Christie v Franklins Ltd [1990] QSCFC 34

1/}*, \ 10 20 30 40 50 60 FULL COURT (/O Ho o3<f c q i (i IN,THE SUPREME COURT OF QUEENSLAND ; c r ::'; • sporting Bureau Appeal No, 5 of 1990 Mr Justice McPherson Mr Justice Moynihan Mr Justice Byrne BRISBANE, 14 '.JUNE 1990 (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 : ANN CHRISTIE (Plaintiff) -and- FRANKLINS LIMITED (Defendant) Respondent Appellant JUDGMENT MR JUSTICE McPHERSON: I would allow the appeal with •costs. I would order that the judgment be set aside and in lieu I would give judgment for the sum of $51,474.89 with costs. 40 I have read the reasons in this appeal of my brother Byrne and I respectfully agree with them. My brother Moynihan has authorisejd me to say that he too agrees with those reasons. MR JUSTICE BYRNE: I agree with the order proposed by Mr Justice McPherson and I publish my reasons. 50 MR JUSTICEi'lMcPHERSON : The order will be as I have stated it. 10 20 30 60 -Govt. Printer, Qld. l [1990] QSCFC 34 -- 1 of 20 -- IN THE SUPREME COURT OF QUEENSLAND C- Tj/o? C.A. 5 OF 1990 FULL COURT BETWEEN : ANN CHRISTIE (Plaintiff) Respondent AND: FRANKLINS LIMITED (Defendant) Appellant MCPHERSON J MOYNIHAN J BYRNE J Reasons for Judgment delivered by Byrne J on the 14th June, 1990 McPherson and Moynihan JJ concurring with those reasons APPEAL ALLOWED WITH COSTS, JUDGMENT SET ASIDE AND IN LIEU GIVE JUDGMENT FOR THE SUM OF $51,474.89 AND COSTS. -- 2 of 20 -- IN THE SUPREME COURT OF QUEENSLAND Appeal No. 5 of 1990 Before the Full Court Mr. Justice McPherson Mr. Justice Moynihan Mr. Justice Byrne BETWEEN: AND: ANN CHRISTIE (Plaintiff) Respondent FRANKLINS LIMITED (Defendant) Appellant JUDGMENT - BYRNE J. Delivered the 14th day of June, 1990. CATCHWORDS : Damages - assessment of economic loss. Counsel: Mr P.V. Ambrose for appellant Mr K.R. Geraghty for respondent Solicitors: Morris Fletcher and Cross for appellant Watkins Stokes town agents for Adamson Bernays Kyle and Jones for respondent Hearing dates: 12th April, 1990 -- 3 of 20 -- IN THE SUPREME COURT OF QUEENSLAND Appeal No. 5 of 1990 BETWEEN: AND: ANN CHRISTIE (Plaintiff) Respondent FRANKLINS LIMITED (Defendant) Appellant JUDGMENT - BYRNE J. Delivered the 14th day of June, 1990. This appeal is against an award in the District Court at Southport of $100,474.89 as the respondent's damages for personal injuries sustained during the course of her employment by the appellant. On 9th September, 1985, the respondent, then aged 29, was injured through the negligence of a co-worker who carelessly dislodged an empty, plastic shrub pot from an upper shelf. The pot fell a short distance striking the respondent on the bridge of her nose, causing her to fall to the floor. The appeal is restricted to the components for pre-trial economic loss and diminution in future earning capacity. The challenge to the learned Judge's assessments - $40,000.00 for the past and $46,000.00 for the future - largely rests on a submission that the medical evidence was misunderstood. The respondent had left school not long before her 16th birthday and began work as a cashier at a retail store in -- 4 of 20 -- 2 Cessnock where she had lived all her life. She married in 1973. Before the birth of her first child in 1974 she ceased employment. Her second child was born in 1976. In that year she separated from her husband. In 1981, when her younger child was almost five years, old, the respondent returned to the work force, taking a position as a farm hand in New South Wales. She kept that physically demanding job for about three years. In 1984, the respondent came to Queensland where she accepted full-t -;me employment with the appellant as a cashier. At that time she anticipated working indefinitely. Her ambition was to earn enough money to take a flat so that her two children could come to live with her at the Gold Coast. Her work with the appellant imposed its strains. A deal of bending and lifting was involved, and the respondent occasionally experienced tension headaches lasting "a few hours". She did, however, cope without taking time away from work to rest and managed the physical work for the 18 months she was employed by the appellant before she was injured. After the pot fell on her nose, the plaintiff continued working for that day. On the next two days she returned to work without having sought medical treatment. On 12th September, concerned that the pot may have broken a bone in her nose, the respondent consulted Dr. Friend, a general practitioner. His examination revealed a 2 cm laceration across the bridge of the nose but no deformity of the bone. These conclusions were confirmed by x-ray. The respondent had also sustained some bruising in the region of the eyes and to the left elbow. -- 5 of 20 -- 3 After the consultation, the respondent returned to her work as a cashier. She found difficulty in the work, experiencing restriction of movement of the head and a "pulling sensation" in her back. She saw Dr. Friend again on 24th September. He diagnosed a joint complex irritation with secondary muscle tightness and referred her to a chiropractor for treatment. It was at about this time that the respondent stopped work