Maree Louise Cowan v Commonwealth of Australia [1989] ACTSC 18 (26 April 1989)

SUPREME COURT OF THE ACT

MAREE LOUISE COWAN v. COMMONWEALTH OF AUSTRALIA
S.C. No. 1216 of 1985
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - employer failed to take reasonable care for safety of employee at workplace - no new matter of principle.

Damages - assessment - state of plaintiff's health prior to present injury - pre-existing injury and other medical conditions - extent of past and present symptoms - degree to which traceable to present injury - causation - past lost of earnings - future loss of earning capacity - reduction for contingencies - no new matter of principle.

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA
26:4:1989

ORDER

There be judgment for the plaintiff in the sum of $294,472.07.

The defendant pay the plaintiff's costs.

DECISION

This is an action for damages for personal injuries resulting from an incident at the plaintiff's work place which the plaintiff contends involved negligence on the part of her employer, the Commonwealth.

2. On 19 July 1983 the plaintiff was working for the Australian Bureau of Statistics at the Cameron Offices at Belconnen. She had been off work for three days and upon resumption found that the return section of her desk had been moved away. She and another employee moved it back. She also found that there were a number of files stacked on her desk which were no concern of hers. She went to move them to another desk. As she walked from her desk with the files, her right foot struck a telephone junction box causing her to stumble. She immediately felt pain in her lower back and in the right hip area.

3. The office in which the plaintiff worked was of an open plan type lacking internal walls and partitions. The absence of such walls and partitions meant that the electricity and telephone services were supplied through cables in the floor presumably set in channels or underneath the carpet. At the various work stations or places where it was desired to have electricity or telephone connections this was achieved by means of junction boxes. The junction boxes were rectangular in shape and about the size of an ordinary double domestic power-point and about 5 cms. or so in height, projecting to that extent above the surface of the floor level. It was presumably necessary to fix each junction box to the floor or at least fix it securely to the cable connecting the telephone or the electrical power. Clearly, these items provided a hazard to employees walking about the office area. In normal circumstances one would expect that desks would be placed close to junction boxes, or that junction boxes would be covered in some way, for instance by an upturned wastepaper basket in order to minimise the danger.

4. Although the defendant denied liability and alleged contributory negligence on the part of the plaintiff, the plaintiff was not cross-examined on this aspect nor did counsel for the defendant address on it. I have little difficulty in finding that there had been some interference by unidentified employees of the defendant with the plaintiff's desk which had the effect of exposing the junction box. No warning of these changed conditions was given to the plaintiff. It was reasonably foreseeable that the exposed junction box might cause the plaintiff to stumble. The risk might have been avoided by moving the desk back to where it should have been, or telling the plaintiff about the danger. In the absence of an explanation on the part of the defendant, the facts on the face of them establish failure to take reasonable care for the safety of an employee like the plaintiff who might be reasonably expected to be exposed to the risk. There will, accordingly, be a verdict for the plaintiff and I turn to the more contentious aspect of damages.

5. The plaintiff was born on 28 January 1944. She left school before her fifteenth birthday and attended a secretarial school. She had various jobs for a period of about ten years. She married and gave birth to a daughter in 1968 and another in 1972. Prior to the birth of the second child the family moved to Canberra and not long after that the plaintiff and her husband separated. She took up driving taxis and hire cars for about three years. Between then and approximately 1981 it appears that she had work of a casual nature either as a sales assistant or as a taxi driver. In 1981 she became a sales assistant with Myers Department Store and she started with the Australian Bureau of Statistics in January 1982.

6. The main issues relating to damages are the state of the plaintiff's health prior to her 1983 injury, her subsequent and present symptoms and disabilities and the extent to which the effect of the 1983 injury is reflected in the latter.

7. The plaintiff was not a particularly impressive witness. However, it would be unfair to dispose of her case simply on the impression gained from her demeanour in the witness box. That impression, however, is reinforced by the fact that the plaintiff has been shown to have lied to the Court about her range of activities in recent times, that she has been less than frank with the doctors in relation to her pre-injury history and symptoms and that her complaints to at least some of the doctors are such as to cause those doctors to conclude that there is an internal consistency in those complaints.

