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Polwarth v Woolworths Ltd[2017] QDC 133

Polwarth v Woolworths Ltd[2017] QDC 133

DISTRICT COURT OF QUEENSLAND

CITATION:

Polwarth v Woolworths Ltd [2017] QDC 133

PARTIES:

RAYMOND THOMAS JOHN POLWARTH

(Plaintiff)

v

WOOLWORTHS LTD

(Defendant)

FILE NO/S:

4055 of 2015

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

13 – 15 February 2017

JUDGE:

Searles DCJ

ORDER:

  1. The Defendant pay the Plaintiff $11,111.62 in damages.

CATCHWORDS:

PERSONAL INJURY – ASSESSMENT OF DAMAGES – where the Plaintiff suffered personal injury in a slip and fall accident – where the Plaintiff’s injury aggravated the pre-existing condition – whether the Plaintiff is entitled to damages for gratuitous care and assistance

PERSONAL INJURY – ASSESSMENT OF DAMAGES – where the Plaintiff suffered personal injury in a slip and fall accident – where the Plaintiff’s injury aggravated the pre-existing condition – assessment of damages

COUNSEL:

J Sorbello for the Plaintiff

R Morton for the Defendant

SOLICITORS:

Morton & Morton Solicitors for the Plaintiff

HBA Legal for the Defendant

Claim3

Preliminary Issue5

The Defendant’s Evidential Burden of Proof7

Past and Future Gratuitous Care and Assistance10

Prior to the Incident11

After the Incident15

Surveillance Evidence17

Threshold under section 59(1) of the Civil Liability Act 2003 (Qld) 19

The evidence of the Plaintiff as to the need for gratuitous care19

Evidence of Ms Stephens as to the gratuitous care actually provided23

Evidence of Ms Aitken26

Evidence of Dr Ganko31

Conclusion regarding section 59 of the Civil Liability Act 2003 (Qld)34

General Damages34

Special Damages38

Summary41

Claim

  1. [1]
    By Claim and Statement of Claim filed 16 October 2015 (‘Claim’), the Plaintiff claims damages for personal injuries and other loss caused by the negligence and/or breach of common law duty by the Defendant, and resulting from a slip and fall incident at the Defendant’s premises at Pialba, Hervey Bay on 20 February 2014 (‘Incident’). The Plaintiff alleges that while shopping, he slipped and fell after stepping on a grape on the floor. As a result he alleges that he a soft tissue injury to his right knee (‘the Injury’).[1]
  1. [2]
    At the time of the Incident, the Plaintiff was 51 years old. Relevantly, when he was around 20 years of age, he was involved in a motor cycle accident resulting in serious injuries including the amputation of his right leg approximately six inches[2] below the knee, a fractured leg above his amputation, a fractured pelvis and a lower back injury. He has been in receipt of Disability Support Pension since 1990.[3]
  1. [3]
    At the time of the Incident on 20 February 2014, the Plaintiff was wearing a prosthetic limb under his right knee. He alleges his left foot slid forward causing him to fall directly onto his right knee ‘stump’ with his prosthetic leg bent underneath him.[4] Liability is admitted by the Defendant and contributory negligence is not pursued.[5] No claim is made by the Plaintiff for economic loss. The quantum of damages remains in dispute.
  1. [4]
    The Plaintiff submits that, as a result of the injuries sustained in the Incident, his ability to wear his prosthetic limb has been severely restricted resulting in a significant impairment of his personal independence, particularly of his daily domestic and recreational activities. He says that since the Incident he has become heavily reliant on one Ms Tammy Stephens to provide him domestic care and assist him in performing his activities of daily living.[6] Prior to, and since the Incident, the Plaintiff has lived in a share house arrangement with Ms Tammy Stephens, a close friend. 
  1. [5]
    The Plaintiff’s claims are for:

a) Pain and suffering;

b) Past and Future gratuitous care;

c) Past and future paid assistance (lawn mowing)

d) Future therapeutic intervention;

e) Aids and equipment; and

f) Past and future out of pocket expenditure.

  1. [6]
    The Defendant denies the Plaintiff suffered a significant permanent incapacity from the Incident and that any present incapacity, denied by the Defendant, is primarily attributable to his pre-existing condition. Having said that, the Defendant accepts that, for a short time after the Incident, the Plaintiff may have suffered a degree of incapacity resulting in his requiring for care.

Preliminary Issue

  1. [7]
    A preliminary issue falls for determination and that is which party bears the legal burden of proof and which party bears the evidentiary burden of proof. For the Plaintiff’s claim to succeed, the Court must be satisfied he has suffered a disability causally related to the Defendant’s negligence.[7] This is particularly relevant to any assessment of the Plaintiff’s need for past and future gratuitous care and assistance under section 59 of the Civil Liability Act 2003 (Qld), which I will return to later.
  1. [8]
    I have been referred to the approach with respect to the burden of proof in personal injury cases adopted in Watts v Rake[8] and Purkess v Crittenden[9]. In Purkess, the defendant sought to rebut a prima facie case that the incapacity of the plaintiff arose out of the defendant’s negligence by alleging the existence of progressive pre-existing condition of the Plaintiff. Referring to the earlier decision in Watts, the Court concluded that the burden rested on a plaintiff to establish that the incapacity resulted from the negligent act of the defendant but in circumstances where a defendant alleged that the plaintiff's incapacity was related to a pre-existing condition, the onus of adducing such evidence rested on the defendant. Barwick CJ, Kitto and Gummow JJ said:

‘[I]t is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.’[10]

  1. [9]
    In Hopkins v WorkCover Qld,[11] McKenzie J explained the shift in the evidential onus, by reference to the decisions in Watts and Purkess as follows,

[30] Purkess v Crittenden (and Watts v Rake as explained by it) are concerned with the situation where the plaintiff has made out a prima face case that the condition in which he or she is was the result of the defendant’s negligence but the defendant wishes to rely on an alternative internal cause as the reason for the incapacity or as a condition that would have caused at least the same level of incapacity at some definable future time. As the joint judgment of Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden puts it, in the absence of such evidence, and if the plaintiff’s evidence is accepted, no issue will arise as to the existence of a pre-existing condition or its prospective results or its relationship to the disabilities complained of at the trial.

[31] A defendant who wishes to rely on such matters carries an evidential onus, one of adducing evidence, in the plaintiff’s case or his own case, of a present existing condition and its future probable effects or its actual relationship to the incapacity. While the persuasive onus of causation remains on the plaintiff, the evidence adduced by the defendant must establish with some reasonable measure of precision what the pre-existing condition was and what its future effects, both as to its nature and their future development and progress were likely to be.’[12]

  1. [10]
    In the recent decision of Govier v Unitingcare Community[13], Fraser JA (with whom Gotterson JA and North J agreed) cited with approval the decision of Ipp JA in Seltsam v Ghaleb[14] where His Honour adopted the following approach;

[110] I have noted that in the present case there was considerable evidence to the effect that obesity contributed to the respondent’s breathing difficulties and was likely to continue to do so and the respondent did not seriously contend to the contrary…

[112] In addition, as I have pointed out, his Honour stated that there was an onus on the appellant to prove that obesity made a material contribution to the respondent’s restrictive lung condition. There is nothing in Watts v Rake and Purkess v Crittenden that imposes such an onus on a defendant. This was another significant error of law.’[15]

  1. [11]
    The weight of authority, indicates, in my view, that the Defendant bears an evidentiary burden to establish the pre-existing condition of the Plaintiff and the likely future effects of such a condition. This evidence must be sufficiently precise and definite to displace the inference that the incapacity suffered by the plaintiff after the accident was the result of the Defendant’s negligence. This does not, however, abrogate the Plaintiff’s obligation to prove, on the balance of probabilities the causal connection between the incapacity of the Plaintiff and the injury sustained as a result of the Defendant’s negligence.[16]

