Peck v Inghams Enterprises Pty Ltd
[2007] QDC 372
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- Unreported Judgment
- Peck v Inghams Enterprises Pty Ltd[2007] QDC 372
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Peck v Inghams Enterprises Pty Ltd[2007] QDC 372
Peck v Inghams Enterprises Pty Ltd[2007] QDC 372
DISTRICT COURT OF QUEENSLAND
CITATION: | Peck v Inghams Enterprises Pty Ltd [2007] QDC 372 |
PARTIES: | NICOLINA PECK Plaintiff v INGHAMS ENTERPRISES PTY LTD Defendant |
FILE NO/S: | No BD517 of 2006 |
DIVISION: | Civil |
PROCEEDING: | Personal injury allegedly caused by the negligence and/or breach of contract and/or breach of statutory duty |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 24 August 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23, 24, 25 July 2007 |
JUDGE: | Searles DCJ |
COUNSEL: | Mr R.J Lynch for the plaintiff Mr Diehm for the defendant |
SOLICITORS: | Turner Freeman for the plaintiff Bruce Thomas Lawyers for the defendant |
- [1]This action was commenced by the plaintiff against the defendant, her then employer, seeking damages for personal injury allegedly caused by the negligence and/or breach of contract and/or breach of statutory duty of the defendant. She is aged 53, born 3 March 1954. The injury for which damages is sought occurred on 22 April 2003, when the plaintiff was working a night shift on the defendant’s chicken breast-line at its Processing Plant at 158 Murarrie Road, Murarrie, Queensland. On the night in question the plaintiff was a process worker working on the breast-line, which was a conveyor belt carrying chicken breast meat. Her work involved scooping the meat from the conveyor belt into plastic crates, weighing those crates to a weight of kilos and then stacking them, six to eight in number, onto steel frames on wheels (wheels).
- [2]It was the role of another person, the operator, to take those crates on wheels away and ensure a continual supply of wheels to the plaintiff for subsequent loads, so that there should have been, at all times, sufficient wheels for loading by the plaintiff.
- [3]On the night in question, 22 April 2003, the operator was one Tracey Banks. The plaintiff gave evidence that she ran out of wheels and asked Banks three times for more. Her first two requests were ignored, but after the third request Banks, according to the plaintiff, came back with two sets of wheels and either threw them or pushed them towards the plaintiff with great force, resulting in the injury to the last two toes of her left foot. The plaintiff was uncertain as to the exact mode of propulsion of the wheels because, at the time of propulsion, she had her back to Banks, carrying on with her work on the conveyor belt.
- [4]At the time, the plaintiff was wearing un-reinforced gumboots and two pairs of socks. She said when the first wheels hit her she said she felt severe pain in the area of the last two toes on her left foot and she then pushed the first of the wheel frames away with her right foot. She looked up and saw Tracey Banks standing about two and a-half to three feet away from her. She said the second wheels hit her on the side of the foot in the ankle region of her left foot. The plaintiff gave evidence that when the first trolley hit her she exclaimed, “Fucking hell”.
- [5]At the first available work break a short time after the incident, the plaintiff wet her left foot with cold water after taking off the gumboot and socks and showed the foot to another employee, one Jenny Kanofski.
- [6]The only witness to the propulsion of the wheel frames, apart from Banks, was one Jackie Puna. She did not give evidence because she was unable to be located by the plaintiff. A statement given by her to WorkCover Queensland was admitted into evidence by consent pursuant to s 92(2) of the Evidence Act (1977). It is Exhibit GSB-1 to Exhibit 7, an affidavit of the plaintiff’s solicitor, Gregory Stuart Black, filed in support of the Evidence Act application. Relevantly, Puna said in that statement:
“I do recall seeing Tracey Banks slid (sic) a set of wheels to Lina Peck. We were busy and she might have pushed it quickly. The set of wheels did hit Lina. She looked really angry about this …”
- [7]The plaintiff continued working that evening and finished her shift. She continued to wear the gumboots and to continue her work in the weeks following that incident. She ultimately ceased work with the defendant on 29 May 2003, but that cessation was unrelated to the subject injury to her left foot. Rather, it resulted from a stress claim arising from alleged harassment at work, which is not the subject of this action. To put that claim in context however it is relevant to note it was lodged by the plaintiff alleging harassment by the abovementioned Tracey Banks which, according to the plaintiff, started on her first day of employment with the defendant.
- [8]The defendant tendered a pair of boots which the plaintiff said was similar in height to those she was wearing on the night of her injury, although she said the boots tendered had reinforcement over the toe section which the ones she wore on the night lacked. The defendant also tendered a set of wheels, which the plaintiff accepted was similar to those involved in the injury to her foot. It is apparent, looking at those two items, that the frame of the wheels is higher than the top of the gumboot so that the frame would pass over the gumboot if pushed towards it. However, there are four wheels on the perimeter of the frame of the wheels and any one of those wheels could have come into contact with the plaintiff’s foot. The plaintiff rejected the defendant’s suggestion that the frame had gone over the top of her gumboot and consistently maintained that it had hit her boot, pierced it, putting a slit in it where her fourth toe was. She said she was unsure as to what section of the wheels had hit her which is understandable given her evidence, uncontradicted, that she had her back to Banks when the two sets of wheels were propelled towards her.
- [9]The plaintiff gave a statement to WorkCover Queensland in June 2003 in relation to the unrelated harassment claim and gave details of the incident the subject of this action as an example of Banks’ harassment of her. She was cross-examined on the inconsistency in that statement and her evidence at trial as to the distance Ms Banks was from her when she was hit by the first set of wheels. In evidence she initially said two to three feet but her statement of June 2003 recorded her stating about three metres. When that was put to her, she conceded that she did not know how far away Banks was at the relevant time. In my view, nothing turns on that.
