Wallace v RSL Care Limited[2017] QDC 161

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff was an employee of the defendant. She says that on 27 March 2008, in the course of her employment she was showering a patient when she slipped, injuring her left ankle. She alleges the slip was caused by the defendant’s negligence.

2. [2]
   Although she had only a few days off work she said in evidence she had significant ongoing symptoms and that these worsened in about February 2010. As a result she consulted her general practitioner on 9 March 2010, and then attended the Maryborough Hospital.

3. [3]
   At the hospital she had her left lower leg placed in a back slab. Subsequently, she developed a deep venous thrombosis and a pulmonary embolus in April 2010 and has subsequently suffered a second embolus in 2011. She is at risk to further such events and is required to take Warfarin, or other similar medication, for the rest of her life. She complains of significant symptoms from her condition which preclude at least heavy employment and significantly impact on her enjoyment of life.

4. [4]
   In about December 2014 she felt pain in her hip and then a short time later in her lower back. She alleges this was due to symptoms of her embolus and her altered gait arising therefrom and so was causally related to the incident in March 2008.

5. [5]
   Even if that is not so, it is necessary to assess the consequences of her hip and lower back symptoms since this could impact on the assessment of the quantum of damages caused by the ankle injury and, if related, the subsequent embolus.

6. [6]
   The defendant disputes liability for the March 2008 incident (indeed at para 6. (c)(1) of the Defence the defendant denies the incident occurred) and submits, in any case, that the injury she says she suffered in that incident was not related to her medical treatment in March 2010. The defendant also further submits that the embolus was not caused by the medical treatment she was given in March 2010 but was due to her relative immobility attributable to her alleged obesity. It disputes that the hip and lower back symptoms are related to the embolus or to the ankle injury and disputes the quantum of the plaintiff’s claim. It alleges that the effect of the embolus, even if compensable, has been effectively subsumed by the subsequent unrelated hip and lower back symptoms.

Plaintiff’s circumstances

7. [7]
   The plaintiff was born on 27 January 1977. She was thus 31 at the time of the workplace incident in March 2008 and is now 40. She was educated to year 12. When she was still at school she commenced working in her parent’s convenience store and also in a pizza delivery business. After completing her year 12 education she continued working in those businesses before moving to Wide Bay just before she was 22. She says she went there because her parents sold the convenience store and she moved with them. She got a job as a bar attendant at a local bowls club before moving to Sydney. There she worked for a period of 12 months as a personal care worker in a dementia specific nursing home. She stayed there for about 12 months but when her father developed advanced cancer she returned to Maryborough where she helped her mother care for him. From 2001 to 2004 she worked at the Fairhaven Retirement Village. During this time she did a Certificate III in Aged Care arranged through her work at the local TAFE. She then worked at the Central Hotel and Carriers Arm Hotel, in addition to working in a snack bar, in Maryborough.

8. [8]
   In 2006 she started working with the defendant at the Chelsea Nursing Home. Initially she was doing home nursing, helping patients with activities of daily care in their own homes. She continued to work at the Carriers Arms because her job with the defendant was initially only two days per week. Eventually she went to the Director of Nursing and asked if she could work in residential care. That was agreed and she commenced working full-time for the defendant.

9. [9]
   She says she liked nursing work and saw her future as a nurse. She did a Certificate IV in Nursing in 2010, after the first embolus, and then commenced a nursing degree at university. She has completed all of the academic requirements of that degree and has only two placements remaining. She anticipated completing her degree early in 2017.

10. [10]
    In about 2007 the plaintiff purchased her own home in Maryborough, subject to a mortgage. It has an aboveground pool and a garden. I gathered from the plaintiff’s evidence that she was not herself a keen gardener. Rather she says her role in the garden was mowing lawns and keeping things tidy.

11. [11]
    The plaintiff’s prior medical history is set out in the records of her general practitioner which comprise part of Exhibit 1. I note there had been no prior history of injury to her left ankle although she did suffer a minor right ankle injury, rolling it at work in November 2004.

12. [12]
    I mentioned previously that the defendant seeks to attribute the development of the embolus in April 2010 to the plaintiff’s relative immobility due to alleged obesity. It is noted in the records of the Maryborough Family Medical Practice of 11 December 2006 that she had lost 20 kilograms through walking daily and diet (Ex 1, To65, PE1).  Her weight has varied over time. At that time, an examination for her work records that she was 96 kilograms and was 160cm tall (Records Maryborough Family Medical Practice, Ex 1 Tab 5, p. E19). In May 2012 Dr Quinn records she was 123 kilograms (see Exhibit 1, tab 19 at S5) and in November 2016 Dr Morgan records she was then 101 kilograms (see report of Dr Morgan, Ex 1 Tab 622CA, p7)

13. [13]
    It seems to me that over time she has made a significant effort to reduce her weight. This persistence is, I think, also shown by her completion of the Certificates III and IV, her degree in nursing and in her prior employment history including holding more than one job at a time for some periods. Nevertheless, her BMI is very high. In November 2016 when Dr Morgan saw her it would have been in excess of 35.

Plaintiff’s injury in March 2008

14. [14]
    The plaintiff said that in her work as a residential care worker she did all of her shifts in what were described as courts 4 and 5 of the facility. Each unit had a bedroom and an attached ensuite. Part of her functions were to shower residents. The injury is said to have occurred when she was showering a particular patient who was confined to a wheelchair, at least when she was showering.

15. [15]
    She said the floors of the ensuite were vinyl but were slippery when wet particularly when there was any contamination from soap or shampoo. Employees were given no particular clothes but she agreed she had been advised to wear suitable shoes. She said she was wearing black Colorado shoes.

16. [16]
    In her evidence the plaintiff said that she had previously had some problems with slipping and thought that she may have mentioned to this to a registered nurse. She said it was a subject of discussion between herself and others employed in the same capacity as she was.

17. [17]
    Ultimately, whilst I accept much of the plaintiff’s evidence, I am not satisfied that she in fact complained to any registered nurse or other person in a position of authority with the defendant about any prior slips or about the floor surface being slippery. Her lack of particularity about whom she might have spoken to or the circumstances in which she had done so, caused me to think that whilst there may have been discussion with other staff of the same level as her, there was no reporting of difficulties that she had with slipperiness to any person in authority.

18. [18]
    She said that each court had about 15 patients. There was a Director of Nursing and a registered nurse in charge of all of the employed assistants. At the time of her accident the registered nurse in charge was Kathleen Hawken whose base was the nurse station in court four, which is the court where the plaintiff was working when she slipped. She could not recall the other residential care worker who was also working in court four at the time.

