Jeanette Maureen Charnock v Capital Territory Health Commission and Caroline Klefisch [1988] ACTSC 34 (17 June 1988)

SUPREME COURT OF THE ACT

JEANETTE MAUREEN CHARNOCK v. CAPITAL TERRITORY HEALTH COMMISSION and CAROLINE
KLEFISCH
S.C. Nos. 355 of 1978, 299 of 1979
Negligence - Employer - Damages

COURT

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

CATCHWORDS

Negligence - claims for damages for personal injuries heard together by consent - plaintiff injured back when lifting heavy patient while employed as nurse's aid - whether contributorily negligent plaintiff later received whiplash injuries in motor vehicle accident allegedly caused by defendant.

Employer - allegation that omission by defendant to instruct plaintiff in lifting is a failure to exercise reasonable care - whether defendant should have provided wardsmen to assist - whether defendant negligent in not promoting the use of mechanical lifting devices - whether failure to properly supervise plaintiff.

Damages - weight to be given to assessment that plaintiff may be exaggerating her symptoms.

Baker v. Willouqhby [1969] UKHL 8; (1970) AC 467

Jobling v. Associated Dairies ltd. [1981] UKHL 3; (1982) AC 794

Faulkner and Another v. Keffalinos (1970) 45 ALJR 80

Nominal Defendant (Qld.) Nilon (1988) 62 ALJR 302

HEARING

CANBERRA
17:6:1988

ORDER

In matter number S.C. 299 of 1979:

There be judgment for the plaintiff in the sum of 518,750.00.

The defendant bay the plaintiff's costs.

In matter number S.C. 355 of 1978:

There be judgment for the plaintiff in the sum of
$14,325.98.

The defendant pay the plaintiff's costs.

DECISION

These are actions for damages for personal injuries heard together by consent. In the first action the plaintiff sues the Capital Territory Health Commission as the authority responsible for the operation of the Allambee Nursing Home where the plaintiff was employed as a nurse's aid and where she received an injury on 20 March 1977. In the second action the plaintiff sues the driver of a vehicle which collided with the rear of the plaintiff's stationary vehicle on Coulter Drive, Page, on 9 December 1978 when the plaintiff alleges that she received further injuries, mainly of a whiplash type.

2. The plaintiff was born in Crookwell on 2 November 1942. She left school after three years at high school at the age of about 16. She worked then as a waitress and as a nurse's aid in the area and then on the south coast for two or three years. She married and did not work away from home again until 1974 when she resumed working as a nurse's aid at a nursing home at Crookwell. In 1976 the family moved to Canberra. In 1977 she started working three days a week for the Allambee Nursing Home at Jamison. On the day of her injury the plaintiff was required to assist in the movement of a patient for the purposes of showering or bathing. The particular patient was a Mrs. Anderson. She weighed more than eighteen stone. There were one or possibly two patients at the nursing home at the time who were heavier. The plaintiff had assisted to lift Mrs. Anderson on two or three occasions previously without experiencing any problem.

3. The plaintiff was in the company of a Nurse Cassidy. It appears, and I find as a fact, that she was subject to the direction of Nurse Cassidy. She and Nurse Cassidy were in the first instance to move the patient from the bed to a bedside chair. The height of the bed was not adjustable. Nurse Cassidy and the plaintiff lifted the patient from the bed to a chair using a technique that the Plaintiff had used commonly on previous occasions. It involved the two persons lifting linking arms behind the patient's back and linking arms under the upper part of the patient's legs. In her evidence-in-chief the plaintiff was asked the following questions and gave the following answers:

"Q. When you got her into the chair, did you
notice something, or as you were getting to
the chair, did you notice something happen?

A. Yes.

Q. What did you notice?

A. When I went to take the lift I felt some-
thing - strong pain in the bottom of my
back."

4. The plaintiff then indicated an area just below the beltline, about five to seven centimetres in length. She went on to say that Nurse Cassidy then told her that the patient was not straight enough in the chair and would have to be lifted again. This time the plaintiff walked around behind the chair, put both her arms under the patient's armpits and as Nurse Cassidy took the patient under the legs, they lifted the patient "higher up into the back of the chair". In that process the plaintiff felt increased pain in the base of her spine. She was unable to stand up straight immediately and at the suggestion of Nurse Cassidy, she reported the incident to a sister. She "managed to continue working for the rest of the day and for several days later until she sought medical attention.

5. The particulars of alleged negligence supplied in the statement of claim and in correspondence are somewhat vague and discursive, but it is not contested on the part of the defendant that they cover the various alternatives that were argued at the hearing. These were a failure on the part of the defendant to properly instruct the plaintiff in the techniques of lifting heavy patients, a failure to properly supervise the plaintiff on the day in question, a failure to supply assistance to the plaintiff in the form of wardsmen and a failure to supply assistance to the plaintiff in the form of a mechanical lifting device.

