Lisa Kruska v Allied Mills Industries Pty Limited Trading As Buttercup Bakeries [1986] ACTSC 3 (18 February 1986)

SUPREME COURT OF THE ACT

LISA KRUSKA v. ALLIED MILLS INDUSTRIES PTY. LIMITED trading as BUTTERCUP
BAKERIES
S.C. No. 48 of 1983
Negligence - Damages for Personal Injuries

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Miles C.J.(1)

CATCHWORDS

Negligence - injury sustained when jarring forearm attempting to move trolley with defective castors - no question of principle.

Damages for Personal Injury - woman of 53 - precluded from further employment by reason of De Quervain's disease - symptoms precipitated by injury - no question of principle.

HEARING

CANBERRA
18:2:1986

ORDER

There will be judgment for the plaintiff in the sum of $120,307.53.

The defendant pay the plaintiff's costs.

DECISION

The plaintiff was injured on 14 July 1982 whilst in the employ of the defendant at its bakery at Fyshwick and sues for damages for personal injuries. Liability was denied on the pleadings, but no evidence was called on that aspect by the defendant. Counsel for the defendant stated that he wished to say nothing on the question of liability in his final address.

2. The injury occurred at about 2 a.m. when the plaintiff was assisting in the loading of trolleys or stacks with freshly baked bread rolls. The trolleys were of wire frame construction with several shelves, about two metres high, two metres wide and about one metre deep. Each trolley was mounted on four wheels or castors. Most of the trolleys in use at the time were mounted on metal castors about six centimetres in diameter and one centimetre in thickness. When so mounted the trolleys were difficult to move, particularly when they were fully loaded with bread weighing up to about 250 kilograms. There were also in use at the time some trolleys with larger wheels about ten centimetres in diameter and one centimetre in thickness. The larger wheels had a rubber tread and their axles were mounted on ball-bearings. Their pivots were also mounted on ball-bearings. They were much easier to move than the trolleys with the small, metal castors. There was uncontradicted evidence that at the present time trolleys which previously had small metal castors have been replaced with the larger wheels with rubber treads.

3. Immediately prior to the injury the plaintiff was packing a trolley behind her with bread rolls from a sorting table in front of her. It was a busy period when the bread carters were anxious to get away with their loads. A fellow employee working next to the plaintiff pushed a fully loaded trolley into the space between the plaintiff and the trolley which the plaintiff was loading. The plaintiff, in order to gain access to the trolley which she was loading, attempted to pull the fully loaded trolley out of the way. She had a bag of bread rolls in her right hand and she attempted to pull the fully loaded trolley with her left hand. The fully loaded trolley, however, did not move when she attempted to pull it. In attempting to move that fully loaded trolley she felt jarring and immediate pain in her left forearm. That trolley was mounted on the small metal castors.

4. There was uncontradicted evidence that the plaintiff as well as other workers and representatives of the appropriate union had made complaint to persons at management level within the defendant's organisation of the difficulty of moving the trolleys with the small metal wheels. In particular complaint had been made that those trolleys could not safely be moved by the female employees.

5. Mr. Boris Osman, a consulting engineer, gave evidence without objection of what might otherwise be within the knowledge of a tribunal of fact, namely that the small metal castors made the trolleys less mobile. He said that the castors might be obstructed by even a small amount of foreign matter on the floor or in the axles. Those factors and the possibility that the castors might not move properly on their pivots would made a fully loaded trolley hard to move so that a person trying to move the trolley would meet resistance and experience a jarring type sensation in whatever arm or arms he or she was using. Mr. Osman also gave evidence (the relevance of which I did not fully understand) about a practice in industry whereby female employees were not permitted to lift weights in excess of 35 pounds.

6. I am satisfied on the balance of probabilities that the trolleys in use with the small wheels constituted a reasonably foreseeable risk of injury to an employee who tried to move such a trolley when fully loaded, and that it was unreasonable of the defendant in all the circumstances not to equip the trolleys with the alternative form of wheels. In those circumstances there will be a verdict for the plaintiff. Contributory negligence was not raised.

