Howie v State of Queensland and Anor
[2001] QDC 200
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- Howie v State of Queensland and Anor[2001] QDC 200
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Howie v State of Queensland and Anor[2001] QDC 200
Howie v State of Queensland and Anor[2001] QDC 200
DISTRICT COURT OF QUEENSLAND
CITATION: | Howie v. State of Queensland and Anor [2001] QDC 200 |
PARTIES: | SHIRLEY ANN HOWIE (Plaintiff) v. STATE OF QUEENSLAND (First Defendant) And THE MINISTER FOR EDUCATION OF QUEENSLAND (Second Defendant) |
FILE NO/S: | 2634 of 1996 |
DIVISION: |
|
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 17 August 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17, 18 April 2001 |
JUDGES: | Shanahan DCJ |
ORDER: | The first defendant pay the plaintiff the sum of $44,871.94. The second defendant pay the plaintiff the sum of $83,326.95 |
CATCHWORDS: | The Council of the Shire of Wyong v. Shirt (1980) 146 CLR 40 Rogers v. Brambles Australia Limited (1998) 1 Qd.R. 212 Astley v. Austrust Ltd (1999) 197 CLR 1 Watts v. Rake (1960) 108 CLR 158 Purkess v. Crittenden (1965) 114 CLR 164 |
COUNSEL: | Mr. P. Munro for the plaintiff Mr. M. Amerena for the defendants |
SOLICITORS: | Roberts & Kane for the plaintiff Crown Law for the defendants |
- [1]The plaintiff has claimed damages for an injury that was caused when, on 12 August 1993, she fell injuring both knees. On that date, the plaintiff, a teacher’s aide, had been directed by her employer, the first defendant, to attend a seminar at school premises other than the one at which she worked. While walking towards the building at which the seminar was to be held on the premises of Salisbury State School, the plaintiff missed a step and fell on to both knees. The second defendant was the occupier of those premises.
- [2]The plaintiff’s action against the first defendant is on the following bases:
- (i)breach of the first defendant’s duty of care as the plaintiff’s employer to ensure the plaintiff’s safety while she was engaged in the duties of her employment;
- (ii)alternatively, breach of the first defendant’s contract of employment with the plaintiff to provide a safe place of work for the plaintiff;
- (iii)alternatively, breach of the first defendant’s statutory obligations pursuant to the Workplace Health and Safety Act 1989 to ensure the health and safety of the plaintiff while she was at work.
- [3]The plaintiff’s action against the second defendant is on the basis of a breach of the second defendant’s duty of care to the plaintiff as occupier of the premises, to ensure that the plaintiff would be reasonably safe in entering upon the premises.
- [4]Both liability and quantum are in issue.
The Events of 12 August 1993
- [5]The plaintiff was born on 30 August 1936. At the relevant date she was 56 years of age. She commenced work as a teacher’s aide with the Department of Education in 1976. Prior to that she had been self employed in a nursery that she and her husband operated. Financial difficulties caused her to seek employment as a teacher’s aide. In 1993 she was working as a teacher’s aide at Coopers Plains State School. The principal of Coopers Plains State School instructed the plaintiff and others to attend a Sexual Harassment Seminar to be held at Salisbury State School on 12 August 1993.
- [6]The plaintiff travelled to Salisbury State School with other staff members, arriving there at 8.45 a.m. She had never been to that school before that day (T8). She described the weather as extremely foggy. The plaintiff and three others commenced walking from the car park towards the school. They intended to walk underneath a school building and find out the whereabouts of the staff room where the seminar was to be held. They could see stairs through the open area under the building and the intention was to walk under the building and up those stairs (T10). It was very dark underneath the building, and there was no artificial light (T11). On the other side of the building it was a little lighter but the fog was still around.
- [7]The four people were walking closely but in a scattered group. The plaintiff was leading the group. There was some talk between the members of the group but no deep conversation (T12). Under the building the plaintiff was walking on a concrete surface. Photographs (Exhibit 9) indicate that there was one step up from the car park to that concrete surface. To the left of the path taken by the group was a wall containing drinking fountains. That wall ended a short distance from the single step down from the concrete surface under the building. A short distance further away in the direction being travelled by the group, steps rose to another concrete area and an entrance under another building. The route taken by the group was clearly an avenue to enter into the school proper.