6. I do not think that any omission on the part of the defendant to instruct the plaintiff in lifting amounted to a failure to exercise reasonable care for the safety of the plaintiff. According to the plaintiff (s own evidence, she did not need any such instruction because she knew how to lift in the commonly accented manner. She also said that when she was first engaged to work at the Allambee Nursing Home, she was asked by the Matron whether she had had experience with geriatric patients and whether she knew how to lift patients. To those questions the plaintiff replied in the affirmative.

7. I shall defer discussion of the allegation that the defendant failed to properly supervise the plaintiff.

8. The allegation that the defendant failed to provide quate assistance to the plaintiff in the form "of wardsmen was the subject of a good deal of evidence, some of it not easy to follow. It has to be remembered' that the standards of reasonable care which the defendant was expected to. observe in 1977 were the standards of 1977 and not those of 1988. It is, of course, a highly artificial exercise to try to project oneself back more than ten years in order to decide what was considered reasonable at that time, and some of the witnesses who spoke on this subject had to be reminded of that constraint. The allegation that it was negligent not to provide wardsmen to assist the plaintiff assumes that men are physically stronger than women and that women should not be employed to lift heavy weights. That was, I think, a principle which would have been as well known in 1977 as it is at the present time, at least as far as it goes. However, the evidence also established that it as become increasingly common since 1977 for wardsmen to be employed in institutions established for the nursing care of the aged, such as Allambee Nursing Home. Allambee had been originally established as a private nursing home. It was acquired by the Commonwealth and placed under the control of the Capital Territory Health Commission in 1976. In late 1977, several months after the plaintiff's injury, it came under the control of the Royal Canberra Hospital. Within a couple of months after coming under the control of the hospital, wardsmen were rostered for duty during the day, but only one wardsman for each day shift. The wardsmen were used to assist in lifting heavy patients, awkward patients and aggressive patients.

9. The evidence of the plaintiff and several of her witnesses established that wardsmen were used for the manual lifting of patients in a number of hospitals such as Goulburn, Wollongong, Nowra, Broken Hill and Tamworth. I think that this evidence is of very little assistance as the practice in hospitals at the time did not necessarily lay down a standard which had to be observed in nursing homes, at least in the absence of evidence that nursing homes were on comparable financial terms with those hospitals which have been mentioned. On the other hand, there was some evidence that male wardsmen were used for lifting patients at the nursing home at Crookwell and at Jindalee, a nursing home administered by the defendant. The evidence did not establish precisely the time at which the Jindalee Nursing Home had come into existence, but Sister Carol Anne Rook, Director of the Canberra Nursing Home, formerly Allambee, acknowledged that there have been male wardsmen at Jindalee as long as it has been established. It was until 1987 attached to the Woden Valley Hospital. Insofar as Sister Rook was not sure whether Jindalee was opened before or after 1977, I think it should be inferred that it was opened around about the time of the plaintiff's injury. That would also be consistent with the Commonwealth taking over responsibility for Allambee and then placing it under the care of Royal Canberra Hospital in late 1977. I have no difficulty in drawing the conclusion from all this that it was reasonably practicable for the defendant to have employed male wardsmen at the time of the plaintiff's injury as it was Practicable to employ them at Jindalee at that time and practicable to employ them at Allambee some months after the plaintiff's injury. Whether the failure to employ such wardsmen amounted to lack of reasonable care, and whether such failure was causally related to the plaintiff's injury, is a question which I shall examine in a moment.

10. The further allegation was made on behalf of the plaintiff that it was negligent of the defendant not to have supplied and insisted upon the use of a mechanical lifting device. Again there was a good deal of evidence on that subject The evidence established clearly that mechanical lifting devices suitable for lifting heavy patients were in use in hospitals and in particular in geriatric wards and in nursing homes at the time of the plaintiff's injury. But in fact there was a suitable lifting device at Allambee at the time. The plaintiff's evidence as to its availability was somewhat confused as is illustrated by the following question and answer.

"0. Was the machine available that morning?
A. It would be. It was not available then, no."

11. Margaret Doreen Harrington, a nurse's aid, who was engaged at Allambee at the time of the plaintiff's injury, said it was possible that there was a lifting device there at the time but it was for the use of whoever got it first and "you had to enquire to see whether it was available". Shirley Aileen Sands, who was also employed as a nurse's aid at Allambee at the time said that there was an old mechanical lifting device but she did not think that it was ever used and she never received any instructions how to use it. She said further that there was a new lifting device installed in 1978 or 1979. This is consistent with an answer given on behalf of the defendant to one of the Plaintiff's interrogatorion (Interrogatory 16) which shows that the ratio of mechanical lifters to patients was one to one hundred and forty-six Prior to January 1977 and one to seventy-three after January 1977. By a Process of arithmetic it may be deduced that a second lifting device was installed shortly after the plaintiff's injury.

