Adsett v Noosa Nursing Home Pty Ltd [1995] QSC 222

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 WHITE J No 242 of 1993 SHIRALEE MAY ADSETT and NOOSA NURSING HOME PTY LTD BRISBANE .. DATE 07/09/95 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date /4 I 1 I 4/ S Plaintiff First Defendant 4th Floor, The Law Courts, George Street, Brisbane. Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 49 -- t 070995 KHW (White J) HER HONOUR: In this action after deduction of the amount of refund to the Workers' Compensation Board there is judgment for the plaintiff against the defendant in the sum of $98,979.27. I publish my reasons. I give liberty to apply with respect to the arithmetical calculations set out in the reasons. HER HONOUR: I will give judgment in respect of costs at 9.30 a.m. on Friday 15 September. ---------- y ' ?I JUDGMENT 2 10 30 50 60 -- 2 of 49 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane No. 242 of 1993 Before the Honourable Justice White [Adsett v Noosa Nursing Home Pty Ltd] BETWEEN: AND: CATCHWORDS: COUNSEL: SOLICITORS: SHIRALEE MAY ADSETT (Plaintiff) NOOSA NURSING HOME PTY LTD ACN 009 991 020 (First Defendant) JUDGMENT - WHITE J Delivered the 7th day of September, 1995 Negligence - safe system of work - safe place of work - lifting heavy disabled patients in nursing home - adequacy of staff levels - adequacy of ' facilities. Quantum - musculo ligamentous strain to spine - psychological factors impeding recovery - refusal to undergo psychiatric treatment reasonableness. Mr R R Douglas QC and Mr J McDougall for the plaintiff Mr M Grant-Taylor for the defendant Ebsworth & Ebsworth for the plaintiff O'Shea Corser & Wadley for the defendant HEARING DATES: 3, 4, 7 and 23 November 1994 -- 3 of 49 -- \.-._ __ ,, IN THE SUPREME COURT OF QUEENSLAND Brisbane Before the Honourable Justice White [Adsett v Noosa Nursing Home Pty Ltd] BETWEEN: AND: SHIRALEE MAY ADSETT (Plaintiff) NOOSA NURSING HOME PTY LTD ACN 009 991 020 No. 242 of 1993 (First Defendant) JUDGMENT - WHITE J Judgment delivered 07/09/1995 The plaintiff is a 35 year old married woman who lives at Cooroy with her husband Lewis Adsett. They have three children aged 17, 13 and 10. She has sued her former employer for damages for negligence and/or breach of contract arising out of two 1 lifting incidents which occurred at the nursing home operated by it on 3 and 8 May 1991. Both liability and quantum are in issue. The Issues The plaintiff has pleaded that the defendant breached the duty which it owed to her to provide a safe place of work and a safe system of work. Essentially the plaintiff's complaints are that: • the defendant employed too few staff to enable safe handling of patients; • the toilet cubicles in the ward where the plaintiff worked were too small to permit safe handling of the patients; -- 4 of 49 -- 2 there was little training or supervision or re-enforcement of safe lifting techniques. It is the plaintiff's case that she is virtually unemployable as a consequence of the injuries sustained at work and will continue to be so into the future and had she not be.en injured she would have continued in some form of employment for many years. The defendant alleges that if the plaintiff sustained injuries as a consequence of its breach of duty which is denied, that injury resolved within, at most, a year and the plaintiff's symptoms thereafter have been grossly exaggerated either to obtain sufficient compensation to permit her to escape from an unsatisfactory marriage or as a device to get attention or for some other non-compensible reason or, alternatively, that had she not been injured her pre-injury situation was that within a year or two she would not in any event have been working. The Plaintiff's Background The plaintiff was born on 18 February 1960 at Wondai the fourth of ten children. Her father w·as a fencer and as a consequence the family moved frequently. She remained at school until the end of first term in Grade 8 when she was 14 years. She left then because, she said, she was "no good at it". She lived with her husband from before their first son was born in December 1977. A daughter was born in De6ember 1981 and another son in March 1985. Her husband was an interstate truck driver. She and her husband married in 1986. Between the time when she left school and started work for the defendant in 1990 she worked variously as a fruit picker, shop assistant, nursery hand, and as a barmaid. She had her longest period of employment as a .. C -- 5 of 49 -- 3 nursery hand in two periods of about 4 years. This entailed very heavy physical labour. In an effort to improve her employment prospects she underwent a first-aid course at the Cooroy High School and, in due course was employed by the defendant as an assistant nurse. She commenced work on a casual basis in 1990 and remained in that capacity for nine months. She had been employed permanently for about a month before she was injured. The Work The defendant's premises are situated at Tewantin. The plaintiff worked mainly in B Ward which cared for 28 patients both men and women. Margaret Dean, a registered nurse, was .. employed at the nursing home from the end of 1990 until the end of July of the following year which covered part of the plaintiff's period . of employment including the time of her J ~ alleged injuries. Mrs Dean had had extensive nursing experience in private and public hospitals and some experience in nursing homes over a period of sorrie 2 0 · years. I ·found · her evidence of assistance in understanding the way the work was carried out in the nursing home, the staffing levels and the training of the staff in lifting techniques. At the relevant time there were three wards at the nursing home, A, Band C Wards. B Ward was in the initial nursing home structure while A and C Wards were added later and were more modern. There were approximately 8 patients in B Ward who were able to care for themselves and could manage, for example, their washing, toileting and dressing. Of the remaining 20, 12 to 15 of those patients required total care. They were completely disabled. They were unable to care for themselves at all. They -- 6 of 49 -- 4 were unable ·to feed themselves, to remove themselves from their .beds, to dress, wash or toilet or, indeed, stand up. The work·in the nursing home was divided into three shifts which included som~ overlapping between the night shift which ended at 8:00am and the day shift which started at 6:00am. Four staff weri ~n duty on the hight shift - one nursing sister for the whole nursing home and an assistant nurse for each ward. During daytime hours, one nursing sister and two assistant nurses had the care of the patients in B Ward. The overlap in the morning enabled the night staf"f to assist in the washing and care of patients·within each ward. · There was one lifting device available in the nursing home (: of the kind depicted in ex. 38. That hoist was designed to lift disabled people out of a bed and into a wheelchair or from the wheelchair to the bed or in other situationl. Some patients were frightened of it. · The three toilets for B Ward were cubicles and, according·to Mrs Dean, not much larger than an ordinary dom~stic"toile~ cubicle unlike modern toilets for the disabled~ One cubicle was a little· larger than the other two so the latter tend~red not'to be used. Mrs Dean considered that it would be impossible to get the lifting device into the toilet cubicles and it was not possible to get a wheelchair into the smaller cubicles. The defendant attempted to show that the toilets in B Ward were large enough to take a wheelchair and with plenty of manoeuvring space by putting a number of photographs to some of the witnesses. The toilet cubicle depicted in the photographs is very large and similar to the familiar toilet cubicles for the use of disabled persons. There was a~ple room for a wheelchair ( -- 7 of 49 -- 5 to be manoeuvred into place along side the pedestal so that a relatively straightforward lift from the seat of the wheelchair onto the pedestal could be effected. The evidence of Mr~ Dean, of Mrs R Stewart, the director of nursing at the nursing home, as well as the plaintiff was that. those photographs depicted a toilet cubicle similar to those in the much newer A or C Wards. It is hard to accept that the three photographs were introduced in error. The plaintiff was cross-examined on the basis t~at they were photographs of the toilet(s) tn B Ward. The managing r director of the nursing home~ Margaret Profke and one of:her sons, also a director of the defend9nt, neither of whom gave evidence, were in the court during most, if not all, _of the trial. \~_ .. The procedure in B Ward between 6:00am and 8:00am was that the patients would be lifted from their beds! put. into wheelchairs, wheeled to the shower/bathroom area, undressed,- put onto shower chairs, showered, re-dressed, lifted from shower chairs back to wheelcha~rs, wheeled to the dining .area where they were removed from the wheelchair and placed onto the seating location for the breakfast period. If patients wished to.go to "---·· the toilet the process would include lifting them from the wheelchair, placing them on the pedestal and back onto the wheelchair. As can be readily understood the ward was extremely busy during those two hours as were each of the other wards. The Incident of 3 May 1991 On 3 May the plaintiff was on the day shift which