Cecile Zwickert v Capital Territory Health Commission [1987] ACTSC 9 (25 February 1987)

SUPREME COURT OF THE ACT

CECILE ZWICKERT v. CAPITAL TERRITORY HEALTH COMMISSION
S.C. No. 375 of 1984
Negligence - Employer - Damages

COURT

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

CATCHWORDS

Negligence - hospital employee injured while separating linen trolleys - duty of care of defendant employer to plaintiff employee - whether knowledge of plaintiff's susceptibility imputed to defendant - prior complaints by plaintiff - no breach of duty in circumstances - no new question of principle.

Employer - hospital employee injured while separating linen trolleys - duty of care to provide reasonably safe system of work for employee - no breach of duty in circumstances - no new question of principle.

Negligence - standard of care of employer - reference to female employees.

Employer - nature of duty to employees.

Damages - injury at work - disc herniation at L4/5 level and deviation of L5 nerve root - previously existing degenerative spinal condition - no new question of principle.

Damages - subsequent operation contributing to plaintiff's disability - operation not substantial cause of disability but substantial contributing factor - no new question of principle.

Damages - existence of degenerative spinal condition prior to injury - reduction in damages for loss of earning capacity - no need for defendant to prove likelihood of occurrence of supervening condition.

Damages - adjustment for contingencies made for heads of damage rather than calculation of present value of future or past pecuniary loss.

Glass McHugh and Douglas, The Liability of Employers in Damages for Personal Injury 2nd ed. p.42-43

Australian Iron & Steel Limited v. Krstevski [1973] HCA 42; (1973) 128 CLR 666

Stevens v. Brodribb Sawmilling Co. Pty. Ltd. [1986] HCA 1; (1986) 63 ALR 513 at p 527 and p 531

The Council of the Shire of Wyong v. Shirt & Others [1980] HCA 12; (1980) 146 CLR 40, at p 47

McLean v Tedman and Another [1984] HCA 60; (1984) 155 CLR 306

Bankstown Foundry Pty. Ltd. v. Braistina (1986) 65 ALR 1

Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158

Luntz, Assessment of Damages 2nd ed. para. 6.4.01

HEARING

CANBERRA
25:2:1987

ORDER

There be judgment for the defendant.

Matter of costs adjourned.

The plaintiff pay the defendant's costs.

The plaintiff be entitled to set off against the defendant the costs incurred by her in relation to the calling of Dr Cassar, tendering of Dr Cassar's reports and giving of evidence by Dr Cassar.

DECISION

The plaintiff was injured on 3 November 1981 whilst working as the supervisor of the laundry and linen service at the Woden Valley Hospital, a position which she had held for some years. I find the essential facts to be as follows. The practice was for about twelve trolleys of clean linen to be brought by truck from the Mitchell linen service each day. The Mitchell linen service was part of the defendant's undertaking and supplied clean linen to various institutions administered by the defendant. The trolleys were wheeled into a corridor and lined up against the wall adjacent to the entrance to the clean linen room by a man from the Mitchell linen service. During the course of the morning each trolley was brought into the linen room usually by the plaintiff but sometimes by a male employee. Once the trolley was inside the clean linen room the contents were transferred to a smaller trolley or trolleys for distribution the following day throughout the hospital. On the morning in question at about 9 a.m. the plaintiff wanted to bring a particular trolley from the row of trolleys lined up in the corridor into the linen room. These trolleys were mounted on two pairs of castors, the front pair fixed and the rear pair movable. The trolley she wanted was third from the end closer to the linen room. She went to pull the first trolley in the row so as to give her room to manoeuvre the trolley which she wanted. She was not able to move the first trolley and I find that this was because somehow or other the first trolley had become interlocked with the second trolley. The plaintiff then went along to the third trolley and attempted to extricate it. This she did by pushing the second trolley with her left hand and pulling the third trolley with her right hand. This had the effect of separating the second and third trolleys to some extent, but in the act of carrying out this activity, she felt a sharp twinge of pain in her lower back. She was able to carry on with what she was doing, however, and removed the trolley concerned from the row. She pulled it (and another trolley) into the linen room and reported to the staff clinic.