19. [19]
    In any case, she said that Ivy, the patient, was being showered by her in a wheeled shower chair. As she was washing the patient’s legs she was crouched. As she attempted to get up her left foot slipped and she described that she “went over” as her ankle twisted outwards (see T1-38 ll 20-30). She said she rang another co-worker with whom she was friendly, Jeanelle Black, who told her she should fill out an incident form. She went to the treatment room near to the registered nurses station and there spoke to Kathleen Hawken. She told her what had happened and completed a form about the matter.

20. [20]
    That document, entitled “Staff Accident Report and Investigation” was signed by the plaintiff on 27 March 2008, the date of the alleged incident.  In it she records “when showering resident slipped on water and twisted ankle”.

21. [21]
    The form sets out treatment that was provided as RICE – which I understand to be shorthand for rest, immobilisation, compression and elevation. It was then signed on the same day by K Hawken, clearly Kathleen Hawken, the registered nurse in charge.

22. [22]
    The form was also completed by the defendant’s Workplace Health and Safety Officer on 1 April 2008, who Ms Hawken said was a Bernard Pope. It records that “carer slipped on wet floor” and that the major contributing factor was “wet floor” and suggests, as action to be taken to prevent a recurrence, “floor dried. Take extra precautions while showering residents”. The plaintiff said that after completing that form she did not thereafter see it until she obtained a copy some years later. After obtaining a copy she says she was asked by the Director of Nursing to return it, which she did, but only after photocopying it and providing it to her solicitors.

Was the March 2008 incident due to the defendant’s negligence?

23. [23]
    Evidence of the floor being slippery was given by the plaintiff and by others. In addition, engineering reports were prepared by Brendan McDougall of Intersafe, who provided reports to the plaintiff’s solicitors dated 19 July 2013 and 10 March 2015, and by Paul Stephenson of Kinetic Engineers who provided a report to the defendant’s solicitors dated 6 November 2013.

24. [24]
    Although Jeanelle Black and Sharon Hall, who were both employed as carers by the defendant, also gave evidence that the shower floor was slippery when wet, especially if products like soap or shower gel were also present, I was disinclined to act on the basis of their evidence. I prefer to determine the matter on the basis of the evidence of the engineer, Mr McDougall whose evidence I accept. I shall come to shortly.

25. [25]
    The defendant called Alex Hyndman to give evidence. He was employed by the defendant as the Queensland services co-ordinator from about 2006 or 2007. He used to attend different facilities of the defendant and, among other things, conduct audits of residential rooms. He said he did not recall anything being raised with him about the adequacy of the floor surfaces in the ensuites and did not have any discussion with maintenance people about the floor surfaces. That is perhaps somewhat surprising in view of the Staff Accident Report and Investigation Report completed by the plaintiff, Kathleen Hawken and the Workplace Health and Safety officer I earlier referred to. I did not find Mr Hyndman’s evidence assisted me. So too was the evidence of Ms Hawken who could not recall the plaintiff’s accident itself, but acknowledged signing the accident report, and Lyn Mitchell who was employed as the co-ordinator by the defendant and travelled across a wide area training carers, of no real assistance to me. Ms Mitchell said she was unaware of the plaintiff’s accident.

26. [26]
    Lorraine Davis is an enrolled nurse. She was employed by the defendant for 21 years. For about the first half of that time she was employed as a personal care worker. She said she did not herself have problems with slipping and did not recall complaints of slipping during shift handovers. She admitted that when wet and soapy floor surfaces are slippery as was to be expected (T2-83 l 35/45). She described issues with water not draining up and said squeegees were supplied to drain the water away (T2-84 l 10/15). That is not an issue of which Ms Wallace complained as being a factor in her accident. Once more, I did not find Ms Davis’ evidence of help in resolving the issue of whether the floor was so slippery that the defendant should be held liable for the consequence of the plaintiff’s accident.

27. [27]
    A similar problem of ponding water was addressed by William Davis the defendant’s facilities manager. He said in April or May 2008 he did what he termed a flow test because, he said, he had been told there was a flow problem in some of the ensuites. He also said he rubbed his hand across the floor and “made sure it was still textured.” He said it was. He said he checked all rooms in Courts 3 and 4, but said he was not at that time aware of Ms Wallace’s accident. He conceded he was not specifically looking at the question of whether the floor in the ensuites (and obviously in the ensuite where the accident happened) was slippery when wet. His evidence, too, was of little assistance.

28. [28]
    As I earlier said by far the greatest assistance was obtained from consideration of the engineering reports. Mr McDougall is an experience engineer. Amongst other matters he is a member of the technical committee revising the relevant Australian Standards in respect to slip resistance. He said that he tested the slip resistance of the floor surface in the ensuite where the incident had happened, using the wet floor friction test, in accordance with Australian Standard AS/NZS 4663:2004. The results of that testing (set out at page 6 of tab 15 of Exhibit 1, being his first report) are that five separate tests resulted in a mean BPN of 25.8. Mr McDougall identifies that slips and falls are a common mechanism of injury and that almost half of all bathroom injuries in Queensland result from falls. He talks about the high friction demands involved in standing up from a squatting position. I accept that to do so would generate such demands and that, as a consequence, it is important that the surface of an ensuite be as slip resistant as reasonably possible so as to avoid injuries such as the plaintiff says she suffered.

29. [29]
    I note that the friction tests conducted by Mr McDougall were confined to wetting the floor surface with water. The presence of any contaminant, such as soap, would increase the risk of injury by decreasing the BPN. In a table at page 10 of his report, he sets out the mean BPN for pendulum tests for a variety of pedestrian surface materials. A BPN of 25.8, being the average he ascertained during the course of his testing in the defendant’s bathroom, is at the very bottom of classification Y. Such classification is said to have a high contribution of the floor surface to result in slipping when wet. He says that for ensuites in hospitals and age care facilities, a minimum of class X slip resistance, having a BPN of 35-44, still with a moderate contribution of the floor surface to the result of slipping when wet, is recommended.

30. [30]
    Mr McDougall concludes that the measured ensuite surface slip resistance at the retirement village where the plaintiff was working was well below the suggested minimum requirements for wet areas according to the 2004 standard. It was also well below the requirements of Australian Standard 3661.1-1993, the previous relevant Australian Standard, which predated the construction of the units in about 2002.

