Bagiante v Bunnings Group Ltd
[2012] QDC 120
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- Unreported Judgment
- Bagiante v Bunnings Group Ltd[2012] QDC 120
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Bagiante v Bunnings Group Ltd[2012] QDC 120
Bagiante v Bunnings Group Ltd[2012] QDC 120
DISTRICT COURT OF QUEENSLAND
CITATION: | Bagiante v Bunnings Group Limited [2012] QDC 120 |
PARTIES: | LEANNE GRACE BAGIANTE (plaintiff) v BUNNINGS GROUP LIMITED (defendant) |
FILE NO: | D133/11 |
DIVISION: | Civil |
PROCEEDING: | Claim |
ORIGINATING COURT: | District Court, Southport |
DELIVERED ON: | 31 May 2012 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 22 and 23 May 2012 |
JUDGE: | Dorney QC, DCJ |
ORDER: |
|
CATCHWORDS: | Damages – measure of damages – personal injuries |
COUNSEL: | D J Murphy for the Plaintiff W D Campbell for the Defendant |
SOLICITORS: | Sciaccas Lawyers for the Plaintiff Bruce Thomas Lawyers for the Defendant Workers’ Compensation and Rehabilitation Act 2003 (Qld) Australian Securities and Investments Commission v Hellicar & Ors [2012] HCA 17; (2012) 286 ALR 501 Cooper v Gladstone City Council [2002] QDC 174 Jones v Dunkel (1959) 101 CLR 298 Judge v RH Grey & Son Pty Ltd & Ors [2012] QDC 33 Malec v Hutton (1990) 169 CLR 638 Micallef v Collier [2004] QDC 120 |
Introduction
- [1]This proceeding was commenced by way of Claim filed 24 March 2011.
- [2]The plaintiff is a female who was aged 47 at the date of the accident on 26 August 2008 and is presently aged 50 (being born on 4 July 1961). The plaintiff suffered personal injury when employed by the defendant (“Bunnings”) whilst she was engaged in a company sponsored game of “tunnel ball”.
- [3]Liability is not in issue. Consequently, the issue in this Court is her measure of damages.
- [4]The trial proceeded by way of oral evidence (supplemented by written reports from the various expert witnesses) and the admission by agreement of a bundle of documents subject to objections and witnesses being called (which became Exhibit 3) together with several more documents, with specific reference to matters in issue, which became exhibits during the trial.
Nature of injury
- [5]All the relevant orthopaedic specialists have agreed that the original injury, sustained when the plaintiff slipped while moving from a relatively rough surface floor to a relatively smooth surface floor, was a closed fracture of the left ankle.
- [6]The dispute concerns the present consequences of that original injury. It is to be noted, at this stage, that there is little difference between the psychiatrists called both by the plaintiff and the defendant with respect to the plaintiff suffering a causally related chronic adjustment disorder, with mixed anxiety and depression. More will be said later about the extent of that consequence.
- [7]It is not in contest between the orthopaedic experts that the fracture was an undisplaced one to the lateral malleolus of the left ankle. It was also expressly conceded by Dr John Fraser, called by the defendant, that the dominant pathology which is ongoing is “really chrondral”, even though he only conceded, as a possibility, that chrondral pathology was continuing to be the cause of the plaintiff’s symptomotology in her ankle.
Existing effects of injury (and prognosis)
- [8]The plaintiff called both her treating orthopaedic surgeon, Dr Greg Sterling, and an orthopaedic consultant, Dr Greg Gillett.
- [9]The determination of the present dispute between the parties is dependent almost entirely on acceptance of the plaintiff’s complaints regarding continuing pain, the extent of it and when it “became worse”. For reasons which I will canvass later, I accept that her complaints, primarily as made to Dr Greg Sterling, and repeated in her oral evidence, are an honest statement of her present state of pain.
- [10]The background to a determination of the present state of the plaintiff’s injury can be held to have begun when Dr Sterling, despite some scepticism on his part about the value of performing an arthroscopy within the ankle joint, performed that procedure on 3 September 2009. The scepticism is illustrated by the fact that the MRI scan (required by Dr Sterling after he saw the plaintiff on 4 July 2009) records nothing in itself suggestive of such a course. But, noting that she was not improving at all and that a corticosteroid injection did not help, he was quite puzzled as to exactly what was happening, both before and after the MRI.
- [11]As a result of the procedure in early September 2009, Dr Sterling described “quite a big find” inside her ankle, with a loose body plus chondral damage, and also significant synovitis and impingement type issues, for which debridement was undertaken and the opinion expressed that “hopefully” this would allow the plaintiff a “full recovery”.
- [12]Despite that optimism, Dr Sterling, on a review of the plaintiff on 30 October 2009, opined that she was “not really making much of a recovery”. Much the same conclusion was reached after a review on 27 November 2009, at which time Dr Sterling was of the view that, as there was some chondral damage at the time, the pain would be chronic and was due to the original injury, “part of which is permanent”.