2. I find those facts established despite slightly different accounts given by the plaintiff to doctors and others over the period since the injury. I should mention in particular that there was a notation in the records of the defendant that on 22 April 1981 the plaintiff had reported to the staff clinic "hurt back pushing 2 trolleys apart". However, it was no part of the case presented on behalf of the defendant that the plaintiff was seeking to rely on an incident that had in fact occurred on 22 April 1981 but from which she had recovered by 3 November 1981.

3. The plaintiff sues in common law negligence. Her employer, the defendant, was the then Capital Territory Health Commission. Although it is not pleaded, it is well known and I accept the defendant was the hospital authority responsible for the administration of the Woden Valley Hospital as well as for the delivery of other health services in the Australian Capital Territory. The particular position of the defendant as a health authority, however, was not relied upon in the pleadings and it was alleged in paragraph 4 of the statement of claim that the plaintiff was injured "as a result of the breach by the defendant of its duty to her as her employer or alternatively as a result of the negligence of the defendant". However, in relation to the alternative allegation of negligence the particulars set out in the statement of claim do not disclose anything to show that either the duty of care or the breach alleged was any different from that relied upon in the case of employer negligence. The particulars were as follows:

"(a) Failing to have a safe system of work.

(b) Failing to instruct the plaintiff not to move
linen trolleys which weighed over 200 kgs.

(c) Failing to have safe plant and equipment in
that the trolleys were too big, carried too
much weight, and had wheels which were too
small to make them easily movable.

(d) Failing to have trolleys which carried less
weight and were more easily manoeuvrable and
movable.

(e) Failing to heed the plaintiff's complaints
that adequate male assistance was required
for the carrying out of the heavy work of
moving the trolleys.

(f) Failing to provide adequate assistance.

(g) Failing to provide male assistance for the
movement of heavy trolleys.

(h) Permitting the situation to arise in the
plaintiff's work whereby she had no effective
male assistance.

(i) Failing to provide, maintain, and enforce a
system whereby there was adequate assistance
for the plaintiff in the heavy work."

4. The evidence clearly establishes that the defendant was following an established practice in the provision of the particular trolleys in question, in the way in which and the extent to which the trolleys were loaded with clean linen, and the way in which the trolleys were delivered and set out in the hospital corridor. I am unable to conclude that any particular trolley was defective. The evidence does not go to prove, in my view, that in general circumstances the plant and equipment or the system of work presented a risk of injury to employees which was avoidable by the taking of any precautions which could be regarded as reasonable. The defendant's duty was not to guarantee that the employees could not be injured in the course of moving any one or more of the trolleys, but to take all reasonable steps to see that the employees were not injured by any unnecessary risk. I think that there is very little question that the sort of injury that the plaintiff did in fact sustain was foreseeable. Any physical activity which requires exertion, particularly by pushing or pulling, gives rise to a reasonably foreseeable risk of some strain and consequent injury to any part of the body that is placed under stress. The evidence establishes that the trolleys which were lined up in the corridor would on occasions be jammed by some part or other of the one interlocking with some part or other of the other. It was reasonably foreseeable, therefore, that employees like the plaintiff would seek to separate one trolley from the other by the type of action which the plaintiff took. That, in my view, gives rise to a reasonably foreseeable risk of injury. The degree of risk does not have to be high or even probable for it to be foreseeable. The degree or extent of the risk, however, is a factor to be taken into consideration when assessing the reasonableness or otherwise of those measures which might be taken to obviate the risk. Although it may be arguable that there are some enterprises which are so dangerous and the risks so great that an employer may be negligent in simply continuing to carry on the enterprise, whatever the cost of avoiding the risk, there does not appear to be any reported case which so decides and authority is to the contrary: see Glass McHugh and Douglas, The Liability of Employers in Damages for Personal Injury 2nd. ed. p 42-43 and Australian Iron & Steel Limited v. Krstevski [1973] HCA 42; (1973) 128 CLR 666, Stevens v. Brodribb Sawmilling Co. Pty. Ltd. [1986] HCA 1; (1986) 63 ALR 513 at p 527 and p 531. On the other hand, there may be activities where the risk of injury is so slight and the cost and inconvenience of obviating measures so great that as a matter of reasonableness it cannot be said that the defendant is obliged to take the obviating measures and in those circumstances the employer will not be adjudged negligent.

