Cuddy v Philip Leong Stores, Woolworths Ltd & Ors [1997] QSC 203

_.--_._-_._._---_._-- o --... _------.. _.- -------- --~c Cif!Z03~ ~~-- ,------State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION REVISED COPIES ISSUED State Reporting Bureau Date 0291 9 1 9 7 () CULLINANE J o No 34 of 1994 MAUREEN LORRAINE CUDDY and PHILIP LEONG STORES and PHILIP LEONG STORES PTY LTD (A.C.N. 000 718 941) and WOOLWORTHS (QUEENSLAND) LTD (A.C.N. 000 034 819) and WOOLWORTHS LTD (A.C.N. 000 014 675) TOWNSVILLE .. DATE 25/09/97 Plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant thisJ~g9,ment is to be copied for the purpose of research and private study oni~ lfrsNnot to be resold or used for republication in any other way without permission. 4th Floor, The Law Courts, George Street, Brisbane Q. 4000 Telephone: (07) 32474362. Facsimile: (07) 32475532 _____ .J -- 1 of 18 -- C) o 250997 T34-36/JAB M/T TSVSC4217 (Cullinane J) HIS HONOUR: The first matter to be dealt with is the plea raised in the defence that the plaintiff is statute barred in respect of the incidents alleged to have occurred on 29 August 1991 and 3 August 1992. The writ of summons was issued on 2 March 1994 and the statement of claim was delivered on 2 February 1996. The plaintiff endorsed the writ of summons in the following way: "The plaintiff's claim is for damages for personal 10 injuries, loss and damage suffered by the plaintiff as a consequence of the negligence and/or breach of duty and/or breach of statutory duty by the first defendant, its servants or agents and/or the negligence and/or breach of duty and/or breach of statutory duty by the second defendant, its servants or agents and/or the negligence and/or breach of duty and/or breach of statutory duty by the third defendant, its servants or agents and/or the negligence and/or breach of duty and/or breach of statutory by the fourth defendant, its servants ~ and agents at Townsville in the State of Queensland on 22 April 1991." () There is also a claim for interest and costs. It was admitted by the defendants in their defence that the third defendant () was, at all relevant times, the plaintiff's employee. At the time the statement of claim was delivered, more than ~ three years had passed from the time of the incidents of 29 August 1991 and 3 August 1992. For the plaintiff, it was contended that the provisions of Order 24 Rule 1 of the Rules of the Supreme Court permitted the plaintiff to include in the statement of claim the claims for the two subsequent dates, and that the statement of claim superseded the claims on the writ for all purposes, and that, 2 JUDGMENT -- 2 of 18 -- 250997 T34-36/JAB M/T TSVSC4217 (Cullinane J) as a consequence, the claims should be regarded as having been made in or supported by the issue of the writ, and thus not statute barred. The limited purpose of endorsements on writs of summons was referred to in Gould v. Skinner (1983) 1 OR 377 which is authority for the proposition that the statement of claim supersedes the claims on the writ for all purposes. I think, however, that the issue raised before me is indistinguishable c=) in principle from that before the Court of Appeal in Wilkinson 10 v. Rockdril Contractors Pty Ltd (1997) 1 QR 560. o That case was concerned, it is true, with an amended statement of claim which was delivered following the delivery of two earlier statements of claim, each of which were nullities. The facts, I think, bear a close similarity to the facts in the present case. As was said in the joint judgment of Mr o Justice Pincus and Mr Justice Davies at pages 565 and 566, when referring to Gould v. Skinner and the proposition that o the statement of claim supersedes the claims on the writ for ~ all purposes: "The expression used is 'supersedes' which does not imply that any new claims are deemed to have been made in the writ." There would be no difficulty had the endorsement not specified a date as the date upon which the cause of action arose. It ~ would have been sufficient for the cause of action or the relief to have been stated in general terms, and the statement of claim could then have been delivered in the form in which 3 JUDGMENT -- 3 of 18 -- ----- --- 250997 T34-36/JAB MIT TSVSC4217 (Cullinane J) it was without there being any basis upon which a claim raising the limitation period could have been raised. However, unfortunately for the plaintiff, that is not the way in which things were done. I find that the plaintiff's claim in respect of the incidents of 29 August 1991 and 3 August 1992 are statute barred. It is, I think, also clear that the