection rather than hindsight reconstruction, based on incomplete or misleading or unrelated documentation. I also thought Mr Corstiaans and Mr Twist were probably mistaken about dates and events in certain respects.
Mr Corstiaans started working for the defendant on 21 March 1994. Because of employee complaints about the subject stairs, management asked him to check them out. He did so and found they did not comply with the Australian Standards - the tread widths were too narrow, the levels between the rises varied, they were not within specification and the angle was too steep. These I find were the very matters which caused or contributed to the plaintiff's fall.
He believed the stairs were replaced “some time between the middle and end of 1994”. He does not know exactly when. He had no personal recollection but from maintenance records he believed the new stairs, that is those shown in photograph 5, Exhibit 3, were fabricated by Wulguru Steel Fabricators. He imagined the stairs would have been replaced over a weekend, he could not really say. He said they would have been premanufactured and just required fitting. I think it more likely to have occurred during an end of year shutdown period. He said the old stairs were punch plate. Again, I think he is mistaken; alternatively I prefer the evidence of the plaintiff and her witnesses.
The records relied on by Mr Corstiaans are Exhibit 26 and in my view they probably relate to other stairs. They relate to three not four step treads, see photograph 5, Exhibit 3, and do not appear to me to involve the fabrication or manufacture of a set of stairs with handrails. He admitted that he had no knowledge of what became of the two lengths of step tread the subject of purchase order T15673 and that there are no steps in the plant three metres wide. He said, “they could be anywhere. I don't know”. He also admitted that one could “come to the assumption” that the records do not relate to the subject stairs and that “positively” he really did not know one way or the other. He was unable to produce any records relating to a set of stairs with four treads. Notwithstanding his evidence, I think the likelihood is that it was the subject stairs that are the ones referred to in the minutes, Exhibit 27, and the form 121, Exhibit 28 in which case they were replaced in the shutdown at the end of 1995. See also Exhibit 29. Mr Corstiaans conceded this was possible whilst stating though that he still thought they were replaced in 1994. He could not though locate any other form 121 that could relate to the subject stairs.
Mr Twist described the stairs before they were changed as “very narrow, you could not walk down with your foot out, you had to turn your feet to the side to go down”, page 247. Plant renovations were carried out in 1993/1994 during which time these unsatisfactory stairs were installed. There were complaints about them and they were replaced by those shown in photograph 5, Exhibit 3. Mr Twist had no recollection of when this occurred, but thought it was about three or four months into the 1994 season. He also appeared to have difficulty recalling whether the stairs were punch plate or checker plate. I have no confidence in his recollection about when the stairs were replaced.
In my view, the stairs on which the plaintiff slipped were unsafe and their design increased the risk of injury for persons such as the plaintiff who used them. Both experts effectively agreed this would have been the case and I accept their evidence. The stairs were too steep, the treads were too narrow and the nosing edges were not highlighted and they were checker plate not punch plate. The risk of slipping could also have been reduced by making the handrails less slippery and having in place, subject to hygiene requirements, a line bar or grid mesh catwalk over which employees walked before descending the stairs. A bright yellow Carborundum nosing strip on each tread at a cost of $25 to $30 per tread would have highlighted the nosing edge of the tread and improved the friction.
Mr O'Sullivan said, (page 171, 176)
“I am suggesting to you that you recommended, no doubt, as an ideal situation the Carborundum, that if there was a piece of frank fat which caused the fall or the slip, that really the strip would have little or no preventative effect on that slip?-- That's not what I found when I tested a lump of fat on the type of material that I am talking about. It does have a good capacity to penetrate through the fat very quickly to the shoe and that's really the purpose of it, to penetrate the contaminant and provide that direct contact for friction.
The point is that the primary measure would have to be slip resistant strips on the steps. The other measures can help reduce some of that contamination being spread and the strips on the handrails can help as a second line of defence and increase the friction if they happen to slip and grab that handrail for support.”
