Cupples v Capaz Pty Ltd [1993] QSC 296

TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the CroYm. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 73 of 1993 SANDRA MARGARET CUPPLES and CAPAZ PROPRIETARY LIMITED MACKAY •• DATE 22/09/93 ORDER ; •• :· i 1i . ~ . ~· ·~; .......7·c.·· ~ ·· , ' Plaintiff Defendant -- 1 of 26 -- 220993 M/T MKY331/93 (Demack J) HIS HONOUR: In this action judgment was handed down on 17 September 1993. The award was in the sum of $196,060.81. I was then advised that on 23 March 1993, the plaintifr offered to settle the action for the amount of $164,472.10 clear of the Workers' Compensation refund. I was advised that this was the amount for which judgment had originally been entered in the District Court action. The matter was, of course, transferred to this Court by an order made on 20 May 1993. After the reasons for judgment were handed down there were submissions made in respect of costs. Mr Stenson had intimated at the beginning of the trial that he would make submissions in relation to the defendant's costs under the indemnity certificate. It is necessary to refer to the judgment of the Court of Appeal because of the way that Court dealt with costs. I quote - "It is most unfortunate that whatever order we make for costs, both parties will occur additional costs and trouble if a new trial is granted. Nevertheless because His Honour has failed to state any reasons for his conclusion, we have no alternative but to grant one. We therefore propose to allow the appeal with costs, to set aside the judgment below and to order a new trial limited to damages. We consider that the respondent should be granted an indemnity certificate· under Section 15 of the Appeal Costs Fund Act 1973. Fairly disposing of the costs so far incurred in the action poses some difficulties. Setting aside judgment in favour of the respondent/plaintiff will take with it the order awarding to her the costs of the action. That is not a satisfactory outcome because the plaintiff succeeded completely in the action. What now remains is for damages to be reassessed which is a state of affairs that neither party has brought about. We consider that the demands of justice will best be served if the appellant/defendant is ordered to pay the respondent/plaintiff's costs of and incidental to the action incurred to and including the date on which judgment was entered, which was 13 November ~92. The costs of the new trial with respect to damages will be reserved to the Judge at that trial. Depending on the order that is then made, the indemnity certificate will operate on those costs to the extent specified in 10 20 30 40 Section 16 of the Act. This accords substantially so with a submission made by the appellant/defendant on this aspect of the matter. The formal order of the Court recorded on the caption sheet is; "Appeal allowed with costs. Judgment for plaintiff set aside. Order that there be new trial li~ted to so 2 ORDER ' -- 2 of 26 -- 220993 M/T MKY331/93 (DemacK J) damages. Further order that the costs of the new trial with respect to damages be reserved to Judge at that trial. Further order that the defendan~pay the plaintiff's costs of, and incidental to, the action incurred to and including 13 November 1992. Respondent to have indemnity certificate under Appeal Costs Fund Act 1973." It appears when the reasons are read, that in fact only the part of the judgment that related to damages was set aside and the judgment in so far as it amounted to a finding of negligence was sustained. However, nothing turns on that for present purposes as the parties clearly agree that all that was required of me was to assess damages. Section 16 of the Appeal Costs Fund Act provides for the way in which the indemnity certificate that has been granted to 10 the plaintiff is to operate, in relation to orders for costs. It may indeed cover a substantial range of orders for costs that are made, provided that the whole of it does not exceed 20 the specified sum. For example, the defendant's costs of this re-hearing could, in some cases, be ordered to be paid by the plaintiff. If that were ordered then the amount of those costs could be recovered under the certificate. However, that situation does not arise for consideration here because of the offer of settlement that was made in March 1993. The plaintiff, having obtained a judgment for an amount in excess of the offer, seeks an order for solicitor and client costs. Here there are factors which operate to show that another order should be made. The first and most important of these, was the order of the Court of Appeal. That is a binding order unless it is set aside by a Higher Court. Consequently, the costs up to the 13 November 1992 have been determined authoritatively. 