Francine Walker v Australian Postal Commission [1989] ACTSC 15 (5 April 1989)

SUPREME COURT OF THE ACT

FRANCINE WALKER v. AUSTRALIAN POSTAL COMMISSION
S.C. No. 1034 of 1983
Claim for Damages for Negligence

COURT

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

CATCHWORDS

Claim for Damages for Negligence - Plaintiff injured when trying to extract heavy parcel from mail bag - parcel enclosed with other mail matter in breach of instructions - No new question of principle.

HEARING

CANBERRA
5:4:1989

Counsel for the Plaintiff Mr T. Higgins QC with Mr B. Meagher

Solicitors for the Plaintiff Pamela Coward & Associates

Counsel for the Defendant Mr B. Maguire QC with Mr R. Williams

Solicitors for the Defendant Australian Government Solicitor

ORDER

There be judgment for the plaintiff against the defendant in the sum of $237,436.00.

The defendant pay the plaintiff's costs of the action, those costs to be taxed.

DECISION

The plaintiff claims damages against the defendant, then her employer, in respect of injuries sustained by her on 13 July 1981. On that date she was the postmistress at a non-official post office at Pearce, a Canberra suburb. During the course of her duties she was required to receive postal bags containing mail from a nearby official post office at Mawson and, on occasion, to accept for posting parcels weighing up to 20 kilograms.

2. By a circular dated August 1979 the defendant instructed that any parcel in excess of 10 kilograms received for dispatch was to be placed in a bag by itself and in no instance should smaller parcels be enclosed with it. A circular dated March 1980 instructed that to minimise personal injuries the weight of mail bags in the domestic post should be restricted to around 20-22 kilograms. That instruction was emphasized in a further instruction of July 1981 which said in part:-
"Item 23 of the March 1980 issue of Post

Office Circular No. 350 advised that mail
bags in the domestic post should be
restricted to around 20 to 22 kg maximum
weight so that personal injuries will be
minimised."

3. It is not clear whether the circular of July 1981 was issued before or after the plaintiff sustained her injuries but it emphasizes the continuing concern of the defendant that injury should not be sustained by its employees due to their handling overweight parcels.

4. I am satisfied that at about 9.05 am on 13 July 1981 the plaintiff received a mail bag from the Mawson Post Office. When he was delivering it the driver said to her:-

"I'd be a bit wary of that, I think it's
overweight."

5. He placed the mail bag against a partition in the office. Normally on receipt of a mail bag the plaintiff would first check to ensure that it had been correctly delivered to her post office and, having unsealed it, would take it by the bottom corners and tip its contents onto the floor. On this occasion, taking heed of the driver's warning, she did not attempt to do that but slid the bag down the wall against which the driver had left it so that it was lying flat on the ground. She then got a couple of items out of the bag but was unable to get any more out because a large parcel, jammed in the opening of the bag, prevented her from doing so. The external dimensions of the parcel were approximately 43cm x 33cm x 29cm and its weight was, I am satisfied, 18 kilograms.

6. Describing the accident in a report dated 14 July 1981 the plaintiff said:-

"In trying to extricate the mail from the bag
without actually having to lift it off the
floor I felt a sudden pain in the lumbar
region of my back and a pain in the neck
followed later (approx 30 minutes)."

She described her injuries more precisely as:-

"Pain in lumbar region of my back with pain
radiating into right hip and leg causing
discomfort in movement. Pain in base of
neck, pain radiating into shoulder blades,
head and arms. My arms felt heavy and
trembled from time to time. Also legs."

7. In her capacity as supervisor she completed another section of the report form, apparently some days later. That section sought her opinion as to the cause of the accident. She replied:-

"The said mail bag was excessively heavy. 2
parcels weighed 18 kg and 5 kg, several non
standard articles, 2 x 1-2 kg parcels, 2
letter bundles. Approx. 28-30 kg in
weight. The two exact weights were weighed
by a brother from Marist College."

8. It should be noted that the largest scales in the Pearce Post Office had a capacity of 11.8 kilograms only.

9. Senior counsel for the defendant directed the plaintiff's attention to the fact that a number of medical reports indicated that the accident had taken place when she was lifting the bag and not dealing with it as she had said. I am satisfied, however, that the plaintiff was telling the truth and that the accident took place as I have described it above. Senior counsel for the defendant conceded that if I found that to be so there should be a verdict for the plaintiff. I do so find and accordingly there will be judgment for the plaintiff.

