Elli Andjelkovic v Capital Territory Health Commission [1987] ACTSC 60 (25 August 1987)

SUPREME COURT OF THE ACT

ELLI ANDJELKOVIC v. CAPITAL TERRITORY HEALTH COMMISSION
S.C. No. 804 of 1978
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - plaintiff a patient in hospital - injured when left crutch slipped from under her - worn rubber tip on crutch - no contributory negligence - no new matter of principle.

Damages - fall on crutch led to failure of pre-existing fracture to unite - contingency that fracture may not have united in any event - fall led to need for interim prosthesis not otherwise required - fall may also have brought forward need for total hip replacement - no new matter of principle.

Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

HEARING

CANBERRA
25:8:1987

ORDER

There be judgment for the plaintiff in the sum of $27,682.80.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff whilst she was a patient at the then Canberra Community Hospital. The injuries were sustained as long ago as 1 November 1973. A writ was issued on 12 June 1978. An appearance was not entered until 8 May 1981. A statement of claim was filed soon thereafter on 10 June 1981, alleging injury on 25 October 1973. The statement of claim was eventually amended on 23 May 1983 to allege the date of injury now relied upon. Considerable delay seems to have occurred as a result of interrogatories being administered by either side. The extraordinary lapse of time is such that there is nobody on the defendant's side who has any memory of the events in question.

2. The plaintiff's injury occurred at about 4.45p.m. when she got out of bed to go to the bathroom. She attempted to support herself on crutches. When she attempted to place weight on the left crutch, according to her case, it went from underneath her and she fell onto her right knee. The particulars of negligence alleged in the statement of claim are follows:

(a) Having the floor polished too much.

(b) Failing to provide safe crutches.

(c) Providing crutches with a worn tip.

(d) Failing to assist the plaintiff.

(e) Failing to train the plaintiff sufficiently in
the use of the crutches.

(f) Failing to give the plaintiff any warning about
the dangers of the polished floor.

(g) Failing to take any reasonable steps to protect
the plaintiff from slipping on the floor.

(h) Failing to supervise the plaintiff adequately.

3. I have little difficulty in concluding that the plaintiff has not made out her case on some of these particulars. The allegations in (b) and (c) which allege in effect that the crutches were dangerous by reason of "a worn tip" constitute the essential issue on the question of liability.

4. Some of the facts are not in dispute. The plaintiff was born on 7 October 1920. On 23 September 1973 she had a fall at home, fracturing the neck of the right femur. She was admitted to the casualty section of the Canberra Hospital under the care of Dr R.J. Kitchin, an orthopaedic surgeon. An operation was carried out for internal fixation of the fracture on 26 September 1973. By 22 October the plaintiff was mobile and on that date she was issued with a pair of crutches. I find that on the probabilities the crutches were issued by a physiotherapist member of the hospital staff, Ms Jennifer Anne Butler, who gave evidence on behalf of the defendant. Because the plaintiff had previously had a mastectomy she found the use of a crutch under her left arm uncomfortable. Padding for the top of the crutch was improvised in order to relieve her discomfort. Ms Butler, after an examination of the hospital records in the witness box, conceded that she must have been the person who issued the crutches to the plaintiff. She still remembers building up a crutch for a patient who had had a mastectomy. I accept that evidence and find that on the probabilities that that patient was the plaintiff. At what exact stage the padding was applied is not clear, but the hospital records establish that between 22 October and 1 November 1973 the plaintiff received instruction in the use of the crutches from a physiotherapist on about 7 occasions and she was actively using the crutches on most days. By 31 October 1973, although she was observed to be very apprehensive, she walked with assistance up and down a flight of stairs and it was contemplated that she would be discharged at the end of the following week. I conclude that the padding was added to the left crutch very early in the period and probably on the day of issue.

5. According to the plaintiff's evidence-in-chief she noticed on the very first day when the crutches were issued to her that "the left one was clicking on the wood", that she drew the attention of the physiotherapist to this, but the physiotherapist said nothing about it and that she did not repeat the complaint again as "it was no good talking to her." Under cross-examination, and in answers to interrogatories, the plaintiff gave a slightly different version.