30 The other factor which is relevant is the transfer of the 40 action to this Court on 20 May 1993. Here, the plaintiff has obtained a judgment which is within 2 per cent of the juri~dictional limit of the District Court. The practice seems to have grown up that defendants have looked with some grace towards plaintiffs who get very close to the -- jurisdictional limit. Whether that grace should be of any relevance to Court orders in the future is another matter. For present purposes, it seems to me, that the costs should be on the Supreme Court scale as from the date of transfer. However, prior to that time they should be taxed on the so highest District Court scale. So taking into account the order of the court of Appeal and the date of transfer I order that the defendant pay the plaintiff's costs including reserved costs incurred from 13 November 1992 up to and including 20 May 1993 taxed as between solicitor and client on the highest District Court scale and that the defendant pay the plaintiff's costs ·incurred after 20 May 1993 taxed as between solicitor and client. 60 3 ORDER -- 3 of 26 -- 220993 M/T MKY331/93 (Demack J) It does not seem to me that there is anything in this case that calls for elucidation, so I refuse leave to appeal on the question of costs. It does turn essentially on the offer that was made in March this year. \., 10 20 30 40 • (_)i 50 60 4 ORDER -- 4 of 26 -- .~State Reporting Bur;~~~--.,--,"""' ' 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 DEMACK J No 73 of 1993 SANDRA MARGARET CUPPLES Plaintiff and CAPAZ PROPRIETARY LIMITED Defendant MACKAY •• DATE 1 7 I 0 9 I 9 3 JUDGMENT 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 5 of 26 -- ( 170993 M/T MKY322/93 (Demack J) HIS HONOUR: When this matter was called on, Mr Harrison who' appears for Ms Cupples informed me that the matter had been originally tried on liability and quantum before the District Court in· October last year. There was appeal relative to quantum which was heard in the Court of Appeal in March and judgment was given on 19 March in which a re-trial was ordered on the issue of quantum. I was informed that there should be a full re-hearing on the question of quantum. Mr Ste'nson who appeared . for the defendant indicated that there were submissions he wanted to make about the certificate under the Appeal Costs Fund Act in respect of the costs of this trial. That submission, he intimated, would be made after judgment was pronounced. Ms Cupples was born on 20 August 1954. On 30 September 1986 she ceased her work with the defendant because of lower back pain. Although liability is not in issue there is evidence in her statement, Exhibit 18, which describes the kind of work she had been doing. The defendant made bedroom 10 20 30 furniture. Her task involved bogging boards and then sanding .· 40 them. This involved her in lifting_ planks which_ varied in length from 2.3 metres down to shorter·lengths ~nd which weighed between 8 and 14 kilograms. She also lifted bedside tables which weighed up to 28 kilograms and assisted in the lifting of dressers which could weigh 50 kilograms. The dressers always involved the use of two people. Specifically, when she was engaged ~n the work she would do a lot of bending as she bent down and removed planks from a pallet and then.stacked them ~p on ~n alternate pallet after she had bogged them. This involved constant bending and 50 60 2 JUDGMENT C. -- 6 of 26 -- ( ( ·. 170993 M/T MKY322/93 (Demack J) lifting and squatting over a two to two and a half hour period. She had noticed discomfort in her back and.weakness in her_back in the week to a fortnight.before 30 September. That day she.claimed she could no longer ·work because of the pain and sense of catching in her back. She went to see a chiropractor, Mr Nolan. It is necessary to deal in some detail with her medical history from 30 Se~tember 1989 onward. Mr No*an's report is contained in Exhibit 9 and he records that she presented initially with acute upper thoracic and neck pain and pain radiating into the chest. He says that after supportive therapy, soft tissue work and spinal manipulation, the problem subsided. On the last occasion that he saw her which was 7 October 1986, the main complaint was of thoracic and low back pain. As Ms Cupples felt she was not improving, she went to see Doctor Pleasing. She attended there on 10 October 1986 saying that she had been off work for ten days with total back pain involving her thoracic and lumbar spine. X-rays showed no skeletal abnormality but she was in great pain, could not fl~x her back beyond a fe~ degrees and had muscle spasm. The doctor's report which is dated 21 April 1987 and is Exhibit 8, says: "Despite months o! physiotherapy and having seen an orthopaedic specialist she has still not improved and has constant pain in her lower left·lurnbar spine." The physiotherapist who treated Ms Cupples·was Cathryn Bishop and her report is Exhibit 10 .. This_ records repeated treatment in October and November 1986 and also treatment in 10 20 30 40 50 60 3 JUDGMENT -- 7 of 26 -- '. ( 170993 M/T MKY322/93. (Dernack J) July and August 1990: The report is dated 23 August 1990. The report notes: · .