for a week. She returned to her employment on 30th September but within a few days stopped work once more. Continuing neck and back pain prompted the decision. Further medical treatment was sought. In mid-October Dr. Arnold, a general practitioner, suggested acupuncture, refering her to Dr. McCarthy. Dr. McCarthy first saw the respondent five weeks after her accident. She complained to him of neck pain and headaches and a sensation of pressure throughout the head and neck. By January, 1986 Dr. McCarthy considered that the respondent had made good improvement as a result of the acupuncture course. This was also the respondent's impression at the time. The respondent told him in January, 1986 that she expected to be able to return to work although not in her previous employment. Dr. McCarthy then anticipated that "she may suffer some further disability in the head and neck area for some time, although this is quiescent at the moment". Dr. Friend's prognosis had also been optimistic. He anticipated that the respondent's medical condition would be "good" by early November, 1985. The respondent did not return to employment with the appellant. In January, 1986 she had asked to resume her work but "only doing light duties". The request was declined and the -- 6 of 20 -- 4 respondent, whose workers' compensation periodic payments had ceased by then, arranged unemployment benefits for her financial support. By March, 1986 the respondent remained unemployed. In that month she returned to Cessnock to help her mother who had suffered a stroke. The evidence does not suggest that by this time the respondent had taken any step to seek employment other than the approach to the appellant for light duties and by registering for unemployment benefits. When she arrived in Cessnock she expected to be there for a fortnight. She did not leave until two years later. Throughout that period the respondent and her sister looked after their mother until she was accepted into a nursing home. The mother's care was demanding. She had not regained the use of her legs after the stroke. The respondent described her mother's condition by saying "she can't do a thing for herself ... it was just like having another baby in the house" . The respondent fed her mother and attended to "normal stuff around the house". Her sister also helped, particularly by lifting their mother when necessary. In the two years spent at Cessnock, the respondent did not obtain any permanent or casual employment. But she was not without income. She had financial assistance from public moneys. For her first four months in Cessnock she received unemployment benefits. In July, 1986 unemployment benefits ceased and she became instead the recipient of sickness benefits. That new benefit was paid until August, 1987 when the respondent began to receive the supporting mothers' benefit after her children came to live with her in Cessnock. This assistance continued until -- 7 of 20 -- 5 about three months before the trial in November last year. By then the respondent had ceased work and was once more receiving unemployment benefits. The respondent experienced headache and neck pain while in Cessnock. There were days when her back would "start to ache"; and she was at times resting in bed with migraine headaches. At first, she took pain killing drugs to relieve these symptoms. She . also sought treatment. A Newcastle orthopaedic surgeon arranged for her to receive hydrotherapy at the Hunter Valley Rehabilitation Unit. A course of therapeutic massage was undertaken as well. This relieved the severity of the headaches, but some neck and back pain persisted. In July, 1986 the respondent was hospitalised for about 10 days for reasons unconnected with her accident-related symptoms. In December of that year she was a passenger in a motor vehicle which, while stationary, was struck from behind by another car. She suffered additional head and neck pain for about three weeks, after which there was no lingering disability attributable to the collision. Yet neck and back pain related to her September, 1985 injury persisted. The therapeutic massage treatment continued intermittently into 1987. It was eventually discontinued because of its cost. While in Cessnock, neither her physical disabilities nor the effort required in caring for her invalid mother precluded the respondent's taking employment. The learned Judge found that throughout this period, in addition to caring for her mother, "she could have performed part-time work ... if any had been available to her" . The medical evidence supports this -- 8 of 20 -- 6 conclusion. It is convenient to mention it now before considering its evaluation by the learned Judge. In mid-February, 1986, before leaving the Gold Coast, the respondent had consulted Dr. Eklund, an orthopaedic specialist. In his opinion she had sustained a "whiplash-type" soft tissue injury to muscle and ligaments in the spine. The respondent complained of occasional headaches "usually after a heav, day" and that at times her back seemed to "lock up". Examination disclosed an obvious shortening of the right leg, measured at five eighths of an inch above the knee, with