Manwaring v Smorgon Steel Pty Ltd
[2000] QDC 413
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- Unreported Judgment
- Manwaring v Smorgon Steel Pty Ltd[2000] QDC 413
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Manwaring v Smorgon Steel Pty Ltd[2000] QDC 413
Manwaring v Smorgon Steel Pty Ltd[2000] QDC 413
DISTRICT COURT OF QUEENSLAND
CITATION: | Manwaring v. Smorgon Steel Pty Ltd [2000] QDC 413 |
PARTIES: | GLENDA DOROTHY MANWARING (Plaintiff) v. SMORGON STEEL PTY LTD (Defendant) |
FILE NO/S: | 3774 of 1997 |
DIVISION: | |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 8 May 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7, 8 February 2000 |
JUDGE: | McGill D.C.J. |
ORDER: | Judgment that the defendant pay the plaintiff $129,162 with costs to be assessed. |
CATCHWORDS: | EMPLOYMENT LAW – Injury to Employee – liability of employer – damages. Brisbane South Regional Health Authority v. Taylor (1996) 70 ALJR 866 – cited Schiliro v. Peppercorn Child Care Centres Pty Ltd [2000] QCA 18 – followed |
COUNSEL: | R..M. Bourke for the plaintiff M.T. O'Sullivan for the defendant |
SOLICITORS: | Goodfellow & Scott for the plaintiff Clayton Utz for the defendants |
- [1]By this action the plaintiff claims damages for injuries which she claims she suffered on 18 December 1995 when she slipped off the edge of a pallet at work and hurt her right ankle, and in a further accident on 1 August 1996 when she tripped over a door-mat and fell heavily as a result of which she suffered a fracture of her left leg. Liability and quantum are both in issue, and the defendant denies that the first incident occurred at all.
Preliminary Matter
- [2]In the plaint the plaintiff claimed damages for negligence and/or breach of contract of employment and/or breach of statutory duty, the duty relied on being that imposed by s. 9(1) of the Workplace Health and Safety Act 1989. It was submitted on behalf of the defendant at the trial that there could be no action for breach of statutory duty under that Act, since it had been repealed by December 1995. The plaintiff in response sought and was granted leave to amend the plaint to rely instead on a breach of s. 28 of the Workplace Health and Safety Act 1995. The defendant then sought leave to amend to plead the defence, in respect of which the onus is on the defendant, in answer to a claim for breach of duty under that statute: Rogers v. Brambles Australia Ltd [1988] 1 Qd.R. 212. In fairness to the defendant, if the plaint is to be amended in this way it must be on the basis that the defendant is taken to have pleaded the matters necessary to assert impracticability.
- [3]The defendant also wanted to argue that there was no cause of action for damages given for breach of s. 28 of the 1995 Act, and the defendant’s right to argue that was reserved if it became necessary to decide that issue. Since judgment was reserved, however, the Court of Appeal has decided, in Schiliro v. Peppercorn Child Care Centres Pty Ltd [2000] QCA 18, that s. 28(1) of the 1995 Act does provide a civil cause of action to injured employees. That decision is binding on me and therefore there is no point in the defendant’s agitating this point before me, or I suspect before the Court of Appeal. Therefore, liability is potentially open to the plaintiff under each of the three causes of action.
- [4]At the relevant time the plaintiff worked in the office of a business which supplied wire. She had previously worked for some years (p. 57) for a company, Southwire, a family business (p. 5) where she was administration manager, but in 1995 that company was taken over by the defendant and the business was re-located to the relevant premises, where she worked in the office in connection with the continued operation of the relocated business: p. 6. She received computer training, and part of her work involved feeding into a computer stocktaking information. Her work was carried out in an office which had been converted from a flat (p. 75), and she worked in a room which had carpet on the floor; outside her office there was a hallway which lead out of the building and ultimately to the warehouse where the stock of wire was kept.
The Incident on 18 December 1995.
- [5]The wire sold by the business included barbed wire, rolls of which were stacked on pallets and shrink wrapped in plastic, which however did not entirely cover the barbs. These pallets could then be stacked 2 or 3 high and several pallets deep. Such a stack appears in a photograph Exhibit 5. The plaintiff denied that it was a requirement of the defendant that she wear shoes with a hard toe and a rubber sole if she went into the warehouse (p. 58) or that she was paid an allowance for purchasing such shoes prior to 1996: p. 59.
- [6]In 1995 there was a fully computerised stock system maintained by the defendant. The plaintiff said that stocktaking was done every few months and that there was a stocktaking in December 1995 before the close-down at Christmas: p. 6. She had to feed this information into the computer, but said that she had been told by Mr. O'Sullivan the Accountant at the Melbourne office that if there was any discrepancy she had to go and check the discrepancy and do a re-count: p. 6. Mr. O'Sullivan who was called as a witness confirmed that it would have been part of the plaintiff’s role, if a discrepancy showed up, to check herself, although he said she could have sent someone else to do that: p. 167. He understandably enough could not recall whether he spoke to the plaintiff on 18 December 1995, but could not exclude the possibility that that occurred: p. 167. He said that part of her role was to be pro-active in trying to get some inventory control on the site, and it was possible that he gave her some instruction in relation to a stocktake: p. 168.