~'Treatment this time has not been successful. She is to be seen by an orthopaedic specialist for opinion." The first orthopaedic specialist to whom MS Cupples was referred was Doctor White. She was sent to him by Doctor Plessing. Doctor White's reports are in Exhibit 11. They are three in number, the first.being a report.to the Workers' Compensation Board dated 2 August 1987, a further report to that.Board on 3 May 1988 and then a report to the defendant's solicitors dated 30 July 1990. Doctor White records the complaints and examination that he first performed on 3 November 1986 in the report of 2 August 1987. He says that 10 on the date in November 1986 she stated that she still had 30 low back pain towards the left side. She complained also of interscapular and neck pain and stated that when her symptoms first occurred the left side of her face was all numb and twitchy. She described further an occasional twitch of pain in her left arm and leg when she did· some basic household 40 duties such as vacuuming. Examination on .her back did reveal some low lumbar tenderness, reverse pelvic rhythm on assuming upright posture from flexion and a restricted straight leg raising test that was more marked on the left than on the right. X-rays dated 10 October 1986, which were presumably 50 . . ' those ordered by Doctor Pless~ng, o~.the lumbosacral spine • > • - • • • did not reveal any significant·. pathology. She was treated with rest, swimming training as a form of back and abdominal muscle strengthening and give·n a hand-out on the commonsense. care of her back. ·.The doctor's reports then continue to shot/ 0 4 JUDGMENT c -- 8 of 26 -- ( 170993 M/T MKY322/93· (Demack J) attendances by Ms Cupples with no real improvement. On 9 A~ril 1987 Ms Cupples was referred by her solicitor to Mr Gavin Douglas in Townsville. · His repor·t is Exhibit 7 and is historically a very significant document because it concludes with the recommendation that if Ms Cupples was not satisfied with her present progress she should discuss this with her general practitioner and seek a further opinion. This subsequently led to Ms Cupples a~tending on Doctor Cook. Mr Douglas' report is of one examination on 9 April 1987. On examination there was full flexion of the lumbar spine but she had difficulty in recovering from the flexed position. It was noted that she had some spasm of the muscles on the left side of the lower back. Bending to the right was restricted, it caused left sided pain. She was able to bend to the left without any trouble. Hypertension of her back caused pain. There was tenderness to the left of the mid line at the lumbosacral level. Straight leg raising_ was a little restricted on the left side and caused.her left sided back pain. There were no neurological changes in her left arm or left leg. Mr Douglas review~d the x-ray _that had been taken at the request of Doctor Plessing and confirmed that this was normal. The doctor's opinion was - 10 20 30 40 "This woman appears to be moderately incapacitated by left sided low·back pain.: I think her pain is genuine 50 and has an organic cause. I am not sure whether she has suffered a musculo ligam~ntous strain or has an injury to the apophyseal joint on the left side. I think her pain should respond to treatment." The same kind of opinion was expres·sed by· Doctor Jayasinghe 18 months later. Ms Cupples was referred to Doctor 60 5 JUDGMENT -- 9 of 26 -- ( 170993 M/T MKY322/93 {Dema'ck J) Jayasinghe-by her solicitors and examined by him on 30 August 1988. He performed various tests and expressed the view that the patient's pain was organic ·in nature and that it had a musculo skeletal origin. There was nothing to suggest neurological involvement. He expressed the opinion that the numbness on the left side of the face and the left upper ar.m that were experienced initially were functional in nature . . He felt that eventually the pain would subside although it may take a prolonged course. He expressed the view that anxiety and tension probably is making·this worse. It is probably helpful also _to refer to the other specialist .to whom Ms Cupples was sent for the purposes of medicolegal report, that is Doctor Watson, who is a specialist in rehabilitation medicine. He examined Ms Cupples on 3 June 1991. Some of his report is expressed in language which, although it purports to record in part the things that Ms ·Cupp1es said, certainly does not appear to have been in her language. Nonetheless, his opinion was that she was suffering genuine low back pain with_very significant handicap. The residual cervical .. symptoms were Irtinimal, non- progressive and of no consequence in comparison with the low back pathology. He expressed the view - 10 30 40 "The low back pathology is, I believe, internal discdisruption at least at L5/S1 ·and probably also the L4/5 50 level." In his view she was unemployable. It· is irilportant to note that the basis.for his opinio~ see~s to be at least partly based on Ms Cupples report· to him that when she underwent a 60 6 JUDGMENT I (_J -- 10 of 26 -- (. 