Defendant’s case on liability
- [10]The defendant called Ms Banks and Ms Kanofski on the issue of liability. In its amended defence the defendant denied liability but admitted that Ms Banks had pushed two trolleys towards the plaintiff denying that either came into contact with the plaintiff. It followed that the defendant denied that the plaintiff suffered any injury as a result of any conduct on its part.
- [11]The evidence of Banks in relation to the incident was quite different from that of the plaintiff. Banks said that after receiving the request from the plaintiff for more wheels she set off to obtain some from a storage area and returned with them and pushed them along the ground from a distance of about three to five metres towards the plaintiff, in the same style as a ball would be bowled underarm. She denied anything out of the ordinary occurred and said the wheels had rolled to a stop to the side of the plaintiff without making any contact with the latter.
- [12]Further, the defendant positively asserted in its amended defence that any injuries sustained by the plaintiff were caused by the plaintiff dropping a carton upon her foot at a time, date and place unknown to the defendant. The only evidence in support of that allegation was that of Ms Banks who said that on the night in question between 9.30 and 9.40 pm, prior to the commencement of the relevant shift at 10.30 pm, she had a conversation in the defendant’s car park when, according to Banks, the plaintiff brought up the fact that she had just finished picking avocadoes in Lismore and a crate had fallen on her toe and that it was sore. When pressed under cross-examination to relate the conversation as closely as she could recall, Banks’ account was this:
“Pulled up in the car park. I got out of my car, Lina parks opposite me. ‘Would you like some avocadoes? I’ve got a box over here. I’ll give you a hand to carry them in. I’ve got a sore toe. I hurt them while picking avocadoes.’ I’m not quite sure whether she said, ‘I dropped the box or – on my foot’ but the impression is she hurt her toe picking avocadoes. I can’t remember any more.”
- [13]When that car park conversation was put to the plaintiff, she denied that it had ever taken place and said that she had not been home to Lismore the weekend prior to the evening she was injured and of the alleged conversation. Rather, she had been to Coolangatta to watch her son play football. She denied injuring her toe by dropping a crate, a bag or any individual avocado on it. I do not accept Banks’s evidence of that conversation and find that no such conversation ever took place.
- [14]Mr Diehm for the defendant pointed to the following inconsistencies in the plaintiff’s evidence:
- (a)in evidence she said she saw Banks approach from some distance away, carrying a set of wheels in each hand. A Mr Justin O'Sullivan, ergonomist and safety consultant had interviewed the plaintiff at the accident site and provided a report on the system of work in the defendant’s premises and identified defects. Mr O'Sullivan did not give evidence. The point was made to the plaintiff that she did not tell this to Mr O'Sullivan but, rather, told him that it was common for Ms Banks to carry one wheel set in each hand. I do not think that is of significance;
- (b)the difference between the evidence the plaintiff gave as to where she was standing at the time of impact of the wheels with her foot, that is back from the scales and the different position she was standing in as evidenced by photograph 4 in the O'Sullivan report. Despite cross-examination on this, the plaintiff remained steadfast in her evidence that she was standing away from the scales and not in the position shown in photograph 4;
- (c)the evidence of the plaintiff in pushing the wheels under the conveyor with her right foot after they had hit her left foot. Mr Diehm submitted that was an irrational act because the wheels were required behind her not under the conveyor. I consider that if the plaintiff had been hit by a set of wheels, she may not have been thinking particularly rationally and the kicking of the wheels under the conveyor could well have been a spontaneous reaction to the pain of the impact;
- (d)Mr Diehm compared the evidence of the plaintiff stating that she had seen Banks walking from some distance away with two sets of wheels in her hand with her evidence that there was a delay of a minute and a-half between the pushing of the first set of wheels and the second. He pointed to the fact that the plaintiff had said that after being hit by the first set of wheels, she saw Banks walking away towards the next conveying line with nothing in her hands and postulated that, for that evidence to be accepted, Banks must have placed the second set of wheels somewhere, walked to the other line, then returned to retrieve them and pushed them towards the plaintiff. I accept the force of that argument but do not think the time between the pushing of the two sets of wheels is determinative of this matter. I do not see this apparent inconsistency as reflecting on the credit of the plaintiff. In my view she attempted to give her best recollection of the events;
- (e)The next point Mr Diehm raised was the inconsistency between the plaintiff’s oral evidence at trial, when she said that it was the first set of wheels which caused the injury, and her statement of 11 June 2003 to WorkCover, where she said the injury was caused by the second impact. Again, I do not think it is of great significance which set of wheels caused the injury. I am satisfied from the evidence of the plaintiff and the statement of Ms Puna that the wheels did hit the plaintiff;
- (f)Mr Diehm also made something of the fact that the O'Sullivan report proceeded on the basis that the edge of the frame was what struck the plaintiff’s toe. Whatever might have been Mr O'Sullivan’s theory of the cause of the plaintiff’s injury, it has never been asserted in pleadings or in evidence by the plaintiff that the edge of the frame was what struck the plaintiff’s toe. As I have said earlier, the evidence is that the plaintiff had her back to Ms Banks at the time the wheels were propelled, so she has no direct knowledge of what part of the wheels caused the injury. I have already found that the position of the four wheels on the wheel frame was such as to be capable of hitting the plaintiff’s foot
- [15]Overall and despite the above inconsistencies carefully identified by Mr Diehm, I found the plaintiff to be an honest witness, who, I thought, attempted to give a truthful account of an incident which occurred over four years ago.