started at 6:00am. One of the patients in :award wa_s a Mrs Chr.is.tine Englebrecht, a woman who ~as totally disabled. A significaqt -- 8 of 49 -- 6 feature about Mrs Englebrecht was that she was a very tall woman, described variously as over six fee-t or six feet in height, with big bones .. The plaintiff and Ms Jennifer Grima, the other assistant _ nurse in B Ward, undertook the toileting of Mrs Englebrecht. They weighed about 8 stone and were approx~mately five feet four inches in height. It was necessary to transfer Mrs Englebrecht from the wheelchair to the toilet pedestal. She_ was unable to give any assistance in this procedure. When the plaintiff was cross-examined she was unable to remember if. at the time when she felt pain carrying out this manoeuvre sh~ was pulling Mrs Englebrecht's underpants down or up. The procedure appeared· to be this: it was necessary to support Mrs Englebrecht's whole weight, pull her underpants down or up, and then twist her around to sit onto the pedestal or onto the wheelchair. In the course of this manoeuvre the plaintiff felt a severe pull in her backj at the mid-line and also low down. Th~ plaintiff said that if a third person were involved in the lift, the situation would have been much easier as two could have supported Mrs Englebrecht's weight whilst the third pulled down or: up her underpants. She said that the ward sister, Mrs Dean, had instructed that three people were to lift Mrs Englebrecht because of her awkward height, weight and total disability. There was no evidence concerning the whereabouts of the night duty assistant nurse for B Ward. Mrs Engelbrecht had been taken from the dining room to the toilet and it is fair to assume that if this . occurred before 8. OOam that person was feeding patients in the dining room. (/, ( ~.· -- 9 of 49 -- ,--\ 7 Ms Grima was unable, because of recent-hospitalisation, to give oral evidence. Her evidence was in the form of a statement tendered on behalf of the defendant. She said that after she and the plaintiff had put Mrs Englebrecht on the pedestal the plaintiff complained of her back. incident occurred when the This would suggest that th~ plaintiff was pulling Mrs Englebrecht's underpants down, although it does not seem to matter which it was since both involved weight bearing, twisting and bending. The plaintiff reported the incident to Sister Madden at 1 . OOp. m. when she went off duty. She th.en Q?-d four rostered days off. During that time the plaintiff said she suffered constant pain in her back. The Incident of 8 May 1991 The plaintiff was.rostered on the evening shift bn 8 May which started at 1.00p.m. As she was feeding the evening meal to a patient in B Ward who was bedridden she heard someone calling out from a toilet cubicle. She ran to-ini~stigate and found a patient, Mr Timms, who had been trying to go· to the toilet on his own, caught between the toilet and the wall. He had apparently been trying to manoeuvre himself either from the wheelchair onto the toilet or . from the toilet back onto the wheelchair and had missed his target. Mr Timms was a very big man, estimated by the plaintiff as about 23 stone and by other witnesses as about 17 stone. He was of short stature and of very limited mobility. He was capable of holding onto a bar while his trousers were being put on during dressing but incapable of getting into or out of bed by himself. He was also extremely -- 10 of 49 -- 8 difficult to understand orally. The plaintiff said that people who had been at the nursing• house ·a very long time could understand him but she was unable to do so. Mr Timms was jammed in a small toilet cubicle. He had managed to get his wheelchair in throu9h the door but that was all. He was extremely distressed and his legs were twisted beneath him. The plaintiff buzzed th~ emergency buzzer in the toilet but no one responded. Mr Timms continued to scream out. The plaintiff said that she tried to straighten his legs out from underneath him and then ran to the dining room to find help .. The other assistant nurse on duty for B Ward was feeding the other B Ward patients in the dining room which· ·was some distance from the toilet. The plaintiff found Sister Madden in the dining room and she ran back to Mr Timms with the plaintiff. They attempted to lift him but the plaintiff said that she was unable to do so because he was too heavy but Sister Madden said that she would have to try. In due course they managed to put him back in the wheelchair. As the plaintiff was lifting Mr Timms she felt a sharp pull and pain (~. in the lower part of her back. The plaintiff said the greatest difficulty ·in lifting Mr Timms was that there was no room to manoeuvre. She bent down, put her arm underneath him and held onto a leg with the other arm. She was unable to keep her back straight lifting him. Having lifted Mr Timms she then had to twist to get him back into the wheelchair. In the accident complaint form filled in by Sister Madden the following appears: "Nil immediate complaints of pain but later complained of pain." The plaintiff however said that she complained immediately to Sister Madden. The plaintiff finished feeding the patient and -- 11 of 49 -- ) 9 then showed her back to Stster Madden. The plaintiff said that Sister Madden said to her that her back was "going into spasms and was twitching". Sister Madden continues to be employed by the defendant but she was not called to give evid~nce nor was any explanation given as to why a statement from her could not have been tendered under s. 92 of the Evidence Act. I therefore infer that she would not have contradicted the plaintiff's evidence and I accept that the plaintiff complained immediately of the pain in her back. The plaintiff immediately sought an appointment with her general practitioner and consulted with him the following day. She went straight home and to bed.from work. She has not returned to her employment since that. date, Liability The particulars of negligence alleged by the plaintiff are: • Failing to take any or any adequate steps to minimise or eliminate the risk of injury to the plaintiff in the performance of her work; Failing to provide an adequate number of staff to assist the plaintiff in her lifting tasks; • Failing to instruct or adequately instruct the plaintiff in proper lifting techniques; • Failing to display any or any adequate signs in the wards of the nursing home warning of the dangers of using improper lifting techniques; • Allowing and/or permitting or requiring the plaintiff to lift patients without adequate assistance;· -- 12 of 49 -- 1 0 • Failing to provide a male nurse to assist the plaintiff in the lifting of patients in Ward B which contained many heavy and incapacitated patients; • Failing to ~rovide suitable mechanical lifting devices in that the devices which were provided were unable to be used in confined spaces such as-toilets; • Providing mechanical lifting devices with slings which were too small · to fit many of the large, heavy patients in Ward B; • Providing an inadequate number of mechanical lifting devices for Ward Bin that that which was provided was also required to be used in other wards; Failing to ensure that the nursing staff used those mechanical devices which were provided; • Requiring the nursing care of patients to be carried out -within a time:frame which did not allow sufficient time for the.use of mechanical lifting devices; Failirig to warn or adequately warn the plaintiff of the dangers associated with the performance of her lifting task. Ultimately, not all of these were pursued by the plaintiff. In the course of her evidence Mrs Dean gave her opinion about the adequacy of the staffing levels at· the nursing home. Her experience and qualifications for so. doing were not challenged. She no longer worked as a nursing sister and had no particular interest in either the plaintiff's or the defendant's cases. I found her a thoughtful and careful witness and her opinions of assistance. ·She said.that the nursing numbers at the - , (, -- 13 of 49 -- j 1 1 defendant's nursing home were inadeqriate. She felt sufficiently strongly about the consequent risk to the patients and st_aff in her care to approach the director of nursing at the nursing home, Mrs Robyn Stewart, on three occasions in the_six _weeks prior to the plaintiff's injury, after female staff· had been injured carrying out their work. She told the .director of nursing that because many of the patients in B Ward were particularly heavy (and totally disabled) it was difficult to maintain adequate care of the patients and to ensure that the staff were not hurting themselves in caring for the patients. Male nursing assistants were employed at the nursing home and Mrs Dean requested that some of them be assigned to B Ward. Nothing was done. Mrs Stewart gave evidence and did not deny that Mrs Dean had made these requests of her. Mrs Stewart had had 20 years nursing experience and had been at the defendant's nursing home since 1990. She was not asked her opinion about the staff levels in B Ward. She conceded that Mrs Englebrecht was at least six feet tall and was 11 an extremely large German lady . . . incapable of looking after herself 11 • Mrs Stewart agreed that there was only one toilet in B Ward which a wheelchair could enter. She demonstrated (with the bailiff) how she would expect the manoeuvre to toilet Mrs Englebrecht would occur involving two people. Her description