170993 M/T MKY322/93 (Dernack -J). lumbar discogram in February 1988 at the Holy Spirit Hospital in Brisbane, her pain was reproduced by injection at both LS/Sl level and L4/5 ,lev.el. I have indicated ea.rlier that following Mr Douglas' recommendation, Ms _Cupples was referred -to Doctor Cook. His first report dated _28 _February, 1~92 is Exh,ibit _1.. He first examined Ms Cupples on_19 May 1987. H~ recorded the history which she gave him which is in accordance with what I have been saying, as the other doctors have recorded it. He noted - "She appeared to be.a fit lady but w~s careful with her movements and in dressing and undressing and getting on and off the examination couch. There appeared to be no muscle spasm on today's examination" that is 19 May 1987 - ·"but the site of maximum tenderness appeared to be centrally extending from L4 to S1 and also extending outover the region of the left. sacroiliac joint. Neurological examination of. both lower limbs was .normal. Treatment at the time was to inject her left sacroiliac joint with Depomedrol and local .anaesthetic-.· She was advised to use a lumbosacral· support." ·. He notes that there were review examinations in June, August, October and December. Over this period she reported the lumbosacral support did he1p in that·it seemed to support her and kept the area.warmer. During that period she had a CT or 10 20 30 40 bone scan. This· showed what appeared to be a normal L3/4 50 disc and the L4/5 disc showed_some mild or minimal generalised bulging. In his evidence Doctor Cook said he had viewed the scans and felt that that disc was normal. 60 7 JUDGMENT -- 11 of 26 -- ( 170993 M/T MKY322/93 (Demack J) The'L5-S1 disc showed a small posterior prolapse or bulge but did not seem to be causing any mass effect on the spinal cord ·or the.exiting nerve root. It is also significant that he noted that over this period, which is from May 1987 to December 1987, she reported that when she woke up first thing in ·the· morning the pain was minimal ·and it came on more severely with-movement and activityas the day progressed. Over ·this ·period of time she attended gym for an exercise program. ~- ,/ . : ~ . . 10 2~ In her s.tatement, Ms Cupples said that attendance at the gym -~ ) was recommended by the Workers' Compensation Board. As there had .been no· improvement by December 1987 i Dr Cook requested (~' 11 that there be discograms performed, to which reference has already been made. The significance of this is as follows. The lumbar discogram at two levels: L4-5 level, the disc appeared normal, the patient did however experience central back pain radiating into the left side of the back which she described as being similar to her presenting_pain; LS-Sl level, the disc appeared normal, there was.no evidence of 30 40 prolapse, the-patient however experienced only mild back pain on injection with this level. Dr Cook reviewed-the results of that process and expressed some doubt. about whether the discswere normal, and he noted that there:had been this complaint of a reproduction of the presenting pain upon- the injection·at L4-5. It seems to me that this explains the di-fference between· the opinion that .Dr Watson expressed about which disc. was most likely to be seriously affected, and the opinion which Dr Cook will 50 60 8 JUDGMENT -- 12 of 26 -- 170993 M/T MKY322/93 (Demack J)· express, when. I reach it. In other words, Dr Cook had a more accurate record of the response to the injection which was recorded at the Holy ,Spirit Hospital on 4 February 1988. Ms Cupples continued to attend for review examinations at Dr Cook's during.1988~ During _that time,- she reported she was doing a computer course and could sit for up to an hour but after that, the pain increased -to the point where-she required some ~ain relief medication. She a~so reported shooting pain down the left side of the lower back into the left leg continued with conservative treatment. She attended for further review examinations-in-March-and August 1990, reporting some increase in low back pain, seemed to be centrally in the lower lumbar and lumbosacral region. On 5 March 1990, she was 30 weeks pregnant and her low back pain was worse. Dr Cook did not see her again until 20 August 1990. Ms Cupples reports that her confinement was . . extremely painful and by the time she saw Dr Cook-in August 1990, she reported the low back pain continued to be bad; she had been back on physiotherapy. She said the p~in was· then constant. Dr Cook perfonned what he called a final· ·review or examination on 19.February 1992. There was a report of worsening of low back pain, difficulties with bending :and lifting, and having to adjust posture in order to perfonn any housework. She was able to_ do_ lighter - aspe'cts