- [13]The next development of interest is a review by Dr Sterling on 12 December 2011 when an MRI scan performed on 30 November 2011 was available. According to the plaintiff, in cross-examination, she attended a Mediation on 21 September 2011. She conceded that, after that Mediation, the MRI was undertaken and she went to see Dr Sterling. When it was suggested to her that it was only after that Mediation that she started taking pain killers, she responded that it was “just before that that she did, in order to sleep at night”. The medication was Nurofen Plus. The plaintiff indicated that her General Practitioner, Dr Sue Nitschke, advised her to take them as they were “a bit stronger” than the normal Nurofen. It should be remarked that, additionally, in response to the suggestion in cross-examination that it was only after the Mediation that she instructed her solicitors that she was getting pain at the end of each working day (when she would then have to lie down and put her leg up), she stated that she had been telling her solicitor for a long time and that it was only because she felt that WorkCover were not believing her that she was “just going to pay for it” herself, but did not realise it was going to be “so much money”.
- [14]In a letter dated 19 December 2011 to Dr Nitschke, Dr Sterling expressed the view that the plaintiff was, unfortunately, still symptomatic in the ankle and that, clinically, she had “some impingement issues”. He also expressed the view that the plaintiff might well benefit from a repeat arthroscopic examination debridement of her ankle.
- [15]Since no further surgery has yet been performed, it is necessary to look at the prognosis. According to Dr Sterling the proposed surgery is unlikely to completely eliminate, but is likely to reduce, the level of pain that the plaintiff is currently experiencing, since some of the pain comes from the degenerate nature of the damage done to the joint itself.
- [16]As for Dr Gillett, he examined the plaintiff once, on 12 March 2010.
- [17]Dr Gillett’s original view was that the ankle injury was associated with “damage to the chrondral surfaces of the articular surfaces and intra-articular fibrosis and scarring”. His prognosis at that time was that, in relation to the long term, the plaintiff was at risk of developing premature osteoarthritis of the ankle joint and that further interventional treatment might be required.
- [18]Dr Gillett’s present view, expressed in his report dated 15 May 2012, and confirmed in his oral evidence (by telephone), is - on the basis that the plaintiff has persistent pain on a working day and lies on the couch at the end of the working day some 90% of the time with her foot elevated, while agreeing with the proposed surgery by Dr Sterling - that surgery would be a “temporising measure” and, in the long term, it would depend on the outcome of what was found intra-operatively, with the idea of surgery being to improve function in the medium term, and that the outcome of employment would depend on the outcome of surgery.
- [19]Dr Fraser examined the plaintiff on 24 August 2010. His written reports indicated that an earlier MRI scan of 17 November 2010 did show an exposure to a risk of developing degenerative arthritis in the ankle and that, should it occur, it was likely to be so in 5 to 10 years time from late 2010.
- [20]In his oral evidence (by telephone), Dr Fraser, after referring to the MRI scan of 30 November 2011, opined that there had been no significant progression of the degenerative condition of the ankle and that it would be undesirable to carry out a further arthroscopy.
- [21]In cross-examination, Dr Fraser admitted that someone who was suffering pain such as that about which the plaintiff was presently “complaining” would not be consistent with a person suffering from mild pain. Additionally, in answer to the proposition that a surgeon who had the advantage of obtaining a clinical history, taking a clinical examination, and viewing any relevant radiological evidence would be in an advantageous position diagnostically over someone who had not had that opportunity, Dr Fraser responded that such a surgeon “should be” in such a position, “but that that would be hopeful”. Further to that, he also conceded that a surgeon who had the benefit of doing those things would be in an advantageous position in terms of diagnosing impingement issues and that, in turn, arthroscopy would be a reasonable treatment for impingement issues.
- [22]It can be seen from the analysis that I have done of those aspects of the medical evidence – leaving apart, for the moment, percentage disabilities under AMA5 and employment matters – that:
- it is really not in dispute that Dr Sterling should conduct the arthroscopy if it otherwise is reasonable - as I find it is - for him to have made the diagnosis that he has, based upon acceptance of the plaintiff’s present complaints of pain;
- taking the plaintiff’s expressed views into account, both as related in the various medical reports where they are noted, and from her own oral evidence that she would undergo the arthroscopy as advised, particularly because she seeks relief from her present level of pain, I find that she will do so; and
- the prospects of success of the operation, as summarised by Dr Sterling, which I accept, are that: while the “hope” is ultimately to “remove” her pain, realistically it “will improve her symptomology”, although there is a proviso that if there were to be detected some damage to the joint, it is impossible to speculate; and, as “modified” in cross-examination, with the “hope” that the plaintiff’s pain levels would be similar to now if not improved, with improved functioning.
Extent of ankle disability
- [23]Although there was some argument, initiated by views expressed by Dr Gillett, about the utility of AMA5 when not legislatively mandated to be taken into account – noting the acceptance by Dr Fraser that it was inappropriate to use such criteria to make direct estimates of work disability, even though they are a tool which is used to assess a patient’s permanent impairment on a daily basis - I intend simply to look at the actual impairment that the plaintiff suffers. This involves both any restriction in movement deriving directly from the consequences of the injury and the effects of pain (both as something directly felt and as something that restricts activity and causes modification of normal behaviour).