31. [31]
    He also addresses the requirements for a slip resistant sole of a shoe, but said that he had not had the opportunity to compare the slip resistance of the footwear worn by the plaintiff on the wet ensuite floor against alternative types of footwear.

32. [32]
    Mr McDougall says that safe vinyls for wet areas are commercially available and refers to a number of such products. He also raises the possibility of the provision of dedicated mats upon the bathroom floor. He concludes that if an appropriate health and safety audit had been conducted, the high potential for slips and falls on the vinyl floor in the ensuite could have been identified and overcome.

33. [33]
    Importantly, he also said in evidence that flooring that met appropriate standards according to manufacturer’s specifications also needs to be installed and maintained appropriately. He said he had no information about whether the flooring in the showers was installed or maintained in accordance with the manufacturers guidelines (T1-107 l 20/35).

34. [34]
    In evidence, he said in relation to the floor surface in the units which he tested, as set out in his report, that he measured a BPN of 23-28 and that “a product having that range is certainly not anywhere near an X classification…. and would have a high or very high contribution to the risk of a person slipping” (T1-108 l 26/33). He also said in evidence that if rubber mats were used, any trip risk associated with their use can be minimised by the use of safety mats having a tapered edge (T1-111 l 35/38).

35. [35]
    The evidence of Mr McDougall about the measured slip resistance of the floor is far preferable to subjective evidence of whether a particular witness felt the floor surface was, or was not, slippery. I conclude from his evidence that the floor surface represented an unacceptable risk of slipping to persons performing the tasks the plaintiff was required to perform, namely squatting to shower a patient in a wheelchair.

36. [36]
    Mr McDougall was provided with a sample of a Tarkett Granit Multisafe vinyl flooring, but he said that flooring was significantly different to the flooring observed by him during the inspection of the ensuite where the plaintiff slipped and fell. That Tarkett Granit Multisafe vinyl flooring had been provided to him by the defendant because it was said by the defendant that was the product which had been designated for use in those ensuites when they were damaged.

37. [37]
    The defendant prepared a property investigation report, of August 2013 (Exhibit 2). The report indicates that a search had been carried out on the defendant’s Property Group files and it was ascertained that the court (or block) in question had been built in 2002. The report says that a finishes schedule was located in the files which indicated the flooring installed in ensuites of the block in question was Tarkett Granit Multisafe which had an r10 slip rating.

38. [38]
    Be that as it may, it is accepted by the defendant that in fact that product was not installed in the premises. He said that a product, Accolade Safe Plus was in fact used.

39. [39]
    When Mr McDougall was cross-examined it was suggested to him that the product on the floor was in fact Armstrong Accolade Safe Plus. A brochure dealing with that product was put into evidence. It was suggested that Accolade Safe Plus was a product meeting the relevant Australian standards for use in wet areas such as the ensuite where the plaintiff slipped. The manufacturer’s specifications show that it had a classification X for a wet pendulum test. Mr McDougall accepted that was the case and accepted that it met relevant Australian standards, though he said he himself recommends something at a higher classification.  He pointed out however that whatever the manufacturer’s tests indicated, the reality was that the floor surface that he tested did not meet those standards.  He referred to page 21 of the manufacturer’s brochure, which deals with maintenance issues, and pointed out the importance of complying with those maintenance suggestions and also the importance of installing the flooring appropriately.  He said that issues associated with installation and in particular whether any finish had been applied to the floor, whether there were so called detergent residues on it and wear and tear of the floor could all affect the results of the wet pendulum test.  He said that the product he tested on the floor was nothing like the appropriate classification, even if it was Accolade Safe Plus as was suggested to him.

40. [40]
    In his first report, Mr McDougall also said (Ex 1, To615, P022):

“Had an appropriate health and safety audit been conducted of the premises (either at design stage, during construction or after) the high potential for slips and falls on vinyl floors in ensuites could have been identified".

41. [41]
    Similar observations are to be found in the report of Paul Stephenson, the engineer engaged by the defendant’s solicitor. He observed (Ex 1, To617) that even if a manufacturer’s published material indicates a material is suitable for use in a wet area, after installation it may no longer comply. I infer from Mr McDougall’s evidence that can occur as a result of inadequate installation or inadequate maintenance. Mr Stephenson concluded that when he tested the floor surface it no longer complied with Australian requirements. He concluded it was unsuitable for the purpose for which it was advertised, namely, for wet commercial application.

42. [42]
    Whichever is here the cause of the inadequate BPN measurements, poor installation or poor maintenance, the result was that the surface where the plaintiff was required to work was inadequate and, as a result she slipped injuring her ankle as she described on 27 March 2008. That inadequacy was a clear breach of the employer’s obligation to take reasonable steps for the supply of its employees. In my view, the plaintiff has clearly identified that the defendant ought to have had in place a system of appropriately installing or maintaining the flooring of the ensuites. Furthermore, in my view it ought have periodically tested the surface – and by testing I mean conducting a test such as Mr McDougall and Mr Stephensen both did, and not having a law person run his hand over the surface to check the texture. I do not think it necessary testing be done in each unit, in the absence of specific complaints but periodic testing of a sample ensuite ought to have been undertaken. Any suck testing would have revealed the inadequacy of the flooring both of the engineers identified.

43. [43]
    In such circumstances, I find the defendant negligent.

What was the effect of March 2008 incident up to March 2010

44. [44]
    The plaintiff saw no medical practitioner in respect of her left ankle until 9 March 2010, almost two years after the subject incident. She had, after the incident, attended her general practitioner, Dr Jami (Ex 1, To14) on 20 May, 3 June, and 17 November 2009, for a variety of unrelated matters. She also saw a Dr Isles (Ex 1, To13) on 8 and 11 December 2008 for unrelated matters. The medical records of Dr Jami  and Dr Isles do not suggest she ever made a complaint of symptoms in her left ankle. 

45. [45]
    Dr Jami’s records indicate that on 9 March 2010 the plaintiff indicated;

“Left foot and left ankle left foot pain, ankle laterally below lateral melleolus, tenderness maximum left foot laterally and on dorsum of left foot. pain, swelling past one month getting worse. hx ankle sprain 12 mts ago. No hx any injury recently.”

46. [46]
    She said she had been unfit for work for a number of days and was referred for radiology of her left ankle. Subsequently a plaster slab was applied to immobilise her ankle at the local hospital.

47. [47]
    The defendant’s counsel submits it is important that the entry of 9 March refers to a history of “swelling past one month getting worse” but makes no mention of any ongoing symptoms between March 2008 and the development of such swelling in what must have been about February 2010. The reference to a history of ankle strain 12 months ago, which was very probably a reference to the subject incident, does not, the defendant’s counsel submits, overcome the lack of complaint of any ongoing symptoms from March 2008.