5. In The Council of the Shire of Wyong v. Shirt & Others [1980] HCA 12; (1980) 146 CLR 40, Mason J., as he then was, said at page 47:

"In deciding whether there has been a breach
of the duty of care the tribunal of fact must
first ask itself whether a reasonable man in the
defendant's position would have foreseen that his
conduct involved a risk of injury to the plaintiff
or to a class of persons including the plaintiff.
If the answer be in the affirmative, it is then
for the tribunal of fact to determine what a
reasonable man would do by way of response to the
risk. The perception of the reasonable man's
response calls for a consideration of the magnitude
of the risk and the degree of the probability
of its occurrence, along with the expense,
difficulty and inconvenience of taking alleviating
action and any other conflicting responsibilities
which the defendant may have. It is only when
these matters are balanced out that the tribunal
of fact can confidently assert what is the
standard of response to be ascribed to the
reasonable man placed in the defendant's position.

The considerations to which I have referred
indicate that a risk of injury which is remote in
the sense that it is extremely unlikely to occur
may nevertheless constitute a foreseeable risk. A
risk which is not far-fetched or fanciful is real
and therefore foreseeable. But, as we have seen,
the existence of a foreseeable risk of injury does
not in itself dispose of the question or breach of
duty. The magnitude of the risk and its degree of
probability remain to be considered with other
relevant factors."

6. I am unable to regard the type of trolley in iniversal use in hospitals as presenting a risk of substantial magnitude to a member of the staff of the hospital who was in the course of his or her duties required to push or pull the trolley from one place to another. In fact, in the present case there was no evidence of any injury to any person on any prior occasion when engaged in the manoeuvring of one of such trolleys, either in the defendant's hospital or in any other place in the Australian Capital Territory or elsewhere.

7. However, the case is not to be decided by generalities but having regard to the relative situations of the plaintiff and the defendant in the instant case. It was argued on behalf of the plaintiff that the plaintiff's susceptibility to injury was known to the defendant by reason of her complaints on prior occasion. In fact the plaintiff had reported "back pain" to the staff clinic for the first time in April 1980. There were about five occasions of similar complaint prior to November 1981 including that of 4 April 1981 already referred to.

8. In addition, the plaintiff had on occassions complained to her supervisors that the trolleys were "too heavy". The complaint had been acted upon to the extent that persons from the hospital had gone to the linen service at Mitchell and asked that the loads on the trolleys be reduced. At no stage, however, did the plaintiff inform her supervisors of the extent to which the load ought to be reduced and the Mitchell linen service people were not asked to reduce the load by or to any particular weight or volume. As I understood the submission it was suggested by plaintiff's counsel that the failure of the defendant to ascertain the weight of a load that would not be regarded by the plaintiff and the other female employees as "too heavy" was itself unreasonable. Whilst it may well be that an employer who fails to heed the complaints of an employee is likely to jeopardise its position when facing a subsequent charge of negligence, the making of a complaint itself is not sufficient to fix the employer an absolute obligation to remove, or even investigate, the source of the complaint. Moreover, in the present case, despite the wealth of expert evidence, to which I shall briefly refer, counsel for the plaintiff was unable to positively fix the extent to which the weight of the load on the trolley should have been reduced or alternatively identify even approximately what was the weight of a reasonably safe load. In my view it begs the question to say that the load should have been reduced to the extent that it obviated the risk of injury to the plaintiff. I take into account that it is sometimes possible to assess conduct as unreasonable without exactly identifying the dividing line between the reasonable and the unreasonable. For instance, one can assess a given speed at which a vehicle is driven as being excessive without a positive finding as to what is not excessive. That may be because recognized or ascertainable standards are involved. In any event, I am not satisfied in the present case that the defendant was unreasonable in requiring the plaintiff to move the trolley concerned with the weight of its particular load.