Dr Jenkins said, (page 192, 204)
“Are you familiar with the nosing strips that Mr O'Sullivan refers to in his report?-- I am assuming - I can't remember the name of the brand-----
Yeah, a brand?-- -----but there is a brand of strips which have on the top surface a width of perhaps 5 millimetres and maybe 50 millimetres going down the riser of the stair. They can consist of an abrasive material in an epoxy matrix and they are usually painted yellow, especially when they are new. They wear to a black colour. So that in either case if you placed them on these steps, there would be a couple of occasions that that was on the end of the step.
He also says it works well with fat. Have you tried them?-- Yes, I have certainly encountered them and I have looked at them on stairs. They will deal with fat, as with any rough surface, up to the point where you get a layer of fat or an impregnation of fat which is as deep as the roughness on the surface.
Which is too much - what's the right word - accumulation?-- That's right. My estimate of roughness of the material, we are talking about between one to two millimetres. So that if you had a two millimetre layer of fat build up on that, then it would have less effectiveness, but until that happened it is certainly slip resistant.
It is certainly better than not having it at all?-- Well, in terms of slip resistance, I don't think it makes much difference on these particular stairs because the stairs are made of a slip resistant material across the full width of the tread and the slip resistance of that punch plate would be roughly equivalent to what you achieve with the nosing. To me the significant aspect of having the necessary width is it would be visible as to where the edge of the step is. I don't believe it would make a significant difference to the slip resistance of these particular stairs.
I really think the nosing is separate. As I said, it's primarily there in my view to highlight visually the step.”
I think that such a nosing strip would also have increased friction and thereby reduce the risk of slipping.
Both Mr O'Sullivan and Dr Jenkins agreed that checker plate as opposed to punch plate increases the risk of slipping. Mr O'Sullivan said that with or without fat checker plate was more slippery than punch plate.
Dr Jenkins said, (pages 187, 204)
“In general, I would say that the - the punch plate or blister plate, as it's called, would be superior in slip resistance to checker plate.
My assessment would be that checker plate is less slip resistant than the punch plate which is in those particular stairs.”
Mr O'Sullivan said that a narrow tread increases the risk of overstepping the step, failing to get enough purchase with the ball of the foot and simply sliding over the edge. He said the steeper the stairs are, the more difficulty people will have using them. Dr Jenkins agreed. He said at page 187,
“In terms of safety, obviously if the goings are substantially shorter than what is suggested by, for instance, that - that diagram, then you'll reach a situation where there is not sufficient room to put your foot down. What's necessary when descending stairs and the greatest problems arise in descending, is to get the ball of your foot at least onto the - the leading edge of the - the step in order to have a sure footing as you go down. So, if the - if the going becomes too short then that will not be possible, you'll be pointing your foot down at an uncomfortable angle and an unstable angle.”
And at page 206,
“If you reduce the going further, then you are moving further to the left, to a steeper stair and a more unsafe stair, yes.”
Both agreed that a combination of these factors would further increase the risk of overstepping and slipping. See the evidence of Mr O'Sullivan at page 167. Dr Jenkins said, (page 206)
“Then if you put all three of those factors together, that is to say, you have a checker plate, smaller going and steep stairs, like the ones you've reported on?--Yes, all of those factors or the combination of the factors lead towards a greater risk of slipping going down the stairs.
And the stairs that you reported on, are an improvement on the ones I have been talking about as the plaintiff's stairs?-- Yes, yes.”
So far as line bars are concerned, Mr O'Sullivan said, (page 175)
“I think there's some potential here for putting in line bars if it doesn't lie over a hygiene required belt and as I said earlier, you can always put line bars over a plate and secure the line bars with lugs so that cleaners can lift up the panel at the end of the day and clean it.