- [8]As the plaintiff came to the edge of the building she was walking beneath, she missed the single step leading down to an area between the slab of the building and the steps leading up to the other concrete area. She described the incident:
“Well, I just walked in air as far as I was concerned. The next thing I knew I was down on my knees”. (T12)
- [9]She had no perception before she fell that there was a change in the level of the surface upon which she was walking. She had no perception there was a step at that point. She had not been talking to her companions at that precise moment (T12). She landed on both knees on a concrete surface. It felt like both knees but perhaps the right more than the left. She felt severe pain on both knees in the area of the knee cap and a “little bit lower than the knee cap” (T13). Her knees took the complete weight of the fall (T41). At that stage she did not look to see what had caused the fall.
- [10]She received first aid treatment and attended the seminar. At approximately 2 p.m. that afternoon, she retraced the route back to the car. She required the assistance of one companion to walk. On walking back towards the first building under which she had walked that morning, she saw a step that was about three to four inches in depth.
- [11]In relation to that step she gave the following evidence:
“Did you notice anything in particular about the step in terms of it being delineated?-- It – the – the normal yellow marking that are on these areas was very faint and almost non-descript.
Could you see yellow marking on the surface of the step?-- Just slightly.
All right. In the photograph we can see that there is yellow marking on the vertical surface as well as the horizontal surface. Was the yellow marking on the vertical and horizontal surface of this step, that you recall?-- Just the horizontal.
And so it was worn. Can you describe to His Honour a little more precisely how worn that was?-- Very patchy and only slight – slight touches of the yellow and they had been very worn. The paint had been worn practically off.” (T14)
Five photographs were tendered of the route taken (Exhibit 9).
- [12]In cross-examination the plaintiff was shown three photographs that appear at p.(i) and (ii) of the report of Mr. G. Shepherd, consultant engineer (Exhibit 1). The plaintiff thought she had taken those photographs a few months after the accident (T34). Those photographs show yellow paint on the vertical surface of the step. She was asked in cross-examination:
“Now, in giving your evidence this morning you told my learned friend that when you went back on the day of the fall to go back to the car park you were being assisted by a friend?-- Yes.
You came to the drop where you’d fallen?-- Mmm
And you had a look at what was there?-- Yes.
And that there was only a yellow line painted on the horizontal surface?—Yes.
The step?-- That’s the top of it.
---
Yes, it is, and the yellow line is painted on the vertical surface of the drop and that is clearly shown in those photographs, is it?-- Yes.
And there may or may not be some element of yellow line on the
horizontal surface of the drop if you look at those photographs?-- Yes.
It appears as -----?—Mmm
----- not as prominent in any event?—No, no.
Is that correct?—Yes.” (T35-36)
- [13]Later photographs taken by Mr. Shepherd on 11 September 2000 and appearing at p.3 of Exhibit 1, show the step as being painted yellow on both the horizontal and vertical surfaces. The photographs taken by the plaintiff some months after the incident show little or no yellow paint on the horizontal surface of the step.
- [14]The plaintiff was cross-examined about whether she was aware of the prospect of stepping down from the concrete slab beneath the building because of the initial step up on to that slab. She referred to the photographs and said:
“That didn’t occur to you?-- No. Because if you look at this photo here and you are standing there. It was very dark to start off with. And even here where there is light, in perspective it looks like you are just walking on to a flat piece of concrete, although, I didn’t see it that day either.
All right?-- It was dark.” (T37)
- [15]The plaintiff was adamant that she was looking at the path that she was walking. Her attention had not been directed away from in front of her by any conversation (T38).
- [16]No other evidence was called as to the incident on 12 August 1993. No other evidence was called as to the yellow markings on the relevant step on that date.
Liability
- [17]Counsel for the defendants admitted that the first defendant was the employer of the plaintiff and all other persons who worked at both schools (T53). He further admitted that the second defendant held title to the property (Salisbury State School) and exercised its rights of ownership through the servants and agents of the first defendant but had no direct power to direct those servants and agents, the first defendant having that power. It was thus open to find that both the first defendant and the second defendant could be regarded as occupiers.
- [18]I am of the view that both defendants should be regarded as the occupiers of Salisbury State School for the purpose of any duty of care owed to the plaintiff. It is thus convenient to first deal with the issue of any breach of duty of care as occupier by each defendant jointly.
- [19]It was submitted on behalf of the plaintiff that both defendants were in breach of the requisite standard of care, as they had allowed the yellow paint which had been applied to the step to fall into disrepair. At some stage prior to the plaintiff’s fall, both the horizontal and vertical surfaces of that step had been painted yellow. It was submitted that alleviating action could have been readily, easily and inexpensively undertaken. The yellow line should have been properly maintained to provide a more adequate and appropriate warning. Other visual cues to the drop, such as signage or artificial lighting, could also have been provided. It was submitted that a failure by the defendants to take such reasonable steps to avert the foreseeable risk of injury, was a breach of the duty of care owed by an occupier.