plaintiff cannot bring herself within the provisions of Order 32 Rule 1 subrule 5 as o the causes of action alleged to arise on the two occasions I 10 have referred to do not arise out of the same facts or substantially the same facts as the cause of action, the subject of the endorsement in the writ, and no amendment to the writ of summons is therefore permissible. In this case, it was sought to be achieved by a deletion of the date specified in the writ of summons rather than the addition of the two additional dates, but however the matter is approached, it seems to me that the effect of the proposed amendment is to seek to overcome the difficulty associated 20 with the limitation period, and it is my view, not possible to achieve it in the way sought. As it could not be achieved by adding the additional dates because of the provisions of Order 32 Rule 1 subrule 5, it does not seem to me that the same result can be achieved by the deletion of a date. The plaintiff was injured on 22 April 1991, which is described as the first incident in the statement of claim. Although the matter was litigated on the issue of liability, counsel for the third defendant conceded at the commencement of addresses ~ 4 JUDGMENT -- 4 of 18 -- ----~---~---~~~~ .-._._----- 250997 T34-36/JAB M/T TSVSC4217 (Cullinane J) that the plaintiff was entitled, on the evidence, to succeed in respect of that incident. It is what consequences are ascribable to that incident that I am concerned with at this time. I accept the plaintiff's description of the way in which that incident occurred. There has been some debate in the evidence between some of the witnesses, and in particular, Dr Todd, an orthopaedic surgeon, and Mr Kahler, who is an engineer, and () who has provided a report as to just what forces the plaintiff 10 would have been subjected to in performing the task which she was performing when she sustained an injury. What the plaintiff was doing at the time is best illustrated in the report of Mr Kahler which is Exhibit 2. There are a number of photographs showing the pallet trolley, and also photographs showing the plaintiff demonstrating what she was C) doing at the time, although, as will be apparent, it does not precisely replicate what she was doing because the pallet was not loaded. The plaintiff described in her evidence also the ~ c) way in which she carried out this task. I am satisfied that she would have been exposed to very significant forces on her spine whilst she was performing this task, but primarily before she reached the point at which the force got below the angle referred at page 6 of Mr Kahler's report. It is not possible to identify precisely what the forces were likely to have been for reasons which Mr Kahler explains, but I accept the evidence that he has given 5 JUDGMENT -- 5 of 18 -- ----- ------------ . - - ----_.. _--------- .-._------- 25~997 T34-36/JAB MIT TSVSC4217 (Cullinane J) generally as to the estimates he provides. Nor are there any criteria by which this particular activity of the plaintiff can be judged. He has extrapolated other criteria, and endeavoured to make use of these. However the matter is approached, I am satisfied she was exposed to a significant risk of injury to her spine which was realised. The plaintiff suffered immediate pain in the back which she describes as being like a knife stabbed into her lower back. o She also had pain down her left leg to her foot with a pins and needles type sensation. She consulted a doctor on the following day and was off work for about a month. The doctor diagnosed her as suffering from a back injury and sciatica. I accept the plaintiff's evidence as to the symptoms which she suffered following the accident, and the fact that, on each day that she returned from work, she would lay down on the () floor to relieve the pain. The work which she performed when she returned was somewhat lighter. It was not necessary to 10 use this equipment any further, and a workmate performed the ~ o heavier aspects of her work. I accept there was some reduction in the intensity of the symptoms at times. The second incident occurred, as I have said, on 29 August 1991. She was lifting a carton containing two litre bottles of soft drink from a flat top trolley to place it on the floor. In the course of making the lift, she experienced pain in her back in the same area and of the same kind as she had experienced on the first occasion. There was a return of severe symptoms in the back and the left leg. She again saw ~ 6 JUDGMENT -- 6 of 18 -- ~----~----- 2S0997 T34-36/JAB M/T TSVSC4217 (Cullinane J) her general practitioner who gave her a certificate to remain ·off work until 27 October 1991. When she saw him on 9 October 1991 without any improvement in her condition, she was referred to Dr Todd, an orthopaedic surgeon. She had also seen a radiologist. Examination revealed a prolapse at the LS-S1 level. There had not been any X-rays taken following the first incident, but her general practitioner had diagnosed her as suffering from a prolapsed disc. 10 Dr Todd carried out a discectomy on 6 November 1991. The plaintiff, I should add, had developed some loss of feeling in her toes shortly after the second incident. According to Dr Todd's report of 7 January 1992 to the Workers' Compensation Board, the plaintiff did very well after the discectomy, and when he saw her on 23 December 1991, she was quite mobile with (~ only occasional back and leg pain. However, she returned to see him in October, having suffered 20 (j what he describes as another flare up of her symptoms. He thought she may have suffered a further prolapse, or what he describes as a re-prolapse, and he says that this was confirmed upon a further CT scan, but that the prolapse was relatively small. He prescribed physiotherapy and attendance at gym classes, and following that, she attempted a work assessment scheme arranged through the Workers' Compensation Board. She had earlier undertaken a gradual return to work program, but I ~ 7 JUDGMENT -- 7 of 18 -- 2S'0997 T34-36/JAB M/T TSVSC4217 (Cullinane J) assume, although it is not clear, this was affected by the subsequent flare up in her symptoms. She returned to full time work some time in early or mid March, and worked in what she describes as the variety section of the third defendant's store where the work she performed was much lighter. She says she still had constant backache and leg symptoms which varied according to what she was doing. () The third incident occurred when she was moving quite light or 10 relatively light objects, although the lifting was repetitious. She experienced a return of the severe symptoms and was again off work. She underwent a return to work assessment on 28 September 1992. It was not successful. Her employment was formally terminated on 27 November 1992. Physiotherapy at this time, according to the plaintiff, made () her symptoms more severe. She ultimately was referred to Dr ,--../ Low, an orthopaedic surgeon, who performed a fusion of the spine involving the L4-S, and LS-S1 levels on 16 June 1993. 20 The discs were completely excised and bone grafted. The plaintiff initially had some relief from her pain, but the symptoms reappeared. Dr Low's opinion is that the plaintiff suffers from a significant back disability, notwithstanding that to all appearances, the fusion has produced a solid outcome. He says this is a recognised consequence of fusion procedures, and that her present condition is the consequence of that and the failed laminectomy at LS-S1 performed on her spine. 30 8 JUDGMENT -- 8 of 18 -- ~~------------..-----"--'-- 250997 T34-36/JAB MIT TSVSC4217 (Cullinane J) The plaintiff impressed me as an honest witness who, I am satisfied, suffers great discomfort with significant restriction upon her activities. She had been employed by the third defendant or its predecessor from about 1976. She was a casual employee until about 1988. She had had some previous medical treatment for her back, but it was at a different level, and the evidence does not suggest that she had any ongoing problems of any significance. () The evidence raises a substantial dispute as to just what role 10 the accident of April 1991 plays in her current position. She is, in my view, presently disabled from any employment, and it 0 was not contended otherwise. Dr Todd is of the view that the second incident which involved lifting the soft drink bottles is the primary cause of the plaintiff's current condition. He does not believe that the ,f) plaintiff suffered any disc protrusion in the first incident, ~/ and expresses reservations as to whether she suffered the symptoms of sciatica. He said that when he performed the ~ discectomy, the prolapse appeared to be recent because of some infection which he observed. Indeed, he spoke of it in terms of days or weeks. The evidence suggests that Dr Todd may have thought at some time that this incident had occurred at the end of September, with the procedure, as I have indicated, taking place in October. It is clear it happened in late August. Unfortunately, just what he meant when he referred to days or weeks is not clear. However, he made it clear