48. [48]
    The plaintiff in her evidence said that between March 2008 and March 2010 she did have such symptoms, and that they were significant. She said she did not go to doctors after the incident because she thought she had just twisted her ankle and that it would get better (T1-45 l 30/45). She said it was sore and kept getting worse throughout this period and got to the stage where she could barely stand on it. Nevertheless she said she kept working, motivated by the need to repay her mortgage. She said the problems she had with her ankle were observed by a number of people including her sister in law, Charlene Wallace and a friend, Helen Campion.

49. [49]
    The plaintiff relied on the evidence of both Charlene Wallace, and Helen Campion to corroborate her claim that she suffered significant symptoms from her ankle injury between March 2008 and March 2010.

50. [50]
    Charlene (whose first name I will use to distinguish her from the plaintiff) used to regularly stay with the plaintiff when she and her family visited up to the time she moved with her family to live in Maryborough in November 2009. Hereafter they saw the plaintiff often.

51. [51]
    She said in evidence that she became aware of a problem with the plaintiff’s foot “when we used to come and stay with her”. She said the plaintiff “would be complaining about her foot…quite regularly”. She also said “yeah, it was quite swollen as well” (T2-40, ll 36-40). She said that when visiting prior to her moving to Maryborough in November 2009, the plaintiff would “have to rest it” after work. She said that although sore, the plaintiff was still able to cope with her house. She said this changed after the cast was applied, which of course occurred in March 2010. Thereafter, she said the plaintiff “found it really hard to do everything” (T2-42, ll 14-15).

52. [52]
    In cross-examination her evidence was not significantly challenged. It certainly wasn’t suggested to Charlene that her observations of the plaintiff’s foot being swollen or her recollection of the plaintiff’s complaints about her foot being sore, which predated Charlene’s move in November 2009, were inaccurate. In response to a question from me as to whether the plaintiff had given any reason for not seeing a doctor about her problem, Charlene said “she thought it would get better…she didn’t want to make a big deal out of it”.

53. [53]
    That generally corresponds with the plaintiff’s own explanation, although the plaintiff also added, what was in my view a very unsatisfactory statement that her general practitioner would only see her for one matter at a time. I shall refer to this again shortly.

54. [54]
    Ms Campion has known the plaintiff since 1999. She herself is a registered nurse, obtaining that qualification in 2006. She said she and the plaintiff saw one another regularly and she was aware of the plaintiff’s ankle injury. Following it she said she observed the plaintiff had an inability to weight bear properly and said she spoke to the plaintiff about it “multiple times”, including suggesting she seek medical attention. She too said the plaintiff was reluctant to do so. She herself “noted swelling of the ankle”, which got progressively worse (T3-4, ll 29-32).

55. [55]
    Once again it was not suggested to Ms Campion during cross-examination that her observations to the plaintiff’s condition were wrong or inaccurate.

56. [56]
    In the circumstances, the evidence of both Charlene Wallace and Ms Campion strongly supports the plaintiff’s own evidence of having significant difficulties with her ankle between March 2008 and seeing her general practitioner in March 2010.

57. [57]
    I have some misgivings about the plaintiff’s evidence. Ultimately however, I accept that she had ongoing difficulties with her ankle and that the fall she suffered in 2008, during the course of her employment with the defendant, was the cause of her seeking medical attention in March 2010. Whilst I do not accept the explanation she gave of only being able to see her doctor for one thing at a time, that does not cause me to reject her evidence of ongoing symptoms. I think the false explanation was probably related to nervousness when giving evidence rather than the conscious determination to be untruthful.

58. [58]
    The defendant relies on a number of matters to gainsay the plaintiff’s evidence of ongoing symptoms between March 08 and March 2010. These were largely taken from a report of Dr David Morgan, Orthopaedic Surgeon, of 28 July 2015in which he identified a number of factors which cast doubt on the plaintiff’s complaint of ongoing symptoms, namely:

• Not seeking contemporaneous medical treatment.
• Not making a contemporaneous claim for compensation;
• Working without interruption for at least two years following the incident.
• Advising treating doctors that painful symptoms developed over the “past few weeks” before March 2010.
• The plaintiff’s pay and sick leave records which confirm that the claimant did not take any time off at all around the time of the incident.
• Aspects of the claimant’s medical history that indicate she is not stoic in that she has shown no reluctance to seek medical treatment or take significant time off work for other issues.

59. [59]
    Ultimately whilst I consider the matters raised by Dr Morgan, and relied on by defence counsel, are legitimate considerations, they to not dissuade me from finding that the plaintiff suffered ongoing symptoms after 2008 which ultimately worsened and caused her to seek medical attention in March 2010. In my view such concerns are outweighed by the effect of the evidence of the plaintiff, her sister-in-law and Ms Campion.

Effect of her immobilisation in plaster

60. [60]
    Dr John Quinn is an experienced vascular surgeon. He is director of vascular surgery at PA Hospital and has been a senior examiner for the College of Surgeons. His report of 3 July 2012 (Ex 1, T0619) was admitted by consent. He considers a number of possible factors which could be related to or have caused the deep vein thrombosis (DVT) from which she has suffered, resulting in the embolus. Dr Quinn attained a history from the plaintiff that after March 2008 “she was in pain most of the time”, consistent with my finding about ongoing symptoms. Ultimately he determines that an alleged past history of intravenous drug use and osteomyelitis are unrelated to the DVT. He says that a combination of obesity and immobilisation are significant risk factors for developing DVT and subsequent pulmonary embolism. He says whilst it is noted that the plaintiff had been obese for some time “the major change that occurred was the immobilisation in a back slab. The back slab was commenced as treatment for an injury to her leg but quite some time after the reported slip in the shower. Nonetheless the backslap was applied as treatment. Immobilisation of the ankle and calf in an obese patient does set up all of the circumstances for deep vein thrombosis and subsequently pulmonary embolus. I therefore feel that the immobilisation due to the injury to the ankle is the major cause of deep vein thrombosis on a background of obesity, which increases the chances”.