was consistent with the evidence of the plaintiff as to how the event actually occurred on 3 May, namely that whilst manoeuvring around the wheelchair and· supporting the patient's weight on one side under her armpit, she bent and twisted to pull down the pants and then lowered the patient onto the pedestal. The same manoeuvre occurred in reverse~ -- 14 of 49 -- 12 Mrs. Dean said that the benefit of having three people involved in the toileting ofsMrs Englebrecht ~as that whilst two people attended to the lift, the third could pull down/up the pants and arrange her legs. The problem with her legs was that she was significantly taller by about eight inches than the two assistant nurses, was a large woman and a "dead" weight. Ms-Grima did not comment upon the identity of the patient involved in the lift with the plaintiff on 3 May and simply said that it was a standard two person lift. She had been employed by._the defendant for some three and a half years when she gave ( her statement, and co.ntinued in that employment. On this point, apart from corroborating the plaintiff's evidence that she injured her back in that lift, her evidence is of little assistance. The oefence maintained that adequate training and re-enforcing instruction was given to the nursing staff con9erning the proper techniques t(:) use in lifting and weight bearing of patients. The plaintiff agreed that she had been shown a video at work about a month before her first injury which contained a segment on lifting boxes. A video was shown to her during her evidence. She recognised the box lifting part of that video. It took about 80 seconds in a video devoted generally to industrial safety. .That part of the video did not go into evidence, largely an oversight one would have thought. Mrs Stewart agreed that at the time the nursing home did not have any other video demonstrating lifting techniques in a hospital situation. In order to satisfy the government training guarantee levy requirements the defendant arranged lectures for staff and C -- 15 of 49 -- '-.. __ _ 1 3 maintained records of attendances. The entry for first (or 9) April 1991 shows that the ·plaintiff attended a lecture on back care and a video on manual handling. The only video available was the one to which I have referred. Although the time attended was inserted in the book as "30 minutes'' that was·not inserted by the plaintiff and both she and Mrs Dean said that it wa·s often necessary to miss some of the lecture or video_ to attend to residents. The plaintiff also recalled attending a lecture by the sales man of the lifting machine. The plaintiff, in fact, knew how to lift correctly, but·i~ the cases of Mrs Englebrecht and Mr Timms the size of the patients together with the size of the toilet cubicles made it difficult if not impossible to put it into effect. Mrs Stewart said that proper procedures for lifting were constantly re-enforced by senior staff on the jo~ and by the physiotherapist whenever something untoward was seen. Ms Grima described the system of training at the nursing home a~ follows: "At the Noosa Nursing Home it is their policy that we lift in pairs. You are always told and it is stressed upon us to lift in pairs and in a proper manner. At the Noosa Nursing Home we have what is known as an "in service". In "in service" we have lessons and demonstrations on lifting, safety, hygiene and nursing education. This occurs approximately once a week. We are constantly told this at the "in service" to save our back. The Matron, physiotherapist or registered nurse would come up and instruct you and tell you if you were lifting incorrectly. This is an ongoing practice. There is a lifting hoist at work designed to lift residents who are either obese or incapable of walking or weight bearing. It is also used on residents who have had a CVA (stroke/heart.attack) and generally any resident who is immobile. · -- 16 of 49 -- 14 The hoist is quite easy to operate and is on wheels. The machine had to be.used on certain residents and you would be stupid not to use it. There were two nurses and a registered· nurse to a ward. We always had two nurses on a patient if the patient was unable to mobilise or weight bear. If you needed assistance in lifting it was matter of waitin.g for your mate to come back because you work in a team and you wouldn't attempt a two person lift on your own. LIFTING AND WEIGHT BEARING Lifting a person who is unable to weight bear would always be a two person or a hoist lift. Assist~ng a person who can weight bear at times can involve one nurse. This depends on the weight of the resident and their condition. The only ward where there is only one nurse and a registered nurse :i,s ''A" ward where residents are mobile and can w·eight bear. Dver~ll at the Noosa Nursing Home safety to our . residents and ourselves comes first. Working in nursing involves heavy lifting and is very physical. 11 Mrs Dean gave a rather different picture. It was pressed upon C' her in cross-examination that nursing involves physical exertion (~ with the implication that injury was accordingly unavoidable even if every precaution were taken. Whilst she agreed that nursing involves physical exertion, on several occasions she said that in her experience in institutions where nursing is carried on the care of the staff was highly valued and adequate staffing levels and equipment could avoid injury. She would not agree with Mr Grant-Taylor that there was an inflexible rule at the nursing home that all patient lifts were to be conducted by two persons and she said that staff on many occasions had to lift alone. She agreed that fully disabled patients required an average of 40 (/ -- 17 of 49 -- \ 15 lifts or turns a day and that use of the lifting device on every occasion was not practicable. In any event_ there was only~one lifting device for the whole nursing home. Mrs Dean said that some 12 to 15 patients in B Ward required "hands on three members of staff lifting and attending". There were occasions when she was called away to other parts of the establishment to help with residents leaving two assistant nurses for the whole ward. The obligation of an employer to provide a safe place of work and a safe system of work is well known and calls for no particular comment or consideration here. _Mr Grant-Taylor referred t.o the unreported decision of Derrington J. in Deligios v. O.N.H. Pty Ltd No. 2932 of 1987, also a nurse lifting case, dealing with the reasonableness of protective measures. His Honour referred to the classic statement of Mason J. (as he then was) in Wvong Shire Council v. Shirt (1979) 146 C.L.R. 40 at p. 47. The protective measures which the plaintiff says should have been taken, inter alia, were the provision of more staff or stronger, male staff, and toilet facilities of ad~quate size to carry out the safe lifting and transfers of patients. The first required the expenditure of money on extra staff or the re-allocation of staff, the second some building renovations. Neither would unduly have impeded the accomplishment of the defendant's operations at the nursing home and, considering the risk of injury to both staff and patients, were reasonable precautions to have taken. I have concluded that the defendant failed to provide adequate staffing levels to B Ward so as to enable the nursing staff to care for the patients safely. This was particularly -- 18 of 49 -- 1 6 critical during the busy period in the morning from approximately 6: OOam until 8: OOam when the.·. patients had to be showered, toileted, breakfasted and returned to their rooms. The defendant also failed to provide adequate facilities in that the patients' toilets in B Ward were too small to enable a safe transfer from wheelchair or lifting device to pedestal. Although the nursing home provided some instruction to staff in respect of lifting techniques. this was contradicted by the failure to provide sufficient staffing and adequate facilities. It was negligent of the defendant through Sister Madden to require the plaintiff to lift Mr Timms when to her knowledge the plaintiff had recently sustained a back injur_y and after the c~ plaintiff said that she coBld not do it. Quantum I have concluded that the defendant was negligent in respect 0£ each incident. There is accordingly no need to address the question of "untangling" the consequences of the compensible event from the non-compensible one, Purkess v Critenden (1965) 114 C.L.R. 164 at p. 168 which was the subject of careful submissions by Mr Grant-Taylor. The plaintiff said that the pain in her back and neck has stayed at much the same level since May 1991 but that it becomes worse when she does things. She says that the pain is such that although she has attempted employment on a number of occasions after the injury she is unable to be gainfully employed in any commercially acceptable sense. The defendant's case is that the plaintiff has been dishonest in her dealings with her family, her friends, the -- 19 of 49 -- 1 7 doctors wLth whom she has consulted and in her conduct of this action by gross exaggeration of her symptoms. Thus even if liability is made out she ought to obtain only very modest damages. The defence relies upon a number of matters in support of this submission: A video showing her doing activities which she told the doctors she could not do; Express mention by the plaintiff that she had no previous back injuries when a