- [7]Mr. O'Sullivan said that there were two stocktakes a year on average, one of which he would attend (p. 167) and produced company record demonstrating that he had flown to Brisbane from Melbourne on 27 October 1995 and had returned 2 days later for the purpose of a stocktake in Brisbane: Exhibit 18. He would expect that the next stocktake would have been about May the following year, and he did not travel to Brisbane until the following February: p. 166. He could not however have excluded the possibility that there was some further stocktaking in December 1995: p. 167.
- [8]The plaintiff said that on 18 December 1995 she found that the physical count of the barbed-wire did not match the computer records, and so went into the store in order to count the barbed-wire herself: p. 7. She was wearing what she described as low court shoes, comfortable shoes, the soles of which may have been wet because it had been raining that day. The plaintiff said that because she was unable to get down the side of the barbed-wire stack she climbed onto the front pallet that was on the ground (p. 63) putting her foot into the available space and trying to see what was over at the back of the stacks: p. 9, 65. . The plaintiff was not offered and did not receive assistance, nor did she consider using any form of mechanical aid: p. 61. She got a toe-hold somewhere near the corner: p. 9 and see Exhibit 6, p. 66. Her initial description of the accident was that she slipped off the pallet and ended up on the floor, and when she regained her feet her right ankle was hurting: p. 10. Under cross-examination she was really unable to give any detail as to how the accident happened (p. 70), and I have the impression that any attempt by her to give such detail was really more based on re-construction than recollection. That day she carried on with her duties, although she said she did tell people that she had hurt her ankle, the dispatch manager, the production manager Mr. Curran, and his assistant Mr. Loschiavo: p. 10. Mr. Curran and Mr. Loschiavo both denied that any such incident had been reported to them. The plaintiff said she was not asked to fill out a form about the accident in December 1995 and did not do so: p. 69.
- [9]According to those witnesses, the process of stocktaking involved a number of employees who worked in terms of two or three, completing books which would be brought back to the plaintiff for the data to be fed into the computer: p. 58Mr. Curran said that he could recall stocktakes being taken in 1995; they were held twice a year, but he thought the second one was in November rather than December: p. 142. He described the way information was collected in the stocktake, and how the plaintiff would feed that into the computer system: p. 143. She also did some checking of the teams while they were working. Mr. Curran did not think that the plaintiff did any personal checking if there were any inconsistencies in the stocktake. Mr. Curran said he had absolutely no recollection of the plaintiff’s reporting to him on 18 December 1995 of her having injured herself at work; the first he could recall having heard about it was in April the following year, when the plaintiff came and referred to the incident which he said he then did not recall: p. 145. Mr. Curran said that after the stocktake there was a luncheon put on by the company during which the plaintiff gave no indication of having any problems with her leg: p. 146. The plaintiff admitted that she went to a luncheon after the stocktake, which she enjoyed, but said she would certainly have been limping at that stage: p. 67. He also did not recall any sign of anything wrong with her leg in the period leading up to the Christmas break. He did, however, recall her wearing something on one foot prior to the fall on a mat in August 1996, and having it elevated at work a bit: p. 146.
- [10]Mr. Curran said that apart from the full stocktake there was a system under which each month two individuals would do some particular stock checking, and the plaintiff might have been involved in keying in information in connection with that. She thought that she had worked after lunch that day. Mr. Curran did not recall any stock take the week before the Christmas break in December 1995: p. 148. He said it was not the plaintiff’s duty to check any discrepancy revealed by one of these stock checks: p. 150.
- [11]Mr. Loschiavo also denied that there had been any report to him about an injury to the plaintiff on 18 December 1995: p. 155. He recalled a stocktake in the latter part of 1995 and remembered the plaintiff at the lunch after it but did not recall her showing signs of any problem with her right ankle then: p. 156. Mr. Loschiavo could also recall the plaintiff’s walking with a limp at some stage, but he could not say when: p. 158.
- [12]The plaintiff’s husband said that when she came home from work on 18 December she complained about having hurt her ankle, and said that this had happened when she had slipped off the side of a pallet she was standing on while doing a stocktake at work: p. 117. He noticed her limping as if she had sprained it, and he thought it would just get better but it did not seem to improve and eventually she went to see the doctor. He said that she put a bandage on her ankle: p. 119. I was rather impressed by Mr. Manwaring as an apparently honest and straightforward witness in the way he gave his evidence. If the plaintiff’s evidence is true this is the sort of thing I would expect him to remember.
- [13]The plaintiff’s son also gave evidence and said that on the night of the injury the plaintiff complained that she had injured her ankle at work, having slipped from a pallet while she was doing a count: p. 103-4. Subsequently she had it bandaged up, and she appeared to be in distress and have difficulty walking. The plaintiff’s son would have expected the plaintiff to have sought medical treatment promptly if she felt there was some major damage done: p. 108. The son was 17 in 1996: p. 109.
