De Git v Banana Hospitals Board [1991] QSC 195

IN THE SUPREME COURT OF QUEENSLAND No. 4653 of 1987 BETWEEN: AND: CATCHWORDS: COUNSEL: SOLICITORS: JANICE FAYE DE GIT BANANA HOSPITALS BOARD REASONS FOR JUDGMENT - MASTER WHITE Delivered.the Fifteenth day of July, 1991 Plaintiff Defendant Enrolled nurse 21 years lowering patient burning sensation in lower back and down left leg - constant dull pain to date of judgment - unemployed since shortly after injury conflict of medical opinion as· to plaintiff's condition depression other intervening events. Mr. L. Barnes for the plaintiff Mr. C. Carrigan for the defendant McCullough Robertson for the plaintiff Morris Fletcher & Cross for the defendant HEARING DATE: 23rd April, 1991 -- 1 of 20 -- IN THE SUPREME COURT OF QUEENSLAND No. 4653 of 1987 BETWEEN: AND: JANICE FAYE DE GIT BANANA HOSPITALS BOARD REASONS FOR JUDGMENT - MASTER WHITE Delivered the Fifteenth day of July, 1991 Plaintiff Defendant The plaintiff is a twenty-six year old married woman who sustained injury to her back at her place of work, the Theodore Hospital, operated by the defendant, on the 1st September, 1985. Liability has been agreed between the parties whereby the plaintiff accepts 5% liability for the cause of her injury and her employer 95%. The plaintiff commenced employment as an assistant nurse at the Theodore Hospital in March, 1985. At the time of the incident, the subject of these proceedings, the plaintiff was assisting a Sister Heather Jago to toilet an elderly . female stroke patient, one Mrs. Donnelly. Although liability is settled it is necessary to consider the circumstances of the plaintiff's injury. The plaintiff assessed the weight of the patient at around 85 kilos (circa. 13½ stone). She was paralysed in her right side and was described by the plaintiff as "pretty well a dead weight" (t/s p.9). The lift occurred in a toilet cubicle which was a quite restricted area. The plaintiff stood in front of Mrs. Donnelly, put the patient's -- 2 of 20 -- ~ arms around her neck, bent her knees and with her arms around the patient's waist got the patient into a standing position. The plaintiff then set about lowering the patient into a mobile chair held in place by Sister Jago. The real difficulty for the plaintiff, apart from the confined space, seems to have been that the mobile chair had a solid front so that she could not bend appropriately at the knees and thus had to bend her back when lowering the patient into the chair. Holding the full weight of the patient, the plaintiff bent over to lower her into the chair and felt a burning sensation in her lower back followed by pain radiating down her left leg. This occurred near the end of the lift and the patient was dropped the remaining few inches into the chair. The plaintiff advised Sister Jago of what had happened and, being at the end of the shift, returned to the nurses' quarters, took medication for pain relief and rested. Although experiencing pain the plaintiff continued to work for the next week - the hospital was apparently not very busy at the time but then consulted with a general practitioner, Dr. Tan, at Biloela who prescribed Brufen, digesics and certified that the plaintiff remain off work for two weeks. The plaintiff attempted to return to her work thereafter but found that her back pain was such that she could not manage without taking strong pain relief medication. She took two weeks holidays in October 1985 during which time her back improved. She returned to work but again was unable to manage due to her back pain. Being unhappy with the medical advice which she was receiving, the plaintiff -- 3 of 20 -- l consulted Dr. Bruce Chater, a general practitioner in Theodore. The plaintiff ceased work at the Theodore Hospital on about the 12th · November, 1985 and since that time the plaintiff's evidence is that there has been no substantial change in her symptoms. She experiences a constant dull ache in her lower lumbar spine and pain in her left leg nearly to her knee after "walking too far or sitting too long" ( t/ s p. 1 2) . If the plaintiff does anything strenuous the pain radiates down to the ankle and she also experiences pain in her lower left buttock area. Bending backwards results in a sharp stab of pain and although she can bend forwards satisfactorily she experiences pain afterwards. At the time of sustaining her injury the plaintiff lived in Biloela and worked in Theodore where she stayed in the nurses' quarters during her shifts but would return to Biloela for the longer breaks. She was hoping for an appointment to - the Biloela Hospital as an enrolled nurse at the time . of sustaining her injury. The plaintiff had commenced- studies in Victoria to be a registered nurse but after failing exams became an enrolled nurse. Her qualifications were recognised shortly after she sustained her injury. The plaintiff had come to Queensland at the end of 1984 or early 1985 to be near her boyfriend who worked on his family's farm near Biloela