9. I deal now with the expert evidence. Mr. Borris Osmond, a consulting engineer with degrees in engineering and electrical engineering and with other professional and practical qualifications, gave evidence that he had examined a trolley similar to the one being used at the time of the plaintiff's injury. He said that it was about seventy-two inches high, twenty-six inches wide and forty-three inches long, mounted on six inch wheels which were freely rotating. He conducted some tests using an ordinary spring balance and found that it was necessary to exert a force of thirty to thirty-five pounds to separate two trolleys which were entangled together. Mr. Osmond gave some evidence about the restrictions placed upon women in industry as far as the vertical lifting of weights was concerned, but in my view this shed no light on the issues in the present case. Mr. Osmond said that a small tricycle or truck could be utilised to shift the trolleys such as was shown in a photograph admitted into evidence as exhibit C, or alternatively, a small forklift costing the remarkably low sum of $500 to $700 could be used. The device shown in exhibit C was in fact in use at the Woden Valley Hospital at the time for towing a number of trolleys coupled together from one building to another.

10. For the defendant, evidence was given firstly by Dr Neil Adams, a specialist in the field of ergonomics with degrees in applied psychology and philosophy, and senior lecturer in the Centre for Safety Science within the University of New South Wales. Dr Adams' evidence was that only five to twelve kilograms of lateral force was necessary to move one of the fully laden but otherwise free trolleys. He did not give any evidence of what force was necessary to move a trolley that was interlocked with another, but I agree that evidence of that nature would have been of very little assistance as it would be virtually impossible to simulate the conditions which existed at the time of the plaintiff's injury.

11. Dr Adams said that an American expert, Woodson, has recommended after investigation that a safe lateral force to be applied by a woman was 30 kilograms. On the evidence I do not conclude on the probabilities that at the time of her injury, the plaintiff exerted a force as great as or in excess of 30 kilograms, and in any event I am not convinced on the probabilities that the opinion of Woodson is to be taken as a standard of reasonableness to be applied in the industrial situation in the Australian Capital Territory at the present time.

12. Evidence was also given by Mr. Robert Arthur Arnold, the General Manager of the South Australian Central Linen Service which, he said, is the biggest linen service in Australia. The evidence of Mr. Arnold disclosed that the trolleys in use at the Woden Valley Hospital are of a standard type for institutions of that nature, and the trolleys in use in the Australian Capital Territory are, if anything, superior to those in use elsewhere, having larger wheels and stronger frames. Mr. Arnold gave some evidence about the effect of rollers fitted to the trolleys insofar as they acted as a bumper device, but again in my view this did not assist in the resolution of the issues before the Court. Mr. Arnold also said that it was impractical to use a towing device for the purpose of moving a fully laden trolley for a short distance, for instance from a corridor into an adjoining room. He thought and I accept that the cost of such a device would be in the region of $5,000.

13. Mr. Arnold is, in addition to his South Australian official position, the Chairman of the Australian Standards Committee TX-16, which is seeking to lay down certain standards for laundry practices in Australia, and he gave no evidence of any consideration of adopting the opinions of Woodson.

14. Finally, evidence was given by Mr. Leo Francis Forrester, an industrial engineer with the Department of Health in Sydney, New South Wales. He said that similar trolleys are in use in that State carrying up to 450 kilograms of linen at one time. The practice there is for females to move the laden trolleys within the building, although males moved the trolleys to and from the delivery trucks. Again, in New South Wales electric tugs are used only for moving a line of trolleys.