- [20]It was submitted on behalf of the defendants that the plaintiff’s reliability in relation to the circumstances of the incident was suspect. Counsel accepted that if the yellow paint on the step had not been properly maintained and that that caused the fall, then negligence could be established. It was submitted that I could not be satisfied on the reliability of the plaintiff’s evidence as to the state of the yellow paint on the day in question. It was submitted that the plaintiff had a propensity to overstate. That related, in particular, to the extent of the fog on the day. In her evidence (T8), she stated that she had never seen a fog like it but went on to say that may have been a bit of an exaggeration. It was also submitted that the plaintiff became confused in her evidence when recounting the effect the injury had had upon her life when she stated that it impacted on her work in the nursery, when the nursery had in fact ceased business at that time (T21). In particular, it was submitted that the plaintiff’s evidence as to the condition of the yellow paint on the step caused concerns as to her reliability. Her evidence was that on her return from the seminar she saw no yellow line on the vertical, but only the horizontal (T14). She described that paint as “very faint”, “almost non-descript” and seeing it “just slightly”. It was submitted that in the photographs that were taken by the plaintiff a few months after the accident (part of Exhibit 1), it was clear that there was observable yellow paint on the vertical part of the step. It should be noted that those photographs show no yellow paint at all on either the vertical or horizontal surfaces on a similar single step from the same slab immediately adjacent to the relevant area, but on the other side of a double brick column. The photographs show a worn area of yellow paint on the vertical surface of the relevant step, but no discernable yellow paint on the horizontal.
- [21]It was submitted that the plaintiff confirmed in cross-examination that she was talking of the horizontal surface when she spoke of “the top of” the step (T35). It was submitted that the plaintiff’s evidence that she saw no yellow paint on the vertical surface, when such a marking was clear on the photographs taken some few months later, would cause me to have concerns as to her reliability.
- [22]I found the plaintiff to be a straightforward and honest witness. She volunteered the concession that her description of the fog may have been an exaggeration. Her evidence was given in a forthright manner. She had been a hard worker for all her life and continued to work, although in some pain, after the accident. She described it as “just soldiering on” (T21). I observed no aspects of exaggeration in her evidence. Her recall of miniscule paint on the horizontal surface of the step and none on the vertical surface is clearly explicable in that it was the horizontal surface which was of most concern to her. It was that surface that she would have seen coming from the opposite direction, as the vertical surface would have been out of her sight. It is not surprising that she concentrated on the horizontal surface. In those circumstances I accept the plaintiff’s account of the incident and her description of the state of the yellow paint at the relevant time. As noted, there was no other evidence called as to either issue. The condition of the yellow paint on the step as shown in the photographs taken some months after the incident is also consistent with the plaintiff’s description of the paint being faint and slight at the relevant date.
- [23]Two engineers gave evidence as to the appropriate safeguards which could have been in place in relation to single steps. Mr. G. Shepherd prepared a report (Exhibit 1) and gave evidence for the plaintiff. Mr. Shepherd examined the scene and noted the degraded yellow paint in the photographs provided by the plaintiff. He identified a number of simple countermeasures which could have reduced the risk. These included eliminating the transition between the level between the concrete slab under the building and the commencement of the set of stairs, providing a ramp rather than a step, highlighting the edge of the step with either yellow paint or yellow and black stripes and improving the dim light levels. Dr. F.W. Grigg prepared a report (Exhibit 4) and gave evidence for the defendants. He also had inspected the site. He conceded that the application of yellow paint would undoubtedly assist in the perception of the existence of a step but was of the view that in the present case there were a number of other cues as to the existence of the step. These included views of the steps continuation on the left of the brick column, differences in the texture of the concrete adjoining the step, and the presence of at least some yellow paint on the nose of the step. He was of the view that the countermeasures of filling in the transition or providing a ramp created additional risks and were not viable.