- [14]The plaintiff said the business closed down on 22 December before the Christmas break, and she continued to work until then (p. 45) although she had an elastic bandage wrapped around her ankle and it was causing her pain and discomfort: p. 11. She did not at that stage see a doctor, and during the Christmas break rested the ankle but it continued to give her trouble so that she cancelled her Christmas activities and rested, until eventually on 8 January 1996 (p. 74), she saw her general practitioner. The plaintiff said that the delay was because she had hoped that the problem would right itself over the Christmas period, and in any case her doctor was away at that time: p. 45. He referred her to an orthopaedic specialist, Dr. Dodsworth. He suggested that she wear an air cast, which is something which straps tightly around the ankle to stabilise it: p. 12. The plaintiff said she wore this for a couple of months but it rubbed her skin and she eventually gave it up. She also had physiotherapy from 16 May to 20 June 1996, and was given an exercise program.
- [15]The plaintiff applied for Workers’ Compensation in respect of the injury, but not until 4 April 1996: Exhibit 9. In her application form she described how the injury occurred as: “stumbled against an object on the floor – falling and twisting ankle/foot in process.” This did not correspond to her account in court, and she was really not able to give a plausible explanation for the inconsistency: p. 72. The form did however say that she was check counting for a stocktake at the time, that she did not lose time off work, and that she reported the accident soon after it occurred to Mr. Curran. The employer’s report completed the same day (Exhibit 8) is to the same effect, but the explanation is that it was based on information provided by the plaintiff: p. 156.
Analysis – First Incident
- [16]It was submitted on behalf of the defendant that I should not be satisfied that the first accident occurred at all. I should accept the defendant’s evidence that it had not been reported on 18 December, and that when it was documented the following April, the terms were quite different from the description given in court. Reference was also made to the inability of the plaintiff to give any sort of a detailed account of how the first accident happened. There is some force in that, but it does not necessarily follow that the first accident did not happen. An inability to give a detailed account may be simply the product of poor recollection or a difficulty in putting matters like that into words; if the plaintiff had concocted a story I would expect her to have more of a story to tell. One difficulty with the evidence about a lack of reporting the incident is that the plaintiff is now identifying this fall with the stocktake, but it seems fairly clear that the major stocktake in the latter part of 1995 took place in October when Mr. O'Sullivan flew up from Melbourne. The plaintiff does not claim to have injured herself in October, and accordingly she will not have given any sign during that stocktake of having injured herself, nor will she have complained to anybody at that time. Hence her evidence is not inconsistent with an absence of complaint during that stocktake, or with her appearing fit and happy when it was over. Mr. O'Sullivan conceded that the plaintiff might have had to do some checking of stock in December 1995 and I suspect that the explanation is simply that what the plaintiff did was not associated with one of the major stocktakes, but was simply a specific check which she did in the course of her employment.
- [17]If the fall on 18 December was not seen at the time as being anything of any great consequence, it may have been mentioned in passing by the plaintiff rather than being reported as an accident or injury in a more formal sense (see p. 66), and in those circumstances Mr. Curran and Mr. Loschiavo may not have paid any particular attention to it, and quickly forgot about it. That could be the case, particularly if the plaintiff had indicated that she did not think that anything very much was wrong with her at the time, which would have been consistent with the plaintiff’s staying at work that day and until the Christmas break, and not seeing a doctor until 8 January. This would also account for some vagueness on the part of the plaintiff as to just how the accident happened. Usually a plaintiff has good reason to recall details of how an accident happened, because it was significant to the plaintiff at the time, but that would not have been the case with this one. The right ankle has been a matter of any significance only because it has not got better. Under these circumstances, Mr. Loschiavo may well have thought that it was not a matter which justified a formal accident report, and he and Mr. Curran may well have forgotten about it by the following April..
- [18]One of the difficulties about forgetting things is that once one has forgotten something, one does not know that it has been forgotten, or that it was ever known: Brisbane South Regional Health Authority v. Taylor (1996) 70 ALJR 866 at 871 per McHugh J. That, of course, makes it much more difficult for a defendant to prove that something did not happen. Nevertheless there are some indications that some of the defendant’s witnesses have forgotten things. For example, Mr. Curran recalled that the plaintiff was, for a time, wearing something on one foot and keeping it elevated at work prior the accident in August 1996 (p. 146) which was consistent with the plaintiff’s evidence, and Mr. Loschiavo recalled the plaintiff’s walking with a limp, but not the appliance on the ankle (p. 158), whereas Ms. Huntley did not recall any earlier accident or any problem with the plaintiff’s right leg prior to August 1996, although she apparently had quite a lot to do with the plaintiff during this period: p. 140-1. Mr. Knock also had no recollection of the plaintiff’s experiencing any difficulty with her right ankle or foot prior to 4 August, or her having worn the strap on the right foot: p. 163. This just illustrates how sometimes people remember things and sometimes they do not, and how the fact that a witness has no recollection of something does not necessarily mean that it did not happen.
- [19]That the plaintiff was injured at work on 18 December is supported by the fact of the complaints that day to her husband and her son. I am conscious that these two witnesses would have an interest in supporting the plaintiff, but I do not think that they were lying to me about this matter, and I am prepared to accept their evidence that the plaintiff did complain on 18 December about the injury to her ankle at work and was showing signs of an injury thereafter. Accordingly, if this is something the plaintiff has made up, the story must have been worked out by that date. That is inconsistent with the defendant’s theory that the plaintiff suffered some injury during the holidays. It seems from medical evidence that the plaintiff did suffer an injury to her right leg at some stage.