- [16]As to the evidence of Banks, I did not have the same degree of confidence as to the reliability of her evidence. In any instance where it conflicted with the plaintiff’s I preferred the evidence of the latter. Banks was quite firm in her evidence that the conversation in the car park with the plaintiff and the incident where she pushed the two sets of wheels both occurred on Sunday night, the first night of her shift, and that they occurred on 22 April, being the anniversary of the passing of her late mother. That is a day, she said, she will never forget. It is also the date of her daughter’s birthday. They were the markers which made her certain that the conversation and the incident with the wheels both occurred on that night.
- [17]She was then referred to her statement given to WorkCover dated 11 July 2003 when, on its face in para 10, she appears to say the opposite. That paragraph reads:
“I do recall an incident when Lina asked for a set of wheels. It would not have been 22 or 23 April as this is the date my mother died and the date of my daughter’s birthday. That date might have been when she told me that she dropped a crate of avocadoes on her foot.”
Despite that inconsistency, she remained adamant that both incidents occurred on the same night.
- [18]It was common ground that 22 April 2003 was not a Sunday night but a Tuesday night, but when it was put to Ms Banks that the incident could have taken place on a Tuesday night rather than a Sunday night, she remained adamant that it was a Sunday night. I should say, I do not think that Banks was doing other than trying to recall the events of the night but her confidence on the above two issues – the date and the day of the week – even after contrary matters were put to her, made me cautious in accepting her evidence when it conflicted with that of others.
- [19]The evidence of Ms Banks I found most difficult to accept and do not accept, was that the wheels she pushed towards the plaintiff did not make contact with the plaintiff causing her injury and that the plaintiff finished her shift that night without incident. That is at odds with the evidence of the plaintiff and does not make any sense of the plaintiff exclaiming the expletive “Fucking hell”. Banks accepted in her evidence that the plaintiff had sworn at her when she was reminded of her statement of 11 July 2003 given to WorkCover Queensland in which she stated, “Lina swore at me” after she rolled the wheels towards the plaintiff. She sought to explain that inconsistency by saying that the plaintiff regularly swore and that every second word she used was “the F word.” Banks’ evidence is also at odds with the evidence of Kanofski who agreed the plaintiff had taken her gumboot and socks off and showed her foot to her. Why else would she have done that if she had nothing to show Kanofski? Finally, it does not sit with the evidence in the statement of Ms Puna to the effect that she saw Ms Banks slide the wheels towards the plaintiff, that Ms Banks may have pushed the wheels quickly, that they hit the plaintiff and that the plaintiff looked really angry about this. None of that evidence would make much, if any, sense if the evidence of Banks as to the events of the evening was accepted.
- [20]In all the circumstances I am satisfied to the requisite standard that on the night in question Banks, in answer to a request from the plaintiff for more wheels, rolled two sets of wheels towards the plaintiff with a force that was excessive in the circumstances, that the excessive force used constituted negligence on the part of Ms Banks in the performance of her duties, and that the actions of Banks caused the plaintiff’s injuries.
Liability of the Defendant
- [21]I find that Ms Banks’ actions in rolling the wheels towards the plaintiff with excessive force occurred whilst she was fulfilling her authorised duties as an operator on the night in question. I find further that her action was so connected with her authorised duty that her conduct may be regarded as improper mode of performance of her normal duties. I accordingly find that the defendant is vicariously liable to the plaintiff for the injuries she sustained.
Nature and extent of injury
- [22]The plaintiff ceased work at Inghams on 29 May 2003 as a result of her stress claim and not as a result of the toe injury, although in the stress claim she gave an account of the events of the evening when her toe was injured. However, that was by way of exemplification of what she said in her claim was harassment by Tracey Banks from the first day the plaintiff started at Inghams, rather than a reliance on the injured toe as the basis for her claim.
- [23]After leaving Inghams she saw a Dr Chalk, psychiatrist, who prescribed her anti-depressants. She was also taking Nurofen for her migraines and blood pressure tablets. She said she received psychiatric or psychological treatment from a psychologist at Capalaba and also saw a Lifeline psychologist. Her evidence was that the medication she was on made her feel pretty numb and that she was not involved in any weight-bearing work during the remaining months of 2003. She said the toe was swollen and sore during that period but as she was lying around watching television she could cope with the pain in the toe. Towards the end of 2003, however, she noticed that the toe had started to get bigger, was swollen and had turned purplish. She found that when she put any weight on the toe the pain was really bad. This prompted her to lodge with WorkCover a second claim on 22 October 2003. That claim related specifically to the toe and was approved by WorkCover on 5 February 2004.
- [24]WorkCover referred her initially to Dr Jeff Peereboom, an orthopaedic surgeon at the Holy Spirit Hospital in Brisbane who provided a report to WorkCover dated 14 January 2004. He confirmed that he had seen the plaintiff on 8 January 2004 when she said she had a swollen fourth toe of her left foot, with evidence of hyperextension, that the X-rays had demonstrated a fracture of the fourth metatarsal metaphysis of the proximal phalanx and there was continuing pressure on the fracture line. He thought that the fracture had not yet united and was the cause of the ongoing symptoms. He said the plaintiff should be referred to an appropriate specialist to obtain treatment for the non-union of the fracture.