6. The plaintiff also said in her evidence that on the day on which the crutches were issued to her she looked at the rubber tip of the crutch that made the clicking noise and saw that it was "worn out", that the tip of the left crutch was "just flat rubber" in contrast to the tip on the right crutch which "still got the pattern".

7. The plaintiff was not an impressive witness and on a number of matters I do not accept her evidence. The conflicting accounts as to what she claims to have said to the physiotherapist about the crutch are such that I do not accept her evidence on this point. On the subject of damages the plaintiff claimed that her condition has never improved to what it was immediately prior to her fall on 1 November 1973. She also claims that her condition has not improved at all since her hip replacement, a matter which I shall discuss in more detail later. However, on these two aspects I find the evidence of the plaintiff unacceptable. I have little hesitation in concluding furthermore that she exaggerates her present symptoms. These findings mean that I approach her evidence about her observations of the rubber tip of the crutch with considerable hesitation.

8. Mrs Butler said that she had never heard of the incident of the plaintiff's fall until a few days before the court hearing. If this is so, and I accept her evidence, then she understandably has no recollection at all of the events leading up to the fall. The hospital records themselves are in evidence. The plaintiff's fall is clearly recorded there. It is also recorded in the report dated 24 October 1974 from Dr Kitchin. Nowhere in the records is there any mention of the fall being precipitated or contributed to in any way by the condition of one or other of the crutches. It is of course conceivable that the very omission of mention of the crutches is due to the reluctance of hospital staff to concede fault on their part, but in the circumstances I think that this would have to involve a virtual conspiracy between nursing, physiotherapy and medical staff. It was not suggested to Dr Kitchin or to any of the physiotherapists who gave evidence that they had deliberately omitted to record that the fall was in some way due to the condition of the crutch, or that the crutch was defective, and indeed that did not form any part of the plaintiff's case in argument. I accept the evidence of Ms Butler and other physiotherapists namely Mrs Hudson and Mrs Mackenzie that the system at the hospital at the time was that before crutches were issued they were inspected, particularly with regard to the rubber tips, and if the rubber tips appeared to be worn, then they were replaced. I accept also that there was a plentiful supply of rubber tips at the hospital and that if the hospital staff noticed that a rubber tip was defective then there was no difficulty about removing and replacing it with a new one.

9. What I think tips the scales in favour of the plaintiff is the evidence given by her daughter, Ms Hannelore Andjelkovic. The daughter was herself a member of the staff of the hospital. At the time she was an enrolled nurse. She has since become a registered nurse. She visited her mother on the night of the fall. She found her mother upset and crying. Her mother was unable at first to explain what had happened. Ms Andjelkovic says that she then looked at the crutches which were near her mother's bed and that she noted that the rubber tips on both of them were worn and on the padded crutch "a bit of wood was coming through the rubber". She then tested the two crutches against the floor and found that when she did so they made a "clacking" noise. She noticed that the tread was missing from the rubber on both crutches. A peculiar feature of Ms Andjelkovic's evidence was that although she obviously drew the conclusion that the crutches were dangerous having regard to the worn condition of the tips, she made no complaint of that matter to any person. She appeared to be a somewhat hesitant person in the witness box, and being only an enrolled nurse at the time she may have been reluctant to complain to anyone in authority.

10. Both the plaintiff and her daughter also claimed that by the time the plaintiff was once again up and walking the rubber tips on the crutches had been renewed. Again there is no mention of this in the hospital records. It may well have been that someone on the part of the hospital decided to change the rubber tips. On the other hand it may just as easily have been that the crutches were exchanged for another set of crutches.