12. Evidence about lifting and lifting devices was given by expert witnesses called on behalf of both sides. The Plaintiff called Dr Neil Leon Adams, an ergonomist and Senior Lecturer in the Centre for Safety Science at the University of New South Wales. Dr Adams gave evidence about the dangers involved in a female lifting more than sixteen kilograms and for the need for females required to lift heavy weights to have assistance by way of a mechanical device or a sufficient number of people to ensure that no one has a Greater lift than is Physically Possible without serious prospects of injury. Dr Adams calculated that the minimum weight that the Plaintiff was required to lift on the day in question was over fifty-seven kilograms. Dr Adams attempted to give some evidence about a computer Programme developed in the United States which calculates the forces involved in a person lifting or attempting to lift a certain mass. I was not able to understand this evidence, and my lack of understanding was, if anything, increased by hearing the evidence of Mr. Colin George Simpson, whose qualifications in automotive and mechanical engineering are well known. To those qualifications Mr. Simpson added, for the purpose of the present case, his experience as a former lifesaver and a relative of a bedridden aged Person whom he has assisted to lift on many occasions. Mr. Simpson also spoke as to the availability in use of lifting devices and he explained that the unit of measure for assessing stress on the human spine is not kilograms but Newtons per square metre.

13. I did not find this expert evidence of Great assistance. As I have already said, the evidence otherwise established that there was a lifting device on the premises at Allambee, and a second device was installed shortly after the plaintiff's injury. Dr Corry, a specialist in rehabilitation medicine, gave evidence, mainly relating to damages, but he happened to mention that he thought that mechanical lifting aids did not offer a total solution to the problem of lifting heavy patients in a hospital or nursing home and that the optimum solution was the use of a team of strong male persons. Dr Keshishian cave evidence on behalf of the defendant as a previous inspector of nursing homes with twelve years experience in the Australian Capital Territory prior to retirement in 1985. Dr Keshishian said it was rare to find male attendants in nursing homes and that nursing homes were instructed to have one mechanical lifting device available to assist in lifting heavy patients. The term "wardsmen" was not in use in relation to nursing homes during Dr Keshishian's time. I do not think that the lack of wardsmen or lack of more than one lifting device in themselves constituted a lack of reasonable care on the part of the defendant.

14. It remains to consider the allegation of failure to Properly supervise the Plaintiff The patient being lifted on the day in question was eighteen stone in weight. It is clear on the evidence that the risk of the type of injuries sustained by the Plaintiff was substantial if such a person was to be lifted by only two female persons The plaintiff was subject to the direction of Nurse Cassidy. Nurse Cassidy was not called to give evidence. No explanation was offered as to her absence. I would have expected Nurse Cassidy to be called to dive evidence on behalf of the defendant if she could have assisted the defendant's case. I draw the inference that no consideration was given by Nurse Cassidy to enlisting assistance from other nurses or to utilising the mechanical aid that was on the Premises. It is clear that the mechanical aid was not used as often as it might be. The defendant should have encouraged greater use of the mechanical aid. The defendant should have also sought to ensure that employees like the plaintiff and Nurse Cassidy, required to lift a patient of extraordinary weight, should have been placed in a position to make an informed choice as to how to perform the lift. The duty of the defendant is not simply to provide a reasonably safe system of work, it includes the duty to establish, maintain and enforce such a reasonably safe system. It is not enough simply to provide a device which will assist in minimizing the risk of injury unless those susceptible to the injury are at least encouraged to make use of the device. The evidence in the case establishes that the nursing staff entertained the belief, either correctly or mistakenly, that the lifting device was not available for practical purposes. The provision of a second lifting device after the plaintiff's injury is evidence of some effort on the part of the defendant to encourage the nursing staff to a greater awareness of the risk of injury such as that sustained by the plaintiff and toward greater effort on their own part to avoid such injury.

15. Furthermore it must be remembered that the plaintiff was subject to the supervision of Nurse Cassidy. It should have been obvious to Nurse Cassidy who had with the plaintiff lifted the patient from the bed to the chair by using a commonly accepted technique that if the patient was to be moved again to an upright position in the chair; then it was advisable to use the same technique Instead of that Nurse Cassidy allowed the plaintiff to try to lift the patient from the rear by placing her hands under the Patient's armpits. At the same time Nurse Cassidy took hold of the Patient from underneath her legs. In that situation the mechanics would seem to indicate that it was the plaintiff who was to take the greater part of the weight. It was perhaps a momentary lapse on the part of Nurse Cassidy and certainly not indicative of gross negligence, but the lapse was indicative of a situation where the defendant's conduct, viewed as a whole, failed, in my opinion, to maintain and enforce a reasonably safe system of work. In my view, the plaintiff has to succeed on the issue of neqligence.