15. A number of alternative submissions were put on behalf of the plaintiff as to how her case in negligence might be framed. All but one with which I will deal in a moment fell within the particulars furnished. In my view, it could not be held that the defendant failed to provide a reasonably safe system of work for the employees in general or for the female employees in particular. There was clearly no departure from standard practice. I am not satisfied that it was encumbent upon the defendant as a reasonable employer to take steps to reduce the weight of the loads on the trolleys to such an extent that it would obviate the risk of injury of a straining nature to which the employees might be exposed when attempting to move the trolleys, nor that it was so encumbent upon the defendant to issue warnings to the female employees that they should not attempt to move the trolleys in the event of one being interlocked with the other or that it was encumbent upon the defendant to have a man near by at all times who could be available to assist female employees who found the weight of the trolleys to be excessive, nor that the employer should have issued instructions prohibiting the female employees from attempting to move the trolleys in the event of finding them too heavy. What calls for particular consideration, however, is the peculiar position of the plaintiff who, as I say, was known by certain persons in the employ of the defendant to have had some problems with her back and known by other persons in the employ of the defendant to have complained about the weight of the trolleys. It was not alleged against the defendant, even in submission, that it was negligent in that one of its employees, namely the staff doctor, was negligent in failing to warn those in the employ of the defendant who were in charge of the daily activities of the plaintiff or who otherwise exercised managerial responsibility that steps should be taken to place her on restricted duties. Nor was it alleged that the staff doctor was negligent in failing to warn the plaintiff of the danger of carrying out duties such as those she was engaged in at the time of her injury. As I understand it, it was alleged that knowledge of the plaintiff's susceptibility to back injury was imputed to the defendant in a general sort of way so that those in charge of the plaintiff's work activities should have made allowance for her susceptibility to injury. That was not, it may be observed, a matter contained in the particulars of negligence. What exactly that susceptibility was has not been made clear, either in an objective sense, or in a subjective sense, that is to say, what it was exactly that was in the minds of those persons or must be imputed to be within their knowledge. Furthermore, on no view of the evidence, am I able to conclude that the plaintiff, prior to injury, was exposed to a risk so great that she should not have been permitted to undertake any duties at all which involved the wheeling of the trolleys. I do not think it reasonable to have expected the defendant to have warned the plaintiff against movements of such a nature or to have prohibited her from making such movements or to have organized her work so that it was not necessary for her to make such movements. Furthermore, I am unable to see the extent of the reduction of the load of the trolleys which was required in order to obviate the risk of the injury with the plaintiff suffered. Lastly, it must be borne in mind that the plaintiff herself was in charge of the linen room. She herself did not suspect that she would sustain injury in what she did in trying to separate the two trolleys. Had she contemplated such a risk, it was open to her to postpone taking the particular trolley into the linen room until the male assistant returned from his ward rounds.

16. In McLean v. Tedman and Another [1984] HCA 60; (1984) 155 CLR 306 it was said in the majority judgment (with which the Chief Justice agreed on the question of the defendant's liability) at p.313:

"The employer's obligation is not merely to
provide a safe system of work; it is an obligation
to establish, maintain and enforce such a system.
Accident prevention is unquestionably one of the
modern responsibilities of an employer: see
Fleming, Law of Torts, 6th ed. (1983) pp.480-181."

17. This passage has been relied upon by plaintiffs on a number of occasions in the last couple of years. However, it is trite to observe that because an employer has an obligation to establish, maintain and enforce a safe system of work, does not mean that there is an onus cast upon a defendant to prove that it has discharged that obligation. Furthermore, the obligation is to provide no more than a reasonably safe system of work. That is such an obvious proposition of law that it was unnecessary for their Honours to include the word "reasonably" in the passage quoted.

18. In Bankstown Foundry Pty. Ltd. v. Braistina (1986) 65 ALR 1 in each of the two judgments of the several members of the High Court it was emphasised that recent decisions of that Court had not meant that there had been any departure from the principle that the obligation of an employer towards an employee was to take reasonable care for the safety of the employee and that it was incorrect to state as a matter of law that there was a heavy obligation on the employer or that the standard of care had moved close to the border of strict liability, although their Honours acknowledged that in recent times the standard of reasonableness in particular circumstances had no doubt changed from what it had been in former days.

19. I am not convinced that the plaintiff on the day in question was required to move an unnecessarily heavy trolley nor that she was required to exert a force which was excessive in that it constituted an unreasonable risk of injury. It was not unreasonable of the defendant to require the plaintiff, as a female, to move the trolley. It was not unreasonable for the defendant to require the use of manual labour to move the trolley, that is to say, by the use of non-mechanical means.

20. I have considered each and every one of the particulars of negligence alleged in the statement of claim, although I have not dealt with them seriatim in these reasons. I am not convinced on the balance of probabilities that the defendant failed to take reasonable care for the safety of the plaintiff in the circumstances and there must be judgment for the defendant.