Workers' Compensation form and a doctor's note shows that she had in 1980 and again in 1990; An assertion that she was a happy wife and mother in excellent health prior to her work related injuries when her G.P.'s notation on her patient card show that over the preceding years she attended for diagnosis and treatment of persistent oedema, an ulcer, on one occasion depression and a complaint of being struck by her husband; In her answers to interrogatories, the plaintiff-swore that she was no longer able to pursue her pre-injury activities of swimming, horse riding, bush walking, washing the floor, vacuuming, making the beds and washing the windows when in cross-examination she admitted being able to do in a limited fashion most of those things and the video showed her bending and stretching to clean windows; The plaintiff denied that she had ever had a Workers' Compensation claim in her written application for employment with the defendant when this was false; In her answers to interrogatories the plaintiff swore that she had had no employment for wages of any kind after her -- 20 of 49 -- 18 injury which she continued to assert in the first three of her statements.of loss and damage, when, as she admitted, she had received wages in respect of a range of small jobs undertaken by her after the incident; In her applicat~on for a speedy trial she asserted that she was unable to do anything all day and took quantities of medication when the video . evidence and her own evidence indicated that not to be the case. The plaintiff appeared at trial nicely dressed and reasonably well groomed. This was in contrast to the regular comment found in the medical reports of her untidy ap~earance and manner. At the outset it must be noted that the plaintiff was barely literate. Dr Mulholland tested her reading and considered it at about Grade II level. He thought her writing skills were above that and that she could read and write enough to get by especially if she had some assistance in reading. Other medical specialists with whom the plaintiff ~onsulted did not test her literacy and some seemed quite unaware of her limitations. I think it. can be concluded that she was fairly effective in (_ keeping her reading and writing deficits hidden. It became clear ( in her cross-examination that she simply was unable to read in any comprehending manner without considerable assistance, that is, the bailiff pointed to each word as it was read out to her by Mr Grant-Taylor. She expressed considerable embarrassment with this state of affairs. The plaintiff had received a very limited education - certainly not beyond early basic primary level al though she attended to first year high school. I concluded that she had difficulty understanding many of the -- 21 of 49 -- 19 questions that were asked of her, not because she was being deliberately evasive but becaus~ ~he had trouble grasping the concepts. At one stage she said of counsel's questions "You speak in riddles". This is not to sbggest that the questions were unduly complex but that time sequences and hypothetical situations confused her. Dr Mulholland assessed the plaintiff as having dull/normal or borderline intelligence. I thought on occasions in her evidence the plaintiff took refuge in lapse of r~ memory when she did not wish to answer some questions. I have also come to the conclusion that the plaintiff has tende~ to exaggerate the hopelessness of her life in her consultations with the medical profession. Why she did so was not· able to be explained satisfactorily. Her family and friends saw her on a daily or fairly regular basis over 3 years _and certainly regarded her as suffering chronic pain, but also saw her doing some activities and did not think she was "making up" her pain. The psychiatrists agreed that she was a psychologically unsophisticated person, and that she was not malingering. Perhaps it was the only way in which she could gain attention and ~/ recognition for her difficulties with the medical profession. She was asked in cross-examination what she hoped to achieve from the litigation. Her answer, expressed somewhat forcefully ( and believably) in contrast to her otherwise rather flat responses, is instructive: "One, that the home gets fixed, so there's not so many accidents. Right?-- Two, I feel I've been hurt, my life has been ruined. Yeah?-- Three, my family has suffered and hurt. Four, I have - feel I'm a mental case because of it. -- 22 of 49 -- 20 Five, I feel that I have been depraved [sic] to get a job where I could better myself and be somebody. But you don't care about the money, do you, that you might get from the Court case, do you?-- Naturally money helps, but it's not the issue of the---- Because you told Dr Mulholland, didn't you, back when you wen.t to see him on 6 · June 1994 - you told him, "I don't care if I don't get a cent."; isn't that right?- Yes~ I did. I did. Did you mean what you told Dr Mulholland then?-- Yes. Well~ why are you continuing on with the Court case then?-- Because I reckon they should pay. They should pay?-- They should pay. They should pay you?-- No, not necessarily me, just pay so that nobody else gets hurt, nobody else suffers. I can tell you hundreds - not hundreds, heaps of other girls that have suffered because of that home, and if somebody doesn't do something about it who willj and there has always got to be one to start off. Now, I'm sorry if it had to be me, but I feel that way. So, you don't want. the money - you don't want any money out of the case, you just want revenge, is that right, upon the nursing ho~e? Is that what why are you bringing the case?-- No. I want money to help, as well, because I can't support my family like I used to and everything.? (Transcript 86-7) The plaintiff said that she had severe pain in her mid-back and lower back after the first incident on 3rd May and that the pain in her lower back was worse going down into her buttocks. She did not feel pain in her neck immediately but Dr Peter Winstanley, orthopaedic surgeon, noted in his letter of 12 June 1991 to the plaintiff's general practitioner Dr D Kirkman that she presented with a history of cervical and lumbar pain. Neck pain is not noted in the early G.P. consultations. The defendant sought to make something of the fact that she did not immediately complain of neck· pain but clearly was doing so very shortly afterwards. No cause other than as a consequence of the lifting . , C -- 23 of 49 -- "----- 21 strain was revealed by the evidence. Cervical pain was not thought by the doctors to be surprising. She complained of tenderness in her mid-thoracic area and some sensory loss in her left arm. She had been treated with traction, which aggravated her pain, and physiotherapy. Dr Winstanley advised that she discontinue the traction and undergo physiotherapy and heat treatment. He described the injury as a soft tissue- sprain injury with a _reasonably satisfactory prognosis. By the time he reported to the Workers' Compensation Board on 31 July 1991 Dr Winstanley noted that the plaintiff had satisfactory improvement to her lumbar spine. When he reported further in September the plaintiff's symptoms of pain had increased.: She particularly complained of pain radiating to her left hip from the mid-lumbar area on a continuing basis. She also complained of pain in her cervical spine extending into her shoulders, of- headaches and hand discomfort including tingling and weakness. Dr Winstanley had difficulty in explaining the symptoms within her'upper limbs associated with her sprain injury. Somewhat revealingly he concluded that he did not think that she should be allowed to continue for long periods on compensation otherwise she would almost certainly have an extended claim. At the same time the plaintiff was being treated by Dr Peter Nash, rheumatologist. Her major complaint to him was of severe pain in the thoracic region. Initially he considered that her symptoms indicated a thoracic disc lesion but a subsequent MRI scan suggested that that was not the case. He advised conservative treatment of heat, physiotherapy, simple analgesia and anti-inflammatory drugs. He was of the opinion that she -- 24 of 49 -- 22 should attempt rehabilitation for more suitable work than that involving heavy lifting. As the months passed the plaintiff presented to her treating doctors with more generalised pain complaining of her left hip · which she said "gave way", gross sleep disturbances and a significant depressive element. By September 1991 Dr Nash considered that the plaintiff's symptoms were. mechanical and without underlying inflammatory process and had a functional element. She presented to him weeping and as being in constant pain. Dr B Hutchinson, psychiatrist had been asked to take over the management of the plaintiff by her general practitioner (' towards the end of 1991. Unfortunately prior to consultation she became aware of the contents of her GP's letter and was distressed. She did not co-operate with Dr Hutchinson and he wrote a terse report suggesting that there was nothing wrong with her at all. At that stage he _did not understand her to have sustained physical injury in her work related accident. He saw her on a second occasion but again obtained very little by way of history. He concluded that she had adopted the sick role for the purpose of some primary or secondary gain. In mid-1992 the Workers' Compensation Board persuaded the plaintiff to consult