as a station hand. At the time of the plaintiff's injury he had left the farm and moved into Biloela where he worked as a seed grader. They married in March 1986 and have a young son born on the 14th August, 1990. In mid 1988 the plaintiff and her husband went to Victoria to manage a dairy farm owned by the -- 4 of 20 -- i plaintiff's parents. It seems that the plaintiff's brother who usually managed the farm was sick and they were given the opportunity to improve their financial position. The plaintiff maintains that they would not have left Biloela had she been able to continue in her employment as an enrolled nurse, or, had they gone to Victoria her husband would have worked the farm alone and she would have found work at the local hospital where she had contacts. The plaintiff and her husband operated the farm as a partnership although the plaintiff's share of the work was light and involved such things as hosing out the yard and doing the books and breeding charts. She drove a landrover during the dry season while her husband threw off the feed for the cows. She did a farm management course whilst there. They remained on the farm until March 1990 when the plaintiff's brother was again able to resume its management and returned to Biloela. The plaintiff's husband was unable to return to his previous occupation -so they went to Windorah where he obtained employment on a cattle property. The plaintiff remained with him until July 1990 when she left due to her impending confinement and they both returned to Biloela after the baby was born. It is their intention to make their home for the foreseeable future in Biloela. The plaintiff's husband is in employment on a farm property near Biloela earning about $292 net per week. The plaintiff presented in the witness box as moderately overweight and very miserable at the situation in which she finds herself in constant pain, experiencing financial -- 5 of 20 -- ~ hardship, guilty about the burdens placed upon her husband due to her pain including extra housework, childcaring and sexual difficulties, and her social isolation due to her inability to participate in sporting and community activities. Prior to sustaining her injury the plaintiff described herself as active, participating in tennis, squash, lawn bowls, swimming, pushbike riding, horse riding and dancing, doing one or other of these activities two or three times per week. She considered herself a happy, people particularly through outgoing person mixing with many her sporting interests. Her husband knew her for some two years prior to the injury and described her as "a happy-go-lucky sort of person" who enjoyed playing social sport regularly. His evidence was that since the accident she becomes depressed easily which manifests itself in irritability and quietnes-s. He referred to their sexual difficulties due to his wife's low back pain. I accept both the plaintiff and her husband as honest witnesses and indeed it was not submitted otherwise. Since swimming. housework her injury the plaintiff She has difficulties with including hanging out the can now enjoy many aspects of washing, cleaning only her the bathroom, vacuuming and sweeping, carrying groceries and carrying the baby. She is unable to drive for periods longer than 1½ hours without becoming uncomfortable. She has consulted Dr. Alroe, a psychiatrist, to assist her to resolve her feelings of depression but her evidence is that it did little good and that she is still unhappy and cries "a fair -- 6 of 20 -- bit" although she says that she is a little improved since 1987. Two events have occurred since sustaining her injury which Mr. Carrigan, who appeared for the defendant, submitted could also explain the plaintiff's mental condition. In early - April 1987 she was operated on to remove a pituitary tumour. The symptoms were the cessation of her menstrual periods and lactation for about three months previously. The operation was a perilous one requiring entry through the roof of her mouth with some risk of damage to her optic nerves. Although it was suggested to the plaintiff that the symptoms, diagnosis and operative procedure would have caused her to be depressed the plaintiff denied this. Her medical advisers had explained the symptoms as "hormonal" and she accepted this and after diagnosis she said that she was "scared more than anything. I don't think depressed -is the word" (t/s p.80). The operation was a success although the plaintiff stated that as a side effect she has had difficulty in conceiving. The plaintiff was treated with drugs to assist in conception and in April 1988 had an ectopic pregnancy which required surgery. The plaintiff's evidence was that she and her husband had hoped to have more than two children but because of the difficulties associated with conception they had now settled for two. I note that Dr. Christopher Alroe, psychiatrist, who treated the plaintiff on referral from Dr. Chater, in his report of the 27th November, 1987 (Exhibit 8) was