that he thought ~ 9 JUDGMENT -- 9 of 18 -- ---- . - ------ ._---._---- ---- 25~997 T37-40/WAE M/T TSVSC4217 (Cullinane J) that what he observed was not something which had occurred as far back as April, although it is not entirely clear whether he thought it might have occurred as far back as late August. Dr Low, on the other hand, expressed the view that the plaintiff, because of the symptoms of which she complained from the time of the first incident, suffered a prolapsed disc at LS-S1 as a result of that incident, and that the subsequent two incidents were no more than exacerbations of a condition which had already occurred. As I understand his evidence, what he observed when he o performed the fusion was the consequence of the first incident that the plaintiff suffered. The presence of the infection and its significance was not put to Dr Low, however, he made it clear that he acknowledged the possibility that there may have been a further prolapse following the second incident, o the disc having prolapsed originally at the time of the April incident. /-) ~~ Dr Watson gave evidence. He had expressed the opinion in a report that the second and third incidents were not of significance in terms of the cause of the plaintiff's present position and that the cause was the first incident. I accept the evidence that the plaintiff suffered a prolapsed disc at the time of the first incident. I accept the opinion of Dr Low and Dr Watson in this regard and it seems to me consistent with the evidence that I accept from the plaintiff 10 20 of the nature and extent of the symptoms that she had had ~ 10 JUDGMENT -- 10 of 18 -- () (J {~ ~I 25b997 T37-40/WAE M/T TSVSC4217 (Cullinane J) following the first incident and up until the time of the second incident. The further question that has to be resolved is whether the later exacerbations would not have occurred but for the fact of the damaged spine which the plaintiff had as a result of the first incident, or whether it would have occurred in any case, or there is some degree of exacerbation of the plaintiff's condition (falling short of the whole exacerbation which occurred) which occurred as a result of the second 10 incident, which is ascribable to the weakened condition of her spine following the first incident for which she is entitled to be compensated. The question is not without its difficulties if for no other reason th~t in my view the evidence dealing with this subject was not properly focused upon in the evidence of the various doctors who were called. The evidence as to the occurrence of the second incident itself is not particularly satisfactory. The plaintiff was picking up a number of bottles of soft drink in a carton by ~ cradling it. She demonstrated what she was doing when she gave evidence and she adopted a position with her knees bent. There is some confusion as to just what the weight would have been. There is evidence that it was some 20 kilograms, on the other hand Mr Kahler gave evidence that from the number of bottles of soft drink and their size it is likely that it would have been somewhat less than that. Dr Low's evidence was that had such a lift been carried out properly it would not have had the capacity to damage a 30 1 1 JUDGMENT -- 11 of 18 -- 250997 T37-40/WAE M/T TSVSC4217 (Cullinane J) healthy or a previously undamaged spine in this area, although it could have the capacity to do so if the lift was carried out inappropriately. Mr Kahler gave evidence which on one view of it might suggest that the risk was somewhat greater to even a healthy spine, but again, depending upon the precise circumstances of the lift and the weight involved. As I have said, Dr Watson gave evidence on this subject in a report which was tendered and he was called but was not cross- o examined about this. His view was that the subsequent two 10 incidents would not have been likely to inflict any damage upon her spine without the pre-existing disc damage from the C) April 1991 incident. It is common ground that the third incident could not have been of such a nature as might have affected a spine which had not suffered the disc injury which I have found occurred in the April 1991 incident. Dr Watson's evidence passed in effect unchallenged on this subject. o As I have said, I find the resolution of this question a somewhat difficult one and it has major implications in terms ~ r)~ of what the plaintiff is entitled to recover by way of damages. However, whilst the possibility of damage to a healthy spind in the second incident cannot be excluded, I think when the evidence is taken as