21. However, this is probably a case in which it would be of assistance to the parties if I went ahead and dealt with the question of damages giving brief reasons for my findings on that subject.

22. The plaintiff was born on 18 December 1929 in France. She left school during the second world war when she was separated from her parents. She married before she was 18 years. She followed semi-skilled occupations of a domestic nature before she came to Australia in 1958. She and her husband have four adult children. Her husband worked as a carpenter on the Snowy Mountains Scheme. The plaintiff made a number of journeys back to France before she began working at the Royal Canberra Hospital Laundry in 1967. She continued there until she began work in the laundry at the Woden Valley Hospital in 1973 and she was in charge of the laundry from then until the time of the subject injury. Her duties were mainly of a supervisory nature. She was well regarded in the hospital and she gained a good deal of job satisfaction from her work. As a member of the staff of the hospital, she received treatment over the years at the staff medical clinic for a variety of complaints. In the twelve months or so prior to her injury she had begun to complain of pain in the lower back and she conceded in her evidence that she suffered from back pain from time to time in connection with her duties, particularly the manoeuvring of laundry trolleys. Immediately after the incident on the morning of 3 November 1981 she reported to the staff clinic. It is not clear whether the plaintiff went off work that day, but she did lose some time from work over the next two or three weeks during which time she experienced pain in the lower area of her back of fluctuating intensity. By the end of November the hospital records record that she was improving. She continued at work with only a day or so lost despite the pain until April when she was referred to Dr Stubbs. On 20 April 1982 the pain was sufficient to cause the plaintiff to decide that she should accept what appeared to be the advice that she should go off work. In fact, she was admitted to hospital for rest in bed until she was discharged on 6 May 1982. She continued off work under the care of Dr Stubbs until 7 June 1982. The opinion of Dr Stubbs at that stage was that she was suffering a sprained lumbo-sacral facet joint. From June to November 1982 the plaintiff continued at work but was unable to carry out the usual range of her duties. Dr Stubbs took the view that she was "more or less unable to work" during that period although the plaintiff's attitude was that she might as well be painful at work as painful and feeling sorry for herself at home. In November Dr Stubbs performed a radiculogram which showed a disc herniation at the L4/5 level and deviation of the L5 nerve root. Surgery in the nature of a laminectomy was performed. The plaintiff was discharged from hospital with the use of a wheelchair. In the ensuing months she showed no further progress. Dr Stubbs formed the view that she had become severely disabled. A CT scan taken in early 1984 showed that there had been no recurrence of the disc prolapse but the plaintiff's condition was severely affected by post-traumatic "epidural fibrosis" and she was regarded as housebound.

23. A departmental file kept by the defendant noted as at 2 July 1983 that the plaintiff was "barely employable and had been absent from work ever since 3 September 1982 except for six days in September 1982 and eight days in February 1983".

24. In July 1983 the plaintiff consulted Dr Xenie Fedoroff, a general practitioner, who prescribed pain-killing and anti-depressant medication. The plaintiff continued under the treatment of Dr Fedoroff whom she saw on fifteen occasions until the time of the hearing.

25. In April 1984 the plaintiff was referred by Dr Stubbs to Dr Lithgow, who supervised a pain-control clinic at the Woden Valley Hospital. Dr Lithgow formed the view on the basis of hyperaesthesia in the left leg that the plaintiff was suffering from a post-traumatic sympathetic dystrophy. Dr Lithgow attempted to relieve the symptoms brought about by the condition by two left lumbar sympathetic blocks, but these produced relief for a few days only. He also attempted by an operative procedure known as lumbar sympathectomy to relieve the symptoms but this was unsuccessful. Dr Lithgow formed the view that the plaintiff would continue much as she was with the use of a TENS device and further pain-killing medication. Dr Lithgow further noted that the plaintiff had, after his initial attempt at treatment, benefited from relaxation therapy. It was possible according to Dr Lithgow's opinion that the plaintiff's condition might be further relieved by the implementation of an electrode in her spine at an operative cost of about $8,000. The plaintiff does not wish to submit to any further operation, and I think it extremely unlikely that such operation would ever take place and I do not make any allowance for it in this assessment of damages.