- [24]The path the plaintiff and her companions took from the car park under the building was a clearly delineated path of access into the school. The photographs (Exhibit 9) proceeding in that direction indicate an avenue of travel leading to a set of steps in the distance. The other visual cues mentioned by Mr. Grigg are, in my view, of little assistance in advising of the existence of the step. The step’s continuation on the left is not visible until one has moved out from the wall on the left of the passage under the building at a position very close to the step itself. As already noted, from the photographs taken by the plaintiff some months after the incident, there was no yellow paint on that continuation of the step at all. The difference in texture of the concrete would provide little visual cue when one considers the variation in natural light when moving from under a building to an outside area and also the lack of artificial light at the scene. In my view the occupiers did not provide appropriate warning by visual cues as to the existence of the step. This is particularly evident by the lack of maintenance of the yellow paint on both the horizontal and vertical surfaces of the step. To my mind the presence of the yellow paint indicates that at some time prior to the incident the occupiers were aware of the risk associated with the step. I am also of the view that other visual cues, such as appropriate signage, and improved artificial lighting at the site were reasonable safeguards that should have been taken. The dull conditions of the day were foreseeable and not so extraordinary to remove the foreseeable risk of injury. Indeed, other similar conditions, such as twilight, would have been a regular, daily occurrence. The risk was clearly foreseeable. I am satisfied that the lack of appropriate safeguards caused the fall.
- [25]I find that there has been a breach of the duty of care by the occupiers of the school owed to the plaintiff. A reasonable person in the defendants’ position should have foreseen that risk and should have taken relatively easy and inexpensive alleviating action (The Council of the Shire of Wyong v. Shirt (1980) 146 CLR 40 at 47). Both defendants are liable to the plaintiff in negligence.
- [26]In relation to the alternative claims against the first defendant, I am of the view that in light of the analysis and findings above, the first defendant was in breach of the contract of employment to provide a safe place of work for the plaintiff and that the first defendant is also liable pursuant to a statutory breach of s.9 of the Workplace Health and Safety Act 1989, in failing to ensure the health and safety of the plaintiff whilst she was at work. In relation to the second alternative claim, it has not been pleaded or argued that the appropriate alleviating measures were impracticable (Rogers v. Brambles Australia Limited (1998) 1 Qd.R. 212) . Such remedial measures were inexpensive and clearly practical.
Contributory Negligence
- [27]The defendants submitted that there was a reasonable circumstantial case here that the plaintiff was not paying sufficient attention and that she was distracted by the conversation going on behind her. It was further submitted that the plaintiff should have been aware of the necessity to step down from the concrete slab because she had soon before stepped up on to it. It was submitted that the plaintiff had thus contributed to her fall.
- [28]As noted above, the plaintiff denied that she had been distracted immediately prior to the fall, or that she had not been watching where she had been walking. She strongly denied any conversation occurring at the time she fell. I find no reason to doubt the plaintiff’s evidence. As to the submission that she should have been aware of the necessity to step down from the block, in my view that does not logically follow. It depends very much on the construction of the premises. As noted above, the clear path the plaintiff was following gave no indication of a different level between the end of the slab under the building and the commencement of the stairs. I am of the view no contributory negligence has been made out. In relation to the breach of contract by the first defendant, any issue of contributory negligence does not arise (Astley v. Austrust Ltd (1999) 197 CLR 1).
Damages
- [29]The plaintiff’s duties as a teacher’s aide included playground duty and working in the library (T7). She described it as a very physical job as it involved delivery of books to the various classrooms around the school. She was also involved in the students extra-curricular activities such as camping and bushwalking. Her private activities included dancing and being a communion minister to the aged and sick for her church and other charitable activities (T18). She described herself as, prior to the accident, having an active life. No health difficulties impacted on that (T18).
- [30]The plaintiff described the pain she experienced after the fall as “very severe” (T13). This was around the area of the kneecap and a little bit lower than the kneecap on both knees. She immediately sought first aid. During the seminar that morning, her knees remained painful and were swollen. She had ice packs on them (T14). On leaving the seminar, she required assistance to walk.
- [31]The plaintiff attended on her general practitioner, Dr. Hussein, for treatment of her injuries (T15). He prescribed resting her legs. She attended work the next day and her knees were “very sore and paining” (T16). She was taking pain relieving medication. The next week her knees were still very painful and swollen and she again attended on Dr. Hussein. She was given acupuncture. That did not assist. Dr. Hussein referred her to Dr. M. Devereaux, a specialist in arthritis.
- [32]The plaintiff had worked to the end of the school year in 1993. She had been in constant pain and found it difficult to sleep (T20). She was using a heat pad for treatment. She saw Dr. Devereaux in approximately February 1994. He administered a cortisone injection in one of her knees and prescribed physiotherapy. She undertook six weeks of physiotherapy. That physiotherapy and the injection did not assist. She felt her knees were getting worse in the first half of 1994.