a compensatory down tilt and curve to the lumbar region. Dr. Eklund's impression was that the respondent's back movements were full with slight discomfort at the dorsolumbar junction level at most extremes. He did not find any restriction of neck movement. Dr. Eklund saw the respondent again in June, 1988, three months after her return from Cessnock. She told him- that her last bad headache had occurred about four weeks previously and that her last slight headache had been experienced three days earlier. She seemed to Dr. Eklund "active and well". No spasm or tenderness was detected in the spine. There were no abnormal neurological findings, although there was apparent spinal curvature related to the shortening of the right leg - a birth defect. In his report dated 28th June, 1988 Dr. Eklund described her disability as "slight and subjective, but likely to be continuous, and only relieved by intermittent conservative management, attention to back care, and avoidance of physical excesses." He considered that: "Even without the work incident there could have been future postural problems with her back, and the injury -- 9 of 20 -- 7 has probably 'triggered' her into having symptoms at an earlier time then she could have otherwise expected She would be capable of light work of a domestic nature, and other work provided it allowed frequent breaks from stationary or sitting postures, and the avoidance of heavy or sustained lifting. Long term, I do not believe the incident at work will have affected her prognosis." Dr. Eklund saw the respondent again in late October, 1989, a few weeks before the trial. His 24th October report and his oral evidence were central' to the appellant's submissions in this court. Because of the nature of the challenge to the learned Judge's conclusions I shall set out Dr. Eklund's report: "Since last seen by me, she said that she had worked as a casual housemaid at the Sheraton Mirage from August to October 1988 approximately (6 hours on 4 days per week) . She has seen her doctor a couple of times. On the last occasion some months ago he gave her injections for relief of vomiting and headache. On three occasions she had privately arranged "therapeutic" massage to relieve symptoms which still trouble her. She is "heaps" better than she was, and there is not much she can't do! However, if she does certain things without thinking, she usually pays for it. She can't stand or sit for long e.g., she went to a concert two weeks ago, and had to stand the whole performance, and as a. result had to have two days off to recover. She attributes her improvement mainly to a better psychological attitude to her disabilities. She usually gets a bad migraine about once every 6 weeks. Her neck and back movement is not continuously restricted, but occasionally a quick movement of her head when driving the car, can affect her neck. She is generally better off when getting about. Presently she has a slight pain in the right side of her neck, and thinks this might have been due to the driving here this morning. At examination she was of average build, with an allover suntan, and in apparent good health. There was no evident protection of stance, gait or posture. Cervical and dorsal spinal contours were normal, with no evidence of muscle spasm or wasting about the neck, -- 10 of 20 -- 8 shoulder girdles, or upper extremities. There was some slight tenderness over the nuchal region extending distally to about D4 . Cervical movements were of normal range. There was occasional complaint of a "pulling sensation" at the base of the back of the neck. There were no abnormal neurological findings. Grip range and strength was normal. No tremor was noted, and cranial nerve testing was normal. Neck/shoulder combination movements were well performed, and apparently painfree. Lumbar spine contours were as previously described. No muscle wasting or spasm was detected. There was no tenderness . Movement Rangers: Flexion was achieved to fingertips 6" from the floor. Extension was full and painfree. Lateral bending and rotation was full and free of pain . Tiptoe and squatting was performed easily. There was a normal recovery of the erect position from the full squat. Straight leg raising was 90 degrees right and left. There was complaint of a slight back "pull" at extreme right. Sitting with extended legs on the couch from the supine position was accomplished with no difficulty, and maintained with no evident discomfort. There were no abnormal neurological findings. Abdominal examination was normal ... COMMENT: There is allegedly still some recurrent mild disability. To what extent her intermittent "migraine" attacks can be implicated as a psychosomatic aftermath of the accident, I am unable to state. I cannot accept these particular symptoms as having an orthopaedic basis. However, I can concede that intermittent painful restriction of movement could be a residual effect of the accident. Her symptoms are now mostly subjective, and in my opinion, are likely to continue diminishingly over many months. She is quite capable of modified work activity, but on her statements to me is still unable to cope with sustained lifting