16. The defendant alleged contributory negligence on the part of the plaintiff, the plaintiff herself admitted in crossexamination that she was using a method of lifting the patient which she knew to be a wrong method, in contrast to the method she had used immediately before to transfer the patient from the bed to the chair again, like the lapse of Nurse Cassidy, it was a momentary lapse on the plaintiff's part, but nevertheless, it should have been obvious to the plaintiff, particularly with her experience, that she was exposing herself to the risk of spinal injury if she attempted to lift the patient in that way. Furthermore, she should have been particularly careful, because she said she had experienced a twinge of back pain as she was lifting the patient from the bed to the chair. Viewed generally, I would have seen the plaintiff's contribution to her injury insofar as it resulted from a lack of reasonable care for her own safety, as being approximately equal to the failure of Nurse Cassidy to take reasonable care for the safety of a fellow worker under her supervision. On the other hand, it is not simply the act of Nurse Cassidy that constitutes the negligence of the defendant in the instant case, The action of Nurse Cassidy has to be seen in the total context of the lack of male wardsmen, the failure of the defendant to keep the nursing staff aware of the need to employ a lifting device where necessary, and the nature of the defendant's enterprise where it was necessary for nursing staff in the position of the plaintiff simply to try to get on with the job. Whilst I think that the lack of reasonable care on the plaintiff was not insignificant, it is overshadowed by the want of reasonable care on the part of the defendant and I think the plaintiff's damages should be reduced by twenty percent for contributory negligence.

17. Before turning to the question of damages, I should mention that in the second of the actions brought by the plaintiff, that is for the action in respect of her injury on 9 December 1978, no evidence was called on behalf of the defendant. Whilst liability was not admitted, the circumstances as deposed to by the plaintiff establish negligence on the part of the defendant who drove into the rear of the plaintiff's stationary vehicle and there is no contributory negligence on the part of the plaintiff in respect of that incident.

18. I turn now to the question of damages.

19. On matters relating to damages the plaintiff was not a very impressive witness and did not stand up well to crossexamination. I am cautious about discounting the effect of her evidence because of such an unfavourable impression, as I am aware that such impressions may be due simply to lack of particulateness, embarrassment, inexperience in giving evidence and the like. Nevertheless, this impression is, I am firmly convinced, supported to a large extent by much of the medical evidence. It is a matter of considerable concern that it is over ten years since the plaintiff's first injury and I cannot avoid the conclusion that some of the plaintiff's symptoms are associated with the protracted nature of this litigation It is undoubted that at least some of the plaintiff symptoms are due to psychological or at least non-physical factors and it is very difficult to anticipate whether these are likely to diminish or disappear when the litigation comes to an end or whether they are by now so deeply ingrained in the plaintiff personality that she will continue to be as poorly motivated as she is now.

20. The plaintiff continued to carry out her work as a nurse's aid for some time after the injury. It is not clear exactly how long she so continued, but a report from Dr. Lai indicates that she was certified unfit for work as from 3 April 1977 She completed a written claim for compensation on 5 April 1977 and she has not worked since. Why she saw Dr Lai, who was not her usual medical practitioner, was not satisfactorily explained. Her usual practitioner was Dr Kneebone, who was connected with a practice at Cook, but he appears to have been absent from the practice in early 1977 and the plaintiff saw a locum, Dr Margaret Costin. Dr Costin certified the plaintiff unfit for work because of "back ache due to lifting at work" on 4 April 1977 The following day Dr Costin's notes record, "Tender all thoracic vertebra. Lumbar spine OK. X-ray NAD. Having heat, traction, exercises, gentle manipulation". A note from Dr Costin to Dr Uren, apparently a Consultant physicial, dated 6 April 1977 notes two problems, the strained thoracic spine already referred to but also tenderness over the right side of chest, diagnosed as "epidemic myalgia"

21. Dr Clarke, a Commonwealth medical officer who saw the plaintiff on 13 May 1977, viewed her complaints with scepticism because of her "exaggerated responses".

22. Under cross-examination the plaintiff conceded that it was pains in her chest which had taken her to see Dr Lai and which troubled her whilst she was seeing Dr Costin. Nevertheless, the certificate of Dr Costin of 30 May 1977 stressed the "persistent and consistent pain in most of the thoracic vertebrae" since the injury on 20 March 1977 but adds "on 4 April also had pain in Lumbar 2-3 level". Dr Costin continued to issue certificates of unfitness for work because of backache. On 22 June 1977 the certificates indicate that Dr Costin thought by then that the plaintiff was fit for light duties not involving lifting. By 25 October 1977 Dr Costin noted depression in addition to the ache. On 25 October 1977 Dr Costin wrote to somebody, it is not clear whom, that "It is terribly important that we settle her case with Allambee. Her health and family life are deteriorating rapidly."

23. Dr Costin expressed the view to the plaintiff's solicitors in a letter of 14 November 1977 that it was unlikely the plaintiff could return to work as a nurse's aid, that she had been advised most strongly against risking further injury to her spine by lifting heavy patients. Dr Costin stated that she was prepared to certify that the plaintiff was very likely to be permanently unfit for work as a nurse's aid, but added somewhat paradoxically that she was unable to give an opinion about the length of the plaintiff's incapacity.