of housework and did her own laundry in small. amounts each day. When 10 20 30 40 50 60 9 JUDGMENT -- 13 of 26 -- ( .:.:·- 170993 M/T MKY322/93 (Demack J) shopping, she· carried small arn·ounts. She attended the gym five days a· week since April 1991. She has lost nine .kilograms -in weight, feels better, but her back pain was no better. Dr.Cooknoted that on 19 February 1992, Sandra Cupples was a well sun-tanned lady·and said she had this from being in the swimming pool a lot, as this was another form of exercise she used. She was tender over the_L4-~1 reg~on •. Dr Cook's opinion was that there was no doubt that Ms Cupples sustained injury to her L4-5 ·disc, and possibly also to the L5-S1 disc as a result of· repeated bending and lifting heavy pieces of 10 2o() timber at work over a period of several weeks, with the final (~-\: acute onset of pain on or about 30 September 1986. He said: "The pain she·has been experiencing is therefore discogenic pain in origin and has ~not responded to a long period of conservative treatment, including rest. Her syrnpt~ms and her level of disabilitywill not ·improve by the passage of further time, and if. anything, will slowly deteriorate as the years go by. •• He therefore expected that it would_ come to a b~lateral, posterior lateral spinal_fusion, extending from L4 to S1. The. defendant requested Ms Cupples to-attend Dr Michael . . · Gallagher, and she- did that on 30 June 1992. The doctor expressed·the'view that·Ms Cupples suffered a temporary lumbar back·strairi iri the presence.of_pre-existing early .degenerative lumbar-disc degeneration~- He ·expressed the opinion that she suffered no perrnan~nt disability as a result of the injury and that the effects of the incident on 30 40 50 60 10 JUDGMENT -- 14 of 26 -- 170993 M/T MKY322/9~ (.DeiiJack J) 30 September 1986 have long since ceased and any pers·isting symptoms were due to the na.tural progression . of the . pre-existing ongoing .~egener~tion and psychogenic~ overload. He expressed the view that the physical effects of the injury have long since passed and have no-material effect on the plaintiff's capacity to,work for remuneration and carry on normal day to day tasks of housekeeping, gardening and looking after her child. The defendant obtained a video of part of one morning's attendance by Ms Cupples at the gymnasium that she had been attending since 1991. This video was available at the previous trial and also shown to each. of the doctors at this trial. The response of the doctors who gave evidence, that is, Doctors Watson, Douglas; White, Cook and Gallagher, to the video is interesting in itself. Dr Watson, who was the first of the doctors called was inclined to say that Ms Cupples was certainly performing much better than he would have expected from what he had noted of her.condition when he saw her some two years ago .. Mr Douglas, who had seen her many years ago, .expressed a similar view and particularly commented ·t.hat she seemed to be lifting the shoulder press without. difficulty. He·· was also of the view that her walk was not a shuffle. Dr White expressed some surprise at the row~n·g activity, which was depicted. Dr Cook seemed to.me to be· the most restrained of 10 20 30 40 50 60 11 JUDGMENT -- 15 of 26 -- ( 170993 M/T MKY322/93 (Demack J) the men·of science,· in·his'response to the video, saying that it showed that the person did not have a high percentage -disability relative· to the spine~ ' Dr Gallagher made the comment at the end of his viewing of the video: "You· haven't. got· them mixed up with the Broncos, have you? Just ~ow long_has this been going on ·for?" As I indicated to Mr Stenson in the course of his address, I have very serious difficulty with the video. I understand that it is difficult for defendants to obtain good quality videos of plaintiffs whoin they suspect to be not genuine in the complaints that they present to the Court. I accept that it is a legitimate activity on the part of the defendant to test plaintiff's complaints by observation. However, one cannot jump to conclusions from very limited evidence. There is no evidence at all. of the amount of pressure required in the use of any of the machines that Ms Cupples is seen 10 11 I 2oc; 30 I c\,1 . I I working out on. I:asked a couple of questions which. were c/ non-specific, but touched on this· important. area, but this was not followed up by counsel. Consequently, the mere fact that work was done on a rowing machine or on a shoulder ·press machine is no indication of the amount· of stress tnat .: may have been placed ·on· the discs which'are said to be·the location of discogenic pain. It seems to me in the 'absence of. that, ·any observation about the ·fact that Ms Cupples could perform those things is pure guesswork, and does not have a place in medical science. 