7. The subject of damages is in a reasonably short compass. Although the plaintiff finished the shift using her right hand only for the purpose of her work activity, she continued to have pain in the left forearm. Later the same day she saw her local doctor who certified her as unfit for a week. She went back to work at the end of the week but could not continue because of the pain in her left forearm. She was then referred to an orthopaedic specialist, Dr Geoffrey Stubbs, who gave evidence and who furnished reports. Dr Stubbs tried to treat the plaintiff's condition by means of injection and immobilization but there was no improvement. He advised surgery to which the plaintiff agreed. On 18 October 1982 surgery was performed and the operative finding confirmed a diagnosis of De Quervain's disease. This involved thickening of the sheath of the two tendons which normally connect the wrist with the thumb. The plaintiff, however, still did not improve and on 24 May 1983 she underwent a further operation when a third tendon was found to exist in the region. This tendon was found to be associated with the thickened and inflamed sheath. Once again there was a surgical attempt to relieve the pressure on these tendons, but again there was no improvement in the plaintiff's condition.

8. Dr Stubbs is of the view that the history, operative findings and symptomatology, none of which is in dispute, all lead to the conclusion that the De Quervain's disease, otherwise known as benign fibrosis tenosynovitis, has given rise to the plaintiff's condition, and all indicate that the plaintiff continues to suffer from the effects of De Quervain's disease. She is unlikely to improve in the future and although is capable of a certain number of tasks around the home, is not fit for employment in any practical sense. Although De Quervain's disease commonly occurs as a result of repeated strain or trauma, it may be brought about by particular trauma such as the action of the plaintiff in attempting to move the rack at the time of her injury. Alternatively, De Quervain's disease may exist without symptoms until a particular traumatic occurrence, after which the condition becomes painful and disabling. On either approach, there is little difficulty in reaching a conclusion on the balance of probabilities that whether or not the plaintiff had sustained De Quervain's disease prior to 14 July 1982, it was the occurrence on that date which brought on pain and disability. Accordingly I find that the defendant is responsible for her condition since that date.

9. The real question in dispute is the extent to which the plaintiff's condition is to be reflected in damages. The plaintiff was born on 18 June 1932 in Germany. Her only employment in that country was as a housemaid. When she came to Australia she worked with the defendant for several years in Wollongong and in Canberra up until 1977. She then left the defendant for a year or two and resumed in 1979 on a part-time basis. She has always been employed in a semi-skilled position such as packer. She said that she was told by someone on behalf of the defendant that when a full-time position was available, it would be hers. However, at the time of the injury she was still working part-time, averaging just over 30 hours per week. Like the full-time employees, her wage was calculated on an hourly basis. She said that she and her husband purchased a house in 1979 and particularly in view of the commitments they had to pay for the house, she intended to work until the age of 65. She said that the repayments on the house would continue for another 15 years beyond the date of hearing. However, her husband who gave evidence said that there were two mortgages on the house. The first mortgage was to secure a government loan repayable over 15 years by monthly instalments of $200. The second mortgage was to secure a loan repayable over 9 years at $615 a month. In view of the age of the plaintiff and of her husband who appeared to be about the same age, I think it unlikely that the plaintiff's account is correct and I accept what her husband has to say on this aspect. In other words the heavy commitments on the second mortgage will not continue beyond some time in 1988 and the plaintiff's perceived need to continue working in order to pay off the mortgages is not as great as she might think. The evidence as to whether the defendant continues or will continue to employ workers, particularly female workers, beyond the age of 60 years is not clear. I am not convinced that but for the injury the plaintiff would have worked until the age of 65.

10. It was also submitted on behalf of the plaintiff that it was likely that at some stage she would engage in full-time as opposed to part-time work. The local manager of the defendant, Mr. George Metschke, gave evidence and was questioned on this aspect. He agreed that the plaintiff had been a satisfactory worker and in view of her lengthy term of employment with the defendant would be given some preference in the event of a full-time position becoming vacant. However it is impossible to come to any firm conclusion as to the likelihood or otherwise of a full-time position becoming available to the plaintiff. At the present time not all of the employees in the plaintiff's section are employed on a full-time basis. There was no evidence of whether any full-time vacancy suitable to the plaintiff's background and experience had occurred between 1979 and the date of hearing. The damages will take into account the possibility that the plaintiff may have transferred to full-time employment, but I am not convinced that this has been proved as a likelihood.

11. The rate at which damages for economic loss are to be assessed was the subject of dispute. Counsel for the plaintiff relied heavily on a letter dated 20 June 1985 signed by Mr. E.A.S. Galloway, the defendant's accountant in which it was said that two employees, namely B. Robertson and M. Vucak "have been nominated as comparable employees to that of Mrs. Kruska". Details of the wages paid to those two employees were set out in the letter and it was noted B. Robertson had been made a supervisor and that "as such an average of B. Robertson and M. Vucak should be made". Counsel for the plaintiff submitted that this letter was a conclusive admission on the part of the defendant that damages for economic loss should be calculated using an average of the wages paid to B. Robertson and M. Vucak. I am unconvinced by this submission. The term "comparable employee" has not yet become one of precise meaning in the general law, and I am not convinced that the wages of a person who has become a supervisor should be taken into account in determining the plaintiff's economic loss. There was no suggestion that the plaintiff would herself ever become a supervisor. She is unable to read or write English to any extent.