61. [61]
    Ultimately Dr Quinn concludes “it is clear that the treatment instigated (in March 2010) has resulted in the deep vein thrombosis and pulmonary embolism”. He then says “having once suffered a deep vein thrombosis and pulmonary embolus, there is an increased possibility of further emboli” (Ex 1, Tab 19PS8). He notes that, appropriately, Warfarin was ceased after about 12 months, but that a further embolus occurred. He says that whilst the plaintiff’s obesity was a contributing factor, in that such a condition increases the chances of a DVT and emboli, it is not the cause of her condition. He says that having had two pulmonary emboli, the chance of her developing further emboli is “quite markedly increased” (see PS9) and that she will require anticoagulation medication, like Warfarin, indefinitely.

62. [62]
    No contrary report was tendered. Furthermore it seems to be accepted by other doctors, orthopaedic surgeons and vascular surgeons, that the immobilisation in the back slab was the cause of her embolus. I find that it was.

63. [63]
    Importantly Dr Quinn says he would expect the plaintiff’s condition – which I take him to mean any of her DVT – to improve with time. He noted at the time, it was “producing no particular problems, except the need for anticoagulation Warfarin”. There was no evidence of any long term adverse effects of anti-coagulant medication. He also said that DVT and the subsequent embolus “will not affect her capacity to work in fields where she has previously been employed”. In view of the fact that she is currently undertaking a nursing degree, I infer from that opinion, that in his view she not only would she be able to do the work of a domestic carer that she was performing with the defendant, but would, insofar as the problems with the DVT and embolus are concerned, also be able to perform the duties of a nurse.

64. [64]
    I note that Dr Quinn says that “(s)he tells me her ankle is swollen but her leg is not swollen”. He notes that she wears a moon boot all of the time and sometimes uses a walking stick. He says she reports she is unable to stand for longer than 20 to 30 minutes because of pain and finds that her ankle swells. He also reports she has gained approximately 30 kilograms since the cast was removed. His report was in July 2012.

65. [65]
    Dr Quinn’s optimistic outlook about her condition seems to me generally consistent with the reports of Dr Morgan and Dr Peereboom.

66. [66]
    In his first report of 21 April 2011, Dr Morgan a very experienced and highly credentialed Orthopaedic Surgeon,^[1] accepts there is probably a link between the subject accident and her ongoing left leg condition.  Dr Morgan says she had an 8% whole person impairment related to the accident which he felt would diminish, but not incapacitate, her work prospects.  He noted complaints of ankle pain and swelling and a walking endurance of less than 50 metres.  He noted she then weighed 130 kilos, up from 100 kilos at the time of the accident.  He noted an increase of left calf girth of 2 centimetres compared to the right and similar swelling of her left ankle.

67. [67]
    His calculation of a then 8% whole person impairment was based on a 3% loss due to restriction in her range of movement and a further 5% loss due to the affect of her thrombosis.

68. [68]
    Dr Morgan again examined the plaintiff on 29 July 2015 and 14 November 2016. His views have changed.

69. [69]
    In his report of 29 July (Ex 1, Tab 22C), he concludes that she now exhibits only a 3% whole person impairment. Importantly she told Dr Morgan that she now experienced both right and lumbar spinal pain. She could not recall any specific injury that caused this and believed that it was due to her altered gait. He denied any link between her ankle and subsequent hip and lumber spinal symptoms.

70. [70]
    She reported pain radiating down the lateral side of her thigh and lumbar discomfort between the L5 and S1 vertebrae. She said her hip pain was aggravated by lying on her right side and her spinal pain was made worse by bending, lifting or twisting.

71. [71]
    Dr Morgan says that her ankle condition has improved. Consistently with Dr Quinn’s observations in July 2012, Dr Morgan says that since his examination in April 2011, the current examination showed that the left ankle swelling was no longer present. Indeed Dr Morgan says, consistently with Dr Quinn, that he “could not confidently identify any aftermath of this deep venous thromboembolic problem”.

72. [72]
    As a consequence of this improved condition, Dr Morgan assessed her as suffering only a 3% whole person impairment. He said from an orthopaedic perspective “it is probable that she could engage in sedentary or semi-sedentary work practices” but “would have difficulty carrying heavy loads or ambulating over uneven terrain. Standing for prolonged periods would also be difficult”.

73. [73]
    Whilst Dr Morgan says there was no measurable loss to her right hip and lumbar spine related to the 2008 accident, in the report he nevertheless assessed the condition in her lumbar spine as representing a DRE Category 2 injury in accordance with the AMA Guidelines (5^th Edition) and ultimately assessed a 5% whole person impairment.  This condition he said, would also affect her ability to bend, lift, twist or carry heavy objects and so mitigated against her return to gainful employment.

74. [74]
    In his most recent report of November 2016, Dr Morgan again assessed the plaintiff as having a permanent 3% whole person impairment due to the ankle injury. He says she remains capable of work but says she should avoid heavy and arduous activities which might proactively load her left ankle. He says she would also benefit from some help with heavy domestic tasks.

75. [75]
    The plaintiff told Dr Morgan that an injection of hydro-cortisone and local anaesthetic, given by Dr Peereboom, had given her significant symptomatic improvement. He noted also that Dr Peereboom, on 31 August 2015, had performed an arthroscope of her left ankle with a synovectomy and the excision of Bassett’s ligament. The plaintiff said that this also helped considerably. She had extensive physiotherapy thereafter. Dr Morgan said she continued to take significant pain relief – Targin, Endone and Panadol.

76. [76]
    He said she reported now walking twice a week, two blocks at a time which I note is a significant increase on her reported earlier capacity of only 50 metres to Dr Quinn. Her weight had reduced to 101 kilograms.

77. [77]
    Dr Morgan referred to a significant change in her gait during his examination – walking very slowly and with what he described as an exaggerated limp. He said her left calf and ankle were not swollen. The only observable difference Dr Morgan noted between her left and right ankles were the two surgical scars related to Dr Peereboom’s operation.

78. [78]
    Dr Morgan then described a significant improvement in the plaintiff’s presentation which I conclude is consistent with the observations of Dr Peereboom to whom I shall shortly refer. Dr Morgan’s examination revealed only a minor loss of sagittal planar movement and tenderness over the antero lateral aspect of her joint, consistent with the operative removal of the Bassett’s ligament.

79. [79]
    Dr Morgan says that she is capable of performing normal nursing duties provided she can avoid the heavier aspects of such work. His experience, he said, suggested she should be able to cope with most tasks as orderlies or wardsmen and motorised equipment are all commonly utilised. He says she could, in any case, work in a day surgery unit, medical reception or as a medical records clerk. Finally, Dr Morgan says she might benefit from a supporting device at a cost of $120 and requiring replacement about every two years.

