Eva Joan Collins v Commonwealth of Australia [1986] ACTSC 9 (25 February 1986)

SUPREME COURT OF THE ACT

EVA JOAN COLLINS v. COMMONWEALTH OF AUSTRALIA
S.C. No. 1680 of 1982
Damages

COURT

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

CATCHWORDS

Damages - assessment - negligence - personal injuries - clerical assistant in Commonwealth Public Service - fall down stairs - injury to lower back - exacerbation of degenerative processes in spine - inability subsequently to undertake employment for which she is qualified.

Australian Capital Territory Supreme Court Act 1933 - s.53A

Compensation (Commonwealth Government Employees) Act 1971

Public Service Act 1922 - s.47

Superannuation Act 1976

HEARING

CANBERRA
25:2:1986

DECISION

Assessment of damages for personal injuries caused by the defendant's negligence.

2. The plaintiff was born on 29 October 1937. She left school at the age of 15 and engaged in farm and domestic work until she married in June 1957. She was not in employment after her marriage until 1969, when she and her husband, who is by trade a plumber, had been residing in Darwin since 1967, with their three children. The plaintiff worked in a shop and then took public service employment as a clerical assistant. When she and her family came from Darwin to Canberra in 1974 she resumed employment as a clerical assistant, in the Commonwealth Public Service. She continued in that employment until 9 November 1984, when her appointment as a permanent officer was annulled, pursuant to s.47 of the Public Service Act 1922, in consequence of her physical disabilities.

3. On 18 July 1978 the plaintiff fell down a flight of stairs in the course of her employment. The defendant has admitted liability in negligence for the damages substained in consequence of the fall. It is those damages which are now to be assessed.

4. The plaintiff injured her lower back in the fall. She was taken to Dr. Warren Bishop, her family doctor, and thence went to bed for a few days. She was at home for several weeks and then resumed work. Although she suffered a good deal of pain in the lower back during that period it was apparently hoped by Dr. Bishop and the Commonwealth Medical Officer who had examined her that no serious injury had been caused. But she experienced continuing and slowly worsening pain, which in 1979 began to extend into the right leg. Her supervisor at work spared her the heavier tasks of her employment and she took periods of sick leave. In 1983 she was absent from work on long service leave for more than three months, but was able during that period to accompany her husband on an extended tour of northern and western Australia by car and caravan. Immediately after her fall x-rays had showed some degenerative arthritic changes in the lower spine. X-rays taken in April 1980 demonstrated a lesion of the disc between the fifth lumbar and the first sacral vertebrae and a myelogram taken in November 1982 showed what was described as a "bulge" between the fourth and the fifth lumbar vertebrae. Medical witnesses have accepted that the fall had caused an exacerbation of the degenerative processes in the spine which had preceded the fall and that the lesions to which I have referred were results of that exacerbation. In December 1983 spinal fusion grafting was carried out at those levels, and a bone growth stimulator was implanted, by Mr. Alastair Robson, a neurosurgeon.

5. The plaintiff has continued to experience painful symptoms since the operation, as well as pain from the hip out of which bone was taken for the grafting. Neurological signs suggested that the operation had relieved nerve compression, but other symptoms of extensive sensory loss and tenderness were consistent with the plaintiff's account of chronic pain. Although I think that psychological mechanisms have made a substantial contribution to the production and to the persistence of those symptoms, I am persuaded that the symptoms are experienced, substantially as described by the plaintiff in evidence, and that they have been caused by the plaintiff's fall on 18 July, 1978. I am persuaded that the pain from the hip will not persist for more than another year or thereabouts, and that the other painful symptoms will diminish in intensity during the next few years. But I am persuaded that the condition of the plaintiff's back which has resulted from the fall and the operative treatment will preclude the plaintiff from undertaking employment of a kind which she is otherwise qualified to undertake.

6. The plaintiff, who is about the same age as her husband, gave evidence that she had intended, before her fall, to continue in employment until the time when he retired from his employment by the defendant as a works supervisor. Although I do not doubt the truthfulness of that evidence, I think that, if the fall had not occurred, there was a substantial possibility that the plaintiff would have ceased work before she attained 65 years. In addition to the risks of death, illness and accidental injury there is the possibility that the plaintiff would have found in the sixth decade of her life that she preferred to cease work, for one or more of a variety of personal reasons.

7. Medical, hospital and other expenses of treatment of the injuries sustained in the fall to the present time total $7,961.05. There was evidence that the plaintiff would probably require medical treatment and medication in the future. It was agreed that the present value, calculated by reference to a discount rate of 3 per centum per annum, of $1 per week for the rest of the life of a female born in this country on 29 October 1937, was $1,033, and $681 for the rest of that life or until attainment of the age of 65 years. I find that $10,027.05 is fair compensation in respect of past and future medical and like expenses. I think it improbable that the plaintiff will have much resort to medical treatment in respect of her symptoms in the future.

