Butterfield v Cloncurry Hospitals Board [1993] QSC 336

5c "13/ 3 3(:, State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) -:-:-~·::·::- -···-·-· .... ·-··-·-· ___ . . ' ..• ~-· . . . ·~. :- .... .......... '·. .... ' .. '"""' .. - ~ ~ c;~ : .. · ... -~ 0 I t.:> ------------~--- --~· SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No 113 of 1987 VONEY MARY BUTTERFIELD Plaintiff and CLONCURRY HOSPITAL BOARD Defendant ( TOWNSVILLE .. DATE 26/08/93 JUDGMENT 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 9 -- 260893 ' 1 HIS HONOUR: There will be judgment in this matter for the plaintiff against the defendant in the sum of $91,374.70 with 10 costs to be taxed. HIS HONOUR: I adjourn the matter to a date to be fixed. 20 c 30 () 40 50 60 2 JUDGMENT . ·-------~----- -----· ----~- ·--------------·---------·------ -- 2 of 9 -- . ' ( ( IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE BETWEEN: VONEY MARY BUTTERFIELD AND: CLONCURRY HOSPITALS BOARD w. No. 113 of 1987 Plaintiff Defendant REASONS FOR JUDGMENT - CULLINANE J. DELIVERED THE db-n-\ DAY OF AUGUST, 1993 The Plaintiff was born on the 18th April, 1934 and was injured in the course of her employment with the Defendant on the 28th March, 1984. She sustained an injury, I am satisfied, to her lower back and also to her neck whilst lifting an obese patient. Her cause of action is admitted. Following the accident the Plaintiff attended at the Outpatient Department of the Defendant's hospital but did not thereafter for some months have any treatment except for attending at a Chiropractor in Brisbane and it would seem from her evidence, which I accept, also in Mount Isa. She saw her medical practitioner some time in about September 1984, and was referred to Dr. Watson in Townsville. He saw her for the first time on the 11th October, 1984. Dr. Watson recorded that her injury had been sustained in November 1983. However I am satisfied that this is erroneous -- 3 of 9 -- 2 whatever the source of the information was. I am satisfied she sustained an injury in the circumstances in which she alleges on the date on which she alleges and that there was no earlier incident. The Plaintiff says that when her back pain continued and she found it difficult to perform her duties at the hospital as a nurse, she decided to take her holidays and long service ( ' leave. During this time, she and her husband travelled overseas.during which time they travelled extensively by bus. I am satisfied that the Plaintiff had up until this time been hoping that her problems would resolve themselves and she would be able to return to work. I am also satisfied that it was the Plaintiff's intention at that time to continue working as a nurse at the Defendant's hospital. The Plaintiff says in exhibit 4 that whilst she was on holidays she concluded that she may never be able to perform her work as a nurse at the hospital again. Her husband apparently has a supermarket and with his assistance the Plaintiff opened a health food shop. She has conducted this business since that time. In July 1985 whilst engaged in her business, she was lifting a case of softdrinks when she suffered the onset of acute lower back pain. -- 4 of 9 -- ( c' 3 She says that she saw her doctor about this and says that she suffered an aggravation of the symptoms which she already had in her lower back and that for some weeks she had an increased level of pain which then subsided to what it had been previously. She describes the difficulties that she has in her statement, Exhibit 4. These are primarily dealt with in paragraphs 34 to 42. I accept her evidence that she has mor.e or less constant low grade pain in her lower back and that this pain increases on certain activities and that from time to time she has symptoms in her left buttocks and down her left leg. In addition, I accept her evidence that she also has some pain in her cervical spine although this is a good deal less significant than her lower back problems. A number of specialists provided reports. Of these Dr. Lewis, an orthopaedic surgeon, and Dr. Watson, a specialist in rehabilitation medicine, gave evidence on behalf of the Plaintiff and Dr. Douglas, an orthopaedic surgeon, gave evidence on behalf of the Defendant. Dr. Watson is the only one who refers to the cervical complaints. The major difference between the views expressed by the specialists was as to the Plaintiff's condition as at the time of the incident the subject of these proceedings, and as to what the Plaintiff's likely future would have been and also as -- 5 of 9 -- 4 to what role if any, the incident which occurred on the 24th July, 