24. The plaintiff was referred by Dr Costin to Dr R.J. Kitchin, an orthopaedic surgeon, who examined the plaintiff on 4 November 1977 and considered that the plaintiff had back pain which could be dated from the injury. He also thought, however, that she had a functional overlay which was "contributing to her slow recovery". He suggested she be fitted with a lumbo-sacral corset. He disagreed with Dr Costin's diagnosis that the plaintiff was permanently unfit for work as a nurse's aid and thought that the length of the plaintiff's capacity was more likely to be three to six months into the future. X-rays were reported as showing some lipping of the thoracic vertebrae at the T1O-11 level, but Dr Kitchin does not appear to have attached any significance to this.

25. On 12 October 1978 the plaintiff was examined by Dr Roebuck who thought there had been a soft tissue injury to the lower spine from which the plaintiff would soon recover. I shall refer to his reports again below.

26. The plaintiff was examined by Dr Corry on reference from her solicitors on 27 October 1978. According to Dr Corry's report she gave a somewhat different history of the first few weeks after the injury, but I do not attach any great importance to this. It is significant, however, that prior to seeing Dr Corry the plaintiff had developed palpitations which were investigated at the cardiac clinic at the Royal Canberra Hospital where the plaintiff was reassured as to her heart condition. On examination, Dr Corry found extensive muscle spasm up both sides of the back extending towards the neck. Movements to the lower lumbar spine were restricted about fifty percent in all directions. X-rays displayed nothing of significance. Dr Corry thought that the plaintiff's back symptoms, like those in her chest, were associated with a functional element, but that the lumbar pain was traceable to the incident at the nursing home. At that stage Dr Corry felt that the plaintiff was unfit to return to the work of a nurse's aid but that she might in due course "return to a similar position if taught correct lifting and handling techniques".

27. The plaintiff in her evidence said her back problems Prevented her from going back to work and doing some of the housework and that although she continued to be troubled by heart palpitations, they did not incapacitate her. After she saw Dr Kitchin she wore a corset as prescribed which she still wears on occasion and it gives some relief. She had physiotherapy throughout 1977, took pain-killers, attended a course of relaxation classes but her back problem had not improved by the end of 1978. In addition to that she found sexual intercourse painful and that caused her relationship with her husband to deteriorate. That was the situation when she sustained her second injury on 9 December 1978.

28. Apart from being shaken up the plaintiff did not notice anything unusual after her second injury until the day after when she noticed that she was "feeling crook". She was also bleeding from the mouth. She went to see Dr McKeown, who arranged for her to be admitted to Royal Canberra Hospital where she was kept for three days. She had bruising about her shoulders and chest. She associated the latter with her chest striking the steering wheel of the car. She also felt pain in the shoulders "up into the chest, up into the front of the neck" and "across the shoulders". The pain in the front of the chest subsided after some days, then she noticed that the pain continued in the back of the neck and up into the back of the head. Her dentures were cracked and she had to have them repaired once. Since then the neck has never got better and the plaintiff says that she has continuous pain in that area. She says that she has to arrange pillows to ease the pain when she lies down and that her sexual relationship with her husband deteriorated further after the second injury. Her husband shifted out of the bed soon thereafter and there was no resumption of any sexual relationship. The plaintiff and her husband separated about two years ago. She says that there has been no difference in her back pain since the second accident.

29. Dr McKeown, who referred the plaintiff to the Royal Canberra Hospital, saw the plaintiff only once on 10 December 1978 and he noticed nothing unusual apart from some slight neck stiffness. He has no note of the plaintiff mentioning to him anything about back pain.

30. The plaintiff saw Dr Kneebone on 23 January 1979. He found the plaintiff "quite uncomfortable" on examination and referred her to Dr Newcombe after prescribing pain-killers. In his report of 20 April 1982 Dr Kneebone states that the plaintiff "has never mentioned her neck again to me in the fifteen or twenty times I have seen her since the accident". Presumably, the reference is to the second injury, as Dr Costin attended the plaintiff after the first injury.

31. Before turning to Dr Newcombe's evidence, I refer to reports from Dr Roebuck, an orthopaedic surgeon who first saw the plaintiff on 12 October 1978 when she was complaining of pain in the lower back. On physical examination Dr Roebuck found there was tenderness at the L5-S1, L4-L5 level, but no evidence of nerve root pressure or intra-spinal lesion and nothing abnormal on x-rays. Dr Roebuck thought that the plaintiff had suffered a soft tissue lesion and would recover. However, when he re-examined her in the office of the plaintiff's solicitors on 26 June 1981, he said that her condition had shown no change, with continuing tenderness over the inter-spinous ligaments of the lumbar spine, which evidenced soft tissue lesion only. The latter examination of Dr Roebuck is consistent with the comment by Dr Kneebone that there was no complaint of neck pain at that stage.

32. At this stage I should also make reference to the reports of Dr Trethewey, who performed a lararotomy on the plaintiff on 6 August 1980 because of abdominal pain and peritonitis. At operation there was found to be necrosis of parts of the lower bowel, a condition which was not related in any way to the plaintiff's injuries. Without evidence on the exact point I conclude that the plaintiff's damages will need to be adjusted for the fact that the plaintiff's incapacity for work was overtaken by the operation and its effect for a period of two weeks or so and the damages will reflect this factor.