8. The plaintiff's loss of wages to the time when the trial of the action concluded was agreed at $27,260.18. Being persuaded that the loss was caused by the fall, I allow that sum in the assessment of her damages. I allow also the sum of $3,634.40, the difference between the amount of payments received by her under the Compensation (Commonwealth Government Employees) Act 1971 in respect of incapacity for work caused by the fall (and repayable upon her recovery of damages from the defendant in respect of the fall) and the balance of that amount after deduction of income tax paid by her in respect of that amount. It was not suggested by counsel for the defendant that the circumstances which led to the conclusion of the High Court in Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 were materially different in this case.

9. At the time when the trial concluded $263 was the weekly wage, after deduction of income tax instalment, of a person holding in the defendant's employment the office which the plaintiff had held when her employment was terminated. The product of a multiplication of that sum by $681 is $179,103. I have referred to circumstances, other than the plaintiff's death, which might have resulted in the plaintiff's retirement from employment before she attained 65 years if the fall had not occurred. There was, on the other hand, a chance that the plaintiff would have won promotion and a higher wage in her employment if the fall had not occurred. I assess the damages in respect of wages to be lost in the future by reason of the destruction of the plaintiff's earning capacity at $150,000.

10. Upon annulment of her appointment the plaintiff received $7,022, under the provisions of the Superannuation Act 1976, which did not derive from her own contributions under that Act, I was informed by counsel. That amount was to be substituted, according to counsel, for the sum of $5,522 specified in paragraph 6.3 of exhibit F. According to that paragraph, 31 per centum of the $7,022 would have been payable, or at least ought to be regarded as having been payable, by way of income tax in respect of the $7,022. The balance, $4,845, was to be deducted, counsel were agreed, from any sum which might be included in the award of damages in respect of the loss of prospective superannuation benefits occasioned by the premature termination of the plaintiff's employment.

11. At the time when the trial concluded the gross weekly wage of a person employed in the position which the plaintiff occupied when her employment ceased was $323.25. If she had continued in that employment at that wage until she attained the age of 65 a weekly pension, provided by the defendant and indexed, would have been payable to her for the rest of her life at the rate of 41 per centum of that wage, but if she had retired from that employment on her attaining the age of 60 years the pension would have been at the rate of 28.8 per centum of that wage. In the former case the gross weekly pension would have been about $132, in the latter case about $93. But the earlier the commencement of the pension the greater the period of its enjoyment. If $132 be taken to yield about $120 nett after deduction of income tax, as paragraph 4 of exhibit C would suggest, the application of the formula set out in paragraph 5.2 of exhibit C, which counsel for the parties advocated, gives a present value of $42,240 in respect of a weekly pension of $120 from the time when the plaintiff shall attain 65 until her death. But the prospect which the plaintiff had of enjoying such a pension was subject to contingencies which might have disappointed her expectation. I will allow, in lieu of $42,240, the sum of $37,000. From that sum must be deducted $4,845, leaving $32,155 as the amount assessed, conformably with the relevant parts of exhibit C (to which counsel for the parties gave their approval), as compensation for the plaintiff's loss, caused by her fall, of the prospect she had of benefit under the provisions of the Superannuation Act 1976.

12. In respect of pain and suffering and loss of enjoyment of life, past and future, I allow $20,000. The plaintiff was until her fall engaged in active recreations : deep sea fishing, tennis and extensive travelling by caravan. While she will, as I find, resume some of her outdoor recreations, she will be restricted in her movements and will not be able to undertake extended or vigorous physical activity, such as tennis and deep sea fishing involve. She will, as I find, recover sufficiently to undertake all the household tasks which for some time she employed a woman to undertake. In respect of that past domestic assistance, and some domestic assistance in the immediate future while the plaintiff's recovery is proceeding, I allow $2,000.

13. Counsel for the parties were in agreement that in application of s.53A of the Australian Capital Territory Supreme Court Act 1933 an interest rate of 14 per centum per annum should be adopted, in accordance with what was said by Gallop J. in Lansdown v. Linehan (No. 766 of 1982; unreported; judgment 12 March 1984). Having regard to the substantial payments made by the defendant under the Compensation (Commonwealth Government Employees) Act 1971, I allow in respect of the following items of past economic loss, namely the $7,961.05, the $27,260.18 the $3,634.40, and so much of the $2,000 as relates to the past, interest on $10,000 at 7 per centum per annum for 7 years and 6 months. In respect of pain and suffering and loss of enjoyment of life I allow interest on $14,000, being persuaded that most of the painful consequences of the plaintiff's fall have already been experienced. The calculation of interest on that sum is also at the rate of 7 per centum per annum for 7 years and 6 months. Accordingly there will be included in the sum for which judgment is given $12,600 for interest.

14. The aggregate of the component sums I have stated is $257,676.63. The interrelation of the heads of damage to which I have assigned the sums $150,000 and $32,155 has not been overlooked. There will be judgment for the plaintiff against the defendant for $257,676 including $12,600 interest under s.53A of the Australian Capital Territory Supreme Court Act 1933.