The Defendant’s Evidential Burden of Proof

  1. [12]
    It is not disputed that in or about 1982 the Plaintiff, then aged about 20 years of age, was involved in a serious motor vehicle accident as I mentioned earlier. It is accepted that the Plaintiff suffered serious injury as a result, the most significant being the amputation of his right leg below the knee. He also suffered a fractured pelvis and a fractured femur requiring the insertion of an intramedullary nail. Whilst rehabilitating from this trauma, the Plaintiff suffered a fall whilst on crutches and was further injured. He fractured his right patella, requiring it to be surgically fixed with wires which remained inside the patella. [17]
  1. [13]
    The Defendant called Dr Anthony Ganko, orthopaedic surgeon, who gave evidence as to the Plaintiff’s pre-existing orthopaedic condition.[18]  He examined the Plaintiff on 21 July 2015, some seventeen months after the Incident and provided a report dated 24 July 2015. His evidence, was that prior to the Incident, the Plaintiff:

a) would have experienced stiffness in his hip with decreased range of motion in his right hip;

b) must have experienced an altered gait;

c) had a significantly arthritic knee, with poor soft tissue covering and frequent ulceration; and

d) s a result of his altered gait, that may have given rise to, or contributed to the problems he experience with his left knee.[19]

  1. [14]
    Dr Ganko further concluded that prior to the Incident, there would have times when the Plaintiff would have been unable to wear his prosthetic limb due to the recurring ulceration of the skin on the stump.[20] This conclusion is supported by prior contemporaneous medical evidence contained within the Plaintiff’s general practitioner records[21] and notes of various attendances at hospitals including the Nambour Hospital[22], the Hervey Bay Hospital[23] and the Queensland Amputee Limb Service.[24] This view also accords with the matters referred to by Mr Cameron Fraser[25], an occupational therapist called by the Defendant.
  1. [15]
    Relevantly, Dr Ganko says that if the Plaintiff does indeed require gratuitous assistance in the future, that would not be necessitated by any injury sustained during the Incident. He describes the manner in which the Plaintiff’s condition is likely to deteriorate into the future.[26] He estimates that the level of right knee functioning of the Plaintiff may deteriorate at a slightly increased rate due to the contribution of the fall affecting an already arthritic knee.[27]
  1. [16]
    The Defendant’s case is that any long-term incapacity suffered by the Plaintiff is primarily attributable to the pre-existing condition of the Plaintiff. The Defendant says it has, to the requisite degree of precision and certainty, identified the pre-existing condition it alleges is causally related to the present incapacity of the Plaintiff. The Defendant has adduced evidence, primarily through Dr Ganko, as to the future effects and likely development of such a pre-existing condition, to adopt the phrasing in Hopkins.
  1. [17]
    I agree the Defendant has discharged its onus of adducing evidence with respect to any pre-existing condition of the Plaintiff. Consistent with authority, the persuasive onus remains with the Plaintiff to prove, on the balance of probabilities, that the incapacity complained of by the Plaintiff is causally related to the Defendant’s negligence.[28]

Past and Future Gratuitous Care and Assistance

  1. [18]
    The majority of the Plaintiff’s Claim for damages is for to past gratuitous care ($40,390.00) and future gratuitous assistance ($103,512.50).[29] The award of gratuitous services is dealt with in section 59 of the Civil Liability Act 2003 (Qld) (‘the Act’) which provides:

59 Damages for gratuitous services provided to an injured person

  1. (1)
    Damages for gratuitous services provided to an injured person are not to be awarded unless—
  1. (a)
    the services are necessary; and
  1. (b)
    the need for the services arises solely out of the injury in relation to which damages are awarded; and
  1. (c)
    the services are provided, or are to be provided—
  1. (i)
    for at least 6 hours per week; and
  1. (ii)
    for at least 6 months.
  1. (2)
    Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.
  1. (3)
    In assessing damages for gratuitous services, a court must take into account—
  1. (a)
    any offsetting benefit the service provider obtains through providing the services; and
  1. (b)
    periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.
  1. [19]
    The Defendant says the Plaintiff does not meet any of the criteria in section 59(1) of the Act and is precluded from an award of damages by operation of section 59(2). The thrust of the evidence of the Plaintiff, Ms Stephens and Ms Vanessa Aitken, an occupational therapist called by the Plaintiff, is that the need for the care provided by Ms Stephens to the Plaintiff satisfies the requirements of section 59 of the Act. It is said, that the need for such care arose because of, and immediately following the Incident and will continue for the remainder of the Plaintiff’s life.

Prior to the Incident

  1. [20]
    To assess the entitlement for an award of damages under section 59 of the Act, the Court must, of necessity, determine the Plaintiff’s level of pre-Incident functioning. In this respect, the Defendant is placed in a somewhat difficult position. In Bell v Mastermyne Pty Ltd, McMeekin J observed,

‘The assessment of damages for personal injury depends to a very large extent on a plaintiff’s honest reporting – of his or her symptoms; of their impact on the plaintiff’s life; of pre-existing problems…These are all difficult issues for a defendant to thoroughly investigate and test. In truth no one knows what level of pain an individual experiences and what impact that pain has on any particular plaintiff’s capacity to maintain their activities.’[30]

  1. [21]
    The Plaintiff’s evidence was that prior to the Incident he was completely self-reliant and did not require any assistance in relation to self-care, domestic chores property maintenance or community access.[31] The Plaintiff gave oral evidence that he was able to perform the following activities while wearing his prosthetic limb without any assistance or significant difficulty:

a) Lawn mowing;

b) Showering;

c) Drying and dressing himself;

d) Attending to personal hygiene;

e) Preparing meals;

f) Cleaning up after meals;

g) Grocery shopping;

h) Laundry;

i) Vacuuming;

j) Mopping;

k) Sweeping;

l) Banking;

m) Golf approximately three times per week;

n) Fishing; and

o) Walking on the beach, between three and four times per week.[32]

  1. [22]
    Ms Tammy Stephens, the person with whom the Plaintiff resided, largely corroborated his account of his ability to function and perform domestic activities prior to the Incident. She gave evidence to the effect that the Plaintiff was, pre-Incident, an active and largely independent person,[33] able to prepare his own meals, shop for groceries, do his laundry, mop, vacuum, sweep, mow lawns and clean his vehicle.[34] She provided a statutory declaration to the effect that, prior to the Incident, the Plaintiff was independent in relation to self-care and that she did not provide any care or assistance.[35]
  1. [23]
    The Plaintiff also relies to the Queensland Ambulance Report Form which was completed by the attending officers at the shopping centre at the date of the Incident,[36] which describes the Plaintiff as a ‘self care functioning independent’. The Plaintiff says that this is the most contemporaneous account of the pre-Incident level of functioning of the Plaintiff.[37]
  1. [24]
    The Plaintiff further relies on the evidence of Dr Izak David van der Walt, an orthopaedic surgeon who examined the Plaintiff on 15 May 2015 and produced a report dated 19 May 2015. In that report he says,

‘Prior to the accident he [the Plaintiff] could walk very well with the artificial leg and did not require any walking stick support. He had no difficulty climbing stairs. He stated that he was a very keen golfer and that he could easily walk eighteen holes twice a week.’[38]

  1. [25]
    Under cross-examination, Dr van der Walt said that, prior to the Incident, the Plaintiff had ‘such a high degree of function in his artificial leg that it is more than likely that he had pretty good knee function prior to the fall’.[39] Importantly, however, Dr van der Walt acknowledged the opinion expressed in his report depended upon the accuracy of the Plaintiff’s self reporting of his pre-existing function.[40]
  1. [26]
    The report provided by Ms Vanessa Aitken reflects the Plaintiff’s level of pre-Incident functioning as follows,

I consider that Mr Polwarth’s past medical history of right leg amputation, left knee pain, mobility scooter purchase and right leg stump ulcer did not result in functional limitations prior to the subject incident as he was able to participate in all domestic chores and leisure activities (including golfing 3 times per week, walking the entire golf course on uneven terrain for approximately 5 km) He did not require a walking stick to mobilise prior to the subject incident.[41]