40 50 60 12 JUDGMENT -- 16 of 26 -- 170993 M/T MKY322/93 (Demack J) What I noticed, havirig seen the video on a number. of occasions, is that none of.the ladies who. were pursuing this hour of exercise appeared to be in any way· under distress or pressure. It may have been live, but it certainly did not appear to be sweaty. I know that it occurred in August at 9 a.m. to lO.a.m. inthe morning,' so one would not expect the amount of sweating that might occur much· later in the year. But there was no sign shown by any of the women that their bodies were exposed to significant stress by u~ing the machines. In the absence of that evidence, it does·not seem to me that the video is of much significance. Further, it is not at all clear what kind of posture Ms Cupples was using·when she performed on the rowing machine. The video was taken· with her .looking, in. effect., at about 45 degrees to the line of sight of the video camera .. She was wearing a loose fitting T-shirt and the lighting was· not good. · Iil those circumstances, I find it very diff;i.cult to k~ow i' ·particularly as part of the area through which she .move4 was obscured by another machine, how it is possibl~ to tell whether the movements that were discernible were shoulder movements or lower back movements. It seemed. to me that the.proprietor of that· facility;·Ms Ras, 10 20 30 40 50 gave evidence which ought to be accepted, .that. she has been trained in recreational activities and knew that Ms Cupples had a bad back, so that the program was de·signed not to put 60 13 JUDGMENT -- 17 of 26 -- ( 170993 M/T MKY322/93 (Demack J) pressure on the lower lumbar spine, but to otherwise exercis·e the body musculature. ~onsequently, the exercises were chosen and were structured with· that in view. It does not seem to me that there is any evidence in the video that calls into question the genuineness of Ms Cupples' complaint. It seemed to me that of the medical practitioners who viewed the video and responded to it,·· Dr Cook's opinion was the most responsible. 10 2Qr-'\ Ih this case, the evidence, apart from that of Dr Gallagher, ~ .. ; is all one way, •· and· it seemed to me Dr Gallagher seriously impeded acceptance of his opinion when he came down firmly on the side of psychogenic pain as the explanation for Ms Cupples' problem. However, he decided that the diagnosis of psychogenic pain disorder was one that was properly made by an orthopaedic surgeon rather than a psychiatrist. In fact, he seemed to suggest that psychiatric opinion on that topic .was ra:t;her out of ·place. This does not seem·to be the usual .way in which medical specialists express thei~ opinions:, and it left me with the view that there was no weight ·to· be attached. to Dr Gallagher' s opinion. ·I should perhaps add that Ms Cupples has been ·seen by Dr .. Wilfred Richards,· who also gave evidence. He also saw the video, but it did not seemto me to be of much consequence what view one took ·of a psychiatrist's opinion about the exercise machines, so I have not referred to him in that·regard. 30 40 50 60 14 JUDGMENT c -- 18 of 26 -- ·( (~ ''--- 170993 M/T MKY322/93 (Demack.J)·. His assessment wa~ made on 3 June 1991~ He said: "I_ found .S_andra Cupples to be a . pl~asant, . down toearth person of at least-average intelligence. She was already able to give an excellent account of herself and free from serious thought or mood disturb~nce." He accepted Dr White's view that. there was organi:c pathology, and he noted there no signs of anxiety or depression· in the interview situation. He said in his opinion: "She suffers back problems which are organically determined and there is no evidence she suffers any designatable psychiatric disease." . He noted that Ms _Cupples was unf~rtunately-suffering f:t:om quite severe marriage problems. Since the last trial,. a report has been obtained from a psychologist, Ms.- Robertson, and that report, which is Exhibit 13, seems to me to be a very significant document. It shows that Ms Cupples' marriage is unstable and dysfunctional· and t.hat she is the victim of considerable verbal abuse. In those circumstances, it is little wonder that her gym cl~ss was impoz::tant to her and a source of pleasure_to her. One of· the striking things about the videp is the cheerfulness that her_face and arm gestures displayed when she arrived at the gymnasium. ..She was obviously happy to be there and seemed.to be. cheerfully greeting friends. 10 20 30 40 50 60 15 JUDGMENT -- 19 of 26 -- '( 170993 M/T MKY322/93 (Demack J) However, she moved from· that rather· cheerful spirit to a very guarded action in taking her child out of her car, as Mr Douglas noted. · There, there was considerable care to protect the back. There was no bending and it was the one part of the video where one could clearly see her back and it 10 remained-upright as she reached into the car to pick up her two year old daughter.