12. The evidence of Mr. Metschke together with the documentary evidence established that the plaintiff herself was in fact paid on the basis of an hourly award rate plus a margin of 30% for night shift work. I see no reason why this should not be accepted as the basis for fixing her economic loss. The award rates since the time of injury are set out in a letter from a firm of actuaries, Exhibit H, as are the tax rates which would have been payable during the period since the accident upon the earnings which the actuaries assume would have been earned during that period. Counsel informed me that they were both content to accept what the letter from the actuaries said about the award rates and the tax payable.

13. It was calculated on behalf of the defendant and not disputed on behalf of the plaintiff that, using the record of the plaintiff's work attendance set out in Exhibit 1, she averaged 30.5 hours a week from 11 August 1979 until the time of her accident. This amounts to 76.25% of a 40 hour week. The actuaries calculate that the total award wage from 14 July 1982 to 5 February 1986 for a 40 hour week worked is $44,048.00. As I have said, in the plaintiff's case there is to be added a further 30% for loading, and the plaintiff is to be allowed 76.25% of the total payable over a period for a 40 hour week worked. This results in a figure of $43,662.58 and from that is to be deducted tax calculated in accordance with the actuaries' figures at $8,152.04 leaving a net figure for economic loss to date of $35,510.54.

14. As to the future, the present award wage is $255 for a 40 hour week. The amount payable for a week of 30.5 hours worked may be calculated at $195.43. Together with the 30% loading that amounts to $254.05 from which tax is to be deducted of $42.10 leaving a net figure of $212. As I have said, the plaintiff's working life in future is to be taken as extending to the age of 60 years. Using the 3% discount table, the multiplier is $287. That yields a figure for the future of $60,850. That figure has to be reduced for contingencies. I think it appropriate in all the circumstances to reduce the figure by something less than what might be regarded as usual, having regard to the possibility that the plaintiff may have engaged in full-time work. I think that the figure should be reduced therefore by something in the order of 10%, leaving an end figure rounded out to $53,000.

15. As to pain and suffering, I accept the plaintiff as a truthful witness. She did not appear to me to be exaggerating in any way the extent to which the injury has disabled her. Her husband also gave evidence on this aspect and he also was a completely acceptable witness. Her pain and disability have been constant since the second operation and will continue so into the future. The injury prevents the plaintiff from carrying out all but the lightest tasks around the house. She is able to do such things as hang up washing, peel vegetables and so forth but only for a very short period and her husband or other members of the family have to carry a good deal of the responsibility. If she carries a shopping bag or something similar, she has to do so with the forefinger. It appears that the thumb and the forearm associated therewith are the principle source of the pain and disability. The husband said that should the plaintiff accidently bump her arm she screams out in pain and I accept this as indicative of the degree of interference with the plaintiff's enjoyment of life. There was no particular sporting or recreational activity that the plaintiff pursued before her injury which she is no longer able to pursue. In all the circumstances I think it appropriate to award $22,000 for pain and suffering and loss of enjoyment of life.

16. Out-of-pocket expenses are agreed at $3,205.26 as is the amount of taxation paid on workers compensation, namely $2,461.73 and these sums will be included in the award of damages. Interest is claimed and will be awarded on $10,000 for pain and suffering and loss of enjoyment in the past, using 14% as the rate of interest and reducing the total by half for the fact that the pain and suffering has been sustained virtually evenly throughout the period. The plaintiff received a total of $29,000 workers compensation and if this is deducted from the amount awarded for past economic loss, it is appropriate that she have interest on the sum of $6,510.54 in respect of past economic loss. This will be calculated in the same way as interest on past pain and suffering.

17. In summary then damages are awarded as follows:

Out-of-pocket expenses $ 3,205.26

Tax paid on workers compensation $ 2,461.73

Past economic loss $35,510.54

Future economic loss $53,000.00

General damages $22,000.00

Total: $116,177.53

18. Upon reconsideration of this global sum, it seems to me to be an appropriate award.

19. To the damages will be added interest on past pain and suffering at $2,500 together with interest on past economic loss at $1,630, making a total for damages and interest of $120,307.53 in respect of which judgment will be entered on the plaintiff's behalf. I order the defendant to pay the plaintiff's costs.