If we accept that line bars has a greater slip resistance than checker plate, it really doesn't have a substantially greater slip resistance to punch plate, does it?-- Line bars may not have much of a slip resistance at all. It may be in fact equivalent to checker plate. The benefit of it is that as you walk across the main bars of the line bars you can scrape your feet before you get to the steps. I would say it is probably equivalent. It may be up with blister plate. The line bars I am talking about is on page 10, which is the serrated line bars which gives some slip resistance both in a side to side direction as you look at this plate or this panel of it and also in the forward and backwards direction. So, I mean, it is not too bad, particularly with certain contaminants that you want to push through.
The effectiveness of that would depend on whether people walk along scuffing their feet or whether they in fact lift their feet when they walk?-- That is right. It is one of those things where you say to people, “You have got to get that fat off your feet. You should be scuffing your feet before you descend down the stairs”, and through these measures they control the fat travelling around the place.”
Dr Jenkins could see some practicality in “some sort of grid bar as part of the normal walkway provided it is feasible and safe to clean underneath that area”, page 185. He also said, (pages 192 - 193)
“Now, the line bars is the other thing he says that can be used?-- Yes.
That's at such a stage where you walked you would knock that off your shoes - what Mr O'Sullivan says is that you have these line bar locations where there is a sufficient distance covered so that you've knocked the fat off your shoes before you get to the stairs thus minimising the accumulation?-- Yes. Well, I think I indicated to Mr Alldridge that that certainly had potential. The only location with respect to these particular stairs, the only location where that could be done would be in the walkway which goes across the conveyor belt and it would then have to be protected by another surface under it and as I indicated, the only concern I have with that is that someone then has to lift up those bars to clean away the material and there is a lifting problem there, that's all.
It is a matter then of sizing them, isn't it?-- Yes.
You don't give them a full bar width. You would give them a foot width?-- Yes.”
He agreed, page 204, that they “would have the effect of reducing the fat and whatever else eventually ends up on the stairs”.
So far as the handrails are concerned, Mr O'Sullivan opined that even those shown in photograph 5, Exhibit 3, would be slippery with not much grip at all. He said, (pages 168-169, 173, 174)
“How could you improve the handrail grip to help arrest a fall?-- There needs to be some - some grip there and you need to take account of the work situation. My understanding is that Ms Anderson was dealing with rumps or some other cut that had joint fluid, which is very slippery, which means on smooth metal you're not going to have much grip at all. If you do happen to lose your balance and you grip that handrail, it may not be much help. So, there needs to be some friction there or a matt finish or maybe - you can get adhesive tape that's Carborundum finish. You could possibly do a bit of metal work on the handrail to make it a matt finish and still cleanable. So, I believe there needs to be some amount of friction, not too much, not too little.
The reality is, Mr O'Sullivan, that if it was too abrasive like Carborundum would be, that people would find it rough on the hand, then they simply wouldn't use the handrails; isn't that the practical effect of that?--That's right and that's why in the original report I talked about the issue of making sure it is not too rough or too smooth. In fact, research done on that, people who are - a person who is a significant researcher in the field on page 10 of my original report, John Templar, you will see the quote there in italics, that if it's too smooth, slippery, it may cause it to be abrasive, it may discourage people. So, there needs to be some sort of compromise between the two.
Handrails are not designed usually for support. They are simply as a guide and assistance to the person walking down the steps?-- They're meant to provide a means of balance and guidance, as you say there, but they're also there to assist people if someone loses balance and is perhaps capable of grabbing the handrail and avoiding the fall. But there is a key issue here, that it's a secondary line of defence, certainly, after the frictional factor of the step tread itself.”
Dr Jenkins said, “I think the matt finish may be feasible and - and maybe also useful,” page 186.
It was reasonably foreseeable that the plaintiff could be injured by slipping on the stairs. She did slip and injured her thumb as she tried to arrest her fall. The stairs were unsafe in the respects referred to. The defendant was, I find, negligent in not doing certain things in relation to the stairs, not taking certain reasonable steps (of the nature I have referred to) which would have obviated or avoided or minimised the risk of injury to the plaintiff. A safe system of work was not provided. The plaintiff was not safeguarded from unreasonable or unnecessary risk of injury. The stairs could easily have been safer; in fact they subsequently were.