of weights, and prolonged standing and sitting without paying a penalty. Present indications suggest these limitations will continue for quite some time yet. However, in my experience, -- 11 of 20 -- 9 I firmly believe that there will be no longlasting ill effects traceable to the accident. In evidence Dr. Eklund said that the respondent's back was scoliotic and therefore "vulnerable". The scoliosis, he accepted, was the cause of her back and neck symptoms. In his view the congenital deformity responsible for the condition - the leg shortening - might not have produced any symptoms without an external influence such as the pot's falling on her head. He spoke about the impact on the respondent's capacity to work of the disabilities attributable to the accident: "I think at some time in the interim between the time I first saw her and the time I have just seen her she would have been fit to return to some type of employment like shop assistant or such like. Knowing she had a scoliosis, the work that I would have suggested would have been to avoid heaving lifting, prolonged stooping and standing... And that would have been the advice I would have given someone who had a symptomless scoliosis anyway." He was asked what work she would have been able to do. He answered: "mobile work, moderate lifting and bending as long as she wasn't doing it repetitively for a long period. If she could move about at any moderate job, yes, she could cope with that at some time between the time I first saw her and recently." Asked to identify a time by which "she would have been fit", Dr. Eklund nominated "after" his report of 28th June, 1988. In cross-examination he said the respondent was fit for work as a shop assistant and had been so for quite some time before the trial. He also agreed with the suggestion that she was able to undertake part-time work before June 1988. His reports and testimony reveal that the respondent's post-accident employment potential was underutilised. -- 12 of 20 -- 10 In Cessnock the respondent looked for casual work as a shop assistant but not, it seems, for other part-time employment. Yet she was, she said, "fit for casual work" at that time. She testified that the only shop assistant positions available in Cessnock in 1986 were either permanent or only for juniors. By 1987, when her symptoms were somewhat improved, she wanted, she said, to return to work full-time but found that in Cessnock "there just wasn't anything available for my capaci.-y, for what I could do." In March, 1988, after her mother went to the nursing home, the respondent returned to the Gold Coast. She told the learned Judge that, although she wanted to get work, she was not feeling ready for full-time employment. Casual work suited her. So she became a part-time housemaid at the Sheraton Mirage Resort. After three months, she surrendered the position, apparently because she could not, she felt, manage the longer hours expected of her. She earned about $3,000.00 at the Mirage. Other opportunities were available. In October, 1988 the respondent and her daughter became casual employees of a local building cleaning contractor. Both worked about one and a half hours, five days a week. The respondent's daughter's weekly pay was $90.00. The respondent received $50.00 per week for the same work. ($64.00 was the maximum weekly amount a person receiving the supporting mothers' benefit could earn without affecting the benefit). By the trial, she had not worked since she gave up the job in July, 1989. Not surprisingly in view of the medical evidence, it was suggested in cross-examination that she was fit for some permanent employment. She rejected the -- 13 of 20 -- idea, saying "I don't think I could handle full-time work. I have tried." She pointed to continuing problems with her back - limitations of movement and associated pain - as the main restrictions on her ability to work. The learned Judge's calculation of economic loss was decisively influenced by his appreciation of Dr. Eklund's views. In his reasons, his Honour said that he accepted Dr. Eklund's evidence. The evidence has already been mentioned. His Honour's understanding of its effect may now be approached. His Honour said: "I find, as opined by Dr. Eklund, that she is unfit for full-time employment at all and is able to work only in part-time occupations in which sustained effort is not required of her. Needless to say such forms of employment are not readily available ... I am satisfied that her earning capacity has been practically destroyed ... Dr. Eklund ... was pressed to admit in cross-examination that, but for the pre-existing condition which was exacerbated by her injury, she would have been able to return to employment at some time in 1988. However that is a long way from saying . . . that her continuing symptoms and in particular her inability to follow full-time employment since that time are not causally related to her compensable injury. I find that the onset of symptoms unrelated to that injury may not have occurred for many years but for her sustaining her injury and for the purpose of assessing damages, I consider it reasonable to adopt a figure of five