of the opinion that the plaintiff's psychological condition was complicated by the prolactinoma operation. Dr. -- 7 of 20 -- l Alroe did not give oral evidence. He does no explain in his report at all how in his opinion this operative procedure has affected the plaintiff's psychological profile except to note that part of the treatment was administration of a drug which led to "a degree of excessive weight gain". If he was suggesting that the weight gain was partially responsible for the plaintiff's depression, she was depressed prior to the occurrence of the prolactinoma and had, by that stage, already put on weight. He also concluded that the plaintiff was mildly predisposed to her. psychological response to her injury and its sequelae again with little detail or explanation and that her prospects of recovery were poor. Dr. Raymond James, psychiatrist, saw the plaintiff in June 1990 several months prior to the birth of her child. His report was admitted into evidence (Exhibit 19) but he did not give oral evidence either. He concluded:- "! thought that she had coped well with these complicated medical conditions [the tumour and the ectopic pregnancy], but it would be reasonable to expect that she would have experienced some periods of reactive mood depression due to the problems of chronic lower back pain, and the neurosurgical operation in April 1987, then the drug treatment with Bromocriptine in 1988 and the ectopic pregnancy in April 1988. If her pregnancy is uncomplicated and she adapts to life at Windorah, the prognosis is for recovery from the depressive mood disorder. In summary, the chronic lower back pain and other stressful life events caused an Adjustment Disorder with depressed mood, from which Mrs. De Git is now recovering." The plaintiff has been delivered of a heal thy baby but she continues depressed apparently due to the various factors which I have mentioned above. I am not greatly assisted by -- 8 of 20 -- !}_ the psychiatrists' reports since they differ. However, having seen and heard the plaintiff and her husband in the witness box I formed the view that the plaintiff's isolation due to her pain and inability thereby to participate in country life as she was accustomed to do, is and has been a major cause of her depression coupled with her distress at the burdens which she perceives her pain has placed upon her husband. I also conclude that the plaintiff's difficulties with conception have contributed to her lowered sense of self esteem and added to her depression. She appeared to me to be a person who has "paid her way" financially in the past and regrets very much her inability to contribute to the family finances due to her failure to be able to be employed. She has made brief unsuccessful attempts to return to work. She was employed as a bar assistant in Biloela in 1987 /88 replacing a woman on holidays. She was required to clean and tidy the bar area and even this light work was productive of considerable pain in her back and leg. She took painkillers more than normal during this period. She also attempted to find work in various kindergartens and child care centres unsuccessfully. Of some dispute is the cause of the plaintiff's chronic back pain. Drs. McPhee and Phillips on the one hand and Dr. Watson on the other had different opinions. The former hold the view that as a consequence of the injury sustained on the 1 st September, 1985 the plaintiff has damaged the internal structure of a disc whilst Dr. Watson has concluded that the plaintiff's posture and weight are the most likely explanations for her back pain. It might be added that Dr. -- 9 of 20 -- Alroe was of the view as expressed in his report that the plaintiff's pain was largely functional. Dr. McPhee initially examined the plaintiff for the Workers' Compensation Board and five of his reports to the Board or to the plaintiff's solicitors have been admitted (Exhibits 9-12 and Exhibit 15). He also gave oral evidence. His opinion is summarised in his report to the Board of the 24th July, 1986. "In the absence of any radiological abnormality, and in the absence of any nerve ioot signs in the left leg, I think it should be concluded that there is some internal derangement of one of the lower lumbar discs. Clinically the level may be at the L4/ 5. It is giving rise to discogenic pain felt in the back and down the left leg. The chances of her symptoms diminishing at this late stage are significantly reduced. I think it unlikely that conservative treatment is going to have any permanent and beneficial effect on her symptomatology." This opinion is confirmed in his most recent report to the plaintiff's solicitors of the 10th April, 1991 where he states:- "My conclusions remain unchanged. ·Your client is getting chronic low back pain occasionally associated with left leg pain. The symptoms followed an injury sustained in the course of hei work in 1985. I do not believe that there has been any significant change in either her symptoms or clinical