  1. [27]
    In challenging the Plaintiff’s evidence as to his pre-Incident level of functioning, the Defendant relies on the evidence of Dr Ganko and to the numerous medical records referred to in paragraph [14]. They indicate the Plaintiff was experiencing long term complications with the condition of the skin over the stump area prior to the Incident.[42] That, it is said by the Defendant, is indicative of the Plaintiff’s prolonged decreased mobility prior to the Incident due to the ulceration of the stump resulting in his inability to wear a prosthetic limb.[43] Dr Ganko also says that in determining his level of pre-Incident functioning, it is relevant that the Plaintiff was on a Disability Support Pension at the time of the Incident.[44]
  1. [28]
    The Plaintiff says that prior to the Incident, the only significant pain and discomfort experienced was while wearing the prosthesis during periods of ulceration of the stump.[45] The Defendant says the logical conclusion to be drawn from the Plaintiff’s acquisition of a mobility scooter in or about June 2011 is that it was required when the Plaintiff was immobilised due to the ulceration of the stump.[46] The Plaintiff denied this[47] and said the scooter made it ‘a lot easier to get around on’[48] and was a more cost-effective option as compared to his motor vehicle.
  1. [29]
    Ultimately, only the Plaintiff truly knows the extent of his pre-existing condition and the degree to which such a condition impacted on his functioning in day to day to life. The Defendant cannot say what pain the Plaintiff experienced; nor what his functional restrictions may have been prior to the Incident. In Dr Ganko’s opinion, the Plaintiff’s pre-existing condition must have resulted in some functional limitations.[49] Notwithstanding the matters raised by the Defendant, there is no direct evidence to contradict the Plaintiff’s assertion that his pre-existing functional limitations rendered him unable to perform the recreational and domestic activities that he asserts he was able to complete prior to the Incident.

After the Incident

  1. [30]
    The Plaintiff says that in the period immediately following the Incident, he was bedridden for ‘a couple of weeks’[50] because of the pain in his knee. During this period, care was provided by Ms Stephens. Eventually, the Plaintiff says that he was able to utilise crutches for mobility, however was unable to stand upright for long periods of time and still required the assistance of Ms Stephens.[51] The Plaintiff was not able to recall how long after the Incident he was able to once again wear his prosthetic limb.[52] He did recall, however, that when he first began to wear the prosthetic limb, Ms Stephens was still providing care in the form of activities such as meal preparation, laundry and grocery shopping. At this juncture, it is relevant to note the decision of McMeekin J in Hooper v King[53] where His Honour was considering the application of section 59(1) of the Act. His Honour noted,

‘I should say at the outset that the various witnesses who were called to support this aspect of the claim were patently honest. That they had rendered assistance to the plaintiff from time to time cannot be doubted. However it is true, as the defendants contend, that the estimate of the time spent in assisting the plaintiff needs to be scrutinized carefully. No contemporaneous record was kept and witnesses were asked to recall events long after they had taken place. As the Court of Appeal observed in Shaw v Menzies a plaintiff who neglects to keep a weekly diary recording tasks and times taken by friends and family members, a practise which is often urged by solicitors acting for such plaintiffs, can run into difficulties, no matter how deserving.’[54]

  1. [31]
    The Plaintiff asserted that from about a year after the Incident, his level of functioning stabilised somewhat as to his ability to utilise his prosthetic limb. This was the relevant exchange:

MS SORBELLO:   And has it now got to a point where you can’t increase the time that you could wear the limb? The amount of time that you can wear your prosthetic limb in a day?

PLAINTIFF:   Yep.

MS SORBELLO:   Has that remained the same for some period now?

PLAINTIFF:   I have bad days and good days, yeah.

MS SORBELLO:   And so if I can take you back to, say, a year following the incident?

PLAINTIFF:   Yep.

MS SORBELLO:   Are the good days and the bad days the same for the last two years or so?

PLAINTIFF:   It’s – they’ve actually gotten – they’re around the same, yes. Yeah the same.

MS SORBELLO:   Okay. So on a good day then how long can you wear your prosthetic limb for?

PLAINTIFF:   I can wear it just to sort of walk and stuff for awhile. It sort of varies, like- probably up yeah, up to about – like, a few hours a day. Like five –five hours.

MS SORBELLO:  And in those few hours are you able to wear it continuously for  those few hours or is-?

PLAINTIFF:   Sometimes I can and sometimes – but not standing. I still have to sit down, yeah.[55]

  1. [32]
    The Plaintiff refers to the various medical records[56] for the six months following the Incident and says they are contemporaneous documents which corroborate his evidence as to the significant pain and discomfort he experienced with his stump following the Incident. These records do not, however, directly speak to the level of care the Plaintiff received following the Incident.

Surveillance Evidence

  1. [33]
    The Defendant tendered as exhibits covert surveillance footage taken of the Plaintiff for the periods 24 – 26 May 2016, 26 September 2016 and 7 – 9 October 2016 (‘Surveillance Footage’).[57] It says that this Surveillance Footage is inconsistent with the evidence of both the Plaintiff and Ms Stephens as to the Plaintiff’s level of mobility and functioning demonstrating that the Plaintiff does not meet the threshold test for the award of gratuitous services under section 59(1) of the Act.
  1. [34]
    The Plaintiff, at the outset, criticises the reliability of the Surveillance Footage and says that the veracity of such evidence is diminished by a ‘selective’ approach adopted by the surveillance operative in recording the Plaintiff. He refers to the fact that in terms of functioning and mobility, he experienced ‘good days’ and ‘bad days’[58], with approximately two good days and five bad days per week.  He suggests it was unlikely that he was filmed on a ‘bad day’ indicating a bias in the collection of the Surveillance Footage towards collecting footage favourable only to the Defendant’s case. This was not put to Mr Hinds, the private investigator who compiled the Surveillance Footage. The Plaintiff also compiled a detailed spreadsheet which records the periods of surveillance and the relative amount of time the Plaintiff could be observed walking, standing and driving.[59] This document reflects that the Surveillance Footage records the Plaintiff walking, standing or driving for roughly 3.5% of the total period of surveillance.
  1. [35]
    I consider the criticism of the Surveillance Footage to be misconceived. Despite the best efforts of even the most diligent surveillance operative, it would be impossible to constantly observe the Plaintiff. In fact, Mr Hinds satisfactorily explained why he would be unable to obtain footage for consistently long periods of time by reference to the necessity to maintain the integrity of his covert operation.[60] I see no utility in speculating as to the Plaintiff’s level of activity while not being filmed. I do not intend to delve into the minutia of detail, by reference to the Plaintiff’s Spreadsheet which can be extracted from such footage. Notwithstanding the Plaintiff’s criticism of the Surveillance Footage, the Plaintiff submits that such evidence in fact supports his evidence and is consistent with that of Ms Stephens and his self-reporting of his post-Incident functioning to the medicolegal experts who examined him.[61]
  1. [36]
    The Surveillance Footage speaks for itself. The level of functioning of the Plaintiff is self-evident and reflects that his ability to function has not been significantly curtailed. The footage shows, on numerous occasions, at different locations, the extent to which the Plaintiff is able to function and mobilise notwithstanding any incapacity he now asserts to be causally related to the injuries he suffered as a result of the Incident. The Surveillance Footage is relevant to an assessment of the credibility of both the Plaintiff and Ms Stephens. It also provides an objective background upon which the evidence of the medical experts can be viewed.

Threshold under section 59(1) of the Civil Liability Act 2003 (Qld)

  1. [37]
    The threshold for the award of gratuitous services was discussed by McMurdo P J in Rossi v Westbrook & Anor[62] where His Honour said,

‘Section 59 of the Civil Liability Act provides that damages for gratuitous services provided to an injured person are not to be awarded unless the services are necessary, the need for them arose solely out of the injury in question and the services were provided or are to be provided for at least six hours per week and for at least six months. Accordingly, the plaintiff must establish not only the need for such services but the fact of their provision.’[63]

  1. [38]
    The Defendant says the Plaintiff has not met the threshold for an award for gratuitous care and assistance under section 59(1) of the Act and there is no evidence to suggest that necessary care was provided for at least six hours per week for a period of at least six months.[64] The Defendant further says that, even if such care was provided to the Plaintiff, it did not arise solely out of the Injury suffered as a result of the Incident. As I have said, the Plaintiff must prove that such care, as required by section 59(1) of the Act, was required and actually provided to him.

