Brown v Neilsen & Ors [1991] QSC 256

Cs!;, \\ -°'- 1 ~ IN THE SUPREME COURT OF QUEENSLAND 10 20 CIVIL JURISDICTION No. 36 of 1986 BEFORE MR. JUSTICE KNEIPP TOWNSVILLE, 19 AUGUST 1991 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: ROBYN DOREEN BROWN -and- ALFRED PETER NEILSEN, FREDERICK LLOYD NEILSEN and BETTY JOAN NEILSEN JUDGMENT Plaintiff Defendants HIS HONOUR: I accept the plaintiff's account as to 30 the circumstances in which she was injured. There was a suggestion, no doubt emanating from the defendant Mrs. Neilsen, that the plaintiff's account of the accident was fabricated, and that if she was injured it was in an earlier incident involving a horse. I regard the 40 ~laintiff's evidence as requiring some scrutiny because I think that a deal of her evidence on quantum was not altogether satisfactory, although I would acquit her of having any intention of being deliberately misleading. On the other hand, it was tolerably clear that Mrs. Neilsen was so not well disposed towards the plaintiff. When the plaintiff made her complaint of back injury there can be no doubt that she was suffering from an injury, having regard to the subsequent history, and one cannot see any good reason why she would fabricate the account which she gave as to the 60 Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 8 -- circumstances in which she sustained it rather than - " ;; attributing ~t to the incident involving the horse. In all the circumstances, as I have said, I accept the plaintiff's account. ~ find that she did not give any history at any time involving the proposition that she sustained a back 10 10 20 injury as a result of the incident with the horse. I think that Mrs. Neilsen probably jumped to an unwarranted conclusion when she heard about the back injury, having already heard about the incident involving the horse. I find that a bale of hay, which the plaintiff dislodged from a stack, came to rest at the back of the utility and onto it. She stood at the other end and lifted it by the twine by which it was held together. She had lifted it to about knee height when she sustained, as I find, an injury to her back. The nature and extent of that 30 30 injury I will discuss later. I accept the evidence of Mr. Kahler. I am satisfied that in requiring or permitting the plaintiff to. lift bales of hay unaided, the defendant exposed her to a risk of spinal injury. It is foreseeable, obviously, that a spinal 40 40 50 injury may have very serious consequences, and the exposure to the risk was unnecessary because it could have been avoided simply by forbidding the plaintiff to lift bales unaided, and instructing her to request help when bales had to be lifted, and ensuring that such requests were complied ith. The defendants did nothing along those lines. They ere thus guilty of negligence which was a cause of the plaintiff's injury. Before I part with. the aspect of liability, there are two matters which I might mention. The first is the weights 50 60 60 Govt. Printer, Old. 2 -- 2 of 8 -- 10 20 30 40 50 of the bales which the plaintiff was lifting. The evidence as to this is in an ~nsatisfactory state, but in all the circumstances, I find that the weights, whatever they were, exceeded those which the plaintiff should have been required or allowed to lift. The second matter is the foreseeability of a spinal injury to the plaintiff on the part of these articular defendants. There is not any evidence, and the complete lack of a system would suggest the contrary, that they were aware of the risks associated with requiring employees to lift heavy weights. However, the test of egligence in this context is, as it is in other contexts; objective, in that the question is what an informed employer, who has made reasonable efforts to become nowledgeable on the subject of the safety of his employees, should have foreseen. There were allegations of contributory negligence leaded in the defence, but I do not recollect that they ere referred to in argument; and in any event it seems to e that there is no basis on which one could reasonably find that the plaintiff was guilty of contributory negligence. I find against those allegations. The plaintiff was born on 21 January 1945 and she was injured on 1 July 1985. She left school at the age of 15 ears and thereafter she worked as a checkout operator, a trainee nurse (this was for a period of 18 months), and as a aitress. She was married in 1966. There are two children of the marriage who are now adults. During the marriage the family lived at the Gold Coast and then at Mount Isa. The plaintiff and her husband were divorced in 1985, after which she came to Townsville. She was unemployed for some eight 10 20 30 40 50 60 60 Govt. Printer, Qld. 3 -- 3 of 8 -- She then obtained_ employment with the defendants as general hand on their,stud farm, and she had been in that osition for only a -comparatively short time when she was 'njured. She said in evidence that she would have worked ermanently, and I accept that this was her intention. She 10 10 ould have had to do so, being a single woman who, so far as he evidence shows, had to fend for herself. The history .following on the incident involving the ifting of the bale of hay is set out in paragraphs 4 and 5 f the plaintiff's statement, and I need not repeat it. As 20 20 30 I have already said, I find that as a result of the accident she sustained an injury to her spine. She now resides at algal Beach with another woman who is also an invalid. She as not worked since the date of the accident and is eceiving a pension. In paragraphs 7, 8, 9 and 13 of her statement she deals with the effect of her injuries on her ife, including the effects in relation to recreation. I turn now to a familiar contest, and that is as to the ~xtent to which the injury sustained in the accident has een responsible for the plaintiff's current situation. The 30 40 40 50 60 laintiff had some sort of spinal trouble in her youth, but his appears not to be relevant to her present complaints. he original_ impression I received was that prior to the accident she had worked for many years without any symptoms f spinal problems. Eventually she agreed that prior to her accident, after heavy work or heavy exertion, she had suffered the symptoms of spinal problems, but she said that they were no~ of the severity of those from which she suffered after the accident, I accept that statement. It appears that over the years prior to her accident, when she Govt. Printer, Qld. 4 50 60 -- 4 of 8 -- was living with her family, she had in fact not engaged very