- [20]There were some problems with the plaintiff’s credibility; there was some inconsistency, I thought, between her and her husband and son, as to who did what around the house now, particularly about the question of her going shopping with her husband. In the light of this (and other matters referred to later about damages) I am wary about the plaintiff’s evidence, and I think she is making the most of her injury in her evidence, something which is not particularly unusual. But there is a big difference between that and giving evidence of an injury that did not happen at all. Notwithstanding the various arguments advanced on behalf of the defendant, I am satisfied that the plaintiff’s evidence is generally accurate, and that she did injure her right ankle in the way she describes in the course of her employment on 18 December 1995.
- [21]The plaintiff’s injury occurred in a simple enough fashion, and climbing on the pallet must have seemed like a reasonable thing for her to do at the time; she said at the time she thought what she was doing was safe. It is difficult to see that a reasonable employer would need to warn her not to climb on the pallet in this way, given the sort of work she was ordinarily doing, and the fact that one would not expect climbing on the pallet to provide much assistance in seeing what wire was the stack. But I think that the accident could have been avoided if things had been arranged differently, simply by storing the wire in a way which would enable the stock to be checked easily from the side of the stack. This is the way in which the wire is stored now, but the plaintiff said that it was quite different at the time of the accident. Given that stock has to be checked from time to time, an ability to walk along the side of the stack to do this is advantageous in making it easier for employees to check the stock, and hence reduces the risk of injury to them by doing so. The fact that subsequently the system has been changed so as to enable this to occur shows that it was not impracticable to have arranged things in such a way at the time. It follows that there was a failure to ensure the plaintiff’s safety at work, and it was not impracticable for the defendant to have done so, so the defendant is liable for breach of statutory duty in respect of the first incident.
- [22]With regard to contributory negligence, the plaintiff thought that what she was doing was safe, and climbing on the pallet was not, I think, something which a reasonable person in her position would have regarded as dangerous, or something which should have been avoided. It was, I think, in the circumstances conduct which was consistent with reasonable care for one’s own safety. It did not involve disobedience of any instructions that she had been given. She was simply trying to do the best she could in circumstances where there was a difficulty in the way of her doing what was expected of her. In all the circumstances, I am not persuaded that there was any contributory negligence on the part of the plaintiff in relation to the first incident.
The Incident on 1 August 1996
- [23]On 1 August 1996 the plaintiff had started work at about 6 am, and shortly after 8 am was standing in the hallway outside her office talking to another employee, Ms. Huntley, and having coffee: p. 16. Her office had carpet on the floor: the hallway had a tiled floor: p. 17. There was a coir doormat on the floor in the hallway, at the entrance to her room. While talking to Ms Huntley the telephone rang and she went to answer it; she said she then changed her mind because she was reminded that the answering service would have been still switched on: p. 18. In the course of this change of direction her foot became tangled up with the mat, or tripped over it, and she fell heavily onto the floor of her office: p. 18.
- [24]There is no reason to doubt that the second incident occurred. Ms. Huntley was called as a witness and confirmed that she was having coffee in the corridor with the plaintiff when the plaintiff’s phone rang and she spun round to answer and it appeared her heel caught on the mat and she tripped and fell: p. 128. After the fall it appeared that the mat had been moved a bit, and her recollection was that the heel of the shoe caught on the mat which caused her to trip: p. 128. Ms. Huntley denied mentioning anything to the plaintiff about an answering service being still on; her recollection was the plaintiff fell as she went to answer the phone; p. 138. There was some difference in the recollection as to exactly where the two of them were standing immediately before the incident and other details, but I do not think that is of any consequence. Her recollection is that the fall occurred almost straight after the plaintiff spun around; she ended up on the floor of her office: p. 129.
- [25]Ms. Huntley said she offered assistance which she said was initially rebuffed, and the plaintiff got herself onto her chair. She then assisted the plaintiff by putting her foot up on another chair and giving her a soft drink can to apply cold to the foot, and then went to fetch Mr. Knock: p. 128. He arrived and arranged for the plaintiff to be taken to her general practitioner by another employee Mr.Macleay: p. 18. She was then referred to hospital for x-rays where it was found that she had a fracture of the left lower fibular.
- [26]The plaintiff said that after her accident Ms. Huntley picked up the mat and threw it into the warehouse, saying she should have got rid of it before, and had said that a Ms. Bremer had put in a report to say that the mat was dangerous: p. 18. Ms Huntly denied that after the accident she said anything to the plaintiff about the mat being dangerous, or that she had received or knew anything of a report from Ms. Bremer to that effect, or that Mr. Knock said anything about his having tripped or had some difficulty with the mat: p. 130. The plaintiff also said that Mr. Knock had mentioned that he had fallen on the mat previously. Mr. Knock denied that he had said to the plaintiff that he had tripped over the mat himself: p. 161. He did not recall having anything to do with removing the mat. He did acknowledge that he was first asked to recall the events in December 1999, and it was possible that he had forgotten about having had some problem with the mat or mentioning something to that effect to the plaintiff on the day of the accident: p. 162. Ms. Huntley said that after the fall the mat was removed, in case someone else tripped on it: p. 134. It was kept in the store for a time and then she was allowed to take it home: p. 130. It was brought back to enable a photograph, Exhibit 10 to be taken, and was tendered at the trial where it became Exhibit 19.