80. [80]
    Dr Peereboom saw the plaintiff on 11 February 2015 when she was referred by Dr Mullen, another Orthopaedic Surgeon who practised in Hervey Bay. Dr Mullen, in his referral letter, being part of Ex 1, Tab 14A, refers to “definite pain and swelling laterally”. Dr Mullen noted her earlier attendance at a number of pain management clinics.

81. [81]
    Dr Peereboom arranged an ultrasound guided injection of her ankle with an anaesthetic, Chrocaine, on 9 March 2015.

82. [82]
    On 31 August 2015, he performed an arthroscopy which revealed mild synovitis and a large Bassett’s ligament. When giving evidence, Dr Morgan explained that a Bassett’s ligament was a condition of a ligament in her ankle and not the name of the ligament itself. As I have earlier said, a synovectomy was performed and the Bassett’s ligament was removed.

83. [83]
    Dr Peereboom says she was progressing well when he saw her on 10 September. On some days she had no pain at all. In his report of 11 November, he said her ankle was “going along extremely well” with significant decrease in pain. She felt she was now about to “get back to work”. She was walking without a limp. This observation is consistent with Dr Morgan’s report of her condition when he saw her 12 months later in November 2016.

84. [84]
    The plaintiff relied on reports of an Orthopaedic Surgeon, Dr Izak Van Der Walt, of 9 September 2014, 2 March and 20 April 2015. Whilst a doctor of long experience, he having obtained his primary degree in 1960, almost 57 years ago, his CV does not demonstrate the same level of academic excellence or professional engagement as Dr Morgan’s.

85. [85]
    He said in his initial report which of course pre-dated Dr Peereboom’s interventions, that her overriding complaint was of severe constant chronic pain in her left ankle and foot. He noted from the Queens Park Medical Centre records (Ex 1, Tab 3) a history of depression prior to the accident. He noted also a history of significant intravenous drug use for about three years from aged 19 to 22. To her credit however, the plaintiff ceased that addiction and has not returned to drugs. He noted a loss of about 30 kilograms, to 104 kilograms, over the previous 12 months. He noted her use of pain medication, and also occasional physiotherapy and hydrotherapy.

86. [86]
    Dr Van Der Walt made an essentially normal examination of her ankle in September 2014. He observed that there was no dystrophic changes, no abnormality of temperature or colour, normal nail growth and importantly, no significant swelling of her lower leg. He says however, she was very tender to palpation of her ankle. I note that his essential normal examination, to which I have referred, appears at variance with the plaintiff’s presenting complaints to him (see PT5 of Tab 20) of swelling and of a bluey purple discoloration.

87. [87]
    Dr Van Der Walt concluded there appeared to be no significant structural abnormality in her ankle. He nevertheless concluded that her ankle injury had led to the development of chronic pain.

88. [88]
    Dr Van Der Walt, assessed a 20% whole person impairment due to a ‘gait derangement”. He says this is appropriate “when the routine use of a cane is required”. I cannot unearth where in his report he concludes, that use of a cane was required. He merely recorded that the plaintiff then used one.

89. [89]
    He also assessed a 6% whole person impairment due to ankle motion impairment, a 2% whole person impairment due to hind foot impairment and a 10% whole person impairment due to a need for anticoagulant therapy.

90. [90]
    In all, using the Combined Value Tables, he assesses a 28% whole person impairment.

91. [91]
    In a subsequent report of 20 April 2015 (Ex 1, Tab 22A), Dr Van Der Walt refers to the emergence of pain in the plaintiff’s right side in about December 2014, without any apparent trauma. Subsequently he said the pain got worse and started affecting her lower back. In April 2015, she described disabling pain affecting her lower back and thigh. She reported at times requiring assistance to get out of bed or a motor vehicle.

92. [92]
    Dr Van Der Walt however concluded the lower back pain and right hip pain were unrelated to her left ankle injury. This is of course consistent with Dr Morgan’s opinion about that issue.

93. [93]
    In giving his evidence, Dr Van Der Walt accepted, as he had said in his report, that he did not inspect the plaintiff’s left ankle when preparing his report of April 2015. He had not therefore examined the ankle since September 2014 although he was aware of surgery having been performed in August 2015. In that circumstance, he agreed he would defer to Dr Morgan’s assessment of the range of movement in the plaintiff’s ankle in 2016. He accepted also that his assessment of impairment due to Warfarin therapy was outside his expertise.

94. [94]
    In the circumstances, I do not accept Dr Van Der Walt’s assessments of whole person impairment, preferring the opinions expressed by Dr Quinn, Dr Peereboom and Dr Morgan.

95. [95]
    I should also say that the defendant relied also on a report of Dr Dennis Nave of 10 June 2011 (Ex 1, Tab 22D). I do not accept Dr Nave’s view that the plaintiff’s embolus were not causally linked to her ankle injury in circumstances where he himself said the issue was more relevant to a physician (or I add, a Vascular Surgeon, such as Dr Quinn). I note also the evidence of Dr Nave at T2-66, L 40-43, which I think it necessary to here set out, which causes me to determine that the medical issues involved in this case should be resolved by reference to Dr Quinn, Dr Peereboom and Dr Morgan, as I have earlier indicated.

Findings

96. [96]
    In the circumstances I conclude that the plaintiff had ongoing problems with her ankle from March 2008 to March 2010. These caused her some increasing pain but did not cause her any economic loss or cause her to expend money on medical related expenses. They did cause her to seek medical attention at the time.

97. [97]
    After her lower leg was immobilised in a plaster backslab, either by her GP or at the local hospital, she developed a deep vein thrombosis and subsequent embolus. This was directly related to that treatment, and so to the original incident in March 2008. This caused her great distress and significant pain. Dr Peerehoom’s interventions were very effective. She remained on Warfarin for about 12 months. After ceasing Warfarin she developed a second embolus. She will now require anticoagulant medication permanently.

98. [98]
    She had very significant symptoms for some time. Ultimately her DVT and consequent emboli and the effects of her initial ankle injury should not significantly affect her capacity to work. She has only a 3% whole person impairment, consistent with the assessment of Dr Morgan, although this was somewhat higher, probably as much as overall 8% impairment, from about April 2010 until mid-2015 when Dr Peereboom performed his surgery. Certainly, soon after that surgery, her condition had ameliorated to the lower 3% impairment assessed by Dr Morgan.