a whole, the appropriate conclusion to draw is that, but for the accident in April 1991 and the damage which the plaintiff's spine suffered as a result of the prolapsed disc, the probabilities are that she would not have sustained the further damage which occurred and I think it is likely that this involved some further prolapse of the disc in the incident of August 1991. This means that ~ 12 JUDGMENT -- 12 of 18 -- 25U997 T37-40/WAE M/T TSVSC4217 (Cullinane J) the assessment of damages will proceed upon the basis that her present condition is causally related and ascribable to the April 1991 incident. I turn now to the assessment of damages. The plaintiff, I am satisfied and as I have already said, is a genuine person who suffers much in the way of pain and discomfort and who has had a great disruption to her life. I assess her general damages in the sum of $75,000, and of this ascribe some $35,000 to the (J past. The plaintiff has received a disability settlement of 10 some $21,393. I allow interest at the rate of two per cent () per annum on the balance, namely $18,607, for 6.5 years, producing an amount of $2,418. So far as past loss of earnings are concerned I have documents (~ which show that had the plaintiff remained in employment with '-....../' the third defendant until the date of trial she would have earned net a little over $101,000 and received a 20 C) superannuation entitlement of about $5,588. Whilst I think little in the way of discount is necessary, the period is significant and I think that some discount should be allowed. I allow in respect of past economic loss, including past superannuation entitlement, the sum of $100,000. The plaintiff has received by way of income substitution a figure of $31,359. I allow interest on the difference, namely $68.641, at the rate of four per cent per annum for 6.5 years, producing an amount of $17,846. There are losses of benefits 13 JUDGMENT -- 13 of 18 -- ---~---~-------- --- . -------~~-~- _. 250997 T37-40/WAE M/T TSVSC4217 (Cullinane J) which the plaintiff received in the way of entitlements to discounts. I allow in respect of this, both past and future, $4,000. The claim for future economic loss is based upon the proposition that the plaintiff would have remained in o employment for another 23 years. The plaintiff and her 10 husband have two children and I am satisfied the plaintiff would have continued in employment and derived considerable o pleasure from it, as well, of course, as the additional wages which provided significant benefits to the family. However, I think it quite unrealistic to expect that the plaintiff would have remained in employment until 65 and in addition, I think such a claim does not make allowance for contingencies and u vicissitudes that must be allowed for. Doing the best I can, I allow in respect of future economic ~ loss, including future superannuation entitlement, the sum of $180,000. There is a claim for past care and assistance, which is based upon evidence contained in a statement of the plaintiff and a schedule thereto. Claims of this kind are inevitably based upon estimates and this was made clear by the plaintiff in her evidence. The plaintiff has, I am satisfied, required substantial care and assistance. For some periods following surgical procedures this was substantial, during other periods ~ 14 JUDGMENT -- 14 of 18 -- 250997 T37-40/WAE M/T TSVSC4217 (Cullinane J) the need has been less. However, the evidence which I have supports a substantial claim, although one which requires significant discounting and scaling back from the amount contended for. An assessment of a claim of this kind must of necessity depend upon to a large degree impression of the evidence and can be little more than an estimate intended to compensate the plaintiff by awarding a sum which should represent the least amount which the satisfaction of her needs justifies. 10 Again, doing the best I can, I allow for past care and assistance in the sum of $55,000. I allow interest at the o rate of two per cent per annum for 6.5 years, this produces a figure of $7,150. The assistance has been provided to her by members of her family, as appears from the schedule. So far as future care is concerned I have assessments before o me of the needs which the plaintiff has and, indeed, it is agreed that the rate claimed and the number of hours per week should be allowed. The claim, however, is made over some 40 20 /-j ~ years and I think this needs some discounting for this reason and, of course, for the possibility that the plaintiff might, as she neared the end of her life, have needed assistance in respect of some of the activities in any case. I allow in respect of this claim the sum of $55,000. There are special damaged claimed in the sum of $51,680.87. This includes the cost of a swimming pool which I will deal with separately. I allow interest in the sum of $31,090.77, representing the special damages claimed, less the cost of the ~ 1 5 JUDGMENT -- 15 of 18 -- _.