- [27]There was some conflict as to how the mat came to be in that position. The plaintiff said that Ms. Huntley had bought the mat to go in the doorway so people could wipe their feet before they entered the office, as she did not want the carpet in the office to get dirty again; p. 17. Mr. Knock said that he could recall having seen the mat there prior to the accident, although he could not say how long it had been there, but denied that he had anything to do with its acquisition. Ms. Huntley said that it was actually the plaintiff who had wanted the mat placed in the doorway of her office, because employees coming from elsewhere on the premises would otherwise track grease and dirt from the factory onto the carpet: p. 125. She thought that about a week or two before the accident the plaintiff had said that she had seen mats of the kind that she wanted at Target, and Ms. Huntley had gone to Target and purchased the mat, showed it to the plaintiff, who was satisfied with it, and put it down in front of the door: p. 126. It was in the position shown in Exhibit 10. She said she did not have any difficulty with the mat, was not aware of anybody else having difficulty and did not see anything dangerous about it: p. 127. There was also a strip of plastic put down over the carpet between the entrance and the plaintiff’s desk: p. 75.
Analysis: Second Incident
- [28]With regard to the second incident, it was, I think, obviously practicable to avoid the risk of injury by tripping over or becoming in some other way tangled up with the door mat in this position, by not having the mat in that particular position. The door mat is over an inch thick, perhaps 1¼ inches in most places, so it is a not insignificant obstacle on the floor. In addition, it was in an unusual place for a door mat; they are commonly found at the entrances to buildings from outside, but they are, I think, much more rare at the entrance to particular rooms within buildings. The mat is a conventional domestic doormat, but in view of its thickness it could pose a danger to someone if it were in a place where one would not expect to find a doormat, or where one might be distracted by the exigencies of the employment from paying special attention to the need to step over this obstacle.
- [29]What occurred in the present case was the sort of spur of the moment accident where an employee responds to some particular incident arising in the course of the employment without first thinking about how that ought to be done safely. It was a natural enough thing for the plaintiff in the present case to move to answer the telephone, and given where she was standing and the location of the doormat it was understandable enough that she could trip over it as she did. Whether this occurred as she was moving to answer the phone, or as a consequence of her changing her mind about answering it because of something Ms. Huntley said, was not a significant matter; in either case she was distracted by her concern to do what was appropriate because of her employment from watching where she was walking, so that the risk of tripping over this doormat materialised.
- [30]It is precisely because employees are often distracted by what they are doing in the course of their employment that it is necessary for employers to be careful that workplaces are free from unnecessary obstructions, and why care needs to be taken particularly to avoid having employees moving over or past things on which they can trip. I do not suggest that the use of this doormat would be dangerous anywhere; but I think that having it in the position in which it was on this occasion, as shown in photograph Exhibit 10, did involve a breach of the employer’s duty to provide a reasonably safe place of work. In addition the defendant failed to ensure the safety at work of the plaintiff, and it was not impractical to avoid doing so, simply by not having the doormat in that position. If there was a need for a doormat to prevent the floor in the office from becoming soiled, the appropriate place to put it was at the entrance to the building from outside, although even there it may well have been better to have used a thinner style of mat which would have greatly reduced the risk of a fall.
- [31]With regard to the conflict with Ms. Huntley as to who was responsible for the acquisition of the mat, I think that the situation here is that the plaintiff and Ms. Huntley are both attempting to distance themselves from the decision to obtain the mat, no doubt because of the accident. I think it probable that it was initially the plaintiff’s suggestion that a mat be purchased, but that the decision to obtain one and put it where it was put was taken by Ms. Huntley, although with the plaintiff’s encouragement and approval. In my opinion it does not matter whether it was the plaintiff’s idea or Ms. Huntley’s idea. The responsibility for keeping the workplace safe falls primarily on the employer, not the employee. I do not think that the other discrepancies between the plaintiff’s evidence and Ms. Huntley’s evidence as to how the accident on 1 August 1996 occurred matter, but if I had to make a choice between them I would prefer the plaintiff’s account, on the basis that the plaintiff had more reason to recall the details of the incident, and Ms. Huntley was not asked to do so until some time afterwards, and her recollection has been shown to be faulty in relation to the absence of a problem with the right leg prior to 1 August 1996.
- [32]With regard to contributory negligence, I think that this is a good example of momentary intention which is recognised as being compatible with reasonable care for ones own safety, and does therefore not justify a finding of contributory negligence. I do not think there was any contributory negligence on the part of the plaintiff on this occasion.
- [33]It follows that the defendant is liable in respect of both the plaintiff’s injuries.