- [33]Dr. Devereaux referred the plaintiff to Dr. Morris, an orthopaedic surgeon. Dr. Morris performed a bi-lateral arthroscopy on 25 July 1994. After that operation the plaintiff had three weeks off work (T21). That was the first period of time that the plaintiff had off work as a result of the injuries. After those operations the only treatment she had was heat pads. She was of the view that the treatment provided by Dr. Morris had not helped. During the rest of 1994 she was in constant pain and had sleepless nights as a result. She ceased any vigorous activities such as dancing and work for her church. She could not do any vigorous gardening. She had difficulty negotiating stairs. She continued to work to the end of 1994.
- [34]In 1995 she felt her knees had got worse and she again consulted Dr. Morris. He performed a further arthroscopy on the right knee on 7 March 1995. The plaintiff had another three weeks off work as a result. She felt that the operation did not assist with the pain (T22). She sought further treatment from Dr. Morris. Dr. Morris performed a total knee replacement on the right knee on 31 July 1995. The plaintiff was in hospital for nine days. On her return home her husband assisted her (T23). The valuation of past care has been agreed between the parties as $3,360 (T50), if there is a finding that a pre-existing condition in the plaintiff did not contribute to the need for that care. The plaintiff had approximately seven months off work after the operation (T28). She was still in considerable pain and undertook rehabilitation for a period of approximately one month. She returned to work in March 1996. Her knees still gave her pain (T29). She described her return to work:
“Well, I made myself cope because I had a duty to perform and I just did it”.
The condition of her knees impacted on her ability to walk long distances, walk up and down staircases and carry heavy weights of books. She was in continual pain for the remainder of 1996.
- [35]In 1997 she returned to work. Throughout 1997 her knees were still very painful and she was extremely tired. She was not seeking any further treatment. She resigned from her position in December 1997. A factor other than her painful knees contributed to her decision to resign. In 1996 her husband had been diagnosed with cryptogenic cirrhosis of the liver and his hospital treatment caused the plaintiff a great deal of stress. She also had to work to the end of 1997 as a result of financial pressure (T30). However, one of the reasons she resigned from her position was “total and utter exhaustion” contributed to by working with continuous pain.
- [36]The plaintiff had an intention to work until she was 65 years of age because she loved the work (T30). If it had not been for the injury to her knees, she was of the view that the other factors in her life would not have caused her to retire early, as she would have been able to cope with the other stressors. The plaintiff has not worked since her retirement. She still experiences continual pain in her knees (T31) which also disrupts her sleep. She has difficulty carrying weighty objects, doing heavier housework and can no longer garden. She continues to have difficulty with stairs and walking long distances. She takes no medication for her pain and uses liniment and heat pads. She has returned to some of her previous activities of slow dancing and work for the sick with her church (T33).
- [37]The plaintiff had had a prior problem with her right knee. The plaintiff had torn a ligament behind her right knee in 1990 (T16). Dr. Doddsworth had performed an arthroscope on that knee in 1990. After recuperation from that surgery, the plaintiff had no continuing difficulties with that knee until the accident in August 1993 (T17). She had been undertaking the physical activities described in para. 29 above without any difficulties with the knee.
- [38]The plaintiff was cross-examined about telling Dr. Devereaux of an episode of rheumatoid arthritis after the birth of a child some 30 years prior to 1994 (T31). She was treated for two years, went into remission, and had not had any bother since. On that occasion, all of her joints were affected (T42). She also accepted that her general practitioner, Dr. Hussein, had been encouraging her to lose weight since 1986 (T43). Her weight had varied from 79 kilos in October 1990 to 73 kilos in August 1993. Dr. Hussein’s view was that her optimum weight was 64 kilos.
Medical Evidence
- [39]Dr. A. Hussein, general practitioner, gave evidence for the defendants. He had been the plaintiff’s general practitioner since 1984. In 1990, Dr. Hussein referred the plaintiff to Dr. Doddsworth in relation to her right knee. A report of 15 November 1990 by Dr. Doddsworth (Exhibit 14) indicated that the symptoms in the plaintiff’s right knee had finally settled, that a full range of motion had returned, and that she had “only minor medial symptoms” of pain (T68). Dr. Doddsworth had also observed that she had considerable wear in the right knee and that it “may be necessary to do something further in the future” (T69). She was prescribed anti-inflammatory medication in 1990. Dr. Hussein agreed that the plaintiff was always a little bit overweight but could not be described as grossly obese (T73). Although the plaintiff had attended on Dr. Hussein for a variety of other matters between October 1990 and August 1993, she had made no complaints about either of her knees between those dates. She had numerous opportunities to complain if she was suffering any difficulties with her knees (T71). After the date of the accident, she complained continuously about her knees. Dr. Hussein agreed that the surgery performed by Dr. Doddsworth seemed to have been entirely effective and satisfactory for the period October 1990 to August 1993.