10. When the plaintiff put her hands in the bag and tugged in an attempt to remove the heavy parcel she got a pain in her lower back in the lumbar area which was so severe that it caused her to cry. A customer came in and weighed the parcels which had been in the mail bag on the Post Office scales. It was this weighing which showed the plaintiff that the parcel weighed in excess of 11.8kg which was the total of all the weights available to balance against the weight of any parcel which might have been put on the scales. After about half an hour the plaintiff began to suffer pain in the neck which radiated into her arms but was not as severe as the back pain, although bad enough. She telephoned the Mawson Post Office to advise that she had been injured and in due course was sent the report of accident form to which I have referred.

11. 13 July 1981 was a Monday. The plaintiff did not immediately seek medical advice but by the following Wednesday her condition had not improved. She gave evidence that after work on that day her assistant, who apparently did not work full time in the Post Office, took her to the Woden Valley Hospital. A certificate given by a doctor apparently employed at that hospital stated that he had first attended and examined the plaintiff on 15 July 1981 when she was found to be suffering from a back problem. The plaintiff resumed work on the following Monday but her back still felt very sore. She had been in bed for a couple of days but this had not served to relieve the condition of her back or neck at all. I am satisfied that the plaintiff also consulted Dr Spalding who had been her medical attendant for a number of years but that she did this only on one occasion, on 15 July 1981, and did not see him again.

12. On 6 August 1981 the plaintiff consulted Dr Katekar, another general practitioner, who gave evidence. At the first consultation she had with the plaintiff Dr Katekar found her to be suffering from severe right sided lumbar pain and muscle spasm which she diagnosed as acute lumbar disc lesion. She referred the plaintiff to Mr G. Stubbs, an orthopaedic surgeon. Reporting on 20 December 1982, Dr Katekar said that the plaintiff was suffering from pain in the hips and thighs when walking or sitting. She ascribed the plaintiff's loss of capacity for work which she found then to exist to:-

"a. lumbar disc degeneration, pre-existing,
but exacerbated by the injury of 13 July 81.
b. Osteoarthritis of hips."

She was unable to say to what extent each of these conditions was responsible for the incapacity.

13. It proved that Mr Stubbs had previously treated the plaintiff on reference from Dr Spalding. Material tendered, including a report by Mr Stubbs dated 29 May 1980, enables me to summarise the plaintiff's orthopaedic history. In 1952 she broke her right leg and, after leaving hospital, had a slight limp which did not, however, prevent her from playing basketball, walking or doing the general office work in which she was then employed. In 1965 she suffered from some low back pain when moving a bicycle. In 1970 she suffered further low back pain when opening a safe door and was off work from 18 August to 6 September. In 1972 she had a further episode of low back pain and was off work for 15 days. In 1976 she suffered from back and hip pain and was admitted to hospital for traction from 24 February to 15 March. She was off work for approximately 4 months. The incidents of 1972 and 1976 were said to have resolved fully. In 1977 she suffered hip pain and underwent a McMurray's osteotomy of the right hip for what I take to have been incipient osteoarthritis. She had her right patella scraped following an injury in 1979. On 18 March 1980 she was admitted to hospital suffering from low back pain and, apparently, left sciatic pain and was discharged on 14 April. An x-ray report of 8 March 1980 indicated marked narrowing of the L4-5 disc span consistent with a disc lesion.

14. Reporting on 29 May 1980 Mr Stubbs described her orthopaedic problems as seemingly related to lumbar spondylosis with disc space narrowing at L4-5, thoracic spondylosis with disc space narrowing at T10-11 for which past treatment had been conservative and a well-documented attack of right sciatica with a residual but slight neurological deficit.

15. Her condition he found then to be one where she managed well and was able to touch her toes, the bulk of her back symptoms being related to extension. He found straight leg raising to be good with the extensor hallucis longus jerk being absent on the right hand side. He advised the plaintiff to continue her weight loss (she was and remains considerably overweight) and to do regular flexion exercises for that problem. The right hip he found to be excellent but the right knee showed persistent chondromalacia patellae of moderate severity which he thought should be treated by rehabilitative exercises. These he was then in the process of arranging.

16. Mr Stubbs reported at length on 18 January 1983. He stated that the plaintiff was admitted by Dr Katekar to the John James Hospital under his care on 14 August 1981. She complained of low back pain spreading into her buttocks. When he examined her he found considerable spasm of the lumbar musculature with a bilateral restriction of straight leg raising to 40 degrees. She was treated with bed rest and anti-inflammatory agents and on 20 August 1981 was discharged. Continuing treatment was by the use of a lumbo-sacral corset and remedial exercises with continuing anti-inflammatory drugs. She returned to work in mid-November 1981 after review on 11 November 1981. At that time her back pain had eased, she was able to touch her toes and move about freely but she tired easily. He suggested part-time work.