I find the defendant negligent in the respects alleged in paragraph 4(a) to (e), (h) to (l), (q) and (r) of the statement of claim. The defendant did not pursue the allegation of contributory negligence and in any event I would not find the plaintiff guilty of contributory negligence.
The defendant conceded its liability for a breach of statutory duty if I found the defendant negligent. I find therefore the defendant guilty of a breach of statutory duty for the same reasons as I have found it negligent.
Turning now to damages. The plaintiff was born on 28 September 1948. For much of her working life she has worked as a meatworker. She had a good work history. Generally I accept what she says in her statement, Exhibit 1, subject to the qualifications that I think she had pre-existing problems with her right hand and would now probably find it difficult to return to the work workforce for reasons unconnected with her injury. I also accept her husband as to what he says he does around the house and what the plaintiff apparently cannot do.
As a result of the accident she was placed on light duties on 10 October 1995 until 20 December 1995, probably the end of the season, and from 26 June 1996 until 26 September 1996. Her income was less than normal during those periods because of the fact that she was performing light duties. She has been unable to work for the defendant since November 1996. In May 1998 Dr Low cleared her for alternative duties at the meatworks, but she was told there was no position available for her. Her employment is said to have effectively been terminated on 18 May 1998.
Between 19 May 1998 and 29 September 1998 she earned an estimated $2,388 net from cleaning work. From 5 August 1998 until 23 January 2000 she worked at the Garden Settlement Nursing Home as a nurse's aide. During this employment she upgraded her qualifications by on the job training to a certificate 3 assistant in nursing.
On 23 January 2000 she ceased work all together because of high blood pressure and chest pain requiring overnight hospitalisation. She has been unemployed since then. Her present position is described in paragraph 36 of her statement, Exhibit 1. She has had a problem with high blood pressure since the early 1990s which she said she had managed with medication. She is currently taking tablets for her heart and blood pressure. She cannot use her right thumb to grip, it hurts, causes pain. Most day to day functions connected with her thumb cause pain. Her use of her right hand is accordingly limited and restricted.
The nurse's notes, Exhibit 7, indicate problems with her right wrist and thumb in 1994. She says this was of a different nature to that caused by the injury in August 1995. At any rate, it did not prevent her from carrying out her normal employment with the defendant.
Dr Bruce Low in Exhibit 35A refers to X-rays of the plaintiff's wrist being “entirely normal” in October 1995 and in Exhibit 35B as being “normal” in January 1996. When first seen by Dr Low in October 1995 she was complaining of a lot of pain at the base of her thumb. Examination showed, (Exhibit 35A):
“a lot of tenderness in the meto-carpo carpal joint, the tubercle of the scaphoid, the radial styloid and the radial thumb tendons. They are all painful. Movement of the wrist causes a lot of pain. Passively moving the thumb around causes a lot of pain.”
In Exhibit 35F he described her condition as “tendonitis around the wrist”, later referred to as “tendonitis of the flexi-carpi radialus”. See Exhibits 35G and H. She underwent a decompression of the tendon with loss of “the deep seated pain in the base of her thumb”. See Exhibit 35I. By January 1997 some of her pain had returned. See Exhibit 35K. Dr Low was unsure of what was causing her ongoing symptoms. See Exhibit 35M.
Eventually Dr Low fused the meto-carpo carpal joint of the right thumb which “definitely improved her pain”. See Exhibit 35P. In May 1998 he said, (Exhibit 35P)
“She will have a stiff thumb, but she will be suitable for alternate duties. She should be able to pinch, oppose and flex the thumb into the palm to make a good grip in the pain. Her pain should be quite minimal in the future. She has lost some mobility in the thumb due to the fusion of the first meto-carpo carpal joint. I think this the aetiology of the pain all along. This condition is definitely work related.”