Subsequent Events
- [34]The plaintiff was not hospitalised on 1 August but a half cast was put on her leg and she was discharged home where she could get around only with the assistance of a wheelchair: p. 19. Tthere was some swelling in the leg, so that she was in considerable pain while she remained in plaster which was for 6 weeks. She did some work for the defendant while at home, and received wages or sick pay from the defendant rather than workers’ compensation: p. 19, 83. When she came out of plaster she began walking with a stick: p. 22. She returned to work at the defendant’s premises on about 19 October 1996: p. 22. She had some difficulty coping because her foot kept swelling, but she remained at work until 25 October when she was made redundant: p. 23.
- [35]After being made redundant the plaintiff saw her general practitioner who gave her a certificate for Workers’ Compensation, as a result of which she received those payments for some time: p. 40. Weekly benefits were paid from 31 October 1996 until 16 March 1997: Exhibit 3. In March 1993 she obtained employment with Riverina Stock Feeds and was given at her request a clearance to resume work; after a brief period there she obtained employment with the a different company as an office manager: p. 41. The plaintiff has difficulty coping with her full time job and would prefer to reduce her work hours, but her employer will not agree to that: p. 54. She copes with that employment by resting her leg at night and weekends. The plaintiff can walk around the office but uses a stick to go any distance such as to the Post Office; walking more than about 100 metres causes the ankle to become more painful and to begin swelling: p. 42. She works full time, and brings work home on occasions where she can rest more comfortably: p. 48.
Medical Evidence
- [36]The plaintiff was first referred for physiotherapy to Mr. Chaing on 13 May 1996: Exhibit 2. At that stage she reported that she had fallen at work in about December 1995. On 16 May she was wearing the ankle brace prescribed by Dr. Dodsworth, and complained of ankle pain and weakness which was increased with walking on rough or uneven ground. She was unable to stand on her right leg, and had some muscle weakness associated with ankle movements. During this period of treatment she made steady progress, and on her discharge Mr. Chaing was confident that with time and continuation of exercise she would obtain more of her right ankle function: Exhibit 2. He later treated her for the consequences of the second accident, during 12 sessions from 18 September 1996.
- [37]Mr. Chaing has not seen the plaintiff since 4 November 1996: p. 36. At that stage she still had problems with her mobility and she was going to be referred to Dr. Dodsworth. She used a stick to walk any distance. When he last saw her she still had problems in both ankles.
- [38]I had only one specialist medical report, from Dr. Gillett: Exhibit 1. He saw the plaintiff for the purposes of a report on 21 August 1998, and dealt with both injuries. At the time of the examination she was complaining about pain and instability of the left ankle, and some numbness in part of the left foot; she described the consequences to the doctor along the lines of those she described to me. The right ankle is not as bad although there is still pain but no swelling. At the time of her examination she weighed 19 stone, was 5’ 6” tall. She complained that she had put on some weight since the accident, having always been a relatively heavy woman; that she had put on weight was confirmed by Ms. Huntley: p. 133 and Mr. Curran: p. 146. There was a full range of movement found in the right ankle, no swelling, but some tenderness; there was some restriction in movement in relation to the left ankle although it was stable. X-rays of the left ankle confirmed a spiral undisplaced fracture of the left lower fibular with some minor displacement of the mortis, which has healed with satisfactory alignment but with indications of early degenerative changes which the doctor thought may get worse with time but not so as to require any surgical treatment. He thought that degeneration of the left ankle was a possibility rather than a probability. The doctor thought that the right ankle has suffered a lateral ligament injury which did not require any treatment and did not pre-dispose her to arthritis.
- [39]Dr. Gillett noted that the plaintiff had Paget’s disease in the right proximal femur, which was pre-existing, and so always had some weakness of the right leg. There is no suggestion that the Paget’s disease effected either ankle:p. 25. The Paget’s disease might become symptomatic at any time; there is no way of knowing when that can occur:p. 31. If it did it could impair her ability to work independently of any injuries in the ankles: p. 30. Dr. Gillett thought that it was more likely that the condition would become progressively symptomatic during her lifetime: p. 31. It would assist the plaintiff to lose weight, but that will not be easy because of the difficulties that she has in exercising: p. 26. Being more mobile will also help her to free up the ankle and make it more useable: p. 32. It did seem from Dr. Gillett’s evidence that the plaintiff’s approach, of reacting to problems with the left ankle by avoiding using it, was not really appropriate, although it may be that some care would have to be taken in selecting the appropriate activity. An attempt to exercise the left ankle using hydrotherapy had to be stopped because of difficulties connected with the plaintiff’s Paget’s disease in the right hip: p. 44. No doubt there will be difficulties in the plaintiff’s giving effect to this advice, particularly while she is working fulltime, but I think the overall effect of Dr. Gillett’s evidence is that the plaintiff could be managing her condition better, and that if she were it would be less disabling.
Assessment .