- [25]Around this time, in early 2004, the plaintiff sought work through IBL Recruitment Services, a labour hire company, and was placed at the Norco Ice Cream Factory in Lismore. She also did a bit of farm work processing Christmas bush. She found that she could not continue at the ice cream factory because the cold made her foot ache more. She was then placed in a chefing position at the Northern Rivers Hotel which involved preparation of food and standing in one spot for long periods which caused her a lot of pain. In the result, she left those positions at the ice cream factory and hotel.
- [26]During the time she was working at Norcos and the hotel she said she was taking up to six to eight Nurofen a day to cope with the pain in her toe.
- [27]She then consulted Dr Mark Pearce, consultant orthopaedic surgeon of Lismore who provided a report dated 23 February 2004. He found that she had obvious swelling of the fourth toe of her left foot and that there was a suggestion of a recent refracturing of the proximal phalanx. He arranged to obtain up-to-date X-rays and a copy of a recent MRI report. By a further report of 10 March, Dr Pearce confirmed that he had now seen the repeat X-ray of the plaintiff’s toe and confirmed a non-union of the proximal phalanx. He said the toe would require a mini plate and possible bone grafting. He saw the plaintiff again and further reported to the referring GP, Dr Gillian Ette on 22 March 2004, confirming that the plaintiff had decided to proceed with an amputation of the left fourth toe, rather than an attempt at plating. He said he would write to the Insurer and report which he did in a report of 12 May 2004 to WorkCover. He confirmed he had seen the plaintiff again and his impression was that she had sustained a fracture of the proximal phalanx, fourth toe of her left foot, which had gone on to non-union. He set out the options for treatment as an open reduction and internal fixation with bone graft or an amputation. At the end of the day, he said the plaintiff would continue to have problems with the non-union of the fourth toe proximal phalanx and confirmed that the plaintiff had decided to undergo amputation.
- [28]Dr Pearce’s report of 14 July 2004 confirmed amputation of the toe, which the plaintiff said occurred on 2 July 2004. During the surgery, Dr Pearce said that he had found some fairly diffuse soft tissue swelling around the toe and had sent off some biopsy specimens. He said they suggested the plaintiff had developed a giant cell tumour. At that stage Dr Pearce said it was difficult to equate the injury and fracture with this apparent tumour and that the wound was healing nicely.
- [29]The plaintiff gave evidence that after the amputation surgery the pain was really bad and she could not bear weight on it. She could not stand on it all day or anything like that. She said she continued to take Nurofen tablets. She sought and obtained work, commencing on 27 July, 25 days after the amputation surgery, at Action Industrial and Engineering in Murwillumbah as a process worker, in a nut factory. However, she only lasted a couple of weeks because the job required her to sit with her legs spread right open against the conveyor belt and her foot was left hanging down the whole time which made it ache. For that reason she ceased work there.
- [30]Dr Pearce reported again on 28 July 2004, advising that the giant cell tumour he had found during surgery was a locally aggressive growth and unlikely to cause any major life-threatening incident. He confirmed the wound was slow to heal but was healing. He noted that the plaintiff was planning to start some work on Monday and that he was happy for her to do so. On 27 July 2004 she started work with Action Industrial and Engineering, as outlined above, 27th being a Tuesday.
- [31]By further report of 8 September 2004, Dr Pearce reported that the plaintiff’s foot seemed to be settling down, however, she did still have some intermittent pain throughout the limb. It was his feeling that she had now reached the point where she was fit for all forms of occupational activities, although he wanted to keep her foot under close review given the possibility of a recurrent of the growth.
- [32]In a later report of 27 September 2004, Dr Pearce said the tumour was an unusual situation but that it was his understanding that this benign but locally aggressive tumour could occur as a result of chronic trauma. He said there was a significant possibility of recurrence of the tumour in the foot and said he was going to see the plaintiff again in November 2004. He said his feeling was that the plaintiff was fit to return to any form of occupation at that point, which I take to be the date of his report, 27 September 2004, rather than November when he was next to see her. Significantly, Dr Pearce changed his view as to the nexus between the giant cell tumour and the non-union of the fracture in the plaintiff’s toe. He said that it was his feeling that this giant cell tumour of tendon sheath was likely to be related to the chronic non-union of the toe fracture.
- [33]On 29 October 2004, the plaintiff commenced work with UCA Care Services in Goonellabah near Lismore doing kitchen work and cleaning. She said that was not too bad because she was not standing in one spot for any length of time and she coped with the job quite well. She said the only reason she finished up with that job was to have her second operation to remove the tumour. Because she was going to be off work with a recovery period in excess of three months, she was unable to give her employer a time when she could resume work. For that reason she lost the job. The second round of surgery, to which I shall later refer, occurred on 23 December 2004.
- [34]By further report of 17 November 2004, Dr Pearce reported that the giant cell tumour of the tendon sheath found on the amputation surgery was not a malignant condition. He said he was in the process of obtaining second opinions on the pathology and possible cause but said there was good scientific evidence that a giant cell tumour of tendon sheath could arise from chronic trauma. Dr Pearce reported again on 22 November and said he had consulted at least two pathologists on the diagnosis of the cell tumour and they had confirmed that there is often a past history of trauma related to the occurrence of this benign tumour. He said it was his feeling that it was more than coincidental that the plaintiff had a giant cell tumour of tendon sheath associated with the chronic non-union of her proximal phalangeal fracture. This view was consistent with his earlier expressed view that the tumour and the fracture non-union were related. In the result, the defendant conceded that the two were related so it was not an issue.