I think he was too optimistic in this prognosis. His report of 16 December 1999, Exhibit 35Q, and in his evidence, Dr Low adhered to this opinion. In evidence he said the little joint where the thumb joins the wrist had become arthritic. He said, (page 305)
“The arthritis could be naturally occurring, however, it can be aggravated by a series of minor events such as repetitive work or a major single traumatic event for example.
Mrs Anderson has told the Court that at the meatworks she slipped down some stairs and bent her thumb right back which caused instant and intense pain. Is that the sort of trauma that could cause the problems?-- That would cause a sprain to the joint, and if the joint was already arthritic, that would accelerate the symptoms from the joint.
And lead to what's happened to her?-- Yes.”
I prefer this evidence to the opinions he expressed in Exhibit 35R because the latter was based on a history different to what I have found.
In evidence he said the cause of her problems “is multifactorial”, page 308. He thought she had a pre-existing arthritic joint which was to some extent symptomatic and which symptoms have been accelerated by the injury. Her current symptoms are not completely the result of the trauma, some are the result of naturally occurring arthritis, page 309.
Dr Low also said, and I agree, that “a radiological diagnosis of degeneration does not equate to a clinical situation of symptoms; you can have major degeneration on an X-ray and zero symptoms”, page 307. Dr Gibberd agreed. See his evidence at page 275.
In the plaintiff's case I find she was having some pre-existing symptoms. I think the likelihood is that she was having and had for some time had, problems with her right hand and wrist before she suffered the injury on 21 August 1995 and that injury aggravated or accelerated pre-existing degeneration. This was the opinion of Dr Peter Milroy and I think it is generally correct subject to the fact that I think he has overvalued the effect of the pre-existing degenerative changes and undervalued the effect of the trauma. He agreed that the fact that there were no 1995 attendances on the nurse prior to 21 August 1995 would increase the significance of the injury, page 233. According to Dr Milroy, the plaintiff told him that she had no previous trouble whatsoever with her thumb, whereas in fact she had some, according to the nurse's notes. She said however that the injury caused pain was a different type of pain, but I do not in all respects accept that. I think she had some similar symptoms caused by the nature of her work and degenerative change, but the injury greatly exacerbated them and perhaps also caused something new. Dr McGucken, Exhibit 23, thought the pain she reported in her right thumb on 11 January 1995 was caused by osteo-arthritis.
Dr Milroy said, (page 238)
“Would you expect, if there was osteo-arthritic changes in the thumb and hand, would you expect that an impact injury, or an injury where she bent her thumb back such as has been described on the steps, would you expect that would cause an increase in pain and perhaps something described as a different type of pain?-- I think it could.”
He thought the degenerative changes had probably been present for many months to a few years, page 240. Dr Macfarlane also believed there was some relatively minor degenerative change present before the accident, page 243.
I think it most likely the plaintiff suffered a soft tissue injury or tendonitis and also aggravated pre-existing osteo-arthritic changes in the trapezio-metacarpal joint of the right thumb which is close to what Dr Macfarlane says in Exhibit 31E. Further, it is most likely that her present symptoms are due to injury and the pre-existing degenerative changes themselves and as aggravated.
The bone scan of 6 December 1995 as interpreted by Dr Boles to a large extent supports the view of Dr Macfarlane. Dr Boles said, (page 270)
“It's consistent with either degenerative change, soft tissue injury or both?-- No, it would be-----
Or a combination of both?-- It wouldn't be consistent with soft tissue injury. It would be consistent with degenerative disease or very minor injury to bone because there's no activity on the blood flow or blood pool phase of the study. If you've got that, you've got soft tissue injury.
So, it's consistent with degenerative change, minor bone injury or a combination of both?-- That's right.”
I also agree with Dr Macfarlane that had the accident not occurred she would most probably by her mid 50s have become unfit to continue work as a meatworker and would have had to move to lighter more supervisory work. See Exhibit 31E, paragraph 7.