The evidence of the Plaintiff as to the need for gratuitous care

  1. [39]
    At trial, the Plaintiff said that as a result of being unable to wear the prosthetic limb for extended periods of time since the Incident, Ms Stephens has been responsible for his meal preparation, grocery shopping, laundry and cleaning (including vehicle cleaning).[65] The Plaintiff also said that since the Incident he is unable to mow the lawn, walk on the beach or play golf, and has attempted to fish but is unable to do so for a long period of time.[66]
  1. [40]
    In his Statutory Declaration dated 21 January 2016, the Plaintiff confirmed the amount of past gratuitous care and assistance provided to him by Ms Stephens accorded with that reported by Ms Aitken.[67]  In her report dated 9 October 2015, Ms Aitken categorised the Plaintiff’s level of capacity into two separate periods as follows:

a) ‘PERIOD 1 – ACUTE SYMPTOMS

20 February 2014 to 14 May 2014 =12 weeks’ (‘Period 1’)

b) ‘PERIOD 2 – ABLE TO DON PROSTHESIS YET NO CHANGE IN HELP REQUIRED

15 May 2014 to 25 September 2015 =71.28 weeks’ (‘Period 2’)[68]

  1. [41]
    Attached to the Plaintiff’s Statutory Declaration dated 21 January 2016 is a schedule which details the hours of care which he says was provided to him between 25 September 2015 and 15 January 2016, a period of approximately sixteen weeks (‘Period 3’). The schedule is divided into ‘Self Care’, ‘Domestic Chores’ and ‘Community Access’[69] According to this schedule, the Plaintiff said he required 17.5 hours per week of care during this period.
  1. [42]
    He confirmed under cross-examination that his requirement for care since his Statutory Declaration of 21 January 2016 until the present time had remained ‘virtually’ the same, increasingly slightly.[70] This estimate would place the current hours of care at approximately 18 hours per week, well above the 6 hours per week threshold required under the Act. However, during the Plaintiff’s evidence-in-chief he said that Ms Stephens currently provides him with approximately three hours of care per day,[71] equating to approximately 21 hours per week. Even allowing for a slight increase of the figure from the Statutory Declaration, the two estimates are inconsistent.
  1. [43]
    Exhibit 4, tendered by the Defendant, consolidates into a single schedule, the Plaintiff’s asserted requirement of gratuitous care for Period 1, Period 2 and Period 3.[72] Reflecting the report of Ms Aitken and the Plaintiff’s Statutory Declaration dated 21 January 2016, the requirements for care are divided into ‘Self Care’, ‘Domestic Chores’ and ‘Community Access’, providing a total weekly amount of care. Although the Plaintiff was somewhat confused as to the effect of Exhibit 4, I accept that it fairly and accurately depicts the alleged totals of gratuitous care provided to the Plaintiff from the report of Ms Aitken and the Plaintiff’s Statutory Declaration dated 21 January 2016.
  1. [44]
    According to Exhibit 4, for Period 1 (date of Incident until 14 May 2014) the Plaintiff required 33.75 hours per week of care. For Period 2 (15 May 2014 until 25 September 2015) the Plaintiff required approximately 17.75 hours of care per week. As I have said, for Period 3 (25 September 2015 until 15 January 2016) the Plaintiff required approximately 17.5 hours of care per week, and he says that this figure has remained relatively constant, gradually increasing.
  1. [45]
    There were some troubling aspects of the Plaintiff’s evidence as to the need for gratuitous care. One relates to his evidence as to the care and assistance required for drying, showering and dressing. According to Exhibit 4, the Plaintiff currently requires 2.5 hours per week of assistance with this task. However, it was his evidence that he has always, both before and after the Incident, showered without his prosthetic leg attached. Accordingly, he accepted that his procedure for showering had not substantially altered since the Incident.[73] The evidence of Mr Fraser, the Defendant’s occupational therapist, confirms this.[74] Hence, his assertion that he requires assistance with that task demonstrates that the claim is misconceived having regard to section 59(2) which denies damages for gratuitous services of the same kind provided prior to the Incident.
  1. [46]
    Another of particular concern was the Plaintiff’s acceptance that his claim for five hours per week for garden maintenance, which appeared in Periods 1 and 2 in Ms Aitken’s report, was excessive. This was the relevant exchange:

‘MR MORTON:  …but five hours a week in a rental property on top of law mowing and edging, that’s not really likely is it, Mr Polwarth?

MR POLWARTH: It seems a bit high.

MR MORTON:  Yeah. It seems a lot high, doesn’t it?

MR POLWARTH:  I don’t remember.

MR MORTON:   It would be flat out being an hour a week, wouldn’t it?

MR POLWARTH:  Could be more than that, more than an hour a week.

MR MORTON:  I suggest that that’s a grossly excessive estimate of the time that might’ve been spent either before or after gardening - attending to gardening excluding the law mowing and edging, isn’t it?

MR POLWARTH: Yeah.

MR MORTON:   Yes?

MR POLWARTH:  Yes.’[75]

  1. [47]
    Overall, I found the Plaintiff to be an unimpressive witness. His evidence as to the care and assistance required and actually provided to him by Ms Stephens was inconsistent and unconvincing.

Evidence of Ms Stephens as to the gratuitous care actually provided

  1. [48]
    The Defendant submits that the evidence of Ms Stephens as to the level of care provided to the Plaintiff since the Incident is unreliable and should not be accepted.[76] In her Statutory Declaration dated 2 March 2015, Ms Stephens says that for the three weeks immediately following the Incident, she provided the Plaintiff with extensive care and assistance, particularly in respect of meal preparation, showering and laundry.[77] She says that for approximately 10 weeks post mid-March 2014, the Plaintiff was more mobile, but she continued to prepare meals, do laundry and provide general mobility assistance, including driving. In her declaration, she says that for this period she provided assistance for approximately 3 hours per day.[78]
  1. [49]
    Ms Stephens’ Statutory Declaration further says that for the period from mid 2014 up until the Plaintiff’s arthroscopy surgery on the 29January 2015, the Plaintiff’s mobility increased and she provided only 1.5 hours per day of assistance.[79] Following the surgery, until the date of the Statutory Declaration, she says she provided assistance of approximately 4 hours per day. [80] Despite the figures reproduced in her Statutory Declaration, Ms Stephens did not keep a diary of the amount of time spent caring for the Plaintiff.[81]
  1. [50]
    Plainly, Ms Stephens estimates of the care and assistance provided to the Plaintiff were imprecise. It was apparent to me however, that she was attempting to bolster the Plaintiff’s claim by overstating the amount of care provided and the necessity for such care to be provided. One such example can be found in her estimate as to the meal preparation undertaken for the Plaintiff. She gave evidence that in the first three weeks following the Incident she spent roughly two hours per day preparing meals for the Plaintiff.[82] She confirmed that she presently spends two hours per day in meal preparation assistance, preparing a total of three meals for the Plaintiff.[83] This would equate to roughly 14 hours per week of meal preparation assistance.
  1. [51]
    However, Ms Aitken estimated, based on what the Plaintiff told her that for Period 1, immediately after the Incident, the Plaintiff required only 3.5 hours per week of care for meal preparation and clean up assistance. According to the Plaintiff’s estimate for Period 3, this figure remained at only 3.5 hours per week.[84]
  1. [52]
    Further, Ms Stephens’ estimates as to meal preparation are inconsistent with what the Plaintiff reported to Mr Fraser. In his report dated 14 December 2015, Mr Fraser says,

‘Mr Polwarth reported the following in relation to his current capacity to perform domestic activities:

‘Meal preparation and clean up – Able to prepare breakfast, lunch and snack for himself and able to load and unload dishwasher and put dishes away. Reported Tammy (Ms Stephens) does the main meal as ‘it’s a bit awkward getting around the kitchen’ with his single stick, however he could prepare main meals if needed to.’[85]

  1. [53]
    Under cross-examination, Ms Stephens asserted meal preparation assistance consisted of preparing three meals each day for the Plaintiff.[86] This was plainly inconsistent with the Plaintiff’s unequivocal statement, ‘I don’t eat breakfast’.[87] In Ms Aitken’s report, under ‘Meal Preparation / Cleanup’ she describes,

‘Ms Stephens prepared for Mr Polwarth three (3) meals per day, toast and coffee, a sandwich and then family dinner (she just made extra) (estimated at 0.5 hours per day)’[88]

  1. [54]
    The Plaintiff acknowledged, consistent with the above extract, that it was correct that Ms Stephens simply ‘made extra’ of the main meal at dinner time.[89] Ms Stephens was reluctant to acknowledge this as true, however, eventually conceded that she would sometimes make additional food to accommodate for the Plaintiff. This was the exchange;

‘MR MORTON:   Two hours a day. You just- all you did for dinner for instance, or the evening meal was to just make some extra, didn’t you?