17. He saw her again on 17 December 1981 after she had stopped work because of a return of her symptoms. He reviewed her again in January 1982. Symptoms had continued with no improvement. In April 1982 the back remained painful and she was disabled. She was admitted to the Woden Valley Hospital where a manipulation under anaesthesia was performed on 17 May 1982. This restored some movement but did not greatly improve her back pain. She continued with difficulties until 30 August 1982 when she was again admitted to the Woden Valley Hospital where a posterior facet radiolysis was performed. Following that there was an improvement in her symptoms. She was better able to manage her life but continued to have low back pain and to require frequent rests throughout the day. She was not fit to return to work.

18. Mr Stubbs expressed the view that the plaintiff was suffering from a lumbar facet joint sprain incompletely resolved and likely to be the cause of continuing symptoms. He did not think her back would improve enough to allow her to return to work as a sole postal clerk, particularly as the work often involved lifting and bending. He thought she might improve further and find some suitable part-time light work.

19. Mr Stubbs reported again on 17 October 1983 having last seen the plaintiff on 10 May 1983. At that time he found her low back to be in a fairly stable situation, unchanged since his examination of October 1982. He gave as his prognosis that she would suffer from continued dysfunction about the spine at approximately the same level with a mild back pain if inactive but with a much more severe pain if she tried to be active or to do heavy work. He did not then think she was fit to return to her former employment and believed she would have difficulty with any full-time employment. It should be noted that by the time of the examination carried out by Mr Stubbs in May 1983 the plaintiff had been retired, in February 1983, on medical grounds.

20. Thereafter she came under the care of Dr Newcombe, a neurosurgeon. He saw her first on 3 July 1984. He formed the view that the injury of 13 July 1981 had resulted in aggravation of lumbar spondylosis and in lumbar disc protrusion which continued to cause the plaintiff considerable pain. On 12 October 1984 he carried out a disc excision at the L5-S1 level. The procedure was complicated by a chronic wound infection which was slow to heal. The wound was reopened surgically and appropriate care was provided until it finally healed. This process caused considerable added pain and disability. Dr Newcombe saw the plaintiff on 17 September 1985. He found the wound then well healed. She had no pain apart from some discomfort with the feet and some pain in the groins, more on the left than on the right. Straight leg raising was full in range. There was a good range of lumbar spinal movement and no focal neurological signs. She was by that time studying accountancy and felt pleased with the overall result of the surgery. He did not recommend that she return to work as a postmistress because that work involved lifting parcels weighing up to 20 kilograms. He encouraged her to undertake retraining so that she might become a taxation consultant.

21. On 9 July 1986 he reviewed her and found that there was persistent low back pain with some lower limb pain in both lower limbs aggravated by walking for more than 50 yards or so. Investigation by CT Scan showed that L5-S1 disc protrusion had been dealt with but that there was persistent disc tissue at the L4-5 level and some persistent lateral recess stenosis at that level. A further decompression with excision of persistent herniated disc tissue at the L4-5 level was undertaken on 4 August 1986. Her post-operative progress was satisfactory and, writing on 11 August 1986, Dr Newcombe expected that there would be more satisfactory pain relief for the problems which had followed her injury.

22. Dr Newcombe saw her again on 2 October 1986 when she complained of pain in the left lower limb although there was continuing improvement in the right following a sympathetic block which had been done on that side. She told of neck pain radiating to the right arm which had been present from the time of her injury but had been rather more troublesome recently. X-rays of the neck taken on 2 June 1986 showed some cervical spondylotic change at C5-6 and C6-7 levels. He found some restriction of neck movement and concluded that she had developed cervical spondylosis probably mainly from natural causes although some aggravation occurred in the injury on 13 July 1981. He considered the main problem following that injury was the lumbar problem. He reviewed her on 19 November 1986 when the left lower limb pain had improved and there were normal colour and temperature sensation in the lower limbs with no focal signs. She told of intermittent pain in the back and in the left thigh after prolonged sitting for more than an hour. This improved after walking around. He thought that overall she was gradually improving, that her general condition was becoming stable and that further neurosurgical treatment was not likely to be needed. He said that it was probable that she would require general practitioner consultations at the rate of 4-6 a year for her continuing pain over the next two years but that prolonged treatment of that type was unlikely to be needed after that.