a psychiatrist. She was particularly reluctant to do this and continues in that reluctance. - She saw Dr Stephen Eckersley, who noted her resistance, and she described to him a life in which she cried "all the time", feelings of depressionj diffi8ulty in sleeping without drugs and doing little except watching television and dozing. She described drinking (_ ('-... -- 25 of 49 -- 23 large quantities of coffee,. smoking 60 cigarettes a day and drinking a bottle of wine a __ day together with extraordinary quantities of drugs (prescribed by her treating doctors) in an at tempt to numb her pain. She described a very poor family situation in which she struggled to get through necessary domestic tasks. H~ diagnosed a depressive illness reactive to anger caused by the back injury and loss of work. He thought that she was over-medicated and that her prognosis was poor. Dr Eckersley recommended that time in a good hospital with (- appropriate psychiatric and physical treatment would improve her ' functioning and assist her to withdraw from her caffeine, nicotine and other drug dependence. However the plaintiff would not countenance even discussing this proposal. The plaintiff also saw Dr P Mulholland, psychiatrist, in mid-1992 for medico-legal purposes. He had the benefit of the attendance of Mrs Jones, her mother, who was able to assist in filling in basic details of the plaintiff's history which was an advantage not enjoyed by Dr Eckersley, Dr B Hutchinson, or Dr G Rice, psychiatrist who provided a medico-legal report for the defendant's solicitors. Dr Mulholland saw the plaintiff twice ~ in 1992 and once in mid-1994. By the last consultation he noted that she reported being "up and down" and having some days in which she was "not too bad" and estimating those at about 2-3 per week. On bad days she reported as having extreme difficulty in getting through the day and expressed some suicidal thoughts. She described her marriage as "rocky". Her symptoms were agitation, tension, depression, being argumentative, weepy, experiencing insomnia, feeling useless and a failure, inadequate -- 26 of 49 -- 24 and inferior, and chronicly angry and frustrated about being in pain all the time. Dr Mulholland cohcluded that the plaintiff had psychogenic pain or a psychosomatic pain disorder complicating her physical experience which he described as a somatoform disorder. Dr G Rice, anaesthetist and psychiatrist, had the benefit of perusing some 17 medical reports and had one interview with the plaintiff. He found the plaintiff reluctant to co-operate and resistant to any psychiatric treatment although expressing at the same time a desire to be "better". She described to him an_ unhappy, aimless life filled with pain and drug dependence. He concluded that her pain behaviour was exaggerated. He concluded that her prognosis was directly related to the settlement of her litigation and that she was unlikely to make any effort to rehabilitate in a meaningful manner until it was completed. He thought that if she were motivated to get well then she could benefit from a chronic pain management program. In his opinion she displayed the exaggerated pain behaviour (__,,:: _cons~stently with her personality with added problems of drug abuse and loss of fitness. He was of the view that she did not have a psychiatric disorder but an anxiety reaction consistent with her predicament and her personality. Dr Mulholland disagreed with this diagnosis and considered that the plaintiff did have a psychiatric disorder described in the American diagnostic; manual (DSM IV) as an adjustment disorder. It was a reaction of anxiety and depression consistent with her having failed to reach a satisfactory adjustment to her predicament given her basic personality and her intelligence. (/ -- 27 of 49 -- 25 The plaintiff had presented to Dr Mulholland as a person who had a relatively contented healthy life prior to the subject incidents. In cross-examination he was- taken through her previous medical history as noted on her GP patient card. That revealed that the plaintiff had a previous history of an ulcer and chronic oedema. This caused him surprise. He was less troubled by the reported single episode of depression, of being struck by her husband on the face and her back injury in December 1990. He suggested that non-specialists, including general (-\ practitioners, regularly describe an unhappy mood incorrectly as depression. The drug prescribed was a mild anti-depressant and ( \._ not repeated. It was possible to diicern con~ern · by Dr Mulholland, as had previous doctors, at the amount of medication prescribed for her. After vigorous cross-examination he rej'ected the proposition that her lack of health both physical and mental prior to May 1991 was such that even without the episodes at work she would have been, by 1994, unable to work. He concluded that ( there was nothing in her history to suggest that her problems,_,, were of such severity as to stop her from working without some significant triggering cause. I preferred the opinion of Dr Mulholland. I thought that Dr Hutchinson had formed an ~dverse view of the plaihtiff on minimal information and that Dr Rice had given insufficient consideration to the plaintiff's pre-accident capacity to cope. There was the further complication that the plaintiff was resentful of being sent to see a psychiatrist and was not co-operative. This did not appear to be such a problem for -- 28 of 49 -- 26 Dr Mulholland. However, his opinion came to be subject to some reservations after viewing .the· video which I shall mention. I think that it.can fairly be said in summary that prior to trial the orthopaedic opinion was that the plaintiff had sustained soft tissue injuries to her spine as a consequence of the two incidents at work in May 1991 the symptoms of which manifested themselves in pain immediately_ in the thoracic and lumbar areas and, after a few· days, in the cervical spine. The symptoms of pain and. stiffness which the plaintiff described were expected to settle within some months. However her symptoms worsened and also became somewhat bizarre from a physiological perspective. The psychiatric opinion was divided in that Dr Rice considered that the plaintiff had chosen to exaggerate her pain symptoms and did not have a psychiatric condition~ whilst Dr Mulholland thought that she was suffering from a recognised psychiatric disorder, an adjustment disorder, in which she reacted with anxiety and depression to her predi~ament. The Video T~e plaintiff agreed in cross-examination that it had been mentioned to her prior to trial that she may have been the subject of a video taken on behalf of the defendant. In_ her answers to interrogatories she said that there were a number of activities which she had been able to do before the incidents at work and which she could not now pursue· because of the consequences of her injuries. She swore that these activities were soccer, swimming, horse riding, squash, bush walking, playing with her children, washing the floor, _vacuuming, hanging clothes on the line, making the beds and washing the windows. C C -- 29 of 49 -- ('- \____) 27 She added that 11 although since the accident giving rise to my claim I have occasionally been capable of hanging clothes on the line''. She said that she did all of these things generally once a week except the vacuuming and making the beds which she did every day. In cross~examination the plaintiff said that sh~ might have had a little 11 kick around at soccer 11 with her children after sustaining her injuries, that she had been swimming but not in big surf, that she had ridden a horse on a couple of occasions, that· she had been for short walks in the Noosa National Park, and that she had tried to play golf on three occasions. She agreed that she washed her floors once a week but said that she had done so daily previously and that she was able to vacuum but she managed only one room at· a time. She also agreed that she made the beds regularly and washed at least the lounge room windows about once per week and did gardening. A video was taken of the plaintiff by Mr Gill on be·half of the defendant over a period of some two years. It was about 2 hours in duration. In about 1992 the plaintiff and her family moved into a new home at Cooroy without a garden having been developed. The video shows the plaintiff .walking around the block with her husband and two friends. After they leave the plaintiff is seen wandering around for about an hour with her husband in a desultory fashion - a few moments bending to weed; a few spades of soil put in the wheel barrow which she wheeled to the garden; dragging a shrub in a pot; helping to plant the shrub; and pushing the soil in around the shrub with her feet. The plaintiff is seen doing these things at a slow to steady pace but not otherwise demonstrating any difficulties. On another -- 30 of 49 -- 28 occasion the plaintiff is seen cleaning the inside of her lounge window involving bending and stretching for a minute or so. On the same day she.is photographed during a trip into the township of Cooroy going in and out of various shops. She is shown to be moving steadily and without.any outward sign of limitation on her movement. She appears to get in and out of her car smoothly. After she returns home she is seen bringing in a load of dry washing and pegging out some wet washing. She is steady doing this work but certainly