8. About five years before the injuries in question, that is on 27 August 1978, the plaintiff sustained a whiplash injury in a motor vehicle accident. She claimed in her evidence that she could not remember whether the consequences of that injury included symptoms in the lower back but it is quite clear, in my view, that she did experience some symptoms in the lower spine as well as the more severe symptoms in the cervical spine. Dr Robson, who operated on the cervical spine, reported on several occasions and as late as 27 April 1981 that the plaintiff was continuing to have trouble in the low back which would tend towards the need for operative treatment in the long run. Dr Stubbs, who later treated her for the 1983 injury, thought that it constituted a fresh and acute prolapse of an already diseased disc following a relatively trivial incident and that the degeneration was such as to be made "active" by some unexpected activity such as stumbling.

9. It is quite clear, and the plaintiff did not claim otherwise in her evidence, that the injury on 19 July 1983 involved striking the junction box with her right foot, which caused her to stumble but which did not cause her to fall to the floor. She said, "then I had pain in my back and sort of in the hip area" indicating the right buttock about five to eight centimetres below the waist level. The pain was "only niggley" and she did not think it was serious. She did, however, report it to the personnel section. She continued at work. However, the pain did not subside and on 8 August 1983 she took herself to the casualty section of Calvary Hospital. She was advised to rest in bed, consulted her local practitioner, Dr Jones, on 13 August 1983 and was admitted to Calvary Hospital where she came under the care of Dr Geoffrey Stubbs, an orthopaedic surgeon. At that stage, on 14 September 1983, Dr Stubbs considered that the clinical signs pointed to a classic disc prolapse at L5 S1 level with nerve root entrapment at S1. Further rest in hospital with two epidural steroid injections did not bring improvement. The plaintiff was sent to Sydney for a CT scan and upon her return she was readmitted to Calvary Hospital. Dr Stubbs considered that the CT scan confirmed his provisional diagnosis of disc prolapse complicated by facet joint disease in the lumbo-sacral area. Dr Stubbs performed a laminectomy on 3 November 1983 and the clinical findings confirmed the diagnosis of disc prolapse and sacral nerve root entrapment.

10. The plaintiff's condition did not improve. She herself said that it was worse immediately after the operation, which I accept. Her evidence as to what occurred after that was rather unclear but I find that whilst there was probably some slight improvement over the next few months, there has been a slow deterioration over the years. The exact extent of her symptoms and disabilities, whether they are traceable to the 1983 injury and whether they are aggravated by or partly constituted by psychological factors, are different questions. I shall discuss them in a moment.

11. The plaintiff continued to see Dr Jones, and on at least two occasions saw Dr Stubbs through 1983 and into early 1984. Her continuing complaints of pain in the lumbar area radiating into the right and left legs caused Dr Stubbs to consider that she might be suffering from arachnoiditis, although other doctors appear not to have shared this opinion. In any event, I do not think that that is a matter of significance. If her condition was aggravated by arachnoiditis, there is no evidence that that aggravation persisted beyond the middle of 1984, and during the period of such persistence the condition itself, being post-operative in nature, would have to be considered as related to the July 1983 injury, provided of course that the operation itself was made necessary by that injury, as I find it was.

12. On 27 June 1984 Dr Stubbs expressed the view that the plaintiff was totally incapacitated for work and that the anticipated relief following removal of the disc had not been achieved because of the probable post-operative formation of adhesions and scar tissue in the area of the sacral nerve root. Dr Jones felt that there was a likelihood that the plaintiff would not come to terms with the prospect of lifelong disabling pain in her back. Dr Jones sought a second opinion from Dr J.F. O'Brien, an orthopaedic surgeon of Melbourne. Dr O'Brien came to the firm opinion that the plaintiff was totally unfit for employment, but that her overall condition was a "combination of organic pathology and significant functional reaction" and that it was difficult to divide one from the other. His report concerning the examination on 30 May 1984 sets out convincingly the reasons why he thought the plaintiff was over-reacting and shows how several of her complaints were inconsistent with each other. However, Dr O'Brien's report must be approached with some caution because he did not give evidence and he saw her on the one occasion only.