findings and therefore she must be considered stable. To date there has been no conclusive cause demonstrated for her ongoing back pain and one can only assume that this is related to some internal derangement of one of the lower lumbar discs. This could only be confirmed by further investigation. I do not think that this can be justified unless surgery is being considered.". The plaintiff has consistently demonstrated tenderness at the L4/5 level. Epidural injections of steroids had given the plaintiff only temporary relief in the past. Despite lengthy cross-examination Dr. McPhee was firm that the most likely explanation for the plaintiff's symptoms was that given in his -- 10 of 20 -- 1Q reports, but that there was no justification for carrying out investigative surgery to confirm this unless surgery to fuse the discs was being contemplated. Dr. McPhee's experience was that the young age of the plaintiff was no bar to what had apparently occurred when one considered the high risk occupation that she was engaged in. He was of the opinion that the plaintiff's posture and weight had no bearing upon her lower back p~in. Dr. Donald Watson, orthopaedic specialist, was sceptical without objective evidence after six years that there had been any internal disc rupture on the 1st September, 1985. Dr. Jeffrey Phillips, surgeon and specialist in musculo~ skeletal medicine, prepared three reports which are in evidence (Exhibits 6,7 and 14) in which he concluded that the plaintiff had experienced a left sided herniation on the 1st September, 1985. Dr. Phillips gave oral evidence that the herniation would have followed some internal derangement of the disc caused while lifting the patient. He first saw the plaintiff in early December 1985 on referral from Dr. Chater, the plaintiff's general practitioner in Theodore and noted loss of sensation to pin prick between her first and second toes and on the outer side of the left calf. These symptoms were consistent with disc herniation. He agreed with Dr. McPhee's opinion as to the plaintiff's present status and was further of the opinion that surgery could relieve some or all of the plaintiff's back pain. His evidence was that "if the operation is successful it will leave her with a symptom free back with virtually no alteration in function'' (t/s p.83). -- 11 of 20 -- 11 I prefer the evidence of Dr. McPhee and Dr. Phillips. They both have examined the plaintiff over many years and in the case of Dr. Phillips has been actively involved in her treatment. As to the question of future surgery, in cross- examination the plaintiff said that she had discussed the chances of successful surgery with her medical advisers and had been told that they were "slim" or "no guarantees". She was not challenged on this and neither was it submitted that she was being unreasonable in failing to undergo surgery. The plaintiff has hopes of retraining as a laboratory technician and seeking work with the Department of Primary Industry and the C. S. I. R. 0. in Theodore. She needs formal academic qualifications which she does not presently hold having passed only one of a number of necessary exams and there is some suggestion that she may find this difficult. No evidence has been led as to what job opportunities there are in the district for this kind of work or the pay and conditions of employment. The likelihood of the plaintiff obtaining this kind of remunerative work is merely a factor for me to consider. Mrs. Helen Coles, occupational therapist, whose report is Exhibit 13 and who gave oral evidence concluded that the plaintiff, with the limitations imposed by pain and lack of qualifications is commercially unemployable. her report she notes:- At page 15 of "Although assistant the event obtaining Mrs De Git's aspiration to work as a laboratory could be considered a practical alternative, in she completed her course, her prospects for work would be limited by her postural -- 12 of 20 -- restriction. Even if suitable work were to be available to her, she would be dependent upon an employer'swillingness to allow her to stand, sit and move around as and when necessary to relieve discomfort and she could beexpected to have intermittent absenteeism for pain relief." The plaintiff's evidence supported by that of her husband was that she intended to remain in employment as a· nurse after marriage until the birth of children and that she would then take some time off prior to returning to the workforce. Her back injury, of course, has precluded that course but I must calculate her loss on the basis of what might have occurred taking into account the number of children she hopes to have and whether she might have gone back to work. Her difficulty in conceiving has meant some reassessment of her original plan. The plaintiff says that had she not been injured she would have looked for night shift work as an enrolled nurse and left the baby when approximately eight months old in the care of her husband. She would probably have