33. Turning to the evidence of Dr Newcombe, he first saw the plaintiff on 1 March 1979, where he found gross restriction of neck movement following what he considered to be a severe whiplash injury on 10 December 1978. She complained of generalised back pain relating back to the injury in the nursing home for which she was continuing to attend relaxation classes. Dr Newcombe reviewed the plaintiff on 23 March and considered the possibility of cervical disc protrusion. However, on 7 March 1980 he found the plaintiff "much improved" and hoped that the plaintiff's condition might settle in the course of the remaining year. Dr Newcombe did not see the plaintiff again until 13 March 1981 when the condition of the neck appeared not to have changed. Dr Newcombe considered it was necessary to await the outcome of physiotherapy before deciding future proqnosis. This was done and a cervical myelogram was performed without any positive indications. By 1 December 1981 there still being no change, Dr Newcombe formed the view that the plaintiff's condition was by then stable, and continued unchanged when he saw her next on 10 February 1983. At that stage Dr Newcombe considered that it was likely that there was some intervertebral disc involvement and that there would be increasing nerve root compression over the next decade requiring surgical investigation and probably operation. He appears to have retreated from this view somewhat by the time of his next examination on 5 August 1987 when the complaints included headache, low back pain, persistent anxiety, insomnia and lassitude. The plaintiff did not appear to be specific at that stage as to her complaints about neck pain although Dr Newcombe said that the neck pain did not radiate in a nerve root distribution and surgery was at that stage apparently unlikely. Once again her condition was considered to be stable.

34. In his evidence to the Court, Dr Newcombe expressed the view that if the plaintiff had not been incapacitated by back injury prior to the injury of 20 December 1978, then she would have been incapacitated by the neck injury on that date. He added that on 1 March 1979 the plaintiff's complaint of backache was not specific and did not suggest incapacity from that source.

35. It is to be observed that there is a gap in Dr Newcombe's evidence between 1983 and 1987. This gap is matched in some of the other medical evidence. For instance, the plaintiff saw Dr Maxine Tennant, a psychiatrist, on 30 May 1983 when the plaintiff was found to be markedly depressed. Apart from the direct aftermath of her injuries the plaintiff complained to Dr Tennant of bowel problems of the previous five years, marital problems aggravated by the husband's increased drinking over the previous twelve months, exacerbated by the plaintiff's own inability to cope, irritability and loss of interest in sex, and continuing concern over lumps in the breast with fear of cancer. There were also stresses attached to the move from Crookwell to Canberra in 1976. Dr Tennant felt that the plaintiff was severely incapacitated by her depression and anxiety which had decreased her ability to deal with her back and neck pain and recommended psychiatric referral if treatment of the nervous condition by the general practitioner was of no effect. The plaintiff declined further intensive investigation of her physical condition because she felt too anxious to cope with it, a decision Dr Tennant considered quite appropriate. However, Dr Tennant did not see the plaintiff again until 27 July 1987 and then at the request of her solicitors. The previous depression and anxiety were not apparent to Dr Tennant although the plaintiff stated that she had had recurring bouts of depression in the meantime. The plaintiff showed interest in the possibility of returning to light work.

36. In her evidence, Dr Tennant said that she thought what was diagnosed as epidemic myalgia in 1977 (what was in fact a loose sort of diagnosis which might have meant nothing) could have been an anxiety symptom. Dr Tennant's prognosis was quite guarded, she felt that the plaintiff if pushed too far would break down again into anxiety and depression but it was impossible to know exactly what her limits were. Dr Tennant was not prepared to say that the plaintiff was capable of doing light work or work of a clerical nature.

37. This pattern of symptoms coming to a head in 1983 and then apparently not being the subject of investigation for another four years or so was evident also in the reports of Dr Corry who, having initially seen the plaintiff on 27 October 1978 to which I have already made reference, did not see the plaintiff again until 1983. There was an initial appointment of 14 June, but the plaintiff had fallen and injured herself at home, which had nothing to do with the subject injuries, and eventually she presented herself for examination on 5 July 1983. Dr Corry noted the history and the continuation of conservative treatment with analgesic tablets, anti-depressant medication, relaxation training and physiotherapy, but with limited success. The plaintiff complained of constant pain in the back of her neck spreading across to the back of her shoulders aggravated by housework and eased by analgesic tablets every three hours. She also complained of an ache in the low back region that was worse at night, subsiding to a dull ache and restricting all bending activity. The plaintiff stressed her anxiety and frustration. She stated that she was wearing the cervical collar on long car trips. Dr Corry's conclusion was that the plaintiff's disabilities stemmed from the injury to the back, aggravated temporarily by the whiplash in December 1978, but his opinion again was guarded. He thought the plaintiff was unable to be employed in any occupation requiring significant lifting or bending but was able to perform certain household duties which indicated that she was possibly able to carry out light, sedentary work although she was not trained for such. The major factor still appeared to be the continuing depression leading to increasing withdrawal and loss of interest.