- [40]The plaintiff was born on 21 November 1949 and is now 50 years of age. She has some continuing problem with her right leg, but the major problem has been in and continues to be in the left leg, which is frequently painful, and interferes with a wide range of activities. She has persisted in working full time, although she may not be able to or necessarily want to do so in the future, and other difficulties may also intrude. I think on the whole that while she is working full time she is going to suffer more pain; if she works less there will be more economic loss, but less pain and a greater capacity to do things for herself around the house. I think that these problems in the ankle are likely to make it more difficult for her cope with any difficulties that may arise from the Paget’s disease. There is no real prospect of the plaintiff’s problems going away, or even becoming substantially less. The injury has substantially interfered with the plaintiff’s recreational activities.
- [41]The left ankle can cause pain at night affecting her sleep, perhaps once or twice a month: p. 42. There are some symptoms involving numbness and pins and needles in part of the left foot: p. 48. She has had difficulty hanging out clothes or cooking, and has great difficulty getting access to cupboards which requires bending or stretching: p. 48. The plaintiff has difficulty ironing even when sitting in a chair, because leaning forward stirs up the Paget’s disease in the back: p. 46. The plaintiff said she used to mow the lawn, but cannot do so now because the left ankle: p. 51.
- [42]The plaintiff can no longer engage in bushwalking, or even shopping or sightseeing which involves any significant amount of walking: p. 47. The plaintiff said she went shopping occasionally with her husband’s help, and she can park close to a supermarket because she has a special sticker on the car: p. 49. She does very little now at weekends except rest. She has difficulty with stairs, and as a result the family moved into a low-set home; they also changed to an automatic motor vehicle because she could not drive a manual vehicle: p. 50. She feels frustrated about her inability to do things, and her dependence on others: p. 47.
- [43]In all the circumstances I assess damages for pain and suffering and loss of amenities in the sum of $35,000.00; if the plaintiff had not suffered the first injury, in December 1995, the award would have been $5,000.00 less. I apportion $12,000.00 of this to past loss; this will carry interest at 2% for 3.75 years.
Economic Loss
- [44]With regard to economic loss, the plaintiff did not lose any time off work after the first accident, and it seems was paid after the second accident up to the time when she was made redundant. I am satisfied that her redundancy was unrelated to her injury, in the sense that it was not brought forward as a result of the injury; I have a suspicion that it may have been actually delayed by the injury, in that the defendant may have been reluctant to put off the plaintiff until she had apparently recovered her capacity for work, but that is speculation on my part; it does not affect the assessment of damages.
- [45]There was no economic loss up to the point where the plaintiff lost her job, and she would have at that stage have been in the position of having to find another job in any case. It seems that her search for other employment was delayed by a couple of months as a result of her injuries (p. 86), but I think it would probably have taken some time to obtain other employment even if she had not been injured. I do not think that I award damages automatically for the 21 weeks during which she was on Workers’ Compensation; if this accident not happened she would probably not have been employment for most of that period anyway. I think the appropriate course is to allow some amount for the delay in starting her substitute employment, which should be assessed by reference to the income earned in that substitute employment. No case was advanced on the basis that the plaintiff’s employment capacity had been affected up to trial after she obtained other employment as a result of her injury. I think therefore that the appropriate allowance for past economic loss is $2,500.00. That will not bear interest, because of the payment of Workers’ Compensation benefits during this period.
- [46]I should say something about the redundancy payment; because the plaintiff’s redundancy was unrelated to her injury, she would have received this payment anyway, so it should not be taken into account. Had it not been for the injury she would have been able to start searching for alternative employment straight away, and the practical effect of the injury was to delay the time at which she began that search. The appropriate course therefore is to compensate her for the period of that delay.
- [47]With regard to future economic loss, she had planned to work until her husband retired, which he had expected to do in about 2011, by which time she would be 61: p. 56. I accept the plaintiff’s evidence that she intended to work for another 11 years, but some allowance should be made for the vicissitudes of life and for the possibility that she might have been prevented from working at any event by her Paget’s disease. I think that those factors are appropriately accommodated by assuming the pre-accident potential working life of 8 years. The plaintiff is at present holding down a full-time job but with some difficulty, and that position is not particularly secure. Her employment is at some risk because of financial difficulty being experienced by the employer: p. 54. If she had to obtain another position she would prefer to be working shorter hours: p. 56. I think that because of the possibility of the ankle condition becoming worse, or because of the prospect of the plaintiff’s tolerance being reduced, or even because of the possibility of the Paget’s disease becoming symptomatic, or simply the plaintiff’s losing her present job, there is a risk that she will be on the labour market at some stage in the future, and if and when that occurs I think it probable that her injuries will make it more difficult for her to obtain employment, and perhaps cause her to work only part-time rather than full-time. Even allowing for the fact that the sort of the work that she has been doing in the past is largely sedentary, I think that it is likely that it will be more difficult for her to obtain employment if she has such difficulty walking.
- [48]In addition, if the Paget’s disease becomes symptomatic she may be left with a combination of problems with which she cannot cope, whereas had it not been for the injuries in the ankles, particularly the left ankle, she may well have been able to soldier on just with the consequences of the Paget’s disease, at least for somewhat longer. One way or another therefore I think it probable that as a result of these injuries the plaintiff will be working a lot less and earning a lot less then would have been the case over the next 8 years had these accidents not happened.