99. [99]
    The plaintiff has all but, and perhaps by now has in fact completed a degree in nursing. She will not be precluded from employment in that field. There may be some interference with her ability to find work as a nurse, or to perform any, particularly heavy tasks. That may also be somewhat affected by her unrelated hip and lower back pain, although in recent time that condition appears to have ameliorated significantly. I note, it was not suggested to her that her back or hip complaint currently had any effect on her earning capacity. That finding too is generally consistent with the view of an Occupational Therapist, Ms Vanessa Aitken, that such symptoms were much less important than her ankle symptoms in limiting her employment.

100. [100]
     In making the findings I have I should say that whilst I have generally accepted the plaintiff’s evidence about the circumstances of the accident, and of her ongoing symptoms between 2008 and 2010, I have some misgivings about her evidence. I have referred already to her implausible explanation of only being able to see her general practitioner about one complaint at a time. I also formed the view that some of her complaints were excessive. This excessive description of symptoms is, in my view, consistent also with the observations of Dr Peereboom that her symptoms were “somewhat odd” (Ex 1, Tab 14A, PNA3) and Dr Morgan’s observations about her altered gait during his examination in November of 2016. In my view, it is also consistent with Dr Quinn’s observations that whilst she said her ankle was swollen, he was unable to detect any such abnormality. Indeed, Dr Van Der Walt, who provided a report to her solicitors, observed on his examination no discoloration or swelling, despite her statements that there was swelling and a purplish discoloration.

101. [101]
     These doubts about the plaintiff’s relativity in describing symptoms to the court and to doctors does not cause me to doubt that between March 2010 and about mid-2015 when Dr Beereboom performed his intervention, that she was significantly disabled and in much pain.  Whether this was due to an emotional reaction to her condition which she might well have thought of as a life threatening condition, or whether it was due to a physical cause relieved by Dr Peereboom’s operation is unknown. It is also probably unnecessary to make a determination about that issue.  In my view, the extent to which she suffered is however demonstrated by the fact that on at least two occasions she attempted suicide apparently due to her perception of pain.  I find she was not in a condition to walk over that period of about 5 years.

Quantum

102. [102]
     The parties submitted that the plaintiff’s claim should be assessed as follows:

112. [112]
     I shall deal with each head of damage in turn, having regard to my findings of fact earlier set out. The plaintiff’s claim in this matter is regulated by the Workers Compensation and Rehabilitation Act (2003), as at 1 January 2008.  They are therefore assessed at common law subject only to a statutory modification in respect of gratuitous services as set out in Part 10 of that Act.  The plaintiff makes no claim for past gratuitous services but seeks a modest sum in respect of past paid services. Consistent with the decision of Foster v Cameron [2011] QCA 48, which determined that the impediment to the recovery of past Griffiths v Kerkemeyer damages did not apply to past paid care, such a sum is recoverable.

General damages

113. [113]
     The plaintiff’s counsel relied on observations of McGill DCJ in Russell v Hancock Farm Company Pty Ltd [2013] QDC 129 at (89), that in an assessment where the Civil Liability Act does not apply AMA guidelines are an inadequate measure of loss, because pain is not probably taken into account, and so a plaintiff’s level of disability is not appropriately reflected in such assessments.

114. [114]
     In the case before his Honour that was no doubt true, and is true in this case for the period up to mid-2015. In my view they are however still a significant factor in the assessment of the plaintiff’s disability thereafter. The period up to mid-2015 is still a significant period from the accident and more especially from March 2010 when her real problems started, and that period justifies a not insignificant award of general damages.

115. [115]
     I however do not accept much of what is said on behalf of the plaintiff about her current level of symptoms. The two suicide attempts earlier referred to (set out in the records of the Maryborough Base Hospital) in September 2011 and August 2012 are a demonstration of the significant symptomology the plaintiff suffered. On each occasion she took an overdose of medication. Each entry notes that she has chronic pain. Whether the issue was not canvassed extensively during the trial and no psychiatric evidence was called by either side, my professional experience is that such conduct is almost always multifactorial. I have briefly referred already to her past history of depression. It seems to me from a reading of the medical reports and records in the case that from March 2010 and for a period of about five years up to mid-2015, the plaintiff was very significantly distressed by her ankle and the pain she felt. No doubt the fact of the DVT and subsequent emboli were themselves troublesome. That is very understandable. Her treatment involved undergoing some 150 venipunctures to monitor her clotting levels. Fortunately she no longer requires that on her new regime of anti-coagulant medication.

116. [116]
     In my view however her condition has very significantly changed since mid-2015, and for the better. Since that time her symptoms have been much less severe. Her increased ability to exercise, and no doubt consequent improvement in her mood has resulted in a significant weight loss. In 2015 she indicated a belief she could return to work. Consistent with the reports of Dr Quinn, Dr Peereboom and Dr Morgan, I find that to be so. I do not accept her own assessment of a great level of disability.

117. [117]
     I would in such circumstances assess that the plaintiff’s general damages in the sum of $65,000.00 and attribute $50,000.00 of that to the past. I would allow interest on that sum at 2 per cent per annum for 9.3 years amounting to $9,300.00.

118. [118]
     I note the plaintiff’s counsel’s acceptance in his submissions that if I concluded, as I have, that there was a causal link between her accident and the DVT, that general damages should be assessed in the sum of $50,000.00.

Economic loss

119. [119]
     The plaintiff suffered no loss up to 4 March 2010. Furthermore, on 14 September 2010 she dropped a benchtop on her foot and would as a result have been unable to work for a period of about 11 weeks up to 2 December 2010 (see records Maryborough Hospital, Exhibit 1, Tab 2, B85 in respect of the consultation of 14 September and of the Hervey Bay Hospital, Exhibit 1, Tab 13, M24 in respect of the injury having healed by 2 December).

120. [120]
     The plaintiff’s estimate of possible past earnings is set out in Exhibit 14. It amounts to some $343,078.00. It includes no reduction for the 11 weeks I have referred to and no reduction for the possibility that, because of the nursing degree she is undertaking, she would have been required to work only part-time. In the plaintiff’s written submissions, in relation to future economic loss, her counsel however accept that would been the case. The schedule also makes no deduction for the possibility that she would have been unable to work in any case because of her hip and low back pain from about early 2015, for some indeterminate period. It also does not reflect my finding about her ability to return to work from some time after Dr Peereboom’s surgery of August 2015.

121. [121]
     Prior to the accident the plaintiff intended to study and obtain a Bachelor of Nursing. Because of the need to work and pay a mortgage and other commitments I conclude this would have still been done part-time whilst studying. There can be no certainty when she would have commenced that degree, and when it might have been finished. I conclude it is very likely it would have been completed by now, in circumstances where it is now all but completed in any case.