23. Dr Newcombe next saw the plaintiff on 2 June 1987. She then had continued low back pain radiating to the groins and anterior parts of the thighs. Movement was limited. She had some sensory loss in the right S1 nerve root distribution and the ankle jerk was reduced. There were no other signs. Investigation showed signs consistent with some disc protrusion at the L3-4 level and nerve root pouch filling on the right at the L4-5 and L5-S1 levels with no definite disc herniation. The CT scan showed degenerative change in the apophyseal joints and a generalised bulge of the L3-4 annulus but excluded nerve root compression at the L3-4 level. At L4-5 again degenerative change in the apophyseal joints was noted. Some probable compression of the right S1 nerve root was demonstrated at the L5-6 level where there was a calcified residual disc fragment.

24. On 8 August 1987 he performed further surgery, L3 laminectomy, to overcome the spinal canal stenosis which was prominent at the L3-4 level. Following this procedure there was a urinary tract infection which was treated and while in hospital the plaintiff had several turns of apparent weakness of a functional nature but there was no persistent organic weakness. On 18 September 1987 she described pain in the lumbar area with bilateral sciatica more on the left than on the right which walking tended to aggravate. She had benefited from the techniques of self-hypnosis which had been supervised by a psychologist, Mrs Williams. She was managing at home. She did some swimming but was disturbed by someone who ran into her at the pool and produced more pain. She had difficulties with work such as vacuum cleaning and had to take her time over it. He thought her general condition stable and further surgical treatment was not planned although she would require continued general practitioner support. He concluded his report by saying that on the basis of her history she had had aggravation of lumbar spondylosis with lumbar canal stenosis. Elements of that included disc herniation, disc protrusion without focal herniation and facet joint arthropathy. Continued pain after the event of 13 July 1981 led to a number of surgical procedures and other treatments but there was continued intractable pain and impairment of mobility with incapacity for work.

25. Between June 1980 and 13 July 1981 the plaintiff engaged in a number of activities of which she gave evidence. They are conveniently summarised in a letter from her solicitors to Mr Stubbs dated 25 February 1987. Mr Stubbs was therefore seised of what seems to me to have been all the plaintiff's relevant orthopaedic history and to have been aware of the activities in which she was able to engage despite that history between June 1980 and 13 July 1981. In attempting to forecast what would have been the situation were it not for the incident of 13 July 1981 Mr Stubbs said that he thought it unlikely, though possible, that she would have reached the compulsory retirement age of 65. He thought it was much more likely that during the last decade of her expected working life from 55 years onwards her back would really have been too troublesome to allow her to remain at work. In evidence he elaborated his written opinion by saying it was more probable than not that even without the injury of 13 July 1981 she would not have worked beyond 55. He did concede the possibility that she might have done some part-time clerical work beyond that age but he did not think she would have managed full-time work even of a quite sedentary character.

26. He was asked in re-examination whether an earlier shift to a less demanding occupation such as part-time accountancy progressing to full-time accountancy would be beneficial. He replied:-

"No, I think the essential condition of the
degenerative change is established and
marching on in its own time schedule at that
stage".

The next question put to him was:-

"Yes, but the ability to cope with it I have
more in mind than the condition itself?"

He replied:-

"Well, it might have stretched it out a year
or two but not a major change."

27. The reference to accountancy relates to the fact that the plaintiff, since April 1985, undertook some accounting and computing studies at the Woden TAFE. She did quite well but experienced considerable physical difficulty with her studies because her lectures lasted three hours. Examinations were a little longer. She found lectures and examinations very awkward. Her concentration span was not very great. She lost concentration very easily owing to pain. She had gained her Higher School Certificate in 1978, hoping to attend the Australian National University. She received much encouragement and support from the staff at the TAFE but eventually had to give up her studies early in 1988 when she was into her third year.

28. I thought the plaintiff was a witness of truth and accept readily all her evidence concerning her past capacity and her plans, her description of the pain which she has undergone and her recitals of the activities in which she can no longer engage.