- [40]Dr. J. Morris, orthopaedic surgeon, provided a report (Exhibit 5) and gave evidence for the defendants. He initially saw the plaintiff on 13 May 1994 in relation to both her knees. He performed arthroscopies on both knees on 25 July 1994. He noted that the left knee had a tear to the posterial horn of the medial meniscus. The plaintiff also had some chrondomalacia on the rear surface of the patella. In the right knee she only had chrondomalacia patelli. Post operatively the left knee improved a lot but she still had some symptoms in the right knee. A further arthroscopy was performed on the right knee on 6 March 1995. The doctor noted that at that stage the plaintiff had marked degenerative changes, particularly affecting the medial femoral condyle right down the bone. She did not improve after the operation and on 31 July 1995 Dr. Morris performed a right knee replacement. The plaintiff regained reasonably good movement but still had pain after the operation. Dr. Morris remarked on the arthroscopy performed by Dr. Doddsworth in 1990 which noted that the plaintiff had grade 4 medial ostioarthritis and mid-substance tear to the lateral meniscus.
- [41]Dr. Morris was of the view that the plaintiff’s pain as reported to him in 1999 related to degenerative changes in the left knee and to degenerative changes in the rear surface of the patella in her right knee. He was of the opinion that the fall had caused a temporary aggravation to her right knee. That would have lasted a couple of months. He was of the opinion that if the plaintiff had not had the fall she would have had symptoms within a fairly short period of time in any event. He was of the view that she had no disabilities attributable to the fall but that the fall “would have brought forward the need for an operation to her knees by a time which is very difficult to evaluate but could have been within months to two to three years.” (Exhibit 5).
- [42]In evidence, Dr. Morris was of the view that the plaintiff would have been in the same position, without the accident intervening, towards the lower end of the time range he had given in his report (T54). The reasons for that were that the plaintiff was overweight, that she had been noted by Dr. Doddsworth in 1990 as having had chrondomalacia and osteoarthritis and the diagnosed chronic rheumatoid arthritis 30 years previously (T55). Dr. Morris was also of the view that a lot of the plaintiff’s problems subsequent to the fall were due to osteoarthritis and the knee joint between the femur and the tibia. The mechanism of a fall would be more likely to injure the patella and the front joint of the knee rather than the bottom joint of the knee which was giving the plaintiff problems. He was thus of the view that degeneration of the knee joint was causing the problems (T64). He was of the view that in March 1996 any effect of the accident had ceased (T61). In cross-examination he agreed that it was difficult to forecast the onset of the condition and that the idiosyncratic features of the individual as to perception of pain and stoicism would impact (T61). He agreed that the best objective evidence as to whether or not someone might experience symptoms as a consequence of degeneration was to look at whether or not the person was experiencing symptoms before the trauma (T62). It was suggested to him that if the plaintiff was asymptomatic before the fall, she could have remained asymptomatic for any length of time. He disagreed with that but agreed that it would be for “a length of time” (T63). That time could possibly be five years, but that possibility was really low.
- [43]Dr. J. Pentis, orthopaedic surgeon, provided two reports (Exhibits 2 and 3) and gave evidence for the plaintiff. He examined the plaintiff on 1 July 1999. He noted that previous x-rays of October 1993 showed degeneration in both the right and left medial compartments, more so on the right. In his report of 14 July 1999 he noted:
“The lady has sustained injuries to her knee joints in the stated incident. She does have degenerative problems in both knees, worse on the right than the left and this has been aggravated to some extent by the incident on 12 August 1993.
It appears as though she sustained further damage to the cartilaginous surfaces.
Eventually she required a total knee joint replacement on the right and this accident would have hastened the necessity for that. It is difficult to say by what period of time but somewhere in the vicinity of two years or so.
In any case, she has been left with residual problems. Damage to the cartilaginous surface on the left and damage which eventually required a total knee joint replacement on the right.
The percentage incapacity due to the effects of the accident would be somewhere in the vicinity of a 3-5% loss of the efficient function of the left lower limb and a 5% loss at maximum of the efficient function of the right lower limb. This incapacity is due to the effects of the fall on the 12.8.93.