--.._------------ 250997 T37-40/WAE M/T TSVSC4217 (Cullinane J) swimming pool. A substantial amount of this has been paid by the Workers' Compensation Board. I allow interest on the balance, which is $4,659 and which represents moneys actually expended by the plaintiff, at the rate of four per cent per annum for 6.5 years, producing an amount of $302. The Fox and Wood component is allowed in the sum of $5,985. The remaining items concern certain expenditures which it is suggested should be made to the house to enable the plaintiff c=) to more reasonably and comfortably function. The swimming 10 pool I have treated as such a modification, although one that has already been made, the plaintiff having expended moneys (J she received from the Workers' Compensation Board by way of a disability settlement to construct the pool. The evidence suggests that it is of considerable benefit to her. An attempt has been made to establish the extent to which the (~ proposed expenditures and the pool have enhanced the value of o the plaintiff's property. There is some dispute as to some of the items which it is suggested ought to be included by way of ~ modification and I think that the criticism is correct, at least in so far as it concerns the laundry, since the evidence would suggest that with the provision of the lift it is not necessary for the laundry to be altered. Included in the claim is also a claim for certain future equipment in the nature of an orthopaedic lounge chair and some solar attachments for the pool. Again, any adjustments to the modifications have an impact upon the enhancement which has to be taken into account. It is not possible to attempt ~ 16 JUDGMENT -- 16 of 18 -- 250997 T37-40/wAE MIT TSVSC4217 (Cullinane J) any mathematical precision in this exercise. I allow under this head the sum of $20,000. Remaining items concern future treatment and medications. Included in what is contended for are amounts for a spinal cord stimulator. The evidence, which comes from Dr Callanan who is the director of the pain clinic at the Townsville General Hospital, does not suggest that she will necessarily require this. He sets out a number of options, with this ~ being amongst them. An assessment would be required. I think 10 it is, however, reasonable to allow something for the prospect ()"-..J . that she will incur this. The amount involved is significant. I think that an allowance of some $5,000 would be reasonable. So far as the pain management counselling cost is concerned, the evidence, in my view, does not support the making of such an award. At present the pain clinic in Townsville conducts () such programs and it is free of cost. It is true there are clinics elsewhere in Queensland where the cost of such programs is quite significant, but the evidence does not .. -'j "-/ persuade me that it would be reasonable to allow the possibility of this cost being incurred as an amount for which the defendant would be liable. The remaining claims relate to medications and doctor attendances. As to the latter, the evidence justifies this. As to the former, there is evidence of the plaintiff's current level of medication and Dr Low suggests that she may from time to time need other medication. The evidence, however, does 20 not support a claim based upon that being a constant, ongoing ~ 17 JUDGMENT -- 17 of 18 -- ; 250997 T37-40/WAE M/T TSVSC4217 (Cullinane J) need for the rest of her life. Rather, as I read the evidence, it refers to an occasional need for such medication. I allow the plaintiff under this head the sum of $5,000. The total of these sums is $563,791.77, from this has to be deducted some $85,168.72 paid by the Workers' Compensation Board. c) 10 I give judgment for the plaintiff against the third defendant in the sum of $478,623.05 with costs to be taxed, except to the extent that the costs of the action were increased by the litigation of the claims in respect of the incidents dated 29 August 1991 and 3 August 1992. I order that the third defendant recover from the plaintiff its costs of and incidental to the litigation of the claims by the plaintiff in respect of those incidents to be taxed. 20 18 JUDGMENT -- 18 of 18 --