- [24]Working from that basis, I accept that:
- the plaintiff is presently suffering a significant amount of pain, particularly at the end of a working day (where that invariably requires her to be predominantly on her feet) - although there are many other instances of pain, as set out in paragraph 12 of the plaintiff’s Schedule of Damages;
- he measurable restriction she has is in the range of a 10° to 12° range of dorsiflexion movement, where normal movement is 20° and where less than 10° gives rise to an AMA assessment of a 7% impairment of lower limb function;
- the plaintiff has a distinct loss of motion of the left ankle in comparison to the right ankle; and
- the prospect of needing an arthrodesis, which would potentially leave the plaintiff free of pain but with a limitation of movement, being an operation which would only be undertaken when the pain became “pretty severe”, is rated as a 20% chance of occurring and, if it did occur, it would be over the next 10 to 20 years (according to Dr Gillett) – a conclusion that I have reached even though Dr Fraser’s revised prognostication shows a likelihood of 10 years for the osteoarthritis to develop and a less than 20% chance that it would require an arthrodesis before 20 years - since I have preferred the overall approach of Dr Gillett to the multiple orthopaedic matters that have arisen because such an approach logically accords with the treating surgeon’s observations and conclusions made and reached over the whole of the post-accident period.
Effect of injury on employability
- [25]This is an area of significant dispute between the parties and the resolution will depend, in part, on what the projected possibilities are for the outcome of the recommended arthroscopy. As earlier stated, I do find that there is an almost certain probability that the plaintiff will undertake the arthroscopy. For reasons later discussed, the adjustment disorder has only a marginal effect on this matter.
- [26]The relatively recent worsening of the plaintiff’s pain – which I have accepted – taken together with the recommendation of Dr Sterling to conduct the arthroscopy – which I also have accepted is an appropriate procedure in the circumstances – do mean that many of the earlier expressed views of the orthopaedic surgeons must yield to the circumstances which now prevail.
- [27]Dr Sterling has expressed the written opinion that:
- recovery from the arthroscopy will mean an inability to work for 2 weeks, an initial return to lighter duties (with no prolonged walking or standing) for a further 6 weeks, and then a full recovery after 3 months;
- if the surgery is successful (about which there is no guarantee), then after the period of the 3 months’ recuperation (referred to above) “she would be able to return to these duties” (being her current role at Bunnings); (emphasis added)
- if the operation is unsuccessful, the plaintiff may be limited permanently with regards to prolonged walking or standing in her current role with Bunnings;
- even if successful, in the “long term” – remaining undefined - it would be advisable to seek “some more sedentary type role”; and
- it is strongly advised that the plaintiff retrain into a sedentary role, where she could self-pace her work in a field such as “interior design”.
- [28]When examined orally (by telephone), Dr Sterling, when asked about his conclusion that it would be advisable over the long term to seek some more sedentary type role, responded that such a role would be advisable, although it would depend “a little bit on what the current state of the ankle is” if the arthroscopy proceeded. He gave no indication, either in written or oral form, about what “long term” meant.
- [29]I do find that there is an inconsistency between those opinions of Dr Sterling and the further written response of Dr Gillett, with whom (in writing) Dr Sterling had been asked to agree, but failed to answer, to the effect that the plaintiff would be out of the Bunnings’ workforce “within a few years”, with specific reference to “weight bearing activities”. I cannot reconcile that “long term” means “a few years”, even for a person of fifty years of age, unless some confusion has arisen between possible operative outcomes in answering the solicitor’s questions (Exhibit 6).
- [30]Somewhat unfortunately this inconsistency was not explored in oral evidence; but I do accept the treating surgeon’s approach (i.e. Dr Sterling’s).
- [31]Since Dr Fraser does not address the issue of the plaintiff’s capacity to work following a successful further arthroscopy, apart from the risk of an arthrodesis, I take his “report” evidence to be to the effect that such incapacity as the plaintiff had prior to the recent increase in pain means that she does not have any continuing or permanent incapacity for work and will not have her working life foreshortened. To the extent of its inconsistency with the conclusions that I have reached on the basis of the evidence of Dr Sterling and Dr Gillett (whose evidence, respectively, I prefer on this issue of employability because of my acceptance of the plaintiff’s present pain and of their more extensive consideration of it and, in Dr Sterling’s case, in his particular position as the treating surgeon), I finally conclude: that, should the arthroscopy be performed, successfully, relatively soon (when the plaintiff should have sufficient money to pay for it herself), there will still be a considerable time when she will be able to work for Bunnings, albeit with the kind of help that she has received in the past; but, that, eventually, she will need to find a predominantly sedentary role, if available to an unskilled female worker of her age. The timing of this continued employment at Bunnings depends upon a Malec v Hutton[1] assessment. Unfortunately, I am given little assistance about what percentage prospect that has. Doing the best I can, since I find that Dr Sterling would not do the operation unless there were good prospects of success, I assess the prospects of success to be at least even (i.e. 50%).
- [32]The next dilemma comes from attempting to find evidence about what is really meant by “long term”. As I have indicated, I reject the conclusion that “a few years” satisfies that characterisation. It is simply illogical; and, in any event, I accept the evidence of the plaintiff that if her pain were to be reduced to the manageable state it was in before it became worse some twelve months ago, she is motivated, with the help of a benevolent employer, to return to and continue with such work which she undoubtedly enjoys and is very successful in performing.
- [33]Again, doing the best I can on the evidence that remains after rejection of the conclusion concerning “a few years”, I assess the likely period as being at least 10 years.
- [34]The way that this is then converted to actual damages will be discussed in later sections dealing with the various heads of damage.
Credibility of plaintiff
- [35]As I have already indicated, on the fundamental question of whether or not the plaintiff has been suffering increasing pain over the last 12 months or so, I have accepted her assertions that she has.