11. However the fact remains that I see no reason why I should reject the evidence of the plaintiff's daughter corroborating that of the plaintiff herself that the padded crutch which the plaintiff used under her left arm had a rubber tip worn to the extent that the timber underneath was showing through. It is of course possible that the plaintiff's fall was caused by her inability to place her weight correctly on the crutch under her left arm. She is, and presumably was then, overweight. However ungainly the plaintiff might have been in the use of crutches, it is impossible to avoid the conclusion on the balance of probabilities that the worn tip of the crutch contributed in a material way to her fall. I find nothing negligent about the system of issuing and inspecting the crutches, nor about the care and maintenance of the floor, nor about the supervision of the plaintiff. What I think probably happened was that when Ms Butler was attending to the complaint of the plaintiff's about discomfort under the left arm and went about improvising some padding, she overlooked inspecting the tip of that crutch, with the obvious consequences.

12. I am not satisfied that the defendant has established that the plaintiff failed to take care for her own safety. She was following instruction given as to the way in which she should place her weight on the crutches. As I have already said I reject the plaintiff's evidence that she complained about the worn tip prior to her fall. If she had so complained, she might have been guilty of some contributory negligence in not repeating her complaint or insisting that something be done about it, but I am not convinced that she was aware of the defective state of the crutch before she had her fall.

13. I turn now to the question of damages. At the time of the fall on 1 November 1973 the fracture of the head of the femur had not yet begun to unite. The force of the fall caused the head of the femur to be displaced from the pin fixing the fracture site. Dr Kitchin took the view that it was inadvisable to reset the fixation by pin and on 6 November 1973 the pin was removed and the whole of the head of the femur was excised and replaced by a prosthesis called an endoprosthesis or a Moore's prosthesis. The plaintiff was discharged from hospital two weeks later using a walking frame. I find that as a direct result of the fall the plaintiff suffered increased pain. The difficulty is to decide how long the exacerbation of her condition continued. The plaintiff herself maintained that she has never improved at all, but I find that account to be exaggerated. What I am prepared to accept and do find is that there was initial and considerable aggravation after the fall followed by improvement during convalescence and then gradual deterioration over the ensuing three or four years. Dr Kitchin saw her from time to time until 1978. On 19 June 1977, because of the plaintiff's increasing disability, the Moore's prosthesis was removed and the hip joint was replaced by a Charnley's prosthesis. Dr Kitchin continued to review the plaintiff and at what he called the final review examination on 14 November 1978 the plaintiff was complaining of an ache in the leg in cold weather, but she was not restricted in terms of her activity. She walked with a minor limp, but there was an excellent range of movement of the hip. Dr Kitchin considered then that the plaintiff suffered no significant residual disability in the hip joint, an opinion which was confirmed when he last reviewed the plaintiff on 15 October 1986. In his report of 5 February 1987, Dr Kitchin mentioned for the first time that prior to the fall in 1973 the plaintiff had had numbness in her left foot which tended to give way and cause her to fall, prior to the fall at home which led to her admission to hospital on 23 September 1973. At the time of the last consultation in October 1986 the plaintiff complained of pain in the right buttock region extending down into the thigh and calf and some hip pain.

14. It is difficult to see the exact nature of the plaintiff's present complaints. I was able to observe that she walked slowly and heavily when she went into the witness box, but she is a heavily built woman of 66 years of age. She was quite vague in her evidence as to the location of her present symptoms. Dr Kitchin said that if she feels any pain in the spine then that is not due to the subject injury. The plaintiff has suffered from arthritis for over 20 years and has been having medication during that time which produces side effects which according to her "slows me down a bit." She also feels pain down the outside of her right arm, but I not satisfied that this is associated with the injury for which she sues. It may be observed that the plaintiff's daughter, who still apparently lives with her, did not give any evidence corroborative of her mother's disability or complaints.

15. The plaintiff also claimed that at the time of the injury she was earning about $100 per week from sewing at home. She said that for three months after her injury she was unable to resume sewing at all and that when did resume she was able to earn only $50 to $60 per week. She retired from this activity altogether at the same time as her husband retired from the workforce in 1976, and she has lived on the aged pension since then. The plaintiff's evidence as to her sewing activities was not supported by any documentary material and was not the subject of any evidence from her daughter. I accept on the balance of probabilities that the plaintiff did earn some modest amount from her sewing activities at the time of her injury, and that she was unable to follow this activity for some six months thereafter. I am not satisfied that she was earning the amount she claimed, but there must have been some interference with her income earning capacity. I think that even without the subject injury she would have ceased to carry out this sort of work by 1976 in any event, and a component for loss of earning capacity will be included in the general damages but not otherwise.