- [35]Dr Pearce again reported on 8 December 2004 and stated that it was his supposition that the original injury directly led to the plaintiff developing the benign soft tissue growth. He said there were minimal symptoms at that time but he felt duty bound to offer the plaintiff further surgery to try to excise the growth area and, as previously mentioned, that surgery took place on 23 December 2004. In the plaintiff’s words, “There was a growth, there was a lump there … and he cut that lump out and pulled the foot closer together.”
- [36]A further medical report was commissioned by the plaintiff’s solicitors from Dr Greg Gillett, orthopaedic surgeon, who gave his opinion of the plaintiff’s injury in a report dated 1 September 2005. He recorded that the plaintiff had no fourth toe on her left foot and had discomfort associated with activities such as tending her vegetable garden. Squatting and low tasks gave her discomfort and there was tenderness where the operation was performed. He said the scar was tender and the plaintiff needed to wear shoes. She had some discomfort in bare feet and pain if she walked on pebblecrete. He recorded that shoes were problem if they were tapered and that the plaintiff needed a broader shoe. He said her balance was affected and she now had some backache which occurred subsequent to the operation. Standing in one position caused her discomfort. He concluded the plaintiff had a 2 per cent impairment of the lower limb function, which equated to 1 per cent loss of the whole person function. He said that the plaintiff would be able to function and work on her feet but with some discomfort, that she would be able to participate in daily life and recreational pursuits at the level she was then doing and that no further surgery was required.
- [37]At the trial the plaintiff said that she still experienced pain in the area where the toe was by the way she stood. She said walking around was not too bad as long as she did not walk every day. If she walked around a lot one day she would find that the next day she would have to put her foot up for a few hours. She said she was still taking a box of 20 Nurofen each month to cope with the pain, and had difficulty wearing closed in shoes. At the time of the hearing she was not working.
- [38]The last orthopaedic evidence came from Dr Tony Ganko called by the defendant. He had provided a medical report of 1 September 2005. He expressed the view that if the fracture of the toe did occur in the work injury suffered by the plaintiff, then it was probably more likely that the giant cell tumour evolved following the fracture and would seem less likely that the fracture occurred in the presence of a pathological weakening of the bone due to the giant cell tumour, although that remained a possibility.
- [39]Dr Ganko in his report said he did not believe that the plaintiff’s then condition would have a great effect on her capacity to work and the plaintiff would currently, and in the future, be fit to do work as a process worker, aged care worker, clerical worker, shop assistant, kitchen or laundry worker. In cross-examination by Mr Lynch, Dr Ganko agreed that one’s pain threshold was extremely subjective. He agreed that running would be painful and consistent with her surgical outcome and that prolonged standing was also consistent with that. In relation to the above six occupations, Dr Ganko agreed that process work would probably involve wearing a work boot and prolonged standing and that that may increase her discomfort. He said that working as an aged care worker would, in his view, not cause a lot of trouble to the plaintiff as she would be able to wear a soft sandshoe type shoe. He agreed that working as a shop assistant may involve prolonged standing which could increase her pain levels, so that she may need some Paracetamol. He agreed that kitchen or laundry work would potentially involve wearing her closed in work boots and would involve standing or prolonged standing and, finally, working as a cleaner, he agreed, would involve the plaintiff wearing closed in shoes, possibly boots, and would also involve spending a lot of time on her feet. He said the softer the shoe worn by the plaintiff, the more the shoe would be tolerated. He thought a fashion shoe, where the plaintiff’s foot would be closed in, would be the worst type of a footwear, and a Wellington boot would be the best of the footwear options. He agreed that there may still be some irritation even with a Wellington boot.
- [40]He referred to the American Medical Assocation’s Guides to the Evaluation of Permanent Impairment, Volume V, Table 17.32, which provided for a 1 per cent Whole Person Impairment as a result of amputation of one of the lesser toes at the metatarsophalangeal joint. He expressed the opinion that whilst the plaintiff seemed to have a mild degree of ongoing metatarsalgia, with no callosities or change in the plantar skin, he did not believe that this significantly increased her impairment. Dr Ganko agreed with Mr Lynch that the notion of impairment was quite separate and different from the notion of disability. Mr Lynch put to him and he agreed, for instance, that the loss of a finger by a concert pianist and by a barrister would result in the same impairment rating according to the abovementioned AMA Guide, but that the disability would vary and would be greatly different having regard to the effect the loss had on the earning capacity of each.
- [41]Dr Ganko was asked finally, by Mr Lynch, whether because of the matters raised with him relating to each occupation as outlined above, the plaintiff may be impaired by her experience of pain Dr Ganko agreed and said that she may have some limitation on the number of hours she could work and may need some analgesics with that employment, but that he thought she probably would manage it in most circumstances. In re-examination, however, he said that the plaintiff’s scarring at the point of amputation was not excessive and that the modification of any footwear and the wearing of well-padded socks with a stiff sole in the boot were things the plaintiff could do to address any discomfort, as well as taking Paracetamol. He said the wearing of a stiff sole would reduce the rolling within the boot onto the plaintiff’s toes and a cushion insert into any footwear would relieve the pressure beneath the ball of the foot. He said it would be surprising to him if someone like the plaintiff, with an isolated amputation of the fourth toe, could not get into just about any footwear that was comfortable, excepting a very narrow toed fashion footwear, which compresses across the front of the fore foot.
- [42]Later in re-examination, Dr Ganko said that the level of the plaintiff’s pain was somewhat higher than he would have expected from such an injury which, he said, could have resulted from the other issues relating to her allegations of harassment at work, but taking all factors into account, he expressed the view that he would be surprised in relation to an injury involving the amputation of a fourth toe in isolation, that a person with that injury could not work in all the occupations he set out in his report. He said there would be very few limitations of footwear or anything with that surgery.