13. Dr Stubbs obtained a second opinion from Dr Calder, also an orthopaedic surgeon. Dr Calder's opinion appears to be rather inconclusive but was largely in accordance with that of Dr Stubbs to the effect that there was some involvement of the nerve root at the lumbar sacral level. Dr Calder thought arachnoiditis was unlikely and that further surgery was not likely to be of any use.

14. On 11 October 1984 the plaintiff was compulsorily retired from the Public Service on account of her medical condition. She no longer received any attention from the specialists but she continued under the care of Dr Jones until some time in 1987. During that time Dr Jones prescribed various pain-killing medications. Dr Jones took a pessimistic view of the plaintiff's future, that she would be unlikely to benefit from further surgery, that she was not adjusting to the presence of chronic pain and would not tolerate the pain that she would undoubtedly continue to have because of the degenerative condition in the spine.

15. In 1986 the plaintiff was referred to a number of doctors who examined her on behalf of the defendant. They all considered that the plaintiff was permanently incapacitated for all work. She told Dr Cairns and Dr Andrews that she had no previous trouble in her back prior to the injury in July 1983. They came to the conclusion that the plaintiff's condition was causally related to that injury. Dr Andrews was informed by the plaintiff that there were no problems with her back prior to the 1983 incident and concluded that the plaintiff's condition was directly related to that incident. He was still somewhat puzzled as to the extent of the plaintiff's symptoms and incapacity. In his evidence to the Court, Dr Andrews agreed that if the plaintiff had been suffering from a previous condition in the lumbar spine, then it was likely that she would become incapacitated in any event with or without the injury of July 1983.

16. Dr Cassar's view on causation was rather guarded. The plaintiff originally told him that she had no history of previous spinal complaints. On examination of x-rays taken in August 1983, however, Dr Cassar saw evidence of dye within the spinal canal indicating spinal investigation at some prior time. When Dr Cassar commented on this to the plaintiff, she then "with some apparent difficulty" told him about the operation performed by Dr Robson after the motor vehicle accident. Dr Cassar concluded that the plaintiff had pre-existing degenerative changes within the lumbar spine which produced susceptibility to the injury in July 1983. Because of the plaintiff's apparent reluctance to inform him of the motor vehicle injury and the apparent inconsistency in some of the clinical findings, Dr Cassar thought that, although the plaintiff was considerably incapacitated, there was at least "moderate evidence to suggest psychogenic magnification".

17. Dr Cassar took a quite unfavourable view of the plaintiff before reaching his conclusions. When told of the operation by Dr Robson, Dr Cassar then apparently on his own initiative looked at the Royal Canberra Hospital Records and noted that there were complaints in relation to the lower back, left hip and left leg, all of which he saw as consistent with evidence of significant lumbo-sacral spinal disease. He considered that to be contrary to the history given by the plaintiff. Dr Cassar thought that the incident at work in July 1983 was so minor, particularly bearing in mind that the plaintiff did not seek medical attention for some three weeks thereafter, that it played no part in the plaintiff's ongoing condition and that at the most it was simply a temporary aggravation of progressive spinal disease. In his evidence to the Court Dr Cassar said that he would have expected the plaintiff to have been completely incapacitated within five years of the 1978 incident. Dr Cassar was, however, in no doubt that the plaintiff's condition when he saw her made her unfit for all forms of work and "indeed any active domestic and recreational lifestyle".

18. I reject the opinion of Dr Cassar on the question of causation. It flies in the face of the rest of the medical evidence and is based to some extent on his opinion of the plaintiff's credibility. I find that the plaintiff's injury on 19 July 1983 aggravated a pre-existing degenerative spinal condition which had been aggravated as far back as 1978 in the motor vehicle accident but which was giving no real trouble by the middle of 1983. In the meantime the plaintiff had joined the Public Service for which she had been pronounced medically fit, and as well had a part-time job as a barmaid and played netball. Nevertheless, at the time of the 1983 injury the plaintiff was predisposed to aggravation of her spinal condition by relatively minor trauma which could have incapacitated her at any time and was likely to do so sooner or later.