16. As a clear result of her injury the plaintiff's discharge from hospital was delayed by about three weeks. The treatment by way of Moore's prosthesis was by mid 1977 regarded as unsuccessful. On the other hand the Charnley's replacement of the hip joint was successful to the extent that it virtually removed any residual disability in that joint and the joint was then pain free. To be weighed against the chronological sequence of events however are the countervailing contingencies of what might have happened if the plaintiff had not suffered the injury on 1 November 1973. According to Dr Kitchin, the Thompson pin fixation was expected to have about a 50% chance of success. Weighing against the chance of its success were the possibilities of avascular necrosis due to lack of blood supply, a simple non union of the fracture site, and slipping of the fracture site by some such event as that which occurred on 1 November 1973. If the plaintiff had never broken her hip at all she would probably have gone to age seventy five or so without osteo-arthritis. But at the time of the subject injury her hip was already broken. Not only did the defendant have to take the plaintiff as it found her, the plaintiff must accept the contingencies that the broken hip imposed upon the life that then lay ahead of her. If the first operation had been a success it is possible that the plaintiff might have gone on into an advanced age before a total hip replacement became necessary. If the pin fixation had not been successful however total hip replacement was likely to have occurred much earlier. It is impossible to make even an informed guess as to when this might have been. It does appear however, and I find, that an intermediate operation by way of Moore's prosthesis would not have been necessary. The plaintiff's damages therefore must include a component for having to submit to that particular operative procedure. The plaintiff's general damages then will be assessed on the basis that her pain and disability was substantially increased between the date of the fall and the Charnley replacement in May 1977, and bearing in mind that it is likely that the fall caused the time of the latter operation to be brought forward by an unascertainable amount of time. Against this however has to be weighed the contingency that the pin fixation, if not successful, was likely to have caused symptoms severe enough to require the Charnley replacement in any event. I am not satisfied on the balance of probabilities that the degree of pain and disability that would have followed a failure of the pin fixation would have been less than that which was associated with the Moore's prosthesis. I take into account that for the first month or two her symptoms and disability were greater than what would have ensued during the course of recuperation from a successful pin fixation. I take into account that the time of the Charnley replacement was advanced, but the extent of the advancement cannot be ascertained. Furthermore the advancement of the hip replacement itself can resound only modestly in damages because it had the effect of virtually relieving the plaintiff's disability in the hip joint. Notionally then, assessing the plaintiff's general damages in that way, I would then reduce the calculation by about one half for the contingencies to which I have made reference and, bearing in mind both the plaintiff's relatively advanced age and the fact that the injury occurred so long ago, award a sum of $25,000. That includes loss of earning capacity.

17. A claim was made under the principle in Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. The plaintiff said that when she was discharged from hospital her husband took six weeks off work to assist her around the house and that he continued to render assistance until his death until 1982. After his death she employed a housekeeper for $20 per week. By that time, however, her condition had been overtaken by the aging process, or was likely to have been taken over in any event. I think it reasonable to allow something for domestic assistance for the period of six weeks when the husband was off work in 1973 and something also for the period of a few weeks following the operation in 1977, but in each case the figure must be discounted. In 1973 the plaintiff would probably have required the assistance of the husband for some limited period in any event in order to recuperate from the first operation, and for 1977 there is the contingency that there was an even chance that she would have had to have the Charnley hip replacement in any event with the consequent need for domestic assistance. I think that an amount of $1,000 is adequate to cover the Griffiths v. Kerkemeyer component. I have regard to the agreement between the parties that as a matter of arithmetic $5,200 would have covered this aspect of the claim if the plaintiff had been totally successful.

18. Out of pocket expenses are agreed at $1,682.80. There will be judgment for the plaintiff for $27,682.80. Unless the parties wish to be heard I propose to order the defendant pay the plaintiff's costs, other than the costs of retaining and calling Mr George Simpson.