MS STEPHENS:  Ray doesn’t eat a lot of what we eat.

MR MORTON:  You just made extra, didn’t you?

MS STEPHENS:  No.

MR MORTON:  That’s what Mr Polwarth told people. That’s the truth isn’t it?

MS STEPHENS:  Well, sometimes I would make extra of that meal, but other times I’d make what he wanted because he wouldn’t eat what we were eating and it is an average over a week.’[90]

  1. [55]
    If it be the case, as I accept it is, that Ms Stephens, in preparing meals for herself and her children, simply prepares an additional amount to accommodate the Plaintiff, her estimates are highly unreliable. It would be a challenge to estimate the precise amount of time spent preparing meals for the Plaintiff only, which has not been done.
  1. [56]
    Overall, I did not find Ms Stephens to be a credible witness. The estimates of the care and assistance she allegedly provided to the Plaintiff grossly overstated what I consider was actually required and were not consistent with what the Plaintiff reported to Ms Aitken and Mr Fraser, nor are such estimates consistent with what was plainly evident on the Surveillance Footage.

Evidence of Ms Aitken

  1. [57]
    The Defendant submits the report of Ms Aitken proceeds on a false basis and submits that the assessment of the Plaintiff provided by her cannot form the basis for the imposition of any award.[91] Further it is said, that her assessment was undertaken on the basis that all of the Plaintiff’s functional problems, including those arising from his pre-existing condition, were the subject of care and assistance. In her report, Ms Aitken, states that, ‘impairments and disabilities that have only occurred as a result of the subject incident have been included in this opinion.’[92] Despite such an assertion, in employing a Verbal Pain Rating Scale (VPRS), Ms Aitken took into account pain nominated by the Plaintiff in his lower back, right shoulder, right buttock/hip and left knee. [93] Dr Ganko was unequivocal in his assessment that any such pain was not causally related to the Incident, but rather to the Plaintiff’s pre-existing condition.[94]
  1. [58]
    The report of Dr van der Walt does not address this and he was not cross-examined on this point. It is difficult to ascertain, when reading the report of Ms Aitken, the extent to which the Plaintiff’s incapacity as a result of the pre-existing condition was disentangled from the incapacity he now suffers because of the Incident when undertaking an assessment of his functioning. I am left to draw the inescapable conclusion that Ms Aitken inevitably took into account difficulties in functioning the Plaintiff experienced which were not causally related to the Incident.
  1. [59]
    With respect to the estimates of care and assistance required by the Plaintiff, Ms Aitken did not interview Ms Stephens, nor did she undertake any further investigation or analysis herself in the form of a home visit. In McAndrew v AAI Limited[95], McMeekin J criticised the evidence of Ms Aitken for identical failures. His Honour said,

The plaintiff’s submission concerning the number of hours of care that the plaintiff required depends upon the opinions of Ms Aitken. The defendant was critical of that approach, and with good reason. Ms Aitken did not interview those who had provided the care or undertake any private investigation herself in the form of home visit. Rather she used her expertise to arrive at what she thought would be the “varying levels of gratuitous assistance that [she] considers likely to have arisen as a result of Mr McAndrew’s disabilities”. While her unchallenged expertise and the opinions that she holds can obviously buttress estimates of care provided, where there is in fact evidence from the care givers as to what they have done then that has to be the superior evidence.’[96]

  1. [60]
    Ms Aitken assessed the Plaintiff on 25 September 2015, well after the criticism of her in McAndrew. At this time, the Plaintiff reported to her that he had difficulty performing certain indoor activities.[97] She states in her report that she had received and reviewed the report of Dr Ganko dated 24 July 2015.[98] Under cross-examination[99], Ms Aitken was unable to explain why, when she assessed the Plaintiff, she did not attempt to reconcile with the Plaintiff why he had told Dr Ganko, some three months earlier, that he had returned to performing all normal indoor domestic chores.[100]
  1. [61]
    Upon viewing the Surveillance Footage, Ms Aitken accepted that the Plaintiff’s level of functioning was perfectly consistent with someone afflicted by the Plaintiff’s pre-existing condition.[101] With respect to the levels of care required by the Plaintiff, Ms Aitken accepted under cross-examination that upon viewing the Surveillance Footage, several of her estimates as to care were overstated. For example, in her report, Ms Aitken states, ‘even on a good day, he rarely leaves the house due to his pain’[102] and estimates that he requires approximately one hour per week for assistance with driving.[103] Under cross-examination Ms Aitken could not explain why she estimated that the Plaintiff required one hour per week for assistance with driving.[104]
  1. [62]
    As I have already said, the Plaintiff conceded that his procedure for showering himself had not substantially changed since the Incident.[105] Despite this, he claims 2.5 hours per week of care was required for this task during Period 3 with Ms Aitken estimating that 3.5 hours of care per week was required during Period 2.[106] Ms Aitken attempted to explain these figures by stating that the estimate,

‘was more about helping him set up…like set up for the shower and looking at, you know getting organised. So it’s not helping him get into the shower. It’s getting his clothes so as to minimise unnecessary mobility and aggravation of the stump.’ [107]

  1. [63]
    However, Ms Aitken conceded that what was shown on the Surveillance Footage indicated that the Plaintiff was capable of getting clothes out of the closet, putting them on the bed and setting himself up to have a shower.[108] Accordingly, there is no basis for such care and assistance to form part of the Plaintiff’s claim. Ms Aitken made a similar concession with respect to her estimate of ‘Meal Preparation and Cleaning’ for which she estimated 2.5 hours per week of care, and which the Plaintiff now asserts has risen to 3.5 hours per week of care.[109] Ms Aitken accepted that what was shown on the Surveillance Footage indicated that the Plaintiff was capable of preparing meals for himself.[110]
  1. [64]
    Perhaps the most telling example of the failure of Ms Aitken to properly assess the Plaintiff’s need was in respect of the estimated care of five hours per week for garden maintenance for Period 1 and 2. This was the relevant exchange:

MR MORTON:   Could I take you over the page, please, Ms Aitken. There is an assessment of five hours for garden maintenance. Do you see that?

MS AITKEN:  Yes, I do.

MR MORTON:  You didn’t attend at his residence at all, did you?

MS AITKEN:   No.

MR MORTON:  Could I take you back to page 8, please, and I could I take you under Property Maintenance to the second entry, Garden Maintenance?

MS AITKEN:   Yes.

MR MORTON:  This was what he reported to you, wasn’t it?

MS AITKEN:  Yes, it was.

MR MORTON:  He agreed with me that the assessment of five hours per week for garden maintenance was grossly excessive?

MS AITKEN:  Yes.

MR MORTON:  In those terms?

MS AITKEN:   Yep. Based on what he reported.

MR MORTON:  So that’s just what he reported?

MS AITKEN:  Yes. I think it’s excessive but that’s what he reported.

MR MORTON:  Well, you don’t say that anywhere, do you, that that’s excessive, do you?