19. I do not think that the lapse of time between the injury on 19 July 1983 and the plaintiff seeking medical attention on 8 August 1983 is of any particular significance. Her complaints of continuing pain in the interim in her history to the doctors have been consistent. Her mother gave evidence that she was complaining of pain in the lower back immediately after the incident at work in July 1983 and although it was indeed a comparatively minor accident, it does seem, on the balance of probabilities, that it precipitated the disc prolapse for which Dr Stubbs operated. The operation was not a success and it may be that in the long term post operative adhesions and scar tissue have contributed to the plaintiff's disability. Be that as it may, the plaintiff's continuing and present condition must be seen as a result of the 1983 injury.

20. The two remaining issues that cause me some difficulty are, first, the extent and severity of the plaintiff's symptoms and, secondly, the allowance that must be made in the award of damages for the contingency that the plaintiff's condition was such that she was likely in any event to suffer symptoms from pre-existing degenerative spinal disease which might at any time be aggravated by comparatively minor incidents such as that on which she sues and for other contingencies relative to the plaintiff's health.

21. It was submitted on behalf of the defendant that because the plaintiff had been shown to have lied to the Court on her recent activities then her evidence should not be accepted unless corroborated. I appreciate the strength of that submission, but corroboration is of course as a matter of law unnecessary. It is a question of weighing up the case presented for the plaintiff with due caution, bearing in mind the successful attack on the credit of the plaintiff as a witness. It must also be remembered that doctors have on the whole approached the plaintiff's claim with scepticism but have in the end generally come down on the side of the opinion that she is totally and permanently unfit for work. Curiously, the plaintiff herself concedes that she can carry out activities which would fit her for work, say as a receptionist or as a clerk, but only on a casual basis, and she does not feel that such work is available. In this respect she may well be correct. On the other hand, the plaintiff herself purchased a word-processor and set up a business providing typing services for university theses and the like. She said that the work on the word-processor was carried out by her daughters, but her role in this enterprise is such as to show that she is not entirely devoid of income earning capacity. The fact that the defendant saw fit to dismiss her from the Commonwealth Public Service on the ground that she was not fit for employment within the service, to some extent operates as an admission by the Commonwealth against its interests. On the other hand, there is always the consideration that an employer, who continues to employ someone with a spinal condition like that of the plaintiff, runs a very grave risk of being held liable for any further aggravation that might occur during the course of the most innocuous employment activity. Perhaps the Commonwealth might have been more creative in trying to find some part-time work suitable for the plaintiff but I am not prepared to hold that the plaintiff's working capacity be regarded as totally destroyed by the 1983 incident. As far as her recreational and domestic life is concerned, although the plaintiff's claim was that she is almost totally restricted, under cross-examination she was forced to concede that she is able to hang out the washing as well as carry out other household tasks and of course she had to concede in the light of the video tape that she is able to go fishing with her husband and to cast a rod.

22. There was a good deal of evidence about other complicating medical conditions in the past and at present. I have already referred to the degenerative condition of her spine which was aggravated for some period as a consequence of the motor vehicle injury in 1978 for which she received damages. At some stage in about 1981 she received some sort of injury to her elbow when working for Myers. She took legal proceedings for that injury and the claim was settled for $32,000. In 1976 she received extensive treatment for depression and at one stage spent a period in hospital for this condition. At that stage, as I understand it, she was living as a single parent (although she appears to have been in a defacto relationship for some of the time) and apparently living on social service payments. I think that the only significance of this aspect of the case is that it shows that the plaintiff was predisposed to depression and the like so that it may explain the psychogenic or functional element that some of the doctors thought was complicating the consequences of her 1983 injury. The plaintiff was, prior to 1979, extremely overweight (nearly twenty stone) and she underwent a stomach stapling operation, which turned out to be remarkably successful. In that year the plaintiff was also operated on for gallstones and later underwent a hysterectomy. She married her present husband in April 1981 by which time it did seem that she had her troubles behind her. The 1983 injury would undoubtedly have been felt as a severe setback and it is not difficult to see some functional aspect as a consequence.

23. In August 1987 when seen by Dr Mann for the purposes of this case, she was found to be suffering from severe thyrotoxicosis and the plaintiff continues on medication for that condition. The medication explains the swelling of the legs, but it is unassociated with the 1983 incident.