38. Dr Corry saw little change when he next saw the plaintiff on 21 September 1987 and noted that the plaintiff had been referred to the rehabilitation programme at Woden Valley Hospital but she had not completed any course of treatment there. It may be significant that the plaintiff told Dr Corry that she had no particular plans about her future except perhaps to travel if she got some money and as far as management of her pain was concerned she felt that her only hope was that someone may be able to stop the pain and she would then return to work. Dr Corry felt that as the plaintiff's capacity for doing sedentary duties had not been tested, he thought that she would have some capacity for doing light work, for instance, that of a receptionist.

39. The only doctors who saw the plaintiff in this period between 1983 and 1987 were those who examined the plaintiff on behalf of the defendant, namely Dr Cassar, a consultant physician, who saw the plaintiff on about 17 June 1985 and Dr Truman, consultant psychiatrist, who saw her on 1 October 1986. Dr Cassar found a complete range of cervical and lumbar shine movement and of normal chest expansion. In relying to some extent on the medical reports that had been furnished to him, he concluded that neither of the plaintiff's injuries would have caused more than temporary disability. Again there was normal range of neck and back movement, absence of muscle spasm and other clinical findings which led Dr Cassar to the same firm belief. I accept Dr Cassar's assessment, but of course I still have to find how long the causally related symptoms and disabilities lasted.

40. Dr Truman said that the plaintiff appeared rather tense and fed up at having to see another doctor and that she expressed the attitude that nothing could be done to help her and basically she has to live within her limitations, taking panadol at the rate of ten to twelve per day. Amongst other things she expressed feelings of being generally frustrated with the legal and medical professions, firstly, because of the amount of time since the two accidents and secondly because nothing could be done to further held her. She had not benefited from psychotropic medicine which had left her with unpleasant side-effects. She was unable to see any type of work that she could do, but there was no impairment in her ability to do most of the housework although her interest in gardening had been reduced. She was able to mow the lawn without much discomfort. She could not tell Dr Truman in which way either of the two accidents was any worse than the other or more disabling. Dr Truman felt that the plaintiff suffered a mild depressive reaction, a common phenomenon, but not sufficiently severe to affect her employability or her social and leisure activities. To that extent I prefer Dr Truman's opinions to those of Dr Tennant. He did feel, however, in the light of the loss of libido and pain on intercourse, that the breakdown of the marriage was a result of the injuries. I am not so convinced. When he gave evidence, Dr Truman resiled from the assertion in his report that once the litigation was finished the plaintiff would possibly find employment. This concession was based on his acknowledgement that he was not an expert on labour market conditions.

41. A video film taken of the plaintiff on 3 and 4 February 1988 show her in her garden bending to pick up various items from the ground. She appeared to have no difficulty in lifting and carrying a garbage tin and a pot containing a shrub. She also appeared to have no difficulty looking over her shoulder whilst reversing her car. The film confirms the evidence of some of the doctors, from as long ago in 1977 on the part of the Commonwealth Medical Officer to most recently on the part of Dr Cassar, that the plaintiff tends to exaggerate her symptoms. I agree with that opinion.

42. There are several peculiar features about the plaintiff's case. Her initial visit to her local practitioner appears to have been as much associated with the so-called epidemic myalgia as with her lumbar back condition, but the back condition was a factor. I think that the plaintiff's incapacity dates from 3 April 1977. I am satisfied upon consideration of the reports of Dr Costin that the plaintiff did suffer from lumbar back pain of which she first complained on 4 April 1977. I am aware that until then the plaintiff's complaints of pain in the back appear to have been confined to the thoracic area but despite this I think that the lumbar condition was due to soft tissue injury in the lifting incident. I think the plaintiff should be regarded as totally unfit at least until 22 June 1977 when Dr Costin considered that the plaintiff was fit for light duties. Although within four months Dr Costin was expressing the view that the plaintiff was permanently unfit to work as a nurse's aid, Dr Kitchin was not prepared to support that view. Indeed, his report does not indicate that he thought she was totally unfit for work, simply that her incapacity at that stage would not last beyond six months into the future. It is clear that there was already at that stage a functional element in the plaintiff's condition. This was overtaken by the second injury on 9 December 1978. By that time the back condition was improving to the extent that without more the plaintiff was likely to have recovered from the first injury some time thereafter, but it is impossible to say when. I think that the second injury rendered the plaintiff completely unfit for work for a period of about six months, "overwhelming" the effect of the first injury for the whole of that time. The plaintiff then recovered somewhat until she reached what Dr Newcombe called a stable position at the end of 1981. I think that the true position thereafter, as best as I can ascertain it, is reflected accurately in the reports of Dr Corry. My assessment of the plaintiff, having seen her in the witness box and taking the film and other evidence into consideration, convinces me that Dr Newcombe and Dr Tennant paint too bleak a picture. Dr Corry takes the view that by August 1983 the 1978 disabilities were not grossly altered in the long term and I think that this must be taken to mean that the effect of the 1978 injury had by then all but disappeared. I am not convinced that there was any effect from the second injury beyond the end of 1983. The lack of continuity of medical evidence between 1983 and 1987, again taken in conjunction with my assessment of the plaintiff as a witness and a consideration of the film, is such that I am not satisfied on the balance of probabilities that whatever symptoms and disabilities the plaintiff has suffered since about the end of 1983 can be attributable to either injury. It seems to me that somewhere between then and the time she saw Dr Truman the plaintiff had simply ceased to be motivated to look for work. She found herself "unable to cope" but I am unable to conclude that such inability was due in any real way to the injuries in 1977 and 1978. I would treat her as being capable of earning the sort of money she could have earned as a nurse's aid by the end of 1983.