MS AITKEN:  No.[111]

  1. [65]
    Generally, my impression was that the Plaintiff was a good deal more able than Ms Aitken had realised upon her assessment of him. I accept that Ms Aitken can only proceed on the information that she is provided upon her assessment of the Plaintiff. However, it is concerning that on several occasions, Ms Aitken failed to exercise a degree of independence and properly assess the level of care required by the Plaintiff. Instead, it would appear that she has simply accepted the estimates provided by the Plaintiff and Ms Stephens, even if she believed, or had reason to believe, that such estimates overstated the level of care and assistance required and actually provided to the Plaintiff.

Evidence of Dr Ganko

  1. [66]
    Dr Ganko characterised the injury suffered by the Plaintiff as a result of the Incident as an aggravation of his pre-existing condition. Dr Ganko describes, ‘In effect, he has had an aggravation of underlying degeneration within his knee which had led to deterioration in function.’[112] Relevantly, the fact that the Injury can be described as an aggravation does not inexorably lead to the conclusion that any need for gratuitous care arises solely out of the Injury rather than the pre-existing condition of the Plaintiff.
  1. [67]
    With respect to the threshold test required under section 59(1) of the Act, the Defendant refers to the evidence of Dr Ganko who states,

‘The likelihood is that he would have had pain in his knee at an increased level for about a month or so after the fall but then it would have settled without significant effect upon him and certainly not such affect as to require any care and assistance after the first month or so. He may have also required care for a few weeks after the arthroscopic surgery in January 2015.’[113]

  1. [68]
    Upon examination of the Plaintiff, Dr Ganko recorded, ‘[The Plaintiff] stated that after his fall, when his leg was bruised and painful, Ms Stevens gave him assistance with making beds and cooking meals. He had returned to doing all normal indoor domestic chores by the time I saw him.’[114] Under cross-examination, the Plaintiff said he did not remember saying this to Dr Ganko.[115] Dr Ganko further stated in his report, ‘By the time I saw him, he was receiving no gratuitous assistance.’[116] Three months following this examination, the Plaintiff told Ms Aitken that he was unable to complete domestic chores or property maintenance chores.[117] The Plaintiff was not able to satisfactorily explain this inconsistency.[118]
  1. [69]
    The Defendant also relies on the Pain Questionnaire[119] filled out by the Plaintiff upon assessment by Dr Ganko. Relevantly, under the section which reads ‘Personal Care’ the Plaintiff ticked the option which answers ‘I can look after myself normally but it causes extra pain.’[120]  The remaining options of this section, not selected by the Plaintiff left open scope for indicating varying degrees of care and assistance which may have been required. The Plaintiff did not choose these options. The Plaintiff also indicated that he did not require painkillers. [121]
  1. [70]
    With respect to the estimated requirement for gratuitous care and assistance, Dr Ganko gave the following evidence:

‘MS SORBELLO:  Yes. And he also told you in that questionnaire that he can’t walk very far, having to – have to use walking stick, had trouble sleeping?

DR GANKO:   Correct.

MS SORBELLO:   Yet against that background you assess Mr Polwarth as not receiving any gratuitous care.  Sorry.  Against that background you say Mr Polwarth told you he was receiving no gratuitous care.  Did you find that contradictory?

DR GANKO:   Not at all.  I mean, he obviously demonstrated that he could walk well enough to do domestic chores and – and, you know, gardening at light levels and everything.  I mean, obviously he wasn’t functioning at a level that he could return to being a landscape gardener or something, but – but, you know, gratuitous care, he obviously was physically able to shower himself and was able to walk and was able to do domestic chores in the garden, etcetera, to a light level and he admitted that.  I mean, he had gratuitous care as I said straight after the injury when he couldn’t wear the stump because of bruising, but there was nothing about his level of function that suggested – I mean, he – I accept that he may be struggling to play golf.  He obviously was back fishing as evidenced in the video shown to me, but yes, I wouldn’t have thought he’d need gratuitous care for day-to-day function.[122]

  1. [71]
    The Plaintiff did not lead evidence from their medical expert Dr van der Walt, as to any aspect of care likely to have been required by the Plaintiff subsequent to the Incident. In this regard, the Plaintiff submits neither medical expert possessed the requisite specialist expertise so as to express an opinion as to the extent of the care required by the Plaintiff.[123] I do not accept this submission. There is no basis to suggest that Dr Ganko, an orthopaedic surgeon, or Dr van der Walt for that matter, could not give evidence as to the care requirements of the Plaintiff, as distinct from estimates of time required to perform tasks such as domestic chores, which falls within the field of expertise of an occupational therapist.
  1. [72]
    Relevantly, Dr van der Walt, did not give evidence as to the extent that the Plaintiff’s reported symptoms in his left knee, lower back right hip/buttock and right shoulder were not causally related to the Incident. This evidence was fundamental to the assessment of the requirement for care, and the basis for Ms Aitken’s report. Dr Ganko’s evidence on this issue was not challenged, and it is facile for the Plaintiff to now assert that such matters did not fall within expertise of Dr Ganko or Dr van der Walt. In my view, the evidence of Dr Ganko is consistent with what is shown on the Surveillance Footage.

Conclusion regarding section 59 of the Civil Liability Act 2003 (Qld)

  1. [73]
    It may be accepted that the Plaintiff was in need of gratuitous care and assistance for a short period of time immediately following the Incident and perhaps for a further short period following his arthroscopy surgery on 29 January 2015. However, the evidence of the Plaintiff, Ms Stephens and Ms Aitken does not satisfy me that gratuitous care and assistance was provided to the Plaintiff for a period of at least 6 months and for at least 6 hours per week as required by the Act.
  1. [74]
    Even if such care was in fact being provided, as reported by the Plaintiff and Ms Stephens and assessed by Ms Aitken, which I do not accept, it was not, in my view, necessary. The Surveillance Footage is inconsistent with the suggestion that the Plaintiff requires an appreciable level of care and assistance as particularised in the report of Ms Aitken and the Plaintiff’s Statutory Declaration. In this regard, I prefer the evidence of Dr Ganko and Mr Fraser. There is no basis for any award of damages for gratuitous care and services under the Act.

General Damages

  1. [75]
    Notwithstanding my above finding, the Plaintiff is nonetheless entitled to an award of general damages pursuant to the Civil Liability Regulation 2014 (Qld) (‘the Regulation’). The approach to the assessment of general damages where a pre-existing injury has been aggravated, as is the case here, was dealt with in AAI Limited v McQuitty[124] by the Court of Appeal. There, the Court said,

‘[6]  Section 61(1)(a) of the Civil Liability Act 2003 (Qld) (the Act) provides that general damages are to be assessed according to an injury scale value taken from Sch 4 of the Civil Liability Regulation 2003 (the Regulation). Sch 4 to the Regulation provides the ranges of injury scale values to be applied in any given case. Schedule 3 Pt 2 to the Regulation is headed “How to use schedule 4” and makes the following provisions relevant to this case:

2  Injury mentioned in sch 4

  1. (1)
    For an injury mentioned in the injury column of schedule 4, schedule 4 provides the range of injury scale values for the injury to be considered by a court in assessing the injury scale value (“ISV”) for a similar injury.
  1. (2)
    The range of ISVs for the injury reflects the level of adverse impact of the injury on the injured person.

3  Multiple injuries

  1. (1)
    Subject to section 4, for multiple injuries, the range of ISVs for the dominant injury of the multiple injuries is to be considered by a court in assessing the ISV for the multiple injuries.
  1. (2)
    To reflect the level of adverse impact of multiple injuries on an injured person, the court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the court would assess for the dominant injury only.

 

7  Aggravation of pre-existing condition

  1. (1)
    This section applies if an injured person has a pre-existing condition that is aggravated by an injury for which a court is assessing an ISV.
  1. (2)
    In considering the impact of the aggravation of the pre-existing condition, the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury.

Other matters to which court may have regard

In assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case.