Long term, it is unlikely she will require any other forms of management specifically because of the effects of the fall, though injuring the left knee may have hastened the onset for any total knee joint replacement that may be needed on the left side by a period of up to one year.”
- [44]In evidence, Dr. Pentis was asked whether, if, from October 1990 to the date of the fall, the plaintiff had no continuing complaints or any symptoms in her right knee and was pursuing a variety of physical activities without complaint, would that assist in forming a conclusion as to what might have happened in the ordinary progression of the condition but for the fall. He replied:
“Usually it takes time for arthritis to develop and give you major symptoms so if she was coping reasonably well, I would have assumed it would have taken time. It’s almost impossible to say what length of time but you would probably guess that it would be something greater than 10 years if she wasn’t having problems. But, again, it depends on what you do. If you then decided to change the activities you were carrying out and do something more strenuous or something specifically that put pressure on the knee, kneecap region, then you may get further arthritis developing at a quicker rate.
You say “perhaps something beyond 10 years if nothing else changes”?-- Yes.
That is if she is completely asymptomatic before this fall in August 1993?—Yeah. You can’t say with certainty as to what time something is going to give people a lot of difficulty. It may just come out of the blue. Usually there is some incident that, sort of, precipitates it to an extent.” (T75)
He commented that it was hard to put a specific figure on it and that it would be basically a guess. It would also vary with individuals and their characteristics (T76).
- [45]Dr. Pentis was asked in cross-examination:
“Now another expert, an orthopaedic surgeon, finds ‘I think that the accident that she had has caused temporary aggravation to her right knee. This would have lasted a matter of months. If she had not had this fall I think that she would have had symptoms within a fairly short period of time. I think that she has no disabilities from her fall now, but the fall would have brought forward the need for an operation to her knees by a time which is very difficult to evaulate, but could have been within months, to two to three years.’?—Yeah, as we said before it is very hard to give a time frame, but I don’t think you would be talking in the vicinity of months.
All right?-- If you are talking in the vicinity of months, someone would have had quite severe problems and would have been seeing their general practitioner and complaining of difficulties with the knees. So your minimum time has got to be somewhere like two years.
Well, that depends a bit on the masking of symptoms by drug use, doesn’t it?-- Yeah, it doesn’t completely mask it unless you are taking tablets all the time and it is rare for someone to take tablets all the time.
But you could have a situation where people are taking tablets and reporting minor medial symptoms in the right knee?-- Yeah, you probably could.
And that’s in fact the case here on the evidence of her general practitioner?-- Yeah.
In 1990 she was being treated with I think its Tilcotil and she was
still reporting minor medial symptoms in the right knee?-- Yes.
Well, bearing that in mind, do you think your view about the acceleration should ….?—Yeah, I think it still stands. Usually even if you are on tablets most people come to you and say they want a total knee joint done when they can’t stand the pain anymore and even whether you are on tablets or not that occurs and it usually occurs even with people who are taking reasonable doses of medication that are there to alleviate pain.” (T84)
There is no evidence before me as to the duration of any medication taken by the plaintiff in 1990 or its effects.
- [46]In re-examination Dr. Pentis was of the view that the maximum period could have been up to 10 years or so (T85). He questioned the 30 year old diagnosis of rheumatoid arthritis since the condition went into remission and there were no symptoms, particularly between 1990 and 1993 (T86).
Impact of Pre-Existing Condition
- [47]The defendants submit that they have discharged the evidential burden cast on them to show that the plaintiff’s incapacity is wholly or partly the result of some pre-existing condition (Watts v. Rake (1960) 108 CLR 158; Purkess v. Crittenden (1965) 114 CLR 164). The plaintiff was not asymptomatic before the accident. An arthroscopy was performed on her right knee in 1990. At that time considerable wear was noted on that knee. Both orthopaedic specialists were in agreement that the accident accelerated the condition. The defendants submitted that I should prefer the evidence of Dr. Morris that the acceleration period should be at the lower end of the range proposed by him – a matter of months. That submission was based on the mechanism of the fall itself and the site of the injury, the 1990 observations of wear on the knee, the excess weight being carried by the plaintiff, the earlier diagnosis of rheumatoid arthritis leading to degeneration of the joints and the fact that Dr. Morris was the treating surgeon. The defendants submitted that only up to a maximum of two years from the date of the fall should be used to calculate damages, as at least, by that time the degeneration of the knees would have occurred naturally.