43. I would treat the plaintiff as wholly incapacitated from 3 April 1977 for a period of six months and capable of performing an increasing range of duties thereafter until her second injury. Although there was no evidence on the point, I bear in mind the likelihood that the earnings of a receptionist or the like would not have been substantially less than that of a nurse's aid. The rate payable to a nurse's aid in March 1977 was $136.32 gross per week for 40 hours. I think that she should be awarded loss of her entire earning capacity for the six months after 9 December 1978, wholly attributable to the second injury, which for that period of time "overwhelmed" the effect of the 1977 injury. Thereafter she should be regarded as gradually improving until she reached a condition where she was capable of carrying out a wide range of selected duties by the end of 1981. It is impossible to be precise about the loss of earning capacity during this period but bearing in mind the rates payable to a nurse's aid during this period, I would consider the value of the loss of earning capacity to be $7,000 to which each injury contributed equally. From then until the end of 1983 I would assess the plaintiff's loss of earning capacity at $4,000 but attributable to the 1978 injury. I think that the downturn in the plaintiff's condition leading to total unemployability of the plaintiff at 30 May 1983 when Dr Tennant saw her was only partly and decreasingly due to the 1978 injury. The out-of-pocket expenses agreed in respect of the injury of 20 March 1977 are 5610.90. The only out-of-pocket expense which I was told related to the injury of 9 December 1978 is the cost of repair to dentures and a modest amount for medication and I will include that and the like in general damages. There is no claim for interest. Pain and suffering and loss of enjoyment in respect of the 1977 injury is assessed at 57,500 and for the 1978 injury at $8,000.

44. For the purposes of ascertaining rates of pay I have had regard to the report of a firm of actuaries admitted by consent. The report is otherwise of little assistance as it is based largely on assumptions not borne out by the evidence. At the time of injury the plaintiff worked a three day week only. The rates of pay which I have used are shown in Exhibit G, para 3.6.

45. I have had regard to the fact that there was not, and could not be, contribution proceedings between the two defendants because each is sued separately in a different action in respect of distinct torts. Counsel did not address on the complexities that have been the subject of continuing debate, without the emergence of settled principle, in similar factual situations in cases such as Baker v. Willoughby [1969] UKHL 8; 1970 AC 467, Jobling v. Associated Dairies Ltd. [1981] UKHL 3; 1982 AC 794 and Faulkner and Another v. Keffalinos (1970) 45 ALJR 80. It is possible, at least for a judge at first instance, to arrive at a decision without seeking to contribute to the debate, so long as proper regard is had to the evidence upon which a trial judge, like a jury, is obliged to reach conclusions: Nominal Defendant (Qld.) v. Nilon (1988) 62 ALJR 302.

46. In summary my awards of damages are as follows. In matter number S.C. 355 of 1978 in respect of the injury on 20 March 1977:

Past Loss of Earning Capacity
3 April 1977 to 2 October 1977 $3,000.00
3 October 1977 to 9 December 1978 $2,850.00
9 December 1978 to 8 June 1979 Nil
9 June 1979 to 31 December 1981 $3,500.00 $9,350.00
Pain and suffering and loss of enjoyment of life $7,500.00
Fox v. Wood component $ 446.58
Out-of-pocket expenses $ 610.90
Total: $17,907.48

47. This is to be reduced by twenty percent for contributory negligence to $14,325.98.

48. In matter number S.C. 299 of 1979 in respect of the injury on 9 December 1978:
Past Loss of Earning Capacity
9 December 1978 to 8 June 1979 $3,250.00
9 June 1979 to 31 December 1981 $3,500.00
1 January 1982 to 31 December 1983 $4,000.00 $10,750.00
Pain and suffering and loss of enjoyment of life including out-of-pocket expenses $8,000.00
Total:<$18,750.00

49. Viewed retrospectively, these somewhat modest amounts appear appropriate having regard to the difficulties in the plaintiff's claim. Despite the obvious fact that the plaintiff was injured at work I was not, so I believe, told about a Fox v. Wood component. I shall refrain from directing judgment until the parties have had a chance to address me on this or any other matters of arithmetic. I shall also hear the parties on costs.