Work History Prior to Accident
- [43]The plaintiff gave evidence that she left school at the end of third form at the age of fourteen and a-half and was immediately employed by Grace Brothers, Broadway, in Sydney as a sales assistant. She remained with that company for seven years, until the age of twenty one and a-half when she left to have her first child, Kylie. When Kylie was between six and eight months of age the plaintiff went back to work, doing night work with Gartrell White, Tip-Top in Sydney. She explained that she did afternoon shift or night shift to coincide with the availability of her mother to mind Kylie, the plaintiff’s marriage having broken up when Kylie was about six months old.
- [44]At the Tip-Top Bakery she was a process worker. She remained there for six or seven months until a job came up at Colgate-Palmolive, just around the corner from where she was living in Balmain. Again, at Colgate-Palmolive, she worked as a process worker on day shift. She remained there for six and a-half years when she left to have her second child, Carissa. She also had a third child, Jonathan, and when he was about three years of age she returned to the workforce and did a number of jobs. She worked at Containers Packaging in Granville, for Trident as a merchandiser and other jobs, the details of which she could not recall when giving evidence. In or about the end of 1998 she and her husband moved to Lismore because, she said, the air was cleaner and her son had a rare disease causing him to be always sick when living in Sydney.
- [45]She and her husband settled at Whian Whian near Lismore and she commenced work for the Education Department as a carer at the Goonellabah School. On the weekend she worked for Casino Neighbourhood Watch, a respite care place. She also worked for her neighbours as a nut picker, which was seasonal work, and worked in the Norco Ice Cream factory in Lismore. She commenced working for the defendant on 15 March 2002, where she remained until she left on 29 May 2003. The above history is that of a person who has been in the workforce pretty well continually since leaving school, apart from periods when family responsibilities called for her to remain at home to care for her children. It is a history of a person who is accustomed to working.
- [46]Since the time of the second surgery on 23 December 2004, the plaintiff has worked at market gardening which she said she had been doing since March 2006. She grows herbs, snow peas, broccoli, some cauliflowers, suedes and turnips and sells that produce at the growers market in the Lismore Showgrounds on a Saturday. There is also another market, the Lismore car boot market, which operates twice a month and she assists friends in selling their produce there. She said this market activity brings her in about $80 to $100 per week, which is the only source of income she has except for her husband’s wages.
Relevance of Psychiatric Condition
- [47]It is necessary to determine what impact, if any, the plaintiff’s psychiatric condition work history had to date of trial or could have in the future. It was accepted by the plaintiff that, if the evidence established that the plaintiff was, irrespective of her toe injury, incapable of employment as a result of her psychiatric condition, then she could not be compensated for economic loss as a result of her inability to work because of the toe injury.
- [48]After leaving the defendant’s employ on 29 May 2003, the plaintiff lodged her harassment claim on 11 June 2003, claiming psychiatric injury and, as I have said earlier, this action is in no way related to any claim for that injury. Notwithstanding that, as I have said, it has some relevance in determining the part, if any, it played or will play, in the plaintiff’s work life subsequent to her injury.
- [49]Two psychiatrists gave evidence and provided medical reports. Dr John Chalk provided a report dated 2 November 2005, having seen the plaintiff on 27 October 2005, and Dr Andrew Byth, who saw the plaintiff on 9 November 2005 provided a report dated 22 November 2005.
- [50]Both doctors found that the plaintiff, at the time of their respective examinations, still displayed symptoms consistent with a psychiatric condition. Dr Chalk concluded that she appeared to have developed an adjustment disorder, with depressed and anxious mood, as a result of the difficulties she experienced at her work with the defendant. At the time he saw the plaintiff on 27 October 2005, he concluded that, at best she had residual symptomatology of an adjustment disorder with depressed mood and thought that she was, at best, mildly depressed.
- [51]Dr Byth on the other hand, concluded that the plaintiff had an adjustment disorder with depressed mood, that she was likely to make a partial improvement, but would be left with chronic moderately severe depression.
- [52]Dr Byth provided his report without having the full history of the plaintiff’s employment since leaving Ingham’s. He mistakenly thought the plaintiff had not worked in any gainful employment between 29 May 2003 when she left the defendant’s employment and when he saw her on 9 November 2005. He agreed with Mr Lynch that he had seen the report of a clinical psychologist, Ms Corrine Mioche and agreed that the results of the Beck Depression Inventory test performed by her on the plaintiff on 9 September 2003 indicated that the plaintiff had dramatically reduced from severe symptoms of depression to mild depression.
- [53]At the end of the day, the psychiatric evidence established that as at the end of 2005 the plaintiff was still suffering some form of depression, whether mild or moderately severe, depending on which of the opinions of Doctors Chalk and Byth one accepts. I do not need to decide that issue. What I need to decide is, accepting that the plaintiff had that depressive condition of whatever severity, whether that condition resulted in or contributed to or will in the future result in or contribute to the plaintiff’s inability to find and maintain employment.
- [54]I am satisfied that from the time the plaintiff left the defendant’s employ on 29 May 2003 until the end of 2003 she was suffering from a psychiatric condition which prevented her from working. No claim is made by her for that period. Although she was clearly suffering from the psychiatric condition at the commencement of 2004, I am satisfied that that psychiatric condition did not cause of or contributed to her failing to hold down a job in 2004. Rather, I am satisfied that she made every attempt during 2004 to find and maintain a job, but that because of the injury to her toe she was unable to remain in employment. Further, I am likewise satisfied that it will not cause or contribute to her failing to hold down a job in the future. In short, she is capable of working notwithstanding that condition.