stopped working when four or five months pregnant bearing in mind her difficulties in conceiving. It was her evidence that had only day shift work been available then she would have sought part time work until the baby was twelve months old and would then have employed someone to care for the child. I will consider the various relevant specific heads of damage: Pain and Suffering and Loss of Amenities of Life The plaintiff's prior pleasant active lifestyle has been brought to an end by the pain which she suffers as a result of the injury to her spine. She continues to suffer from -- 13 of 20 -- ll depression due largely to this pain. I would hope that the lessening of her depressive condition noted by Dr. James might continue. As a result of the award of damages which she will obtain the financial burden placed upon the family will be lifted substantially and the plaintiff, it is hoped, will feel less anxious about her inability to work. that her physical symptoms have stabilised. The evidence is On the state of the evidence I cannot suppose that the plaintiff will undergo spinal surgery successfully. Neither the plaintiff's nor the defendant's cases were conducted on this basis. It is anticipated that the plaintiff will continue to experience pain for the rest of her life, but with the financial means available, she will be able to purchase whatever labour saving device~ as may be necessary to help at home. She may be able to join in some rather more- sedentary community activities and -enrich her social life. She has had her pleasure in her motherhood reduced by the pain and for this she should be compensated. ~or pain and suffering and loss of the amenities of life past and present I award the plaintiff $30,000 and of that $10,000 will attract interest at 4% per annum from the date of injury to judgment. Past Loss of Earnings The plaintiff had been in regular employment from the time she left school except for a period between January and March 1985 when she came to Biloela and was looking for work and was in receipt of social security. The amounts that she earned are set out in Schedule 1 (Exhibit 22) tendered by the -- 14 of 20 -- .1.i defendant. The plaintiff's actual income earned since 1 st September, 1985 is as set out in Schedule 3 (Exhibit 23) again tendered by the defendant. This shows that the plaintiff was in receipt of Workers' Compensation payments for almost two years. She obtained a half share of the farm profits for the years 1988/89 and 1989/90. Her evidence was that had she been uninjured she would have obtained nursing work in the local hospital whilst her husband ran what was a one man farm. I accept this. The plaintiff and her husband no doubt obtained some tax benefit from the partnership arrangement which may not have been available had she been in outside employment. Mr. Barnes who appeared for the plaintiff submitted that on the authority of Batt v. Wilkinson [1983] 2 Qd.R. 619 I ought to disregard completely the partnership monies of approximately-$30,000 net received by her and allow an amount representing-what she would have earned had she been employed as an . enrolled nurse. The authorities dealing with partnership losses do not consider this proposition but do affirm the general proposition that it is the loss to the plaintiff which must be considered, see Zachipoulos v. S.G.I.C. (1986) Aust. Torts Rep. 80-023. No evidence was led as to what financial arrangements would have been made had the plaintiff been employed during the farm venture. There may have been no partnership. The appropriate approach is to assume that the plaintiff would have found local employment but perhaps not immediately or have been able to retain such employment for the whole period and calculate the loss on that basis, making an allowance for some work on the book-keeping -- 15 of 20 -- li and paper work side of the farm. I so conclude because the plaintiff seemed to me to have been likely to have done this even if she was in outside employment. Mr. De Git seems more likely, on my appreciation of him in the witness box, to have been responsible for the physical work only. There are no precise figures available but I propose to make an adjustment to the figures suggested by the plaintiff to reflect this. As mentioned above the plaintiff indicated that she would have stopped working early in her pregnancy had she not been injured. She was hospitalised because of the pituitary tumour and the ectopic pregnancy. For the plaintiff it is proposed that a total of six weeks be deducted for these periods. The evidence of the plaintiff suggests a slightly less amount of time was involved and she would presumably-have been entitled -to some sick leave had she been in employment, however it seems a proper period to deduct and I will adopt that figure of six weeks. The plaintiff took two weeks of her holiday entitlement to rest her back in September 1985 soon after being injured. She is entitled to be recompensed for that. She earned $456 net from employment as a bar cleaner. The plaintiff's calculations are set out in Schedule A and are derived from Exhibit 21 . They amount to $64,905.40 and are based on continuous employment with the defendant. Although it is possible that the plaintiff with her husband may not have taken up the farming offer had she been uninjured I conclude their hope of making better money would have drawn them to do so. The plaintiff, as mentioned above, may not have got work immediately therefore I make an allowance for -- 16 of 20 -- 1.