- [36]Part of the defendant’s criticism of her credibility depended upon the timing of those complaints as being too coincidental with a failed Mediation to justify acceptance of the plaintiff’s credit.
- [37]Necessarily, there may well be circumstances where, depending on the plaintiff involved, “new” assertions about pain might raise some substantial questions concerning credit.
- [38]But, here, there are many other matters which I have taken into account in determining that these complaints are true. A willingness to undergo a further arthroscopy, despite a strong opinion to the contrary by Dr Fraser, is a testament to likely honesty in her complaints of pain. Further, one of the other significant challenges to the plaintiff’s credit was her alleged failure to take Zoloft when originally prescribed. If admitted into evidence, there might be some legitimate concern if the plaintiff’s records held by the authority in charge of the Pharmaceutical Benefits Scheme did not record Dr Nitschke’s prescription having being prepared. In their absence, particularly where the plaintiff when first pressed with this matter in cross-examination asserted that she had had such a prescription made up soon after her General Practitioner had prescribed it for her, and later in the case produced a Patient History (Exhibit 7) from the Nerang Amcal Chemist which showed that that pharmacy did issue on the prescription written by Dr Nitschke Zoloft tablets on 4 March 2009, I find that there is clear corroboration of the plaintiff’s assertion and she should be accepted in full.
- [39]Another challenge to the plaintiff’s credibility was with respect to her approach to the use of computers. The plaintiff was strongly cross-examined on her expressions of concern, even being “overwhelm(ed)”, about effectively using computers. It seemed to be suggested that merely because she used a PDA at work, had and a mobile phone, both of which she used in a basic manner, that such were contrary to her expressed concerns. Very importantly for this aspect, it is clear from the evidence of 3 fellow workers that they supported, in a very substantial way, the plaintiff’s frank admission that she was, technologically at least, “dumb” (by reason of an abbreviated secondary education) and unable to properly comprehend such systems. The reason why her fellow workers reinforce her credibility is that the plaintiff came across to them as both a perfectionist and a hard worker and, in the case of Mr Brian Knight, he said that she was an “exceptional worker”, with Ms Casey Ure stating that she did “not need to check on the quality of her work”. It is difficult to think of an employee so highly regarded by those both with whom she worked and under whom she worked, having the qualities about which they spoke, as a person who has pretended that she had a greater incapacity for understanding computers than is the reality.
- [40]Also, importantly, the plaintiff referred to 2 employees of Bunnings who had supervised courses run by Bunnings which the plaintiff had undertaken and which were directed towards teaching the employees about computers. Despite the plaintiff specifically naming those persons, neither was called by Bunnings to rebut the plaintiff’s assertions of general lack of competence in this field. The plaintiff raised for consideration with respect to those two persons the potential for the application of the principle resulting from Jones v Dunkel[2]. This principle was considered by the High Court very recently in Australian Securities and Investments Commission v Hellicar & Ors[3] where the plurality held that disputed questions of fact must be decided by a court according to the evidence that the parties adduce and not according to some speculation about what other evidence might possibly have been led, because principles governing the onus and standard of proof must faithfully be applied, adding that there are cases where demonstration that other evidence could have been, but was not, called “may properly be taken into account in determining whether a party has proved its case to the requisite standard”: at [165]. Nevertheless, the plurality stated that both the circumstances in which that may be done and the way in which the absence of evidence may be taken into account are “confined” by known and accepted principles, with Jones v Dunkel being a “particular and vivid example” of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used: at [165]-[167]. In the case in question, the plurality stated that the case before them was not a case where “the missing witness would be expected to be called by one party rather than the other” or where it was known that the potential witness’ “evidence would elucidate a particular matter”: at [169]. (emphasis added)
- [41]Here, the “missing” witnesses would hardly be expected to be called by the plaintiff any more than by the defendant and, further, it was not known what their evidence would be, much less whether they would elucidate a particular matter at all.
- [42]In the circumstances, I am not in the position where I can draw any inference favourable to the plaintiff for which there was a ground in the evidence which might be more confidently drawn when persons presumably able to put the “true” complexion on the facts (relied upon as a ground for the inference) have not been called and where the evidence “provides no sufficient explanation of” their “absence”: see Hellicar at [167]. As it is, I have accepted the plaintiff’s evidence of her restriction as being truthfully based.
- [43]To the extent that it matters, the fact that the plaintiff can use Bunnings’ PDAs adequately does not, on the evidence led before me, demonstrate a confidence and a comprehensive understanding of the relevant computer skills that she would need for the particular positions that the defendant has identified for her as available in Bunnings’ employment. Again, to the extent that it has any influence at all, the fact that the plaintiff did not produce documentary evidence of her purchase of Nurofen Plus does not, in circumstances where, on purchasing, she was not advised by, for instance, her instructing solicitors, that she must keep evidence of such purchases, incline me to reject her evidence in a way that has a negative effect on her credibility.
- [44]In summary, I do not accept the defendant’s contentions that the plaintiff was simply a “salesperson” who sold an untrue story to the Court or engaged in any “deliberate” obfuscation of her real capacities to understand and utilise computer systems.