- [48]The plaintiff referred to the joint judgment of Barwick CJ, Kitto and Taylor JJ in Purkess v. Crittenden (1965) 114 CLR 164 at 198 as to the onus on a defendant to prove a plaintiff’s incapacity was totally or partially referable to a pre-existing condition. The judgment noted that in relation to Watts v. Rake (above):
“It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. On the contrary it was stressed that the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie. either substantive evidence in a defendant’s case or evidence extracted by cross-examination in the plaintiff’s case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be.”
- [49]The plaintiff submitted that the defendants onus has not been discharged in the instant case. It was accepted that the evidence established that there was a pre-existing condition (T156). However, it was submitted that neither doctor could say with any degree of certainty the time frame at which such a pre-existing condition might have impacted. The possibility of a future occurrence was insufficient to satisfy the onus. If, however, I was satisfied that the pre-existing condition would have at some stage impacted and also taking into account the other exigencies of life, it was submitted that I should find that it would not have impacted until the end of 1999, a little over 6 years from the date of the accident.
- [50]In my view, it has been established on the balance of probabilities that the plaintiff did have a pre-existing condition and that it would have impacted at some time in the future. The question is whether the evidence has established with “some reasonable measure of precision” the future effects of the condition, particularly its progress and impact. The timing of possible impacts, on the evidence of the two orthopaedic surgeons, is from a matter of months after the accident to a maximum of 10 years. I am satisfied that the evidence establishes that the condition would have impacted at some time within that period. I make this finding on the evidence as to the condition of the plaintiff’s right knee as observed by Dr. Doddsworth in 1990, the evidence of both expert surgeons and the age of the plaintiff.
- [51]I do not accept the evidence of Dr. Morris that the condition would have occurred, in the absence of the fall, within months of August 1993. I am of this view based on the active working and private life of the plaintiff and her lack of any symptoms or complaints concerning her knees in the period November 1990 to the date of the fall. I am also of the view, considering her age at the time and the observed state of her knees in 1990 that a period of 10 years is excessive. To my mind, considering the state of the evidence and also taking into account the other exigencies of life, it is appropriate to find that a period to the end of 1998 (a little over five years) is reasonable in the circumstances.
Quantum
- [52]In relation to pain and suffering and loss of amenities, the plaintiff submits that an amount of $30,000 be awarded. The injuries caused a significant impact on the plaintiff’s lifestyle. Both of her knees were injured in the fall. She had a number of surgical operations. She experienced continual pain and sleep disturbance for a considerable time. I am of the view that the amount of $30,000 is an appropriate sum.
- [53]With respect to special damages claimed (Exhibit 6), I am satisfied that all items claimed were incurred as a result of the tort and occurred within a five year four month time frame after the date of the accident.
- [54]In relation to the claim for past economic loss (Exhibit 13), there are two separate stages. The plaintiff is entitled to lost wages for the periods of time between July 1994 and March 1996 where she was absent from her employment as a result of the surgical operations. The plaintiff ceased work in December 1997. She should be compensated for the loss of income in 1998. That is appropriate considering my findings above, her avowed intention to work until age 65 and the other exigencies in her life. She was aged 62 at the end of 1998. I accept the plaintiff’s submissions as to the calculation of interest on those amounts.
- [55]The Fox v. Wood claim is not contentious. The Griffiths v. Kerkemeyer quantum has been agreed. There is no claim for future economic loss.
- [56]I am thus of the view that the plaintiff should be awarded the following damages:
Pain suffering and loss of amenities $30,000.00
Allow interest on $20,000 less WorkCover disability payment of $ 11,314.00
Interest on $8,686 x 2% x 8 years $ 1,390.00
Special Damages (Exhibit 6) $21,559.00
Interest on items 4, 5, 6 and 7 of special damages
Interest on $1,812.10 x 10% x 5 years $ 906.00
Past economic loss
For period 25 July 1994 – 6 March 1996 $ 7,707.00
For period 13 December 1997 – December 1998 $13,099.00
(52 weeks x $251.91)
Interest on $13,099 x 5.5% x 3.3 years $ 2,377.00
Past superannuation loss by 6% $ 128.00
Fox v. Wood $ 1,120.95
Griffiths v. Kerkemeyer $ 3,360.00
Interest on past care - $3,360.00 x 10% x 5 years $ 1,680..00
Total: $83,326.95
There is also a WorkCover refund of $38,455.01.
- [57]I order that the first defendant pay the plaintiff the sum of $44,871.94. I order that the second defendant pay the plaintiff the sum of $83,326.95.
- [58]If there is a problem with the form of these orders, I will hear submissions from the parties. I will also hear submissions in relation to costs.