years as a time in the future at which the plaintiff might have been disabled in any event as she is now." These conclusions were fundamental to the assessment of economic loss until trial and for the future. Unfortunately, they also reflect a misconception of what Dr. Eklund had said concerning the effects of the respondent's injury, particularly in relation to her capacity for work. Dr. Eklund did not express the opinion that the respondent was unfit for full-time work. He had said she was capable of -- 14 of 20 -- 12 some permanent employment and had been so for about a year before the trial. Nor did Dr. Eklund imply that the respondent was able to work only in part-time occupations where sustained effort was not required. It is true that Dr. Eklund identified a range of physical activities better avoided. He instanced lifting or bending "repetitively for a long period" . No doubt restrictions of that sort limited the range of suitable employment. But neither Dr. Eklund's nor any other evidence sustains the inference that her earning capacity was practically destroyed. She herself had said that when she reached Cessnock in 1986 she was fit for casual work. And when she returned to the Gold Coast the respondent took part-time employment: as much, the evidence suggests, as she was anxious to accept. The learned Judge's reference to a concession in cross-examination is also an error. His Honour apparently considered that Dr. Eklund, in response to an hypothetical enquiry, had said that "but for the pre-existing condition which was exacerbated by her injury" the respondent could have returned to permanent employment in 1988. Instead, consistently with his 24th October 1989 report, what Dr. Eklund had said was that in her actual condition, with all its injury-related symptoms and physical restrictions, she was fit for full-time employment some time after the middle of 1988. The learned Judge's reference, shortly after his consideration of that aspect of the medical evidence, to the respondent's "inability to follow full-time employment since" 1988 is founded on a mistaken view of Dr. Eklund's evidence, not a rejection of it. As mentioned, his Honour said that he accepted the evidence of -- 15 of 20 -- 13 Dr. Eklund, preferring it to that of another orthopaedic specialist, Dr. Maguire, who had given it as his opinion that the symptoms complained of were unrelated to the accident. The appellant has shown that Dr. Eklund's evidence was misunderstood. Because that evidence was critical to his Honour's approach, the assessment of economic loss cannot stand. This court must now decide those components of her general damages. The starting point is that the respondent was entitled to receive such sum as would make good the financial loss she has suffered and would probably suffer as a result of the personal injuries sustained at work on 9th September, 1985. The accident at work triggered, as Dr. Eklund put it, the onset of symptoms in a previously asymptomatic, but vulnerable, scoliotic back. The injury caused neck and back pain, restrictions of movement and periodic, sometimes severe, headaches which adversely affected earning capacity. The respondent is entitled to be compensated for those things and their impact on her capacity to earn income. But the damages should not include loss not attributable to the accident. This matters in this case because there is no reason to suspect an absence of suitable, available casual work on the Gold Coast in the two years spent at Cessnock. Such evidence as there is discloses that in March, 1988, when she returned to the Gold Coast, the respondent found as much casual work as she wanted. Seen in this light, her compassionate election to move away to care for her mother in a place with diminished employment opportunities meant that, by her free choice, for about two years she did not use a substantial residual capacity for -- 16 of 20 -- 14 remunerative employment. The respondent might have gone to Cessnock and cared for her mother had she not been injured. That possibility was not developed in argument before us nor explored at the trial. The appellant was content to conduct the litigation on the basis that the quantification of pre-trial economic loss should assume that the respondent would still have been a cashier by November, 1989 if the accident had not supervened. Accordingly, the chance that, if uninjured, she might have gone to Cessnock may be ignored. As the case was conducted, some other contingencies tending against a substantial award for pre-trial loss may be put aside also. The appellant was not disposed to contend that the assessment should allow for such a prospect as that, by trial, the respondent might have ceased work as a cashier for reasons unconnected with the injury: for example, the early onset of disabling symptoms or some other harsh vicissitude like the "emotional breakdown" (as the respondent described the condition) which required her hospitalisation and psychiatric care in 1984. If the accident had not occurred and the respondent had continued in the appellant's permanent employ, she would have earned about $53,500.00 net of tax in the more