not quick. The most controv.ersial part of the video shows a person shovelli:ng from the back of a trailer. It is taken from a considerable distance away (Mr Gill estimated about 150 metres) and it is not possible to identify the plaintiff as the person who is doing the shovelling. She does not agree that she is depicted and neither did her mother or her friends who were witnesses. Her husband was not asked to identify her. One of the witnesses, Karen Vujcich, said that it was possible that the per.son • in the back of the trailer was herself. Her def acto husband Mr Bruce Perry regularly assisted the plaintiff and her husband in landscaping work on.their new property._ Ms Vujcich .assisted him,_ every day that he worked at the property. The plaintiff said that on an occasion she had stood in the back of a trailer and assisted getting some soil from it. Mr Gill said that he was confident that the person shown doing the shovelling on the video was one and the same as the plaintiff. However he had taken part of the video showing a woman backing the plaintiff's motor vehicle down the driveway with the door open twisted around. It was clearly included in the video because it CJ C -- 31 of 49 -- 29 was thought to be the plaintiff but the plaintiff said that it was her daughter. It was not suggested that this was incorrect. I do not find that the plaintiff'~ witnesses were prevaricating as was suggested by Mr Grant-Taylor. The figure shovelling was distant and fuzzy and for the first part one witness thought it was a male. The male seen was recognised as Mr Perry, Ms Vujcich's de facto husband. I thought that the woman who .was shown shovelling the soil from the back of the trailer was (. physically unlike the plaintiff in that she .was a much more sinewy person. The plaintiff had put on a considerable amount of weight from shortly after the time when she sustained her injury and the woman depicted doing the shovelling was certainly an athletic fig0re and more so than other pictures of the woman who was acknowledged to be the plaintiff in the video at much the same time. Accordingly I do not regard Mr Gill'~ evidence as compelling. I am not persuaded that the woman shovelling was the plaintiff. There is a segment in the video showing very distant and shadowy figures painting on t-shirts in a shed. They ar~ seen (___ moving backwards and forwardwards hanging up garments moving slowly. The plaintiff was not prepared to accept that that was a depiction of herself but agreed that she did paint t-shirts and was assisted by her £amily and friends. She had indicated ih her statement of loss and damage dated 3 November 1994 that she had attempted to screen print t-shirts in about 1992 and her statement as to how she carried out the work did not appear to me to differ from that which was depicted on the video. She had -- 32 of 49 -- 30 told her GP in 1992 that she was screenprinting from home and had hurt her spine. The video was shown to a number of the ~edical pra6titioners who gave evidence. Dr Winstanley, an orthopaedic surgeon, was not disposed to change his opinion about the plaintiff's capacity to work at heavier or lifting type j6bs or indeed twisting and bending jobs as a consequence of seeing the video on the basis that the person doing the shovelling out of the back of the trailer was not the plaintiff. If it were then he would have reassessed her loss of function at 10% rather than the 20% which he assessed in his report. It was his view that a person could still be suffering spinal pain and yet walk in the way in which () the ~laintiff was shown on the video and do the kind of things for the period shown on the video. On the other hand Dr Nash, a specialist rheumatologist, was surprised at some of the activities which the plaintiff was able to perform on the video. He-thought she had a remarkable degree of freedom about some of those activities, in particular twisting and prolonged periods of bending over. Dr Nash·said that he would expect patients with the degree of disability-that the plaintiff had described to him (-J to do· the movement of washing the inside of the windows on her knees with her back straight rather than the twisting which is shown on the videb. He sa'id that even allowing for a video choosing the pieces that most fit the case (for the defendant), that it covers a number of years and that the plaintiff is likely to have fluctu~ting symptoms, nonetheless he was surprised at the freedom of her activities shown in the video. He agreed that a humbe'r of people who present with muscular ligamentous strain -- 33 of 49 -- 31 symptoms in the back return to the work force within a period of 3-6 months depending on the heaviness of their job but said that there were other people who continued to complain of pain well after that period. Dr Mulholland thought that the plaintiff was doing-more in terms of hanging out the washing than he had understood her to be able to do and he had also understood that she could do no gardening at all because of the pain. Dr Mulholland had been led to believe by the plaintiff that she was a healthy young woman in a happy marital relationship prior to her injuries in May~ The combination of what he saw on the video and learning that she (-~ had a previous episode of depression, was possibly struck by her ,, husband and had back injuries in - 1980 and 1990, as well as persistent oedema and an ulcer caused him to revise his focus on her work related injury as the major cause of her present condition. He said that the chronic medical problems prior to injury would of themselves have been 11 worrying, concerning and distressing 11 • Notwithstanding those matters, as I have mentioned, Dr Mulholland concluded that nothing had come to light in her extended history which caused him to conclude that even had she not been injured at work in May 1991 she would have had psychological problems which would have_ troubled her to _ the extent that she would have been unable to continue working .. The defence was critical of the plaintiff because she_had not told the medical practitioners that she had attempted to carry out some paid work between May 1991 when she was injured and the date of trial. It was said to have been belatedly mentioned in her final statement of loss and damage .. There is -- 34 of 49 -- 32 very little i~ this. In essence friends of the plaintiff had come. to her with proposals more in the nature of getting her out of the house and giving her an interest where she could earn a little money. She was unable to persevere with any of these projects. One involved some house cleaning for a very short period which she discontinued after earning a few dollars. The other involved painting on t-shirts which I have mentioned of whtch she did some herself and the rest by her family. She told her GP about this in 1992. The milk run which she and her h_usband purchased was unable to succeed both because the c-\ plaintiff said that she. found it too difficult and because she was unable, because of her limited education, to do the books. It did not result in any significant income. Mrs Cindy Fitton a friend of the plaintiff for over 10 years said that the plaintiff was a .hard worker when she knew her as a bean picker and that she had a happy personality. She says that since the incidents of 1991 the plaintiff has put on weight and her personality has changed in that she sits around in an unhappy mood crying quite a lot. Mrs Fitton assisted the plaintiff with the children and doing housework whenever she . :called. She said that when she was . there quite often the plaintiff would not even bother to get out of bed. She said that she has obse~ved her always "popping pills". Mrs Fitton said that prior to May 1991 the plaintiff used to be able to handle her own children and her friends' children well and that she and her husband appeared to get on when she and her husband went out with them. She said that pre-injury the plaintiff had to have • her house spotless before she would go any where and was always r -- 35 of 49 -- (' ( \ '· 33 washing floors. She said that the plaintiff now continually complained of pain and that the house ·aid not look as formerly. She was asked in cross-examination that knowing what she knew of the plaintiff since the accident would she be surprised to see her washing windows. The answer was "well knowing Shiralee she would probably have a go". she did not· think that the plaintiff would be able to shovel. Another of the plaintiff's friends, Mrs Mandy Webbe had known her for about 15 years. She said that they werit out socially quite often and she was a very easy going person prior to May 1991. ·she said that the marriage had its ups -and downs "like everybody does 11 ~ She said that the plaintiff kept her house neat and tidy and controlled her children. Since then she has assisted her by hanging her clothes out, doing some vacuuming and dish washing and general household tidying up. Sometimes she would spend a couple of hours with her in the supermarket. After Mrs Webbe moved away she saw her much less frequently although she still assists when she comes to visit her. She said in cross-examination that she had seen the plaintiff attempting to , do gardening but not shovelling and would be surprised to see her ~-- hanging out a whole load of washing. She said that there was some domestic violence· observed by her in the marriage before May 1991. Mrs Webbe