122. [122]
     These are all factors that must be reflected in a real reduction in her past earnings from the claimed schedule.

123. [123]
     As I have said Schedule 14 is premised on her continuing in fulltime employment with the defendant from 4 March 2010 until the time of trial. I also make some allowance for the period since trial, a further 25 weeks. If she had been fully employed this would have amounted to an additional $28,171.00.

124. [124]
     I would allow about 70 per cent of her claim from March 2010 to 1 October 2015, primarily to reflect the fact that she might have worked part-time because of her nursing degree, and to take into account the benchtop incident. I conclude that since then there has been little reason, other than her study, which has precluded her from obtaining employment and would allow only 10 per cent of the claim since that time. In all, I calculate her loss at $201,570.^[3]

125. [125]
     Interest thereon must take account of Centrelink benefits of approximately $130,000.00. I have adopted this figure rather than the figure of $121,652 in the plaintiff’s counsel’s submissions reflect the time since trial. At 5 per cent per annum for 7.25 years since March 2010 this amounts to $25,944.00.

126. [126]
     Past superannuation is allowed at 9 nine percent on the allowance of past economic loss, amounting to $18,141.00.

127. [127]
     The plaintiff’s claim for future economic loss is premised on her obtaining her nursing degree. I accept that she would have undertaken this degree if she had not been injured, and also find that she will obtain, it if she has not already done so, in the very near future. I do not however accept the plaintiff’s counsels’ submission that the plaintiff is unlikely to ever be gainfully employed as a registered nurse. The medical evidence which I accept suggests she has only a limited restriction on her capacity to so work. I conclude that whilst she could work as an occupational health nurse, medical receptionist or medical records clerk, as Vanessa Aitkin, the occupational therapist who provided a report to the plaintiff’s solicitors suggests, she is also able to work as a nurse. That view is consistent with the opinion of Dr Morgan, whose evidence I accept.

128. [128]
     The plaintiff’s claim for future economic loss is based on a notional capacity, but for the accident, of earning $1,100.00 per week net and a residual earning capacity of $660.00. It is assumed she would work in the reduced capacity Ms Aitkin recommends and only three days per week.

129. [129]
     As I have said I do not accept that to be the case.

130. [130]
     The plaintiff is now 40 years of age. In my view her loss using the 5 per cent tables is likely to be no more than about $100 per week sum. I am confident she will be able to work at almost her full pre-accident capacity. In making the allowance I have had regard to the possibility of a recurrence of an embolus and the difficulty she will now confront in getting back to work after a significant period out of the workforce. I will thus allow future economic loss in the sum of $100 per week to age 67 (27 years, multiplier 783) amounting to $78,300. That sum already reflects a sufficient discount for the vicissitude of life, and need not be further discounted.

131. [131]
     In making that allowance I am conscious that it is less than the figure submitted by the defendant’s counsel for future economic loss, being $200,000.00 to $250,000.00. I do not however consider the figure he advocates for is consistent with the medical reports of Dr Quinn, Dr Beereboom and Dr Morgan whose evidence I have accepted, as with my finding of her current capacity to work.

132. [132]
     I would allow future superannuation, being 11 per cent of the award for future economic loss, in the sum of $8,613.00.

Other heads of damage

133. [133]
     I would allow the plaintiff’s claim of special damages except for those items related to her back and hip complaints. Exhibit 6 the Schedule of Medical Expenses does not clearly differentiate those items.

134. [134]
     The report of Dr Morgan does not suggest she had significant treatment for that condition however. It came on from about December 2014. He refers to her seeing her local GP, having radiographs on 7 March 2015 and an MRI examination on 2 March 2015. It seems she had a referral to Dr Lucas and to another specialist. I cannot however see a clear reference to such matters in the schedule of damages. It may be that she had some pain medication which is claimed but related to her complaints of pain in her hip and lower back.

135. [135]
     In the circumstances I propose to allow the plaintiff all of her claimed special damages other than the sum of $1,000.00 as a ball park estimate of expenses related to her hip and back. I would allow special damages in the sum of $32,460.00.

136. [136]
     I allow interest on $15,658.00, after taking into account the Medicare payments of $16,892.00. At 5 per cent per annum for 7.25 years from 9 March 2010 this amounts to $5,676.00.

137. [137]
     The plaintiff claims significant sums for future medical, physiotherapy and pharmaceutical expenses. The claim for pharmaceutical expenses of $4.00 per week is based on her average expenditure for 12 months from October 2015. It is not clear how much of that relates to pain medication, rather than her anti-coagulants. Nevertheless, I allow that sum of $3868. I would also allow her claim for future medical consultations based on visits each three weeks for prescriptions and monitoring at a cost of $69.00 per visit. An allowance of $23.00 per week for her 48 years life expectancy, discounted on the 5 per cent table, amounts to $22,241. 00. It seems this is based on her need for anticoagulant medication which will be required indefinitely.

138. [138]
     She also claims for her future physiotherapy. She says she started physiotherapy before her surgery, which Dr Beereboom performed in August 2015 and continued for about 12 months thereafter.  She says she has now stopped that treatment due to her nursing placements.

139. [139]
     In my view the reports of Dr Quinn, Dr Beereboom and Dr Morgan do not support a need for ongoing physiotherapy. I do not allow it.

140. [140]
     Dr Morgan supported a need for some assistance in the garden with lawn mowing and heavy gardening (see his report of 22/7/15 – Exhibit 1, Tab 22, CPV11). The plaintiff has paid $1,680.00 to date for lawn mowing and pool care.

141. [141]
     I do not see that the need for pool care is necessarily for the future. It does not appear to come within what I would understand to be heavy gardening as described by Dr Morgan. I would allow it for the past however. In my view her proper expenditure on future lawn mowing is however related to the accident and is recoverable.

142. [142]
     She claims $50.00 per week for 20 years for such future expenses. I am unaware of any oral evidence about the time taken to mow or the costs of mowing the plaintiff’s lawn. Exhibit 8 however suggests that in June 2015 and indeed before then, it cost her $60.00 to mow her lawns. In my view, an allowance of $30.00 per week to allow for fortnightly mowing is reasonable. I would allow $7,992.00 (being 60 per cent of the plaintiff’s claim of $50 per week) for that head of damage.

143. [143]
     In all therefore, I would assess the plaintiff’s damages as follows:

Order

144. [144]
     In the circumstances I give judgment for the plaintiff against the defendant in the sum of $480,784.00. I will hear argument as to costs.