· In Court:this time, Ms·Cupples was under considerable pressure. She lost her composure, was visibly upset, but these seemed to me to be a natural part of the problems associated with a re-trial and with the allegations that she had to·face that she was not genuine in her complaints. ·Although it is to be noted that Dr Gallagher in his evidence did not take that particular view. He resorted to the 20(, -orthopaedic surgeon's view about the psychogenic pain disorder. 30 ·There· was one other aspect of Ms Cupples' dis.ability which (~ concern·s her left knee.· Dr Cook says that ~1 though this was not originally injured in the· incident back in September 1986, to protect her bac~ she has-been squatting a lot more and -th-is has added strain to the left knee.· There is· no x-ray evidence to show that there is a disability there and Dr Cook expresses the' view' that there is some roughening of the articular cartilage behind the patella. At .this stage it ·seems to me this is .!?est viewed as one of the consequences of a significant back disability rather than some isolated ·orthopaedic condi tioh · for which compensation 40 50 60 16 JUDGMENT (_/ -- 20 of 26 -- '(-, 170993 M/T MKY322/93 (Demack ·J) - - · must be granted. I am therefore on ·all the evidence satis.fied that Dr Cook's diagnosis is established, that there is significant discogenic pain in the L4-S disc and also in the LS-Sl. This restricts.Ms Cupples' ability to bend an~- to lift. It means she has to be very guarded ~n her use of her back. She has taken every possible step to rehabilitate herself and has kept herself generally very fit, in relation to the (~ musculature that supports her body, but which can be exercised without bringing pressure on the injured discs. Dealing then with the assessment of-damages, Mr Harrison has produced a list which he suggests is appropriate and the easie.st thing to do is to go through these and note -the various amounts and the arguments that were submitted in . respect of them. It seems to me that so far as -damages for pain, suffering and loss of amenities are concerned the plaintiff has very assiduously followed all of the advice that has been given to her by the people to whom- she-has attended for treatment and she has also demonstrated-a characteristic that is rare_among plaintiffs._ When she has seen a- specialist£or the purpose of a medico legal report she has promptly acted on the suggestion that specialist has made. I refer back, of'course, to Mr Douglas' opinion that she should seek a second opinion. It is _very common for plaintiffs to do nothing-about the things that are said by a specialist examining them fqr a medico legal report. This seems to me to demonstrate her genuineness and 10 20 30 40 50 her eagerness to_take every possib~e-opportunity to be fit 60 17 JUDGMENT -- 21 of 26 -- ,, ~-· (. , 170993 M/T MKY322/93 (Demack J) again. She was injured at the age of 32. She was left with a significant-source of pain in her lower lumbar spine. This had the obvious consequence when she was pregnant of giving her a very painful pregnancy and confinement. It seriously interferes with her care for her child and as the child is now three years of age it reduces the opportunities for play as the daughter grows up. It seems to me that one should not run away with the display in the video because that showed limited physical activity in controlled·circumstances. It did not involve the kind of running, stretching and bending that is involved in normal play with a young child. Certainly it did not require the sudden shift of position that is part of the ordinary play, even, of throwing and catching a ball. 10 20 30 So ·far as her housework is concerned, again that involves ( stretching and lifting in a way that is not controlled the way the gym work is controlled. I am satisfied that she does require some assistance while she-does that work. It is clear enough that she·has been a woman of considerable physical strength ··and has enjoyed hard work. She worked on trawlers before she was involved in the furniture factory and I have indicated the kind of work she was doing there. She obviously enjoyed·the physical aspects of work quite considerably, before 'her injury. 40 50 60 18 JUDGMENT -- 22 of 26 -- / i ~- 170993 M/T MKY322/93 (Dema.cJc. J) I will be assessing her loss of economic capacity on the basis that she has residual capacity. However, in exercising that, she_ will certainly experienc~ pain and dis_comfort. Dr Cook has indicated that surgery is an opt.ion that is very real and some allowance must be made for the pain associated. ' with significant back surgery. F_or all these. things, it seems to me the appropriate award for pain, suftering and loss of amenities.is $52,000. So far as interest is concerned, it appears that after the last trial, a sum of $100,000 was advanced to the plaintiff on 16 December 1992. I have been asked to take this into account in assessing interest. This has caused me to. look at it from various points of view, but I have settled on the view.that the most appropriate way is this; I shall assume that she was able to invest that sum