than four years between injury and trial. In fact she was incapacitated for short periods for other reasons. In July, 1986 she was hospitalised. In Christmas, 1986 she suffered through the vehicle accident. Because invariably she took her one day each month for sick leave, presumably there was no bank of accumulated days to draw upon. The likely period of any absence of work for these temporary incapacities was about two months. -- 17 of 20 -- 15 There was no evidence suggesting that the appellant would have paid her wages during the absences. $1,500.00, the amount she would probably have lost, should therefore be set against the $53,500.00 to take account of those absences. A more problematic aspect is the money value to be imputed to her residual employment capacity. Even by the trial, the respondent was unable to accept permanent work involving a deal of repetitive bending or lifting. She could not have returned to the check-out counter. Physically taxing jobs of the kind undertaken before the accident, cashier and farm hand, were beyond her. So too was domestic cleaning work. No doubt, as Dr. Eklund said, the respondent could work as a shop assistant, at least if the particular job permitted periodic rest and provided opportunities to move about. On the evidence the learned Judge accepted, these restrictions were causally related to the accident. Much of the range of work the accident denied was not particularly suitable in any event because of her pre-existing back condition. Yet, but for the accident, however uncomfortably, she could have performed tasks not within her post-injury capacity. His Honour's finding that the inevitable onset of symptoms associated with her scoliosis would not have prevented her from working as a cashier by the time of the trial is not challenged. An impaired capacity to earn income until trial has been proved and some value must be placed upon it. She is entitled to compensation for the value of lost opportunities to earn income. In respect of her pre-trial loss, the amount to be -- 18 of 20 -- 16 attributed to her diminished earning potential requires a consideration of the extent to which it has actually produced a monetary loss. The respondent had a capacity for part-time work from about March,: 1986. Had she remained at the Gold Coast, it seems she could have found suitable casual work from that time until the latter part of 1988. By then, her capacity for full-time employmeut in a somewhat limited range of job opportunities had been substantially restored. The state of the evidence adduced at the trial does not permit any precise quantification of the difference between the approximately $52,000.00 she would have earned had she continued to be employed by the appellant and the likely remuneration in her injured condition had she stayed at the Gold Coast, exploiting her reduced capacity. If the respondent had worked full-time in the year preceding the trial, she would have been paid more than $13,000.00, after tax. Had she been casually employed, working within her reduced capacity, for about two and a half years after March, 1986, her net income from that part-time work probably would have exceeded $12,000.00. Using her remaining capacity she might have been expected to earn, in aggregate, not less than $25,000.00 nett between accident and trial. That she earned only about $5,000.00 in that period resulted from her decision not to exploit fully her post-accident earning potential. In these circumstances, $27,000.00 should be allowed for pre-trial economic loss. The respondent's future employment prospects are not so bleak as they seemed to the learned Judge. Yet the evidence his -- 19 of 20 -- 17 Honour accepted disclosed some continuing, accident-related restriction on her earning capacity. However, it is tolerably clear that her employment prospects were about to be prejudiced in any event. Dr. Eklund's evidence reveals that in late 1985 she could have expected that it would not have been long before she would have experienced symptoms related to her congenital deformity which impinged on her continuing ability to work. A person with a symptomless scoliosis would have been advised to avoid heavy lifting, prolonged stooping or standing. The falling pot brought about an early onset of symptoms which progressive degeneration or some other trauma may have precipitated in any event. The evidence, particularly that of Dr. Eklund, could not support an assessment of future economic loss exceeding $10,000.00. His Honour allowed $46,000.00. The award in respect of pain and suffering and loss of the enjoyment of the amenities of life was not challenged. His Honour did not award interest in respect of pre-trial economic loss. Accordingly, having regard to the way the appeal was argued, a reduction in the economic loss components does not require any consequential adjustment to other parts of the award . The judgment should be varied by a reduction of $49,000.00 ($13,000.00 for pre-trial loss; and $36,000.00 for the future), substituting for his Honour's award the sum of $51,474^.89. The appeal should otherwise be dismissed. The appellant should have its costs. -- 20 of 20 --