- [49]The assessment of the appropriate level of compensation is not something which can be done with a matter of calculation, but if the plaintiff had suffered a total loss of earning capacity based on her current level of earnings of $565.00 net per week (p. 54) her economic loss would have been $195,490.00. On the whole I think it is realistic to award a global sum which is about one third of this, so that (with some rounding) I will allow $65,000.00 for future economic loss.
Other Matters
- [50]A very detailed claim for gratuitous assistance appears in exhibit 12, which I think is quite unrealistically high. For example, I cannot accept that in the period from 1 August 1996 to 16 October 1996 the plaintiff required 6 hours assistance from her husband and 5 hours assistance from her son every day, even allowing for the fact that she would have been at least during the earlier part of this period considerably disabled. I think that the plaintiff’s evidence was not reliable in relation to her account of the assistance provided particularly in relation to Exhibit 12, and indeed I do not think it is even just a matter of knocking something off for exaggeration. In addition, there has been employed household help most of the time since May 1997, which ought to have reduced the need for gratuitous assistance. In all the circumstances I think a reasonable allowance for past gratuitous assistance is 1500 hours covering both the husband and the son; at the agreed rate of $10.00 per hour that will mean an assessment of $15,000.00, which will carry interest at 2% per annum for 4 years (to allow for more of this arising at the beginning of the period). I think that there should be some allowance for future assistance, but it should be fairly moderate, partly because that is consistent with the current level of assistance and partly because I think that with better management of her condition the plaintiff could be a lot more active than she is now. For future assistance I will allow the sum of $10,000.00.
- [51]The plaintiff prepared a schedule of travel necessary because of the injuries: Exhibit 7. That includes the costs of visits to the Workers’ Compensation office, which are not recoverable as damages, visits for purposes of the report for the court which are not recoverable, and it was conceded that trips to general practitioners not related to the injury the subject of the accident should be deducted. That must have been most of them, because the Health Insurance Commission has claimed compensation in relation to Medicare benefits in the sum of less than $300.00, involving only 8 attendances most of which appear to be x-rays. There would also have been some attendances paid by Workcover. Under these circumstances I cannot regard Exhibit 7 as reliable. There would undoubtedly have been some travelling expenses, but I think I am confined to making a moderate allowance in an amount which seems to me reasonable, which will also take into account the fact that I think the relevant cost should be allowed at much less than 50 cents per kilometre. Overall for travelling expenses I will allow $200.00.
- [52]With regard to other special damages, the Workcover medical expenses, rehabilitation expenses and other expenses on Exhibits 3 and 4 come to $3,675.42. The amount claimed by the Health Insurance Commission is $290.85: Exhibit 17. These amounts were I think not contentious. A further list of special damages set out in Exhibit 11 included gardening assistance and paid household help, chemists expenses, purchase of shoe inserts, replacement of swimming togs, gap payments in respect of medical expenses not otherwise identified, an amount for the cost of telephone calls making appointments, the cost of purchase of a cordless phone to accommodate the plaintiff's confinement to a wheelchair, and a substantial amount for drycleaning various clothes which the plaintiff said she was unable to iron.
- [53]I do not think that the claims for items purchased at health food stores, replacement swimming togs, the purchase of a cordless phone or the drycleaning expenses are justified. Some of the telephone expenses are in respect of amounts not properly recoverable. The evidence was that most of the outside work at the house was not done by the plaintiff anyway prior to the accident, so that most of the gardening expenses will not be recoverable. I am also frankly wary about the extensiveness of the plaintiff’s claims, given that other aspects of schedules produced by her have included things that should not be included, so I propose to be cautious in dealing with even those things on Exhibit 11 which appear to be in order. It also seems to me that the amounts listed on page 2 if added and added to the total on page 1 come to an amount much less than the total on page 2. I think that the appropriate course overall is to allow the sum of $5.000.00. In addition, there is Fox v. Wood factor in the sum of $4,553.65. I will allow interest on out of pocket special damages at 4% per annum for the 3.5 years.
- [54]There should be some allowance for future costs, although this did not receive any great attention. There will be painkillers and some other costs, and some allowance should be made for medical expenses. On the whole, I think a moderate allowance of $5,000 is appropriate.
Summary
(a) | Pain and suffering and loss of amenities | $35,000 |
(b) | Interest on $12,000 at 2% per annum for 3.75 years | $900 |
(c) | Past economic loss | $2,500 |
(d) | Future economic loss | $65,000 |
(e) | Gratuitous care | $15,000 |
(f) | Interest | $1,200 |
(g) | Future gratuitous care | $10,000 |
(h) | Special damages | $13,720 |
(i) | Interest on $5,200 at 4% per annum for 3.5 years | $728 |
(j) | Future expenses | $5,000 |
Subtotal | $149,048 |
Less Workcover deductions - Exhibits 3 and 4: | $19,886 |
TOTAL: | $129,162 |
Therefore I will give judgment that the defendant pay the plaintiff the sum of $129,162 which includes $2,828 by way of interest. I will circulate these reasons and invite submissions as to the appropriate order in relation to costs, but unless another order is appropriate I will order the defendant to pay the plaintiff’s costs of the action to be assessed.