Examples of other matters—

  • the injured person’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life
  • the effects of a pre-existing condition of the injured person
  • difficulties in life likely to have emerged for the injured person whether or not the injury happened
  • in assessing an ISV for multiple injuries, the range for, and other provisions of schedule 4 in relation to, an injury other than the dominant injury of the multiple injuries

[12] In assessing general damages in a case where a plaintiff has a pre — existing condition, whether at common law, or having regard to ss 7 and 9 of Sch 3 to the Regulation, the Court compensates only for the additional loss, or aggravation, which the defendant proves is caused by the accident. Once a plaintiff makes a prima facie case that incapacity has resulted from a defendant’s negligence, the defendant bears the onus of proving that the incapacity was wholly or partly the result of some pre — existing condition. It was accepted by the appellant that in accordance with this principle the onus lay on it to show what part of Mr McQuitty’s loss was not caused by it.

[13] Section 7 of Sch 3 to the Regulation uses the words “pre-existing condition”. They are familiar in this area of the law — see eg, the High Court judgment in Purkess v Crittenden. They are not technical words. Similarly, aggravation is an ordinary English word commonly used in cases dealing with this area of the law. I do not think it should be given an artificially narrow interpretation. Before the Act, the Courts had regard to what Luntz terms “aggravating and mitigating features” in assessing what enjoyment and amenities had been lost. In personal injuries law, the idea of an injury aggravating a pre — existing condition is a familiar one: degenerative lumbar discs may be aggravated by a back injury; arthritis may be aggravated by a knee injury; a plaintiff who had lost one leg will no doubt find his or her condition aggravated by a loss of the other leg. To some degree the propositions relevant to assessment of general damages in this case seem unfamiliar because they deal with a pre-existing disorder of the mind, rather than of the body. I cannot see that this changes the task which the Court must perform.’[125]

  1. [76]
    As I have outlined above at paragraphs [12] to [16], the Defendant discharged its evidentiary onus with respect to the pre-existing condition of the Plaintiff. Dr Ganko was of the opinion that the Incident resulted in a slight increase in the overall impairment assessment of the Plaintiff. In his report, Dr Ganko states,

‘I expect that the slip and fall may have accelerated the progression of arthritis in his knee on the path from a measured 31% impairment to a 34% impairment. It would seem reasonable to attribute a 2% to 3% whole person impairment to the effect of his slip and fall.’[126]

  1. [77]
    It should be noted that Dr van der Walt employed a different measure to assess the whole person impairment of the Plaintiff and arrived at a figure of 8% impairment.[127] In this regard, I prefer the evidence of Dr Ganko, who provides an increase of 2 – 3 % whole person impairment increase as a result of the Incident. It seems to me, on the evidence, that Dr van der Walt, in arriving at 8% whole person impairment, has not made it clear what percentage is attributable to the Incident.
  1. [78]
    The Defendant contends that item 140 (Minor knee injury) based on an ISV of 3 is appropriate to assess the Plaintiff’s Injury. Item 140 refers to a partial cartilage, meniscal or ligamentous tear, a laceration or a twisting or bruising injury. The Plaintiff, in its Statement of Claim dated 16 October 2015, refers to an ISV item 139 (Moderate knee injury) based on an ISV of 13. However, in the Plaintiff’s Closing submissions, inexplicably refers to item 138 (Serious knee injury) based on ISV of 10 as the appropriate measure for the Plaintiff’s injury.
  1. [79]
    Having regard to the medical evidence as to the nature of the Plaintiff’s injury and the matters referred to in section 9, Schedule 3 of the Regulation, I consider that item 140 (Minor knee injury) based on an ISV of 3 is appropriate to assess the Plaintiff’s Injury. This places the award of general damages at $4,080.00.

Special Damages

  1. [80]
    The Plaintiff claims for a raft of special damages which it says are causally related to the Incident. I shall deal with each of these in turn.

Costs of Arthroscopy Surgery

  1. [81]
    The Plaintiff underwent an arthroscopy surgery on 29 January 2015.[128] Dr Ganko was considered that such a procedure was reasonable given the Plaintiff’s ongoing symptoms. The Defendant says that there is no basis for the costs of such a procedure to form part of any award of damages and says that the Plaintiff did not lead any evidence that he had paid or intended to pay for the procedure. I do not accept this submission. The Plaintiff is entitled to $4687.20 to cover the cost of this procedure which is due and payable to the Wide Bay Hospital and Health Service. Similarly, there is also an amount of $1,128.00 payable to Medicare relating to treatment and consultation following the Incident.[129] The Defendant does not challenge this amount forming part of the award of damages and the Plaintiff is therefore entitled to recover the amount payable to Medicare. Given neither amount has yet been paid by the Plaintiff, interest is not recoverable.

Past Travel Costs

  1. [82]
    The travel associated with treatment following the Incident I accept is recoverable and is calculated at $54.45 plus interest. Travel is agreed between the parties and the Defendant does not challenge this amount.

Pharmaceutical Expenses

  1. [83]
    The Plaintiff, under examination in chief gave evidence as to his current pharmaceutical requirements following the Incident. He stated that he takes a combination of ibuprofen and Tramal. The Plaintiff says that based on his intake of ibuprofen, his weekly expenditure is roughly $3.50.[130] I accept this to be the reasonable cost of such medication. However, the Plaintiff does not particularise or state with any degree of specificity, the cost of his prescription painkiller, Tramal. Instead, he merely gave evidence that he purchases one box every few months.[131] Such an estimation is insufficient to justify an award of damages. For past pharmaceutical expenses, the Plaintiff is entitled to recover $591.50 plus interest.
  1. [84]
    There is no evidence before me to so justify the award of future pharmaceutical expenses or future travel costs. It is insufficient to speculate what these costs may be without an evidentiary basis.

Aids and Equipment

  1. [85]
    The Plaintiff seeks an allowance of $10,000 for future aids and equipment.[132] Schedule B to the report of Ms Aitken sets out the various items that she recommends for the Plaintiff’s use. I have already mentioned the various shortcomings in the assessment of the Plaintiff by Ms Aitken. Dr Ganko’s evidence was that the items listed in Schedule B were either not required, or were not related to any incapacity arising out of the Incident.[133] Dr Ganko’s evidence on this issue was not challenged. Further, the Plaintiff did not give evidence that he required or intended to purchase such items.[134] The Plaintiff is not entitled to recover an amount for future aids and equipment.

Lawn Mowing

  1. [86]
    The Plaintiff has provided receipts totalling $520.00 for the cost of lawn mowing since the Incident.[135] The Plaintiff says that these receipts, which span a period of roughly 36 weeks, are indicative of the weekly cost of lawn mowing both since the Incident and into the future. There is, however, a paucity of evidence to suggest that the Plaintiff has continued to pay for the costs of lawn mowing and will be required to pay for such services into the future. There is no medical evidence to suggest he will be unable to perform such an activity into the future. Accordingly, I will allow only $520.00 plus interest representing the cost of lawn mowing services the Plaintiff has actually incurred to date.

Summary

  1. [87]
    I assess the Plaintiff’s damages as follows:

General Damages

$4,080.00

Arthroscopy Surgery

$4687.00

Amount payable to Medicare

$1128.00

Travel Costs

$54.45

Past Pharmaceutical Expenses

$591.50

Lawn Mowing

$520.00

Interest[136]

$50.67

Total

$11,111.62

  1. [88]
    There will therefore be judgment that the defendant pay the plaintiff $11,111.62 including $50.67 by way of interest. I will hear submissions in relation to costs when these reasons are delivered.

Footnotes

[1] Plaintiff’s Statement of Claim filed 16 October 2015, paragraph 6.

[2] T1.16.39.

[3] Occupational Therapy Report of Ms Vanessa Aitken dated 9 October 2015, page 5.

[4] T1.15-8-25.

[5] Outline of Defendant’s Submissions dated 20 February 2017 paragraph 2.

[6] Outline of Defendant’s Submissions dated 20 February 2017 paragraph 7.

[7] Civil Liability Act 2003 (Qld) section 12.

[8] (1960) 108 CLR 158.

[9] (1965) 114 CLR 164.

[10] (1965) 114 CLR 164 at 168.

[11] [2004] QCA 155.

[12] [2004] QCA 155 per McKenzie J at [30]-[32].

[13] [2017] QCA 12.

[14] [2005] NSWCA 208.

[15] [2017] QCA 12 at [83].

[16] Civil Liability Act 2003 (Qld) section 12.