1985, plays in her current position. I accept the evidence of the Plaintiff that she had no symptoms in her back at the time of the incident. It was common ground that the Plaintiff had degenerative changes in her spine which would have pre-dated the incident in question. There are significant degenerative changes at the level of LS. Dr. Douglas is of the view that the Plaintiff would inevitably have developed symptoms in her lower back and would have been in the position which she currently is in by the time she was 55. His opinion which was re-stated in the witness box under cross-examination is that degenerative changes of the lumbar sacral spine would have developed and independently of the injury which she sustained she would have been incapacitated to the extent she presently is by about the middle of 1989. Dr. Watson on the other hand was of the view that there were good prospects that the Plaintiff would never have developed significant symptoms in her back. Dr. Lewis is of the view that the Plaintiff would have been capable of working in a lighter activity than nursing until about aged 60, although she would during that time have suffered some deterioration in her spine. He assesses her disability overall as being some 15% of the body as a whole. -- 6 of 9 -- 5 , Dr. Lewis is of the view that this disability is contributed to by the degenerative changes which pre-dated the accident and also by the subsequent incident in July 1985. Dr. Watson and Dr. Douglas are of the view that if the Plaintiff's symptoms subsided as the Plaintiff says after a few weeks the 1985 incident has had no on-going role in the Plaintiff's present condition. I assess the Plaintiff's damages upon the basis that the Plaintiff was undoubtedly at risk of developing significant symptoms in her spine but I think it is likely that she would have managed her day to day activities albeit with increasing difficulty but without the need for assistance of the kind which is presently provided for some years yet. That is, I do not think that Dr. Douglas' pessimistic view should be adopted in assessing damages. However, on the other hand I think that ( ~· the Plaintiff was at greater risk than Dr. Watson would have to be the case. I am satisfied the Plaintiff has had significant impairment of her enjoyment of life and has had to give up a number of recreational activities. I assess the Plaintiff's general damages in the sum of I allow interest at 2% for six years on $15,000-00 which produces an amount of $1,800-00. -- 7 of 9 -- "- / 6 Past and future loss of income including any interest component have been agreed upon in the sum of $5t000-00. There are claims for past and future care and assistance. I accept what the Plaintiff says in relation to these matters and I am satisfied that the Plaintiff has required the provision of such assistance up until the present as a result of the incident. Similarly, I accept the Plaintiff's evidence in relation to pharmaceutical expenses. The evidence of Dr. Watson and in particular the opinion contained in exhibit 2D, satisfies me that the expenditure by the Plaintiff on the chair vibrator sheepskin and pillows are reasonable and have been of assistance to her. Similarly, I allow the Plaintiff the costs of the acupuncture and the massage in the sum of $200-00. Travelling expenses have been sworn to in the sum of $714-80. The total then of special damages and past care and assistance is $23,584-70. I allow interest at 6% on this sum for six years producing an amount of $8,490-00. In relation to the claim in respect of future losses which appears at paragraph 64 of exhibit 4, it is necessary to apply an appropriate discount. This claim is based upon a requirement for the remainder of the Plaintiff's life expectancy. I think there was a high risk that the Plaintiff at some time during this period, would have developed symptoms which would have required assistance of the kind referred to and the use of pharmaceuticals to manage the pain. -- 8 of 9 -- ... 7 Applying an appropriate discount, I allow the sum of $22,500-00. The workers' Compensation Board has paid a total of $105-25 for hospital and medical payments which are recoverable as special damages. The total of the above sums then is $91,479-95. The sum of $105-25 has to be deducted from this total. There will be judgment for the Plaintiff against the Defendant in the sum of $91,374-70 with costs to be taxed. ~order that as ana from the coming into effect of Act number 40 of 1989, the Plaintiff's costs be limited to those costs reco~ under the District Court Scale appropriate to the judgment .....sum:. -- 9 of 9 --