thought that it was part of the lot of a-long relationship from her own experiences. She said that Mr Adsett had not struck the plaintiff but he had slapped her some 10 years previously and she added that she had also seen the plaintiff hit her husband. It seems fairly clear from Mrs Webbe's evidence that her standards of happy family life were not high because -- 36 of 49 -- 34 when she was asked whether the plaintiff's ups and downs were as bad as her' s she said "no" because she had not been hospitalised. Mr Adsett denied striking his wife and th~ plaintiff denied being struck by· him. That is probably unirue, but does not put in doubt.the whole of their evidence. As Dr Mulholland said there are reasons of social embarrassment which cause spouses to deny such events in their marriage. general damages. It will go to·the quantum of The plaintiff's mother Mrs Mavis Jones said that her daughter was a fanatical housekeeper prior to the accident but that she was now unable to do the sort of work that she had CJ previously done. She noted that her daughter might do- a little (-~: gardening w~en sh~ came to visit. It was submitted that Mrs Jones was not· to be believed because she was unable to recall her daughter injuring her~elf when she assisted her mother cleaning at the Nambour High School in 1980. Mrs Jones had 10 children. I~ was not a significant occasion. There is no rea~on why she should remember. Throughout her.adult life the plaintiff had engaged in work ·C outside her home which was physically d~manding. The evidence l/ of her friends and her mother was that she was a meticulous housekeeper. The plaintiff herself in evidence said that: "I used to shovel all day. I used to have done cleaning all day before the accident. I have - my house u~ed to be spotless.· I used to wash the walls once a w~ek, once a week with Snow White, so it was spotless. My house used to be like a hospital. I used to do a lot of things all day." When the plaintiff complained to the doctors of being unable to .do anything all day it should be seen against the background of a physically hard working and enduring woman. In that -- 37 of 49 -- 35 circumstance her attempts to do the kinds of things which she was well able to do prior to the accident are not surprising. The activities by the plaintiff shown on the video (not the trailer shovelling) were not surprising to people who saw her regularly. It was something of a revelation to the medical profession. I have concluded that there was a difference between what the plaintiff conveyed to them that she was able to do and what she actually was able to achieve each day. That is not to say however that the plaintiff was malingering. None of the medical (-, evidence suggests that. I should address other matters raised by the evidence which I have not already considered which the defence submitted suggested that the plaintiff ought not be believed. The plaintiff had no recollection, and neither did her mother who apparently was there, of an injury when she was cleaning at the Nambour High School in October 1980. On the Workers' Compensation Form 4 the plaintiff is said to have slipped and fallen on the concrete stairs. The Nambour General Hospital records an injury to her back with pain over the ribs near the spine. Four days were written as being lost. I would draw no adverse inferences from a failure to recall this incident. The plaintiff injured her back in December 1990. She cannot recall the circumstances. She had one consultation with her GP who noted that she experienced "a slight twinge" when lifting. There is no other mention of the back al though there is another consultation noted in February 1991 and the doctor's note on 9 May 1991 is to the effect that 11 [itl had settled fully after December." Dr Hutchinson said that the plaintiff had mentioned -- 38 of 49 -- 36 the December 1990 lifting "twinge" to him. It was clearly an unimportant event to the_ plaintiff because there was full recovery with minimal medical intervention. The defence~also pointed to the plaintiff's denial that she had previously made a Workers' Compensation Claim in her -application form for employment with the defendant. It seems that the plaintiff had completely forgotten the 1980 incident at the school .. Even if she did recall it it is not a falsehood of significance. People looking for work will be realistic about t~eir prospects.if a back injury is mentioned. The plaintiff's (~ description of the wretchedness of her life does appear to have ·been overstated in her affidavit filed in support of the speedy trial. Even though the defence was concerned to demonstrate that the plaint~ff did not have the completely happy trouble free and sickness free life before the incidents in May 1991 which she sought to convey nonetheless, as Dr Mulholland observed, she was C not brought down by any of those occurrences. The 1980 injury (_: fitted into the same framework as the present injuries. It is not clear if the back injury. sustained in 1990 was at work. ( Nonetheless the psychiatric opinion suggests that were. she to ·,/ have sustained a similarly limiting injury as she did in May in a non-compensible situation she may well have reacted in the same way. I do not disregard the ~iews of Drs Rice and Hutchinson that in work related and motor vehicle third party related incidents there is a tendency to prolong the pain, albeit unconsciously, because of the attention receiving and compensation focussing_aspects of such incidents. -- 39 of 49 -- "--- / 37 Although the plaintiff has exaggerated her symptoms to the - specialist medical profession her family and friends have seen a consistent picture over a number of years. I propose to take into account the fact that the plaintiff appears to be able to do more than she said that she could. Dr Eckersley and Dr Rice considered that the plaintiff would have been and would still be assisted in her rehabilitation if she undertcfok psychiatric treatment or a pain management clinic treatment. She has in my opinion irrationally refused to cooperate in any such treatment. Every attempt should be made to persuade the plaintiff that i~ is in h~r and her family's best - interests that she seek help for her various drug addictions and pain management. Nothing was advanced by the plaintiff as to why it would be unreasonable to require her to undertake treatment of the kind proposed. Dr Hutchinson thought that the plaintiff had a psychological need to cling to the sick roli bu~ fro~ a consideration of the evidence and the opini6ri of ·the psychiatrists it is probably more complex than that. Had the plaintiff participated in that treatment when suggested by her treating psychiatrist in 1991 before her pain dominated behaviour had become chronic there was some prospect of rehabilitation al though she would not have been able to return to heavy labouring work such as nursing in the opinion of Dr Nash and· Dr Winstanley whose evidence I accept on this matter. It must now be assumed that the prospect of her complete rehabilitation is quite poor. There was no attempt made in the evidence to quantify the cost of any of those rehabilitative treatments. -- 40 of 49 -- 38 I will ~pproac~ the assessment of th~ plaintiff's damages on the basii that - the plaintiff experienced quite severe muscular- ligamentous strains in her spine on 3 May and 8 May which were productive of severe disabling pain for three to six months. thereafter psychological or psychiatric symptoms intruded to prevent recovery associated with her loss of job, inability to manage her pain and an excessive consumption and dependence upon drugs. that the psychiatric symptoms were "triggered" by the circumstances · attributable to the work related incidents. that'had those incidents not occurred there was some ~rospect that some other non-compensible injury might have brought the plaintiff to a similar condition; that her· refusal to psychological treatment irrational. undergo psychiatric or for pain management was that had she undertaken such treatment there 0as some prospect that she may have been rehabilitated to cope more effectively with her life and to do light work. that there are now poor prospects of her undertaking and benefiting from such treatment. that the plaintiff is able with some pain/discomfort to carry out many· of the tasks of daily living albeit not to the standard she.imposed upon herself. -- 41 of 49 -- ,'------""/ that ·the 39 plaintiff is now unlikely to be remuneratively employed in any commercial sense except on a sporadic basis. that had the plaintiff undertaken treatment successfully she would never the less have required some domestic assistance. Pain and Suffering and Loss of the Amenities of Life Before sustaining her work related injuries the plaintiff did not enjoy good health. She suffered from chronic oedema and an ulcer which flared up from time to time. The evidence of her friends and mother, whose accounts of the _plaintiff's external lifestyle I accept, suggests that even so the plaintiff had a busy outgoing life involving her children's activities, social sport and other social interactions. Her marriage had its stresses no doubt but they were being managed. Thachange to the plaintiff's lifestyle after the injuries in May 1991 was significant. She was unable to control her family and her social environment. She suffered severe pain initially which was directly attributable to the sprain