[17] Medicolegal Report of Dr Anthony Ganko dated 24 July 2015, paragraph 3.2.

[18] T3.4.11-16.

[19] Notes Conference – Dr Anthony Ganko dated 7 February 2017, paragraph 10 -13.

[20] T3.18-40; T3.20.20; Medicolegal Report of Dr Anthony Ganko dated 24 July 2015, paragraphs 3.4 - 3.5.

[21] Exhibit 1, D9 - D11.

[22] Exhibit 1, A4.

[23] Exhibit 1, B50.

[24] Exhibit 1, B49.

[25] Exhibit 20, Notes of Conference Mr Cameron Fraser dated 6 February 2017.

[26] Medicolegal Report of Dr Anthony Ganko dated 24 July 2015, page 15.

[27] Notes Conference – Dr Anthony Ganko dated 7 February 2017, paragraph 42.

[28] See for example; Glen v Sullivan (2015) 71 MVR 417; [2015] NSWCA 191.

[29] Plaintiff’s Statement of Claim filed 16 October 2015, paragraph 9(c) and 9(d).

[30] [2008] QSC 331 at [19].

[31] Statutory Declaration of Raymond John Polwarth dated 21 January 2016.

[32] T1.9.30 – T1.12.33.

[33] T2.42.13, T2.43.2.

[34] T2.42.44 – T2.44.7.

[35] Statutory Declaration of Tammy Ann Stephens dated 2 March 2015.

[36] Exhibit 1, B45.

[37] Plaintiff’s Closing Submissions paragraph 19.

[38] Report of Dr ID van der Walt dated 19 May 2015, page 5.

[39] T2.38.44-45.

[40] T2.39.1-2.

[41] Occupational Therapy Report of Ms Vanessa Aitken dated 9 October 2015, ‘Impairments and Incapacities’, page 2.

[42] T3.18-40; T3.20.20; Medicolegal Report of Dr Anthony Ganko dated 24 July 2015, page 6, paragraphs 3.4 - 3.5.

[43] Outline of Defendant’s Submissions, paragraphs 30-32.

[44] Notes Conference Dr Ganko dated 7 February 2017, paragraph 31.

[45] Plaintiff’s Outline of Submissions, paragraph 19(b).

[46] Outline of Defendant’s Submissions, paragraph 32.

[47] Medicolegal Report of Dr Anthony Ganko dated 24 July 2015, paragraphs 3.6.

[48] T1.12.8-15.

[49] Notes Conference Dr Ganko dated 7 February 2017, paragraph 31.

[50] T1.17.23.

[51] T1.18.1-20.

[52] T1.18.29.

[53] [2011] QSC 324

[54] Ibid at [51].

[55] T1.19.19-34.

[56] Exhibit 1, D7.

[57] Exhibit 6 and Exhibit 9.

[58] Occupational Therapy Report of Ms Vanessa Aitken dated 9 October 2015, page 29.

[59] Plaintiff’s Closing Submissions, Schedule 1.

[60] T3.45.45 – T3.46.25.

[61] Plaintiff’s Closing Submissions, paragraph 9.

[62] [2011] QSC 311.

[63] Ibid at [48].

[64] Civil Liability Act 2003 (Qld) section 59(1)(c).

[65] T1.26 – T1.27.

[66] T1.29.42-47.

[67] Statutory Declaration of Raymond John Polwarth dated 21 January 2016.

[68] Occupational Therapy Report of Ms Vanessa Aitken dated 9 October 2015, page 12.

[69] Statutory Declaration of Raymond John Polwarth dated 21 January 2016, Appendix A.

[70] T1.46.1-36.

[71] T1-31.40 – T1-32.10.

[72] Exhibit 4.

[73] T1.58.40.

[74] Notes of Conference Mr Cameron Fraser dated 6 February 2017, paragraph 18.

[75] T1.60.19 – T1.61.6.

[76] Outline of Defendant’s Submissions, paragraph 59.

[77] Statutory Declaration of Ms Tammy Stephens dated 2 March 2015, paragraph 3(i).

[78] Statutory Declaration of Ms Tammy Stephens dated 2 March 2015, paragraph 3(ii).

[79] Ibid, paragraph 3(ii).

[80] Ibid, paragraph 3(iii).

[81] T2.60.25.

[82] T2-46.2.

[83] T2-51.14; T2.55.32-36.

[84] Exhibit 4.

[85] Occupational Therapy Medico-legal Report of Cameron Fraser, dated 14 December 2015, page 6.

[86] T2-55.31.

[87] T1-26.22.

[88] Occupational Therapy Report of Ms Vanessa Aitken dated 9 October 2015, page 11.

[89] T1-60.5-7.

[90] T2-56.9.

[91] Outline of Defendant’s Submissions, paragraph 86.

[92] Occupational Therapy Report of Ms Vanessa Aitken dated 9 October 2015, page 16, paragraph 62.

[93] Ibid, page 29, paragraph 1.3.3.

[94] Notes Conference Dr Ganko dated 7 February 2017, paragraph 16.

[95] [2013] QSC 290.

[96] Ibid at 119.

[97] T2.19.31-32.

[98] Occupational Therapy Report of Ms Vanessa Aitken dated 9 October 2015, Appendix Two.

[99] T2.19.30-40.

[100] Medicolegal Report of Dr Anthony Ganko dated 24 July 2015, paragraphs 4.3, page 7.

[101] T2.24.15-20.

[102] Occupational Therapy Report of Ms Vanessa Aitken dated 9 October 2015, page 29, paragraph 1.3.5.

[103] Occupational Therapy Report of Ms Vanessa Aitken dated 9 October 2015, page 15.

[104] T2.27.31-45.

[105] T1.58.28.

[106] Exhibit 4.

[107] T2.25.37-42.

[108] T2.26.4-9.

[109] Exhibit 4.

[110] T2.26.7-13.

[111] T2.27.4-23.

[112] Medicolegal Report of Dr Anthony Ganko dated 24 July 2015, paragraphs page 17.

[113] Notes Conference Dr Ganko dated 7 February 2017, paragraph 30.

[114] Medicolegal Report of Dr Anthony Ganko dated 24 July 2015, paragraphs 4.3, page 7.

[115] T1.56.36-47.

[116] Medicolegal Report of Dr Anthony Ganko dated 24 July 2015, paragraphs 9, page 15.

[117] Occupational Therapy Report of Ms Vanessa Aitken dated 9 October 2015, Appendix 1 – Functional Capacity Evaluation, paragraph 1.3.4.

[118] T1.56.35-48

[119] Exhibit 1, H20.

[120] Ibid,

[121] Exhibit 1, H20.

[122] T3-16.1-15

[123] Plaintiff’s Closing Submissions, paragraph 26.

[124] [2016] QCA 326.

[125] [2016] QCA 326, [6] – [12].

[126] Medicolegal Report of Dr Anthony Ganko dated 24 July 2015, paragraphs page 18.

[127] Report of Dr ID van der Walt dated 19 May 2015, page 7.

[128] Exhibit 1, H14.

[129] Exhibit 1, L1- L4.

[130] Plaintiff’s Closing Submissions, paragraph 63.

[131] T1.22.5.

[132] Plaintiff’s Closing Submissions paragraph 70.

[133] Notes Conference Dr Ganko dated 7 February 2017, paragraph 32.

[134] See for example Good v Czislowski [2013] QDC 68 at [63].

[135] Exhibit 1, M1 – N1.

[136] Pursuant to s 60 of the Civil Liability Act 2003 (Qld) interest on past out of pocket expenses is to be calculated at the 10 year Treasury bonds published by the Reserve Bank of Australia statistical table 'Capital Market Yields—Government Bonds—Daily—F2'

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Editorial Notes

  • Published Case Name:

    Raymond Thomas John Polwarth v Woolworths Ltd

  • Shortened Case Name:

    Polwarth v Woolworths Ltd

  • MNC:

    [2017] QDC 133

  • Court:

    QDC

  • Judge(s):

    Searles DCJ

  • Date:

    19 May 2017

Appeal Status

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