for nine months at six per cent. I have.been concerned about the rate, because short term rates for that kind of money may be.much higher than that, but again in the ordinary investm~ntsthat people may use, six per cent today is a fairly realistic figure. That would produce interest of $4,500. Consequently, I have taken the various interest figures that were suggested by Mr Harrison with adjustments according to the figures I have' . . allowed, and I will allow interest finally .at the bottom of 10 20 30 40 50 the calculation in, respect of a ~alance.on the interest for special damages. That long preamble is a _wa~ of ~aying I will not allow interest in respect of. the.awa~d for pain, suffering and loss of amenities, but in calculating, I have treated the relevant pre-trial sum as $20,000. 60 19 JUDGMENT -- 23 of 26 -- ~r 1 170993 M/T MKY322/93 (Demack J) Some $2,600 was received from the Workers' Compensation Boar,d by way of permanent partial disability and I would allow interest there at· $2,436, but as I have said that is offset by the interest component that'could have been earned on the $100,000 sum. For past economic loss I accept Mr Harrison's figure of $30,000. That did not seem to me to be subject to ·any debate by Mr Stenson, except for his assertion that there wasin fact an economic capacity that should have been · exercised. I am satisfied that is not so, up to the date of trial. I will not be allowing interest on that, but·for the purpose of offsetting, the figure is $600. The Fox and Wood component is $3,370.11. Future economic loss is a very difficult figure to calculate. It seems to me that on the basis of her previous work, the pre-existing economic capacity that Ms Cripples would ha·ve but for injury is of the present order of $320 to $330 net per week. That was all 10 20 30 earned in heavy work. C She has had very little experience in light work, but it seems to me on the medical eviden·ce there is a capacity to exercise in light work and there is every reason to think that, once her marital situation is clearer, she will be able to obtain some kind of work. In the circumstances, the figure Mr Harrison suggested ·of $200 per week seems to me to be reasonable. The period for which this should be allowed is very difficult. Ms Cupples hersel~ has. always been involved in physical activities of a labouring kind, in a sense, and what the future for her daughter is is at this 40 50 60 20 JUDGMENT ( -- 24 of 26 -- ~," ' 170993 M/T MKY322/93 (Demack J) stage, of course, completely unknown. It seemed to me that to allow a future working life of 12 years is probably reasonable . in the circumst.ances. That would take.her to the age where the child is 15 and in all the circumstances that is probably a reasonable period here. This produces a sum of $94,800. Past home help· seems to me to be reasonably claimed and I will allow the sum of $4,576 and I take into account the interest component suggested. Future home help and the future pharmaceutical and other expenses I will.lump together in an amount of $18,000. The difficulty with the combination of these is that if surgery is performed; the purpose is to strengthen the back and remove movement on the painful discs. Hopefully, this should reduce the amount of analgesics and back support required and it s.hould provide a slightly more comfortable existence, or hopefully a more comfortable existence. It is the impact of this that makes it very difficult to adopt the precision that Mr Harrison has·suggested, so for his two items of future home help and.future pharmaceutical expenses I will allow the combined sum of $18,000. Similarly, it seemed to me that his future medical expenses and his future gym expenses r~ally had· to be read together for the same kind of reason. It is not clear when an operation·wi~l be .undertaken. It seems more likely than not that there will be one, but it will be some time in the future. It· is not at all certain 10 20 30 40 50 60 21 JUDGMENT -- 25 of 26 -- t 170993 M/T MKY322/93 (Demack J) whether the kind of counselling and rehabilitation that Mr Clarke speaks of will be necessary once Ms Cupples and her husband sort out the marriage problem, if that is possible. So there is a degree of uncertainty in that area and I propose to allow the sum of $12,000 to cover those two items. It inevitably involves a degree of estimation where no precision is possible. Special damages are agreed at $6,841.41. The interest 10 claimed by Mr Harrison in Exhibit 25 is accurately calculated 20 and adding all those interest sums together it seems to me there is a remaining figure of $1,232 over and above what might have been earned on the investment of the $100,000 sum. So I will allow interest on the special damages in the amount of $1,232. The total then is $222,822.52. There is a refund 30 due to the Board of $26,761.71, so it will be a judgment for $196,060.81. 40 50 60 22 JUDGMENT i C':/ (_ (jj I -- 26 of 26 --