- [55]I find that the reason she left the position in the Norco Ice Cream factory in Lismore was because of the aching in her left foot caused by the cold temperatures at the factory. I find that she left the position at the Northern Rivers Hotel because of her toe injury in that she experienced a lot of pain standing during her eight to 10 hour shifts when chopping, as a part of her food preparation task.
- [56]On 2 July 2004, the plaintiff underwent the amputation surgery and she gave evidence that after that surgery the pain was really bad, she could not bear weight on the left foot and could not stand on it all day or anything like that period. Notwithstanding that pain, she sought a position on 27 July, some 25 days after the surgery, with Action Industrial and Engineering in Murwillumbah. She remained there only for a couple of weeks because, she said, the job involved her sitting with her legs spread right open up against a conveyor belt, leaving her left foot hanging down the whole time, resulting in it aching. I find that was the sole reason she left that job.
- [57]Later in the year on 29 October 2004, she commenced work with UCA Care Services in Goonadella, near Lismore, doing kitchen work and cleaning. She gave evidence that that job was not too bad because she was not standing in one spot for any length of time but, rather, moving around. The kitchen work involved serving meals to the residents, so that she was not physically standing in the kitchen preparing food, as she had been at the job with the Northern Rivers Hotel. She said that she coped quite well with that job and I find that she only gave it up because she was to have the second round of surgery on her left foot, which Dr Pearce performed on 23 December 2004.
- [58]The result of the above findings is that the plaintiff was unable to work for any extended periods during 2004 because of the toe injury, rather than any psychiatric condition. Since leaving the UCA Care Services position to undergo the second operation, the plaintiff has not worked other than doing her market gardens and selling her herbs, snow peas, broccoli, cauliflower, suedes and turnips at the weekly growers market in Lismore and at the twice monthly Lismore car boot market. As earlier set out, she gave evidence that she earns between $80 and $100 per week from these activities.
- [59]Although I am satisfied that through the year 2004 the toe injury restricted the plaintiff’s capacity to work, I am not so satisfied in relation to the period since then. Allowing for a period of, say, two months to the end of February 2005 for her foot to recover from the second bout of surgery, I find that the inability of the plaintiff to secure employment since then cannot be wholly attributed to the toe injury. I accept the evidence of Dr Ganko as to the plaintiff’s capacity to undertake work of the nature set forth in para 9 of his report. I also accept that, for the plaintiff to undertake work of the type Dr Ganko referred to, and to which she is suitable for having regard to her work history, she may experience some ongoing discomfort. I further accept Dr Ganko’s evidence that the plaintiff may have some limitation on the number of hours she could work in the future and may need the assistance of analgesics to cope with the pain. I find that the injury to the plaintiff’s toe, whilst not preventing her from working full time in the future, may have some effect on her capacity to work the hours normally expected of people in the occupations for which she is suited.
- [60]Turning now to the specific heads of damage:-
General Damages for the Pain, Suffering and Loss of Amenities of Life
- [61]I find that the plaintiff experienced significant pain in relation to the toe injury from the date of the injury on 22 April 2003 to in or about March 2005, the end of the two months recuperative period I have allowed her in relation to the second round of surgery conducted on 23 December 2004. Although from immediately after leaving the defendant’s employ on 29 May 2003 until towards the end of that year, the pain in the toe was ameliorated by her inactivity, I find that she still endured some pain in that period. I find that the manifestation of the giant cell tumour was relevantly linked to the trauma of the injury so as to link the second round of surgery causatively to the original injury. I find that from early 2004 to March 2005 the plaintiff was conscientious in seeking to find work but was unable to hold down any position because of the pain she endured from the toe injury or surgery on it. I have considered the authorities set forth in the submissions of both parties and find that the appropriate measure of damages for the pain, suffering and loss of amenities of life experienced by the plaintiff is $20,000.
Past Economic Loss
- [62]The plaintiff has submitted that the earnings figure I should accept is $459 net per week, being the total of the plaintiff’s earnings from IBL Recruitment Services from 28 January 2004 until 17 February 2004 ($343 net per week) plus a net figure of $116 per week, which she earned in a second job at the Northern Rivers Hotel from 2 February 2004 for two weeks. I am not satisfied that the plaintiff would have maintained two jobs for the period 2004 to March 2005. The defendant, on the other hand, proposes a global estimate of $300 per week. I consider the most realistic figure is the actual earnings from IBL Recruitment Services of $343 per week. The number of weeks from 1 January 2004 to 1 March 2005 is 64, which gives a total net loss of earnings of $21,952 less actual earnings in that period. Those actuals were:-
Period | Employer/address | Capacity | Gross earnings | Total net earnings |
27/7/04 to 8/8/04 | Action Industrial & Engineering, Ballina Road | Process worker | $ 658.00 | $ 568.00 |
25/10/04 to approx. late December 2004 | UCA Caroona Care Services, Brass Road, Goonelladah, NSW | Kitchen assistant | $2,877.00 | $2,493.00 |
Total |
|
|
| $3,061.00 |
Accordingly the net loss of earnings for the relevant period is $21,952 minus $3,061, namely $18,891.