26. Evidence from Ms. Patricia Williams, psychologist, and Ms. Ngaire Whitehead, an occupational therapist, as well as of all the doctors, goes to support the claim made on behalf of the plaintiff that she does indeed suffer from extreme pain in her lower back, radiating to her right leg. There has been a considerable amount of medication by way of pain-killers, tranquillizers, anti-depressants and sleeping tablets. No particular claim is made for medication into the future, but this will be included in the general damages. The plaintiff also claims to be depressed and undoubtedly when Dr Tennant saw her in 1983 this was so as she was contemplating suicide. Depression, however, has not been the predominant feature of the case and the plaintiff in recent times has taken an unusually positive attitude towards management of her pain. This is not the sort of case in which it can be concluded on the probabilities that the plaintiff's perception of her pain has been increased by virtue of anxiety, depression or any concern for the litigation. On the contrary, the plaintiff has been able to control to some extent the subjective perception of the pain from which she would otherwise suffer. Nevertheless, she is quite incapable of carrying out physical tasks to an employable extent. I am satisfied that since 1 March 1983 she has lost the whole of her income earning capacity. The real medical issue is whether the plaintiff's present condition is due to the injury, or whether her condition has been overwhelmed by degenerative processes in her spine which would have occurred in any event and without the injury and subsequent operation. The ultimate onus is on the plaintiff to prove her case on damages as well as liability, although there are statements of the highest authority to the effect that where a plaintiff's disabling condition is due to a number of causes, one of which can be traced to the defendant, then it is for the defendant to do the disentangling and show that the plaintiff's condition would have come about without his contribution: Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158. In any event, I am satisfied on the probabilities that the plaintiff's injury was the substantial cause of her disabling condition until the operation, and that the operation, which is a matter for which the defendant bears responsibility, was a substantial contributing factor thereafter. I am not satisfied that the post-operative fibrosis mentioned by Dr Stubbs or the post-operative sympathetic dystrophy mentioned by Dr Lithgow ceased to be a substantially contributing factor. However, the principle in Watts v. Rake, as I understand it, is concerned with an issue of established fact, namely the plaintiff's present condition and its contributing causes. The principle is not concerned with contingencies. Contingencies either past or future cannot be established with certainty and the approach of the law is that contingencies have to be taken into account to the extent to which they might have happened of might still happen: see Luntz, Assessment of Damages 2nd ed. para. 6.4.01 and following.

27. The evidence establishes that the plaintiff did have a degenerative spine, and that she had on occasions prior to injury complained at work of symptoms of pain. The occasions on which such pain was experienced, the exact location of the pain and the physical efforts or activities which preceded or brought on those symptoms escaped the plaintiff's memory and were not the subject of documentary evidence. I do not accept the evidence of Dr Cassar that the plaintiff would by now have been disabled by her degenerative spinal condition without the subject injury. However, I likewise do not accept the suggestion made on behalf of the plaintiff that the evidence of Dr Stubbs established that the plaintiff would have been able to work to the age of 65. I note that the evidence of Dr Cassar includes reference to the results of thermographic tests. This is not sufficiently probative, in my view, to displace the opinions of Dr Stubbs and Dr Lithgow, both treating doctors. There would, in my view, have been an increasing likelihood that her back would have become the source of more frequent and more painful, and even disabling, symptoms as the years went by. It is possible that she would have been disabled by the present time. This, in my view, should be reflected in the award of damages by reducing the arithmetical calculation of past loss of earning capacity by a small amount for contingencies and of future loss of earning capacity by twenty-five per cent for contingencies.