§_ this in my calculations. I will assume that she would have been paid about the same amount as she would have if employed by the defendant. I propose to nominate $10,000 as a sum which she might have been paid as a book-keeper to the farm business over two years. It seems not to do justice to the defendant to neglect to make some attempt to quantify this amount. I allow $50,000 for past loss of earnings to judgment. The plaintiff received gross. weekly compensation of $21,392.88 from the 13th September, 1985 to the 9th September, 1987 and the tax was $3,525. 77. She received a lump sum of $5,047. Interest will be awarded on the amount of $27,085.89 at 6% per annum for five and five-sixth years amounting to $9,480. Loss of Future Earning Capacity If the plaintiff were currently employed by the defendant her net weekly wage would be $384.72. The award rate for an enrolled nurse is $297.60 net per week. There is no explanation defendant. for the significant above award payment by the The p_laintiff puts her case on a loss per week of $300. Her evidence was that she would have worked to age 45 or 50 years. This seems a realistic assessment bearing in mind the heavy nature of her work. The modest wage which her husband commands of approximately $300 net per week means that it would have been financially necessary for her to be in remunerative employment. It is proposed that any assessment be based on the notion that the loss would not start to be -- 17 of 20 -- 11 incurred for three years, that is, until the present child begins preschool. This seems to be a sensible approach which avoids complicated and artificial calculations relating to part time work after the first child had reached the age of eight to twelve months and allows the deferment of employment to take account of a second child. The proposed amount of a loss of $300 per week seems to be eminently fair to the defendant. What is of considerable difficulty is to assess the plaintiff's residual capacity to earn an income and if there is any such capacity how it might be utilised. She is unable to return to any nursing work. She is untrained for anything else. The plaintiff is seeking retraining as a laboratory technician. Her success and subsequent employment must be seen a-s very speculative. She has made attempts to find work in kindergartens and has worked as a bar attendant unsuccessfully. Her future seems to be bound up in Biloela or at least in rural life. I refer to the opinion of Mrs. Helen Coles quoted above as to the plaintiff's employability. -r cannot conclude that the plaintiff with her present symptoms and qualifications is likely to be able to gain regular remunerative employment. If I start with approximately $170,000 as representing the plaintiff's net weekly loss of $300 for twenty years deferred for three years I will make minimal deductions for the usual contingencies because that is already subsumed in the amount of $300 when her net earnings might be almost $100 per week more. I will assume that from time to time the plaintiff will engage in remunerative employment over the twenty years at a rate of approximately -- 18 of 20 -- $1,500 per annum which amounts to approximately $18,000 using the tables. Accordingly the amount which I allow for loss of future earning capacity is $150,000. Special Damages Special damages have been agreed between the parties in the sum of $5,540.83. Interest is to be allowed on $172. 80 thereof at 6% per annum for five and five-sixth years which amounts to $60. Conclusion The various amounts are as follows:- Pain and suffering and loss of the amenities of life past and present Interest on one-third at 4% per annum forfive and five-sixth years Past loss of earnings Interest on $27,085.89 of 6% per annum forfive and five-sixth years Loss of future earning capacity Special damages Interest on $172.80. at 6% per annum forfive and five-sixth years Fox v. Wood component (Ex.20) TOTAL Less 5% for contributory negligence $30,000.00 $ 2,333-.00 $50,000.00 $ 9,480.00 $150,000.00 $ 5,540.83 $ 60.00 $ 3,525.77 $250,939.60 $ 12,546.98 $238,392.62 -- 19 of 20 -- li From that figure must be deducted the Workers' Compensation Board payment of $28,282.18 leaving an amount of $210,110.44. I round off that figure to $210,110. Accordingly there will .be judgment for the plaintiff in the sum of $210,110. I give liberty to apply as to the arithmetical calculations. costs. I will hear submissions as to -- 20 of 20 --