Psychiatric Sequelae
- [45]The plaintiff called Dr Peter Mulholland, a psychiatrist. As expressed in his report dated 19 August 2010, the plaintiff has developed, secondary to her personal injuries, a chronic adjustment disorder, with mixed anxiety and depression. His opinion was that the extent of the disorder led to a PIRS rating of 5% and a psychiatric impairment as per AMA6 of 10%. With respect to treatment, he was of the opinion that the plaintiff needs full scale psychiatric treatment, an ongoing program of counselling and an ongoing program of psychiatric medications (which will probably require modification from time to time depending on clinical circumstances).
- [46]Dr Mulholland’s prognosis is that, with full scale psychiatric treatment, her anxiety and depression will improve – although, if she is left with significant limitations upon her life, there is only so much that any amount of psychiatric treatment can do - causing her to be left with appreciable, but “hopefully” subclinical, levels of anxiety and depression. Of her present condition, he opined that about 30% will remain an ongoing issue, no matter how much psychiatric treatment she has. Lastly, if such significant occupational limitations continue and the plaintiff is not able to work on in some reasoanbly satisfactory situation, then that will result in secondary depression.
- [47]In cross-examination, Dr Mulholland expressed the opinion that the diagnosis made by Professor Whiteford was (for practical purposes) the same as his. Further, when cross-examined about the effect, if any, upon the plaintiff’s occupational capacity, he stated that it would not stop her working but would result in a low level impairment in respect of work. In re-examination, he indicated, with respect to “secondary depression”, that a better way would be to say that an inability to work in some satisfactory situation would “aggravate her depression”.
- [48]As for Professor Whiteford, called by the defendant, his written opinion was that the plaintiff suffered from an adjustment disorder which had not resolved with the treatment provided, being maintained because of the chronic pain and disability. Using AMA4 as well as PIRS, he assessed a 5% level of impairment.
- [49]Regarding prognoses, Professor Whiteford stated that the plaintiff required psychological treatment, as an adjunct to her pharmacotherapy, requiring 10 sessions of cognitive therapy from an appropriate qualified clinical psychologist. With respect to employability, he expressed a written view that the disorder did not prevent the plaintiff from engaging in remunerated employment.
- [50]When examined in chief about his written opinion concerning treatment (namely, that with such treatment there should be a decrease in the impairment by at least half, even if the pain and disability persists), he stated that the basis of that was that there were two components contributing to the impairment, and with “better” cognitive strategies to handle both components, patients function better, having less impairment.
- [51]When cross-examined, Professor Whiteford agreed with the view of Dr Mulholland that there was no material difference in terms of each diagnosis. When pressed about “secondary depression”, Professor Whiteford concluded that it “can happen”, although he would not automatically conclude that it would happen in this person’s case, adding that if it did happen then he would agree that the plaintiff would require more than ten sessions of the cognitive therapy that he had advised, with the number of additional sessions depending upon how worse the depression got. In the end, although there is little difference resulting, I prefer the conclusions of Dr Mulholland because I accept his reasoning as to the need for actual psychiatric care if some resolution is to be obtained.
General damages
- [52]The plaintiff has submitted that an appropriate award for general damages is $50,000.00. The pain was, originally, excruciating. There was considerable delay in delivering the initial treatment and even then there was a misdiagnosis of the injury (as a sprain). After several days of nauseating pain, the correct treatment was identified and implemented. Thereafter, there has been a history, besides restriction, of continuing pain, increasing (as already canvassed) to its present state, despite the first arthroscopy. Further, the early depression worsened, requiring stronger dosages of Zoloft; but no ongoing treatment was advised by her General Practitioner and, therefore, none was undertaken.
- [53]After identifying most of the matters that I have already canvassed, the plaintiff relies upon an earlier decision of mine of Judge v RH Grey & Son Pty Ltd & Ors[4], awarding $70,000.00. The plaintiff in that case had made a good recovery; but the injury he suffered was extremely distressing and that plaintiff’s continuing problems involved significant restrictions in his ability to enjoy the general amenities of life, essentially because of the amputation of four of his five toes on the right foot. Additionally, he was aged 26 at trial.
- [54]On behalf of the defendant, two cases were brought to my attention. The first is Micallef v Collier[5]. There, the plaintiff had suffered a grade 1 compound, comminuted fracture of the left tibia and fibula. He was aged 50 when injured and was aged 56 at trial. The plaintiff there was left with residual disabilities, expressed in whole person terms, as being from 17% to 19%. General damages were in the sum of $35,000.00.
- [55]The second case relied upon is Cooper v Gladstone City Council[6]. At trial, this plaintiff was aged 43 and had suffered a 10% to 12.5% permanent impairment of the function of the left leg which was opined to increase by 5% over the following 8 to 10 years as a result of progressive post-traumatic arthritic changes. He, again, was awarded $35,000.00 for general damages, it being held to be significant that his injury was associated with a weight bearing limb and that he had relatively constant pain of one form or another.
- [56]Given the era of the cases relied upon by the defendant, and the age of the plaintiff herself, and noting that the plaintiff now can no longer continue a daily routine of running and recreational touch football (which she stated she had very much enjoyed), I assess general damages in the sum of $45,000.00.
Interest on general damages
- [57]It is not in contest that the rate should be 2% per annum on one-half of the award for general damages over a period of some 3.75 years.
- [58]On that basis, the interest yield is $1,687.50.
Special damages
- [59]As indicated earlier, I accept totally what the plaintiff says concerning her purchase of Zolof and Nurofen Plus.