in her back and thereafter as a consequence of psychiatric and psychological factors triggered by those sprains. She has been able to do some activities but in a much more limited fashion. Had she received treatment successfully it is likely that she would still .have been precluded from the vigorous recreational activities that she enjoyed. Counsel for the plaintiff has submitted a range of $50 000/$60 000 for general damages and counsel for the defendant $12 000. Taking into account the factors set out above I have -- 42 of 49 -- 40 concluded that an appropriate amount for pain and suffering and loss-of the amenities of life for the past and into the future is $35 ooo:of which $25 000 i~ for lo~s in the past. Past Economic Loss The plaintiff claims $50 000 for past economic loss whilst the defendant proposes the period during which - she received Worker's Compensation Board payments, that is thirteen months. The plaintiff's assessment seems to be a global one. The figures from the relevant go"vernment department give the gross fortnightly wage of an·assi~tant nurse at the relevant time. Mr Grant-Taylor has proposed an average net figure of $235 per week for the thirteen mbnth~ from May 1991. I would extend the period to, say, May 1993 for complete inability to work and propose an average of $250 net per week and taking into account the factors set out ·above particularly that had the treatment been successful that there was a go6d prospect of rehabilitation and return to th~ workforde doing lighter work, perhaps as a part-time shop assistant she may have been able to earn $150 net per week. By 1994 an assistant nurse was able to earn approximately $700 gross per fortnight. I propose to estimate her loss from June 1993 to date at $125 net-per week. The calculations are: May 1991 to May 1993: $250 x 104 = $26 000 June-1993 to September 1995: $125 X 117 = $14 625 Total: $40 625 That should be discounted further to take account of a non- compensible event bringing the plaintiff to unemployment. I do not conside-r the chance that that would have occurred before judgment as very high but it was possible and must be taken into c: c/ -- 43 of 49 -- 41 account. Further even had the p-laintiff willingly undertaken the treatment proposed it may not have been completely successful. She may have had difficulty in getting and keeping suitable work. I will allow an amount of $35,000 for past economic loss. Future Economic Loss The plaintiff had worked from leaving school and was apparently in continuous employment until May 1991. The evidence showed that whilst there were some older assistant·nurses still employed there were not many. The plaintiff had a wide range of employment experience. She had no clerical skills and was unlikely to acquire them. She may have moveq to less heavy hquse cleaning in later life, at which she excelled ~n her own.home, or have worked as a shop assistant. No rates were given in evidence. I will estimate that the plaintiff could earn had she not been injured $10 per hour for 25 hours per week from age 45 to 55 years and would have worked as a nurse to age 45 years. The starting point for calculating her loss of future earning capacity is a net loss of $335 per week to age 45 years and a net loss of $250 for a further 1 0 years. Using the 5% tables gives a figure of approximately $201 698. Had the plaintiff undergone treatment and it was successful I have concluded that she could have earned not less $125 per week. Using the 5% tables to age 55 gives a figure of $83 300. Although the plaintiff's rehabilitation prospects are not good I have concluded that she will be motivated to do some light work after this litigation has settled down. I expect that it will be sporadic in nature and propose _a global figure of $8,000. Those amounts should be deducted from the earlier figure giving -- 44 of 49 -- 42 an amount of $110,398. That should be further discounted to take account that other intervening non-compensible· factors might have occurred to remove the plaintiff's income earning capacity and for the other usual negative vicissitudes of life. I should also ~ake acco~nt of the fact that notwithstanding her best efforts the treatment may have been unsuccessful. I will allow an amount of $70,000 for the plaintiff's future economic loss. Gratuitous Services The defendant has submitted that there should be no amount awarded for the assistance of family and friends largely on the C basis that Dr Winstanley said that the person he saw on the video (.~ (excluding the shovelling from the trailer sequence) was not a person who appeared to be in need of domestic assistance. I have found that the plaintiff did sustain physically injury in the two incidents at work which incapacitated her and prevented her from carrying out personal and domestic tasks. They were carried out by her family and friends. Initially her needs would have been (~ considerable and after a few months lessened. The plaintiff's husband, mother and friends described the kinds of things that (~ they did for her including cleaning, ironing and transporting children. The appropriate approach is to allow an average figure of 4 hours per week for the first year and 2 hours per week for a further year and no amounts thereafter. The Domicare rates are provided for the relative periods. I will allow $3 600 for past gratuitous care. There will be no amount allowed for the future. Special Damages Past Pharmaceuticals -- 45 of 49 -- 43 The plaintiff's pharmaceutical expenses are detailed and claimed in the sum of $1,242.97. The defendant accepts the claim for one year post accident. Whilst most of the drugs on the list are attributable to the consequences of the work related injuries, by going through Exhibit 42 (the plaintiff's GP cards) a few items can be seen to relate to other complaints. I suspect they have crept in by accident because a number of drugs listed as being prescribed at consultation for other non accident complaints are not included in the list. Taking into account the discounting factors previously mentioned and allowing for an estimate for the period to judgment I will allow $850 for past medication. Past Travelling Expenses The plaintiff has claimed $3,378.50 including approximately 108 visits to her general practitioner. The defendant has submitt~d that one half of that amount would be a reasonable award. Not all the general practitioner vigits related to plaintiff's work related injury but after pursuing Exhibit 42 I conclude that most did. I propose to deduct approximately one third for all the discounting factors and will allow $2,200 for travelling. Medicare Gap That amount is $650. Consistent with the approach above I will allow two thirds of that amount which is $433. WCB Expenses The agreed Worker's Compensation Board payments·are -- 46 of 49 -- 44 $3,795.95 medical expenses $1,092.74 miscellaneous $45.90 rehabilitation expenses $2,8.44.30. tax instalments· (Fox v.Wood) $7,778.89 That amount is allowed. The special damages amount to $11,256. Future Pharmaceutical Expenses (.-~---·· Future pharmaceutical expenses are claimed at $10 per week _ for 30 years based on the plaintiff's evidence of her rate of consumption. That amount was roughly reflected in the amounts in Exhibit 39 which included a breakdown of pharmaceutical spending by date. Again taking into account the various factors to which I have referred and that there is some prospect that the plaintiff's drug dependence will abate in some degree I will allow $4 per week for 20 years amounting to $2,666. Interest The plaintiff received a lump sum for her permanent partial disability from the Worker's Compensation Board in the sum of $32,089.50 and weekly compensation payments of $15,674.34. Of the plaintiff's general damages $25,000 is attributed to pre- trial loss. Without more this would attract interest at 2% per annum. However this loss is o£fset by the PPD payment. It was not paid at the beginning of the period of loss but any difference that that might make is absorbed by the greater amount of the PPD, Mahoney v. GEC Aust Ltd [1994] 1 Qd.R. 397. -- 47 of 49 -- 45 Accordingly no interest is awarded on the plaintiff's past general damages. The plaintiff received Social Security payments in the sum of $20,571.10 between July 1992 and August 1994 ~nd, it can be assumed, to date of judgment weekly compensation from the Board in the sum of $18,518. The past loss income has been assessed at $32,000. Accordingly there has been no financial loss which would attract interest. The principal in Mahoney v. GEC Aust Ltd, supra, would suggest that no interest is to be awarded on special damages paid by the plaintiff herself as there is a surplus from the other payments made during this period. Summary of Damages In conclusion the plaintiff's damages are as follows:- Pain and suffering past and future Past economic loss Loss of future earning capacity Gratuitous services (past) Special damages Future Pharmaceutical Expenses $35,000 $32,000 $70,000 $ 3,600 $11,256 $ 2,666 $154,522 The refund to the Worker's Compensation Board is $55,542.73. That must be deducted from the total amount of the plaintiff's damages. Orders -- 48 of 49 -- 46 There should be judgment for the plaintiff against the defendant in the sum of $98,979.27. I give liberty to apply with respect to the arithmetical calculations contained in these reasons. I will hear submissions as to costs. C, -- 49 of 49 --