Dr Gibberd thought the accident aggravated her pre-existing condition which was mild degenerative change, except that if the pain caused by the accident was totally different and from a different site, then she could have suffered a different injury. He did not think this scenario credible though. Dr Gibberd saw the plaintiff once in 1997. I prefer the opinion of Dr Macfarlane. Dr Gibberd thought that her pre-existing condition would sooner rather than later have impacted on her capacity to work.
Finally, I have to consider the plaintiff's employability and her related claim for future economic loss. Mr Walkley, Exhibit 37, was quite pessimistic about her employment prospects. His report is dated 1 September 1998 and he last saw the plaintiff on 7 August 1998. It was after then that she in fact obtained employment at the nursing home and in all probability she would still be in that employment but for her heart and blood pressure problems. Mr Walkley did not, of course, consider those problems or address the effect on her continuing employability, had she not been injured, of her pre-existing degeneration.
So far as Mrs Purse and her report is concerned, I accept what she says, qualified as it was by her evidence that she could not distinguish between difficulty due to degeneration and due to injury. She also focused on the disability caused by her thumb. She also did not take other health factors into account. It is clear though, that her hand related disability is at least, in a significant part, due to the accident.
There is no medical evidence in relation to whether the plaintiff's heart and blood pressure problems, and there is also hypertension according to Mr Pope at page 317, are likely to permanently prevent her from returning to her work at the nursing home and I would have expected some evidence about the matter, especially as those problems caused her to cease work.
In the circumstances, I am unable to be satisfied that she would have been able to work past 23 January 2000, even if she had not injured herself. I think it more likely that in any event, her working life would have ceased on that date. She has therefore, not established any entitlement to future economic loss.
In average terms, over the whole period from the accident and for the future, I think that about 75 percent of her problems are generally attributable to the effects of the accident. It had traumatic consequences for her, much exceeding what would have been likely to have occurred in any event and in the absence of such accident. This places her halfway between scenarios one and two on Mr Pope's summary of damages, Exhibit 41, but excluding future economic loss and the claim for future superannuation.
I think she is entitled to past economic loss on the basis calculated, but brought back from March 2000 to 23 January 2000, a period of about four weeks.
Her claim for future domestic assistance should, I think, be further discounted because Mrs Purse has not taken into account any disability relating to her current non-work related problems.
Her claims for past and future beauty care, hairdresser and legs and facial waxing should also be discounted because on occasions she would probably, in any event, have availed herself of those treatments.
Using Mr Pope's various headings which were also used by the defendant, I assess damages as follows:
Pain, suffering and loss of amenities | $25,000.00 | |
Interest on $12,500 at 2% | 1,250.00 | |
Past economic loss | 43,840.95 | |
Interest on $26,938.95 at 4% | 5,387.79 | |
Past superannuation | 3,757.79 | |
Special damages | 5,780.05 | |
Interest on $1,985.85 of special damages | 372.18 | |
Past Griffiths and Kerkemeyer | 15,406.00 | |
Interest on past Griffiths and Kerkemeyer | 1,540.60 | |
Future Griffiths and Kerkemeyer | 13,850.00 | |
Past beauty care | 1,000.00 | |
Interest on past beauty care | 100.00 | |
Future beauty care | 2,000.00 | |
Future medication | 2,338.00 | |
Fox and Wood component | 4,337.00 | |
| Total: | $125,960.36 |
| Less WorkCover charge | 26,297.00 |
| Balance: | $99,663.36 |
In all interest calculations, I have used a period of five years.
I give judgment for the plaintiff against the defendant for $99,663.36. I give the parties liberty to apply on two days' notice in respect of any of the calculations. I order that the defendant pay the plaintiff's assessed costs of the adjournment of the trial on 3 November 1999 and that the plaintiff pay the defendant's assessed costs of the adjournment of the trial on 13 March 2000. The order in respect of those two dates was agreed by counsel.
...
HIS HONOUR: I will at this stage order that the defendant pay the plaintiff's costs of the action to be assessed, if not agreed. I will give the plaintiff liberty to apply on two days' notice to the defendant in respect of that order should another order be sought.