greatly in paid employment. Nevertheless, she was a housewife for all those years, and this would necessarily involve heavy tasks, although she was inclined to discount the proposition that the work of a housewife involved any 10 10 20 great exertion. B~ that as it may, the first matter is that I am satisfied that the plaintiff, for all practical purposes, is now-unemployable. This has been so since the time of her accident, and it is permanent. There was some suggestion of her obtaining sedentary or sedentary-type ork, but given her background and my assessment of her and her age, I do not think that the suggestion is realistic. I am therefore satisfied that the plaintiff had pre-existing degenerative changes in that part of her spine which was the subject of an injury in her accident. To turn to the 20 30 30 40 so 60 edical opinions, Dr. Watson, who practises as a specialist in rehabilitative medicine, has been of the opinion that the plaintiff should have been able to go on to the end of her orking life in employment had it not been for the accident, ut I am satisfied that this opinion was based on a history hich was ~ot accurate. Dr. Low, who practises in the same speciality, summed up his conclusions at the end of a report dated 26 April 1991 in the following terms: "This woman has degenerate changes in the cervical and the lumbar spine and these degenerate changes are the cause of her present disability in the neck and the back. I would say that lifting thebales -of hay would have aggravated an underlying degenerate problem in the lumbar spine, but I don't think that lifting the bales of hay was a direct cause of her degeneration which would have been present anyway and most likely would have caused symptoms in any case." Govt. Printer, Old. 5 40 50 60 -- 5 of 8 -- 10 20 Dr. Gavin Dougl.as~ .an orthopaedic surgeon has given his conclusions in reports. dated 18 July 1988 and 5 November 1990, and he repeated them in his evidence. That opinion is that there were degenerative changes in the lower lumbar spine prior to the subject accident, that these could ave been asymptomatic up until that time and that they could have been aggravated by lifting a bale of hay. He is of the opinion that she would have inevitably developed low ack pain from the pre-:existing condition had she not sustained the injury in July 1984. He thinks that she would ave developed low back symptoms similar to those which she [ as now by the age of 55 years. In the result, given the istory, I find that the plaintiff's lower lumbar spine in hich there were already degenerative changes, sustained a further injury in the accident in July 1985 and that this 10 30 30 as accelerated the onset and progress of her symptoms. I accept the opinion of Dr. Douglas that she would, in any event; have been in her present position by about the age of 55 years. The plaintiff also complains of problems emanating from 40 40 50 60 the cervical spine. Dr. Douglas and Dr. Low are both ositively of the opinion that this injury did not, on the vidence, have anything to do with her accident. r. Watson expressed the opinion that there could be a link etween the condition of the lower spine and the condition f the cervical spine, but he said that the chances that that were so were considerably lessened by reason of the fact that she did not complain. of symptoms associated with the cervical spine until quite a long time (I think the period was in the order of 18 months) after the accident of Govt. Printer, Qld. 6 50 60 -- 6 of 8 -- 10 20 30 40 July 1985. The only evidencaI have as to the effect on her capacities of the symptoms in the cervical spine had the situation in relation to her lumbar spine not being exacerbated is from Dr. Watson. He expressed the opinion that the symptoms in her cervical spine would not have revented her continuing over the usual working life "provided she had. a reasonably sympathetic employer." He said that she would be intermittently absent from work had that been her only problem. However, from a practical point f view, the fact that I have accepted Dr. Douglas's opinion eans that I proceed on the basis that the condition of the lumbar spine would, in any event, have brought her to her resent situation by the age of 55 years and this, I think, 1 ould overshadow the effects of the condition in her cervical spine. I should mention that there was some evidence about an ~pisode involving a fall, I think in a caravan after the subject accident, but on the evidence I find that this has ot been of any significance in the final result. So far as the plaintiff's possible economic future is oncerned, I have mentioned that she was under a necess~ty to work, and I am satisfied that she would have endeavoured to do so, but she would have done so with increasing ifficulty, and she would, in any event, obviously have been articularly susceptible to any form of significant trauma 10 20 30 40 so 50 to the lower spine. In these circumstances, I think that there must be very considerable discount so far as assessments of past and future economic loss are concerned. For the period to date, I allow $60,000, and for the future $65,000. I asses general damages at the sum of $45,000. 60 60 Govt. Printer, Qld. 7 -- 7 of 8 -- 10 20 This also of course is considerably discounted because of hat would have been the plaintiff's history, in any event. On half of the $60,000, namely $30,000, I allow interest in the sum of $10,800, and on $15,000, being part of the $45,000, I allow interest in the sum of $3,600, the rate of interest in the latter exercise being 4 per cent. The total of the interest is $14,400. I do not think there were other items. The total of the damages and interest I calculate to e $184,400. I give judgment for the plaintiff against the defendant for the sum df $184,400 with costs to be taxed. HIS HONOUR: There was a considerable contest as to the extent to the which the plaintiff's injury might have een exacerbated or accelerated by the subject accident and I think that it was reasonable in her interests that her 10 30 30 40 50 60 solicitors should maintain the action in this Court. That test, that is whether or not it has been reasonable for the plaintiff's solicitors to maintain an action in this Court, having regard to the uncertainty as to what might be the result of a medical contest is to be found in on an old decision of the Full Court which is reported in the State Reports, I think, ack in the 1950's. There will therefore not be any order hich limits the scale of costs. Govt. Printer, Qld. 8 40 50 60 -- 8 of 8 --