- [60]While the WorkCover refundable expenses are not in contest (totalling $15,738.55), pharmaceutical expenses are. Before I turn to those, since the refund to Medicare as it was at 29 November 2010 was not put in issue by the defendant, I am prepared to allow the present Medicare charge of $1,540.65.
- [61]Turning, then, to pharmaceutical expenses, that claim is based upon the consumption of both Zoloft and Nurofen Plus. I accept the contentions of the plaintiff in the plaintiff’s written Schedule of Damages. This would entitle her to the sum of $3,900.00 for such expenses.
- [62]Thus, total special damages awarded are $21,179.20.
Interest on special damages
- [63]Again, since there is an agreed interest rate of 5% per annum and agreement of approximately of 3.75 years since the accident, the plaintiff would be entitled to interest on the sum of $3,900 on that basis, yielding $731.25.
Past loss of income
- [64]It is not in dispute between the parties that the plaintiff’s claim for past loss of income is restricted. The award should be in the amount of weekly benefits received from WorkCover under the statutory compensation scheme, being in the sum of $11,176.79.
Interest on past lost of income
- [65]It is not in dispute that no interest is payable on this head of damage.
Past lost of superannuation benefits
- [66]Since Bunnings continued to pay the plaintiff’s superannuation benefits while she was in receipt of WorkCover weekly benefits, there is no claim for past lost of superannuation benefits. Obviously, this is also not in dispute.
Future loss of income
- [67]The plaintiff commenced employment with Bunnings in Griffith in New South Wales in September 2007, subsequently transferring to Bunnings in Nerang in January 2008. At all times the plaintiff was employed as a Customer Service Officer.
- [68]Her working life evidence – which was not put in contest – is that she finished school at the Griffith High School when she was aged 15½ years, being about halfway through Year 9. Although she was not cross-examined on it, a resume of hers (Exhibit 5), perhaps in a “gilding” way, asserts completion of Year 10. She gave evidence that her mother would not let her leave school unless she had a job to go to. She has not undertaken any further studies since leaving school, does not have any work qualifications, has not ever completed an apprenticeship, and has done no study at any University or TAFE.
- [69]The plaintiff’s first job was at the Griffith Co-op, which she likened to a Myer store, acknowledging that it was a country town variety. She started off in giftware and after a few years she was “promoted” to ladies wear. After she fell pregnant with her first child, she worked for a further eight months and then left, there having been in some 10 years service at the Griffith Co-op. The role that she worked in was in customer service.
- [70]When her first child was a couple of months old she got a job at a local Squash Centre doing cleaning work in order to earn money because she and her husband had recently bought their own house. She stated that she worked from about 3:00am until just before her husband went to work and that she did that right up until she fell pregnant with her second child. That work was five days a week.
- [71]She left that work because of her second pregnancy and then stayed home with her children until they started school. At that time, she worked at the Griffith Pre-School because the hours suited her, being the same as her children’s school hours. She worked there as a teacher’s assistant having obtained the work just a week after her son, Josh, started school.
- [72]When involved with the pre-school work she undertook no administrative duties or administration work and did not work on computers. In all, she worked there for some 11 years, only leaving that employment when her youngest, Josh, was in his last year of school. She then tried something different, opening up a little café in the north Griffith area, again being out of employment for a short period only.
- [73]The café business was run for some 16 to 17 months. She stopped that because she was “missing out” on her children, working seven days a week from 5:00am to 9:00pm every day. Again, I accept her assertions that others helped her with the paperwork, financial accounting and computer work involved.
- [74]After selling that business the plaintiff stated that it was probably only a week before she obtained work again, child caring at the ABC Centre in Griffiths. She actually stayed for only for some three months. She was not responsible for any administration work or use of computers. After a short period of time again, she obtained work at another childcare centre, the Dorothy Wade Centre, but since it involved shift work and she wanted to be at home to cook a meal for her children when they came home, she gave up her teacher’s assistant job after a couple of months and applied for, and obtained, the job at Bunnings in Griffith.
- [75]As I have already canvassed, her work at Bunnings in Nerang has received the praise of both her fellow workers and her managers and supervisors.
- [76]Also importantly, the evidence given by the plaintiff and the witnesses called in her case, as well as the evidence led by Bunnings, convinces me that Bunnings is a benevolent and understanding employer, particularly concerning employees who have been injured. Illustrative of that conclusion is the fact that the plaintiff has been assisted in recent years, even though injured, with her work at Bunnings by her fellow employees with sympathetic treatment by her managers and supervisors. At present she is in the Garden Décor Department as a Customer Service Officer; this Department involving lighter duties than the Lifestyle Department which involves the lifting of heavy things, such as furniture for customers, where she worked earlier.
- [77]In response to a question-in-chief about whether she liked working at Bunnings, the plaintiff responded that she “loved working” at Bunnings. Unsurprisingly, when asked again, in-chief, for how long, prior to the accident, she had had an intention about continuing employment there, she responded that she would have worked there until the time of age of 67, as it was a “wonderful” company.
- [78]When the plaintiff gave her evidence about what she would do if the pain in her left lower limb did not get any better, she stated that she would have to think about finishing work completely because she did not want to end up in later life “regretting” it because she would then be left unable to do anything later on in life as well. As to what she would actually do, she stated that she would not return to doing work as a Teacher’s Aide or Teacher’s Assistant because she could not run after children and do that kind of work. She responded in a like manner with respect to undertaking any cleaning job or working in a business such as a coffee shop. With respect to taking an office job working with computers, she stated, as I have noted before, that she was not able to do such work by herself, even though she had undergone online training at Bunnings, being limited to following the questions “more or less like ticks or crosses” but not logging in or logging out.