28. Although I know of no authority on the point, I am of the view that where the evidence establishes that the plaintiff's condition, to which the defendant's conduct has made contribution, might have been or might be overtaken or displaced by another condition (or event) for which the defendant is not responsible, the award of damages must reflect that contingency, past or future or both, without any onus being cast on the defendant to prove the likelihood of the occurrence of the supervening condition. Again, although I know of no authority on the point, it seems to me as a matter of principle that an adjustment for contingencies should be made for heads of damage other than the calculation of present value of future (or past) pecuniary loss. To take an extreme and obvious example, the award for pain and suffering to a plaintiff suffering from a malignant disease unconnected with the injury in respect of which the claim for damages is made will be less than that awarded to a plaintiff who may be expected to have had, except for the subject injury, a long and healthy lifespan.

29. The past wage loss, or loss of earning capacity, or both, is arithmetically agreed at $48,192.09 and that should be reduced to $45,000 for contingencies. The future loss for eight years at an agreed net rate of $300 per week, yields $111,600 on the three per cent discount tables. A similar loss for three years yields $45,000. I think it reasonable to take $75,000 as base and reduce it by twenty-five per cent for contingencies. The result is $56,250.00.

30. For general damages for pain and suffering and loss of enjoyment of life I would award $35,000. The Fox v. Wood component is agreed at $7,274.99.

31. The other remaining issue on damages was the claim for domestic services in accordance with the decision in Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. Films were shown of the plaintiff in recent months getting around the outside of her home and visiting friends and a local club which, according to the defendant, showed that the claim for domestic expenses was exaggerated. Counsel for the defendant properly conceded that the films did not go to affect the plaintiff's credit nor to affect her claim for loss of earning capacity or for pain and suffering. Indeed, I found the plaintiff a completely acceptable witness, bearing in mind that she was quite emotional from time to time during the course of giving her evidence. The films showed the plaintiff getting up and down the substantial flights of steps at the front of her house, up and down a driveway of significant slope, getting in and out of a car and driving it. She was clearly able to carry out all those activities, but did so slowly and deliberately and most of the time used a walking-stick. She described in evidence how she has and needs the assistance of her daughters and of her husband in and around the house. Her husband gave evidence that he gets up early at least on weekday mornings to assist to shower and dress the plaintiff and the claim as far as he is concerned is restricted to a modest five hours per week. In addition, a further five hours is claimed in respect of past assistance from the daughters. I think that the assistance in this regard is more than a mere re-arrangement of household affairs but that the plaintiff's ongoing claim is reasonably allowed at five hours per week.

32. The past claim for Griffiths v. Kerkemeyer is arithmetically agreed at $19,356.00. It includes the period relating to a period when the plaintiff had full-time attention from a commercial organization or organizations and a claim in respect of the husband and daughters but it also includes an amount for an air fare paid to bring her mother out from France to look after her for about four months. I am not satisfied on the balance of probabilities that the expense of her mother's air fare was reasonably incurred. If it was a reasonable cost of mitigating the plaintiff's damage, then I might have held otherwise, but the evidence does not enable me to draw this conclusion. I am not satisfied as to how it was that the cost of engaging domestic assistance was reduced by bringing the mother from France. I would reduce the claim slightly for contingencies. The claim in respect of past domestic services I would allow at $16,500.00.

33. Future Griffiths v. Kerkemeyer expenses should be allowed at five hours per week at $9.24 per hour, that is about $50 per week. To the age of seventy years, or for thirteen years, at the three per cent discount tables, that yields $28,150, which reduced by one third for contingencies results in an end figure of $18,766.67.

34. Medical, hospital and other associated expenses are agreed at $16,819.73. I am not told nor is it necessary for me to know exactly how this amount is made up, but it may be noted that the occupational therapist recommended the supply of a wheelchair and the erection of various handrails and the like around the plaintiff's home. I presume the cost of these have been included. I would have awarded that cost as part of the damages. The evidence relating to the supply of these items to the plaintiff goes to support her claim generally, not least the claim for domestic services.

35. In summary then if there had been a finding in favour of the plaintiff on liability I would have awarded damages as follows:

Out-of-pocket expenses $16,819.73
Past loss of earning capacity $45,000.00
Future loss of earning capacity $56,250.00
Past domestic services $16,500.00
Fox v. Wood component $7,274.99
Future domestic services $18,766.67
General damages for pain and suffering, etc. $35,000.00

Total: $195,611.39

36. The final order is judgment for the defendant. I shall hear the parties on costs.