29. In endeavouring to assess what her future might have been but for the accident, I accept the opinion of Mr Stubbs that without it she would in all probability have been able to work until she was 55, that is until the end of May 1992. I accept that it is possible that she might have been able to work in a sedentary occupation for a year or two more but think it reasonable in all the circumstances to offset against that possibility the possibility that she might have been forced to give up work no matter how light at an earlier stage. I am satisfied that had she continued to work as a postmistress she would not have been able to work beyond her 55th birthday but had she been able to complete her accountancy course and her computer studies she might have been able to get a much less physically demanding job. However, to do this she would have had to study either in conjunction with her work at night (and I think this would have been beyond her) or to have stopped work and studied full-time instead. I think on the whole the contingencies to be considered in the plaintiff's case would have been unfavourable. I note that she had an unusual gait and this appeared to Dr Newcombe to be related primarily to the condition of her hips and not of her back. However, I do not think the defendant established that the condition of her hips alone would have resulted in any earlier end to the plaintiff's working career.

30. I take into account the plaintiff's determination but I also have regard to the fact that her medical history was not solely confined to orthopaedic or neurological conditions.

31. Balancing all the contingencies as best I can, I think this is not a case where it is appropriate to reduce damages for contingencies by any conventional percentage. Rather, I think it a case where I should fix a date beyond which I think the plaintiff would not, on the balance of probabilities, have worked. In the circumstances I fix that date as 30 May 1991.

32. Notwithstanding the view just expressed I think it also likely that the plaintiff would have had episodes of disabling low back pain between 1981 and 1991 even without the injury out of which this claim arises. In the eleven years from 1970 she was off work for at least 6 months and this takes no account of time in hospital and off work which she must have lost because of the 1977 and 1979 procedures. I think it probable that she would have lost at least 10% of the time between 1981 and 1991 because of disabling injuries or conditions.

33. I turn to the question of damages.

34. Past net wage loss is agreed at $92,132.65. I deduct 10% from that giving an amount of $82,920.00. I calculate interest on past wage loss by assessing it at 7% for 7 years on an amount calculated by deducting from the amount of $82,920.00 an amount of $56,892.76 representing the net compensation paid the plaintiff after deduction of tax. The result is $14,120.00.

35. Past out-of-pocket expenses paid by or on behalf of the plaintiff amount to $28,941.06. Out-of-pocket expenses as yet unpaid total $10,304.22. The Fox v. Wood component ((1981) [1981] HCA 41; 148 CLR 438) is $9,827.73.

36. The plaintiff makes a claim based upon the decision in Griffiths v. Kerkemeyer ((1977) [1977] HCA 45; 139 CLR 161). I am satisfied that as a result of the accident in July 1981 the plaintiff suffered a loss of capacity to do a number of things which had to be done, which she herself could not do because of her incapacity and which were provided for her, generally gratuitously.

37. The evidence concerning the services rendered the plaintiff was somewhat vague but I am satisfied that she did not make any excessive claim in respect of them. Doing the best I can, averaging out the many hours service she claimed was given her, I accept that until the end of November 1984 she received assistance for 4 hours a week, from 1 December 1984 to 30 June 1985 for 2 hours per week, from 1 July 1985 to 30 June 1986 for 4 hours per week, from 1 July 1986 to 31 March 1988 for 3 hours per week and thereafter to date for 4 hours per week. Using the figures provided by the Red Cross ACT Home Help Service I calculate the value of those services to date at $13,500. I expect she will continue to receive such services to 30 May 1991 and allow in respect of that period, discounting the gross figure by 3%, the sum of $5,650.00. From these sums I deduct 10%, leaving a total of $17,235.00.

38. I make no allowance for interest on the past component of the Griffith v. Kerkemeyer claim since she may well, had she had it in hand, have given it all to those who provided the services.

39. For future economic loss calculated to 30 May 1991 from 10 March 1989 I allow $294.67 per week for 116 weeks discounted by 3% to reach a total of $33,150.00. Again I deduct 10% leaving a total of $29,835.00.

40. For general damages for pain and suffering I allow $30,000 with interest on 80% of that amount because of the view I take about the date when her incapacity due to the accident would have been overtaken by incapacity in any event. I therefore allow interest at 7% on $24,000 for 7.71 years, a total of $12,953.00.

41. For future out-of-pocket expenses in respect of visits to general practitioners and medication I allow $400 and $900 respectively. I accept Dr Newcombe's estimate of the number of occasions when the plaintiff is likely to need to attend upon a general practitioner. He estimated 4-6 times per year for the next two years. I allow for 10 visits at $40 each. The evidence regarding costs of medication was unsatisfactory but doing the best I can I think it appropriate to allow the sum of $8 per week.

42. There will be judgment for the plaintiff for $237,436.00.