- [79]Although – as noted earlier – the plaintiff was extensively cross-examined on her capacities, there is nothing in that examination that would gainsay any conclusion that I have presently reached. In particular, it should be mentioned that, although there was some instances of falls since the accident, there was nothing that placed in any doubt the conclusions reached by the various orthopaedic specialists, particular Dr Sterling and Dr Gillett.
- [80]From all of the evidence led by Bunnings’ employees, even apart from the plaintiff herself, I conclude that, should the plaintiff again by faced with the nature of ongoing pain that she has at the present time, there is no position at Bunnings which is open to her. I have significant doubt that the evidence given by Ms Nicole Horton, the National Injury Manager for Bunnings for the last 7 years shows that she had a working-day appreciation of what is required of employees at Bunnings in Nerang. In particular, the statistics she produced are of no assistance to me in this particular case, apart from reinforcing the conclusion that Bunnings is a benevolent and generous employer, particularly to those employees who have been injured. Nevertheless, although I accept her evidence about the ready availability of part-time work, given the plaintiff’s actual incapacity should the arthroscopy not be successful, the prospect of continuing long term, even part-time, is remote. In particular, there is absolutely no evidence that the plaintiff could be accommodated within the switchboard section of Bunnings, even though that involves a permanently seated role located in the upstairs section of the store. No investigation was made of what skills were necessary. One of the significant concerns I had about Ms Horton’s evidence was that she had no personal knowledge of the plaintiff and had no day-to-day understanding that both the Trade Desk and the Special Orders Desk at Nerang require significant time to be spent by the particular employee unseated.
- [81]With respect to what might be within the plaintiff’s capacity should she be unable to continue to work at Bunnings, I found the evidence of Ms Anne White, an occupational therapist, somewhat unsatisfactory. She had originally produced a report (Exhibit 12) which referred to right hip and shoulder girdle pain which, for statutory reasons, was not able to be advanced as a disability related to the plaintiff’s injury. Even further, it had not been the subject of any consideration by the relevant orthopaedic surgeons. Accepting that she had a demonstrated expertise in occupational therapy, I ordered that all aspects based upon those matters should be excised from her report. She subsequently produced a report (Exhibit 11) which simply removed references to such pain. I judged that report to be admissible, while reserving judgment as to the weight to be accorded to it. The trouble that thereby followed was that the earlier assessments performed by Ms White contained the exactly same conclusions as the original report. Although it is true that some aspects of the actual tests within Ms White’s expertise would not be affected by such matters as pain in the right hip and right shoulder, some undoubtedly would – but nothing of this kind was conceded by Ms White. Accordingly, I am left in considerable doubt as to what I can conclude from this occupational therapist’s opinions regarding future work options. The confusion is illustrated by the Visual Analogue Scale contained in Exhibit 12 which shows that the highest pain level for both the right hip and the right shoulder reached significant levels and, with respect to the right hip, on examination had a current pain level of 4 out of 10 (with the latter being for the “worst pain ever”). A further illustration occurs in Exhibit 12 concerning “hand grip strength”. A conclusion is made that the plaintiff’s “significant” reduction in right, dominant grip strength and pain “may well be associated with” the left ankle injury. The revised version simply states the same grip strengths, but without the conclusion.
- [82]In the end, while I accept that there was some demonstrated problems open to an occupational therapist to discern, I am not assisted in the opinions expressed about the plaintiff’s functional capacities to undertake particular occupations. In the end, I intend to be guided by the conclusions reached by the orthopaedic specialists, Dr Sterling and Dr Gillett, dependant – as I have indicated – on the prospects of the further operation being successful, or not.
- [83]The plaintiff’s present net weekly income is $669.60.
- [84]For the time of the plaintiff’s absence to undergo the recommended surgery, taking the periods advised by Dr Sterling, I accept that the loss would be calculated as $2,678.40.
- [85]The second aspect is what will occur after the operation. If it is successful, the plaintiff has a 50% chance of having no loss of income for a period of approximately 10 years. But the necessarily corollary of that is that she has a 50% chance of an unsuccessful outcome which would mean a reduction of her working hours because of her ongoing pain symptoms. If, as the plaintiff indicated in evidence, she was required to reduce her working hours because of ongoing pain, she would reduce her hours to three days a week, and if there was then no improvement in her symptoms on those reduced hours, she would give up work completely.
- [86]Working three days a week would mean that the plaintiff would then earn 60% of her current net weekly wage. I accept the calculation made by the plaintiff in the written Schedule of Damages that that would be a loss of $267.84 net per week. But that would have to be reduced by 50% for the reasons that I have just canvassed. On the basis that the opinions expressed by Dr Sterling and Dr Gillett apply to the outcome of an unsuccessful operation, namely, that the plaintiff would be required to cease her employment with Bunnings within the next few years, for the relevant 10 year period: there would be a loss for the first three years of 50% of $267.84 which (on a multiplier of 145.6, on the 5% Tables) would generate $19,498.75; and for the remaining seven years, beginning in three years time, taking into account a 30% discount because there is some prospect that the plaintiff would, even on this determination, obtain some work – but still assessing the prospect at 50% - the loss would be on a deferred basis multiplier of 267.3 (on the 5% Tables) in the sum of $62,644.43.