24. The plaintiff limps favouring the right leg. The doctors are somewhat puzzled by this, but on the probabilities I find that it is associated with a feeling of weakness in the right leg, which is caused by nerve root complications in the lower spine which I have already found to be due to the subject injury. It is not caused by the swelling.

25. In July 1988 the plaintiff's husband suffered a heart attack. He and the plaintiff went to Queensland to stay with relatives. Mr. Cowan's condition worsened as a result of which he underwent open-heart surgery in November 1988. He was at the date of the hearing too ill to travel back to Canberra. The relevance of this is that it is yet another factor pointing to the likelihood that the plaintiff would not have continued to work to the age of 65 years, although she claimed in her evidence that that was her intention. In the several months before the hearing she had spent a great deal of her time and energy attending to her husband. It is, of course, impossible to say whether if she had at that stage still been employed in the Public Service as a clerk, she would have terminated her employment in order to look after her husband. Nevertheless, it is yet another factor to be taken into consideration as a contingency.

26. The plaintiff is now aged 45 years. It is some five and a half years since her injury. As far as her past loss of earnings is concerned, I think it should be calculated using a basis of total actual loss of earnings less a factor having regard to all the matters I have mentioned including a small residual earning capacity and contingencies. I assess the total discount factor to be twenty percent. The agreed total loss of earnings to date is $77,024.69 and the net award for past loss is $61,619.76.

27. In relation to future loss of earning capacity, I think that the plaintiff should be regarded as having a residual earning capacity of $50 per week. The present salary of a clerk in the Public Service occupying the sort of position that she occupied at the date of her injury is $302 per week net. I allow a notional loss of $250 per week to age 60 years, reduced by thirty-five percent for contingencies. On the three percent discount tables that yields a figure of about $100,000. The reduction for contingencies is of course higher than in the case of the reduction for contingencies relating to the past loss of earnings but the possibility that she would have been disabled in any event and without the subject injury must be higher as time goes by. Hence, it is more likely in the future than it would have been in the past. The plaintiff should also be allowed something for the loss of opportunity to work as a barmaid. She was earning about $130 per week net at the time of her injury in this extra part-time job. I do not think it at all likely that she would have continued in that occupation as well as in her job as a public servant until the age of 60 years. A lump sum assessment is appropriate. I award $20,000 to cover both past and future loss of earning capacity as a barmaid.

28. The plaintiff claimed future medical expenses for pain-killing tablets, the expense of looking after her dogs, and domestic assistance expenses. Because of the difficulties I have already referred to I think a lump sum to cover all these matters should be awarded and I fix that sum at $5,000.

29. Past medical expenses are $23,766.11. For pain and suffering and loss of enjoyment of life and mindful of overlapping, I award $35,000 as to which I apportion $20,000 for the past. Other out-of-pocket expenses are agreed at $24,742. The Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component is $11,294.20. The claim for past domestic expenses is for $30 per week over a period of five years. I think it appropriate to award a lump sum of $5,000 in this respect.

30. The total damages may be summarised as follows:
Past loss of earning capacity $ 61,619.76

Future loss of earning capacity $100,000.00
Loss of earning capacity as barmaid $ 20,000.00
Medical and hospital expenses $ 23,766.11
Pain and suffering $ 35,000.00
Other out-of-pocket expenses $ 24,742.00
Fox v. Wood component $ 11,294.20
Past domestic expenses $ 5,000.00
Future domestic expenses $ 5,000.00
Total" $286,422.07

31. On initial reflection this appears to be a high award for what was on the face of it a trifling incident. Nevertheless, reconsideration of each of the components does not cause me to reduce it.

32. The total appears neither excessive nor inadequate in a case with so many imponderable aspects. The plaintiff has received $71,777.90 in compensation for past loss of earning capacity. As this is more than the net award for past loss, she is not entitled to any interest. Interest is allowed on the $20,000 component for past pain and suffering at fourteen percent per annum reduced by half. The figure for interest is $8050. That will be added to the damages and the plaintiff is to have judgment for $294,472.07. The defendant is to pay the plaintiff's costs.