Interest on Past Economic Loss
- [63]The parties have agreed on the net weekly benefits received by the plaintiff from WorkCover and they are set forth in Exhibit 3 in a schedule of earnings. That schedule shows that the total net earnings from WorkCover payments was $9,910 received between 1 July 2004 and 29 October 2004, which period falls within the period 1 January 2004 to 1 March 2005. That figure must be deducted from the figure of $18,891, leaving a net loss of earnings of $8,981. The plaintiff accepts that this figure should be discounted by 20 per cent to allow for the contingencies that work may not always have been available to the plaintiff or that, for other reasons, she may have discontinued some of that employment. I agree with that discount figure, so that the discounted past economic loss figure is $7,184.80.
- [64]I consider that the past economic loss should bear interest at 5 per cent and that calculation on the figure of $7,184.80 for a period of 64 weeks is $442.14, making a total of $7,626.94.
Past Superannuation Losses
- [65]The parties have agreed that the rate for employer funded superannuation losses is 9 per cent, so that 9 per cent of $18,891 is $1,700.19.
Future Impairment of Earning Capacity
- [66]Whilst Dr Ganko considered the plaintiff could handle work in the categories he identified being types of work the plaintiff’s work showed she was capable of, he said she may experience ongoing pain which could be ameliorated by modification of her footwear and by the use of analgaesics. He also said that the injury could result in the plaintiff being unable to work normal hours.
- [67]That restriction on work hours, in my view, may limit the employment opportunities for the plaintiff and even restrict her to part-time work to ensure she is able to cope with the balance of the work requirements and the ongoing pain. Whereas the plaintiff has not worked since early 2004 apart from her work at garden activities, she has demonstrated, in her pre-accident work history, that she is one who has regularly worked when family commitments allowed. She is not a shirker.
- [68]What I have to do is to determine the monetary value of her reduction in work capacity. I have been referred to a number of decisions – Danielle Anne Kruz v Mary King[1], Schmidt v Dobb and Australian Associated Motor Insurers Ltd[2], Daly v Hosking & Suncorp Metway Insurance Ltd[3], Whitney v Whiteway & Anor[4], Amanda Jayne Carrol v Leila Coomber [5], Raffant v Gillard & Anor[6], Hook v Boreham & QBE Insurance (Australia) Ltd[7], Cooper[8], Danielle Anne Kruz v Mary King,[9] McDonald v FAI General Insurance Co Ltd[10], Tomkins[11], Gorman v Crown Equipment,[12]White v Aboriginal and Islander Affairs Corp & Ors[13] and Cook v Bowen & Anor[14]. I have considered each of these decisions and found them helpful though, apart from Hook who was a 55 year old plaintiff, all the others were younger, ranging from 23 (Daly) to 36 (Cook). The plaintiff here is 53 years of age.
- [69]Apart from any limitation to future employment as a result of the injury, there are other factors which may mitigate against the plaintiff working for the duration of her working life. She was living in Northern New South Walse at the time of the accident but working in Brisbane (living away from her family and seeing them on the weekends). I infer that she did that because of reduced work opportunities in her home district. That may well be the case presently and in the future.
- [70]In all the circumstances, I consider that an appropriate award for loss of future earnings taking into account the reduced opportunities resulting from her injury and non accident related factors, is $25,000 plus 9 per cent for superannuation losses, a total of $27,250.
Fox v Wood Damages
- [71]It is agreed between the parties that this component is $3,245.
WorkCover Special Damages
- [72]It is agreed between the parties that the plaintiff had medical and other treatment funded by WorkCover in the amount of $6,370.32.
HIC Fund
- [73]It is agreed between the parties that the amount of $613.40 is refundable to MediCare Australia on account of medical treatment paid for by the Federal Government agency.
Out-of-Pocket Expenses
- [74]I award the sum of $1,569 for travelling expenses, which is the amount of $1,967 outlined in Exhibit 12, less the travelling expenses to see Dr Ganko. I accept the defendant’s submission that that cost was for the purpose of a medico legal report relating to these proceedings. I award $636 for pharmaceutical expenses in accordance with the details in Exhibit 12, giving a total out-of-pocket expenses of $2,205.
Interest on Out-of-Pocket Expenses
- [75]Interest on this figure of $2,205 at 5 per cent per annum since the date of the accident (4.26 years) amounts to $469.66.
Summary of Damages Awarded
Head of Damage | Amount |
General damages | 20,000.00 |
Interest at 2 per cent for 4 to 6 years | 1704.00 |
Past economic loss | 18,891.00 |
Interest at 5 per cent | 442.00 |
Past superannuation | 1700.19 |
Future economic loss | 25,000.00 |
Future superannuation loss | 2250.00 |
Fox v Wood | 3245.00 |
WorkCover Special Damages | 6,370.32 |
HIC refund | 613.40 |
Out-of-pocket expenses | 2205.00 |
Interest on out-of-pocket expenses at 5 per cent | 469.66 |
Sub-Total | 82,890.57 |
Less WorkCover Refund | 21,548.88 |
Total | $61,341.69 |
- [76]There will be judgment that the defendant pays the plaintiff $61,341.69 and that the defendant pay the plaintiffs costs to be agreed or, if not, to be assessed.
Footnotes
[1] Unreported judgment Botting DCJ December 2005
[2] (2006) QDC 6
[3] (2006) QDC 106
[4] (2006) QDC 163
[5] (2006) QDC 146
[6] (2006) QDC 403
[7] (2006) QDC 279
[8] Unreported decision Botting DCJ 22/12/06
[9] Unreported judgment Botting DCJ December 2005
[10] Appeal No 12/8/1995 judgement delivered 3/10/95
[11] (2005) QDC 174
[12] Unreported judgment Forde DCJ 14/7/98
[13] Unreported judgment Britton DCJ No 058 Rockhampton 15/9/2000
[14] (2007) QDC 108