- [87]After those 10 years, I accept that the plaintiff would be at a really significant disadvantage on the open labour market because of her genuine inability to properly comprehend computer systems, particularly with a younger workforce having such skills learnt from an early age. There is also the 20% prospect of an arthrodesis operation which would stiffen the ankle and generate its own limitations. A contingency factor of 30% has been chosen because there is some, albeit slight, chance that the plaintiff’s renewed energy, after psychiatric treatment, will impel her to obtain some kind of work, although nothing was elaborated on about any capacity for “interior design”.
- [88]Hence, applying the 30% discount from age 60 until retirement at age 67 (that age being chosen because the plaintiff, pre-accident, would have, in my view, persisted with work until pensionable age), a loss of $669.60 deferred for 10 years less that 30% contingency factor would lead to a calculation (on a multiplier of 189.9, on the 5% Tables) of $89,009.93.
- [89]Accordingly, the future loss of income will total $173,831.51.
Future loss of superannuation benefits
- [90]On acceptance by both parties that future loss of superannuation benefits is calculated on 9% of the award for future loss of income, this head of damage will be $15,644.84.
Future surgical expenses
- [91]On the conclusions that I have reached, the plaintiff will incur the costs of the arthroscopy recommended. This amounts to $7,077.00 according to Dr Sterling’s report of 1 March 2012.
- [92]With respect to the costs of an arthrodesis, since I have accepted what Dr Gillett has prognosticated about that, considering the timeframe as appropriate being 20 years as well as the prospect of it occurring being a 20% chance only, the damages that should be awarded for this aspect on a deferred multiplier of 0.377 (on the 5% Tables) is $603.20.
- [93]Hence, the total cost of future surgical expenses is $7,680.20.
Future psychiatric treatment
- [94]Despite the intimations in the evidence of Professor Whiteford that “some persons” claiming for psychiatric disabilities do not actually take the medication for which damages have been given, I conclude that it is inapplicable, in my view, to a person such as the plaintiff. While noting that damages for such are awardable in any event, with the plaintiff suffering detriment by any failure to properly spend such moneys on such treatment, I find that the cost of the treatment recommended by Dr Mulholland is, according to his report of 19 August 2010, in the sum of $8,000.00, taking the average postulated, and the slight deferral of some of the expense.
Future pharmaceutical expenses
- [95]As the reasons already canvassed show, I find the plaintiff will incur future pharmaceutical expenses both for Zoloft and Nurofen Plus. Taking into account the usual deduction of 15% for the balancing of contingencies, the sum of $10.00 per week for a further lifetime of 37.5 years (based upon a multiplier of 897.5, on the 5% Tables) gives a total of $7,628.75.
Future medical expenses for consultations
- [96]I conclude that the plaintiff will incur future medical expenses for attendances on General Practitioners concerning ongoing prescriptions and consultations and on an orthopaedic surgeon (such as Dr Sterling).
- [97]Doing the best one can, on a global assessment, I calculate a figure in the order of $2,000.00.
Expenses for occupational retraining
- [98]Since I have rejected most of the conclusions proffered by Ms White, I do not allow the plaintiff the sum of $3,000.00 for counselling concerning vocational retraining.
- [99]Rather, I conclude that the plaintiff will use her own best endeavours to ascertain jobs that might be within her capacity during the period from age 60 to age 67 and, if necessary, with respect to the period between turning 54 and 60, on the basis of a 50% chance of being unable to continue to work at Bunnings.
- [100]I so conclude because I believe the plaintiff is a frugal person who is best able to determine her own capacity and who is otherwise, without disabling pain, motivated to work.
Future travelling expenses
- [101]I allow some future travelling expenses, particularly for attendance on Dr Sterling for surgical consultations, both before and after the arthroscopy. In addition, the plaintiff needs to attend a psychiatrist for treatment of her psychiatric conditions, as well as consultations with General Practitioners.
- [102]By way of global assessment, I assess such expenses as $2,000.00.
Refund to WorkCover (Qld)
- [103]It is common between the parties that the total amount to be deducted from the award otherwise made under these various heads of damage for the refund owing under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) is $26,915.34.
Summary of damages
- [104]In summary, the damages are as follows:
Head of Damages | Damages |
General Damages | $45,000.00 |
Interest on General Damages | $1,687.50 |
Special Damages | $21,179.20 |
Interest on Special Damages | $731.25 |
Past loss of income | $11,176.79 |
Future loss of income | $173,831.51 |
Future loss of superannuation benefits | $15,644.84 |
Future surgical expenses | $7,680.20 |
Future psychiatric treatment | $8,000.00 |
Future pharmaceutical expenses | $7,628.75 |
Future medical expenses | $2,000.00 |
Future travelling expenses | $2,000.00 |
SubtotalLess WorkCover refundTOTAL | $296,560.04$26,915.34$269,644.70 |
Award
- [105]Accordingly, I will award the plaintiff damages in the sum of $269,644.70.
Costs
- [106]Since the relevant legislation provides for statutory outcomes depending on offers made, I will hear submissions on costs either when handing down this decision, or subsequently pursuant to orders I make concerning written submissions on costs.