Rhonda Maree Obad v Mccusker Investments Pty Limited T/A Kankinya Nursing Home [1990] ACTSC 26 (31 July 1990)

SUPREME COURT OF THE ACT

RHONDA MAREE OBAD v. McCUSKER INVESTMENTS PTY. LIMITED t/a KANKINYA NURSING
HOME
S.C. No. 2021 of 1986
Damages

COURT

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

CATCHWORDS

Damages - action for personal injuries - no new statement of principle

The Council of the Shire of Wyong v. Shirt and Others [1980] HCA 12; (1979-1980) 146 CLR 40

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

HEARING

CANBERRA
31:7:1990

Counsel for the plaintiff : Mr. Stanley

Solicitors for the plaintiff : Snedden Hall and Gallop

Counsel for the defendant : Mr. R. Williams

Solicitors for the defendant : Blake Dawson Waldron

ORDER

There be judgment for the plaintiff in the sum of $234,964.08.

The defendant pay the plaintiff's costs.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff on 3 October 1986 when she was employed as a nursing aide at the Kankinya Nursing Home at Lyneham. The plaintiff had been employed in that capacity since 1984. There were sixty inmates in the nursing home and they were accommodated in two wings of thirty persons each. The plaintiff worked the night shift for three nights a week. The practice on night shift was that two members of the nursing staff were assigned to duties in each wing. As part of their duties they had to shower some of the patients. Because of the pressure of other tasks the showering did not usually start until late at night. There was a shower at each end of the wing. The two nurses in each wing each worked from opposite ends of the wing. There were seven or more persons who needed showering. At about midnight on the night in question the plaintiff came to shower a Mrs. Duncan. This lady was over a hundred years old and weighed about eleven stone. She had to be woken from her sleep and placed in a shower chair which was made of metal and plastic. It had a castor wheel attached to each of its four metallic tubular legs.

2. Although it was the practice to enlist assistance from another nurse for the purpose of getting a heavy person from the bed to the shower chair, the plaintiff did not consider that she needed assistance in the case of Mrs. Duncan. Furthermore, although some of the staff considered Mrs. Duncan to be "a difficult shower", the plaintiff did not share that view. In any event, there was nothing remarkable on the night until she wheeled Mrs. Duncan into the shower recess and turned on the shower. Mrs. Duncan began to struggle. She seized or tried to seize the shower hose. She began to rock the shower chair. As she did this, the castor wheel on the front left-hand side of the chair became free. The chair then began to tip forward. The plaintiff then executed a movement which is not easy to understand or visualise, but which has been explained consistently by the plaintiff in her evidence and on many other occasions over the years since then. She dived into a position between the body of Mrs. Duncan and the wall of the shower recess, so that as Mrs. Duncan fell or began to fall from the chair, she fell across the middle of the plaintiff's back. Somehow the plaintiff held Mrs. Duncan against her back with her right arm. Then she eased Mrs. Duncan down her back and returned her to the chair. During this manoeuvre the plaintiff also managed to remove one of her gumboots which she placed under the chair in the position of the missing castor wheel. Having got Mrs. Duncan back into the chair, she then wheeled her back to the dayroom, tilting the chair on its rear wheels for that purpose.

3. After that was done the plaintiff went back to the shower and collected the wheel which was still on the floor. Under the impression that it might have fallen out because a bolt or some such item had come loose or fallen out, she looked to see if there was anything else on the floor, but found nothing. She attempted to replace the castor wheel on the chair but was unsuccessful. In accordance with the usual practice, she then took the chair to the nurses' desk and left the wheel at the nurses' station where she made an entry in a book which was either the communications book or the maintenance book.

4. The particular chair was not produced in evidence. There was no explanation on the part of the defendant of what had happened to the chair in the meantime, and in particular there was no evidence of anything done to repair it after the plaintiff's injury.

5. The castor wheel in question was, according to the evidence, similar to those on a chair shown in a photograph, Exhibit A. It may be observed that Exhibit A shows also part of a second shower chair, the castor wheels on which appear different, but perhaps not significantly different from those on the complete chair shown in the photograph. An expert ergonomist, Dr Neil Leon Adams, of Nimmitabel, New South Wales, gave evidence about being told of old styled chairs and new styled chairs, but his evidence was of little or no assistance. If his evidence was intended to show that there was something negligent about the design of the chair, the design of the castor wheel, or the method of attachment of the castor wheel to the chair, then it is unconvincing in this regard. The wheel itself appears to consist of a solid rubber or plastic-type material constituting the rim or tyre around some sort of a metal hub. The total diameter of the wheel appears to be some five or six centimetres. The wheel is not mounted on bearings, and it revolves around a simple axle. The wheel is about two or three centimetres thick. The wheel and axle assembly fits into a fork-like component, the upper part of which consists of a vertical pin or spindle about five or six centimetres in length which then itself fits into the tubular leg of the chair. According to the evidence of Mr. Jack Powell, a gardener and maintenance man employed by the defendant, the spindle fits into a pair of cones situated within the tubular leg of the chair and is secured by the tightening of a nut. As the nut is tightened, the cones act as a sort of clamp preventing the spindle from dropping out, but somehow allowing it freedom of rotation. When the mechanism is working properly, it allows the whole of the wheel assembly to rotate or swivel vertically so that the chair may be pushed in any direction whilst the wheel revolves horizontally on the axle. There is nothing in the nature of a spring or shock-absorber.

6. The occasion on which the plaintiff received her injury was not the first time a wheel had become detached from one of these chairs. Ms. Petlan, somewhere in the period of a year or so before the plaintiff's injury, had had the experience of a front wheel falling off a chair when it passed over the drain sump in a shower. Ms. Hearn, another nursing aide, had had the experience once when wheeling a heavy patient who had to be restrained from falling out of the chair as a result of the wheel becoming detached. On another occasion in the shower she had had an experience similar to that of the plaintiff and, in attempting to stop the patient falling out of the chair, had hit her head on the wall. Sister Douglas, who was the nursing sister on duty at the time of the plaintiff's injury, herself had been involved in an incident when a wheel came off a shower chair. On that occasion the wheel had stuck, she kicked it and it fell off.

7. Mr. Jack Powell was the gardener and handyman employed by the defendant from 1985 to 1987. The maintenance and repair of the shower chairs was part of his duties. He had no technical expertise. His previous working experience was that of a prison officer. According to his evidence, the wheels on the shower chairs often jammed. However, he was able to recall only one previous incident of a wheel becoming detached, and that was when the tube of the chair had become damaged and the wheel corroded. The chairs needed cleaning from time to time partly because of a soap build-up on their surface, and Mr. Powell made a point of cleaning some chairs at fortnightly intervals. When he carried out the cleaning of the chairs he also checked the castor wheels and if they needed lubricating, he would attend to that aspect with engineering grease. Because of the nature of their use in wet conditions, the wheel assemblies were prone to rust and that in turn contributed to jamming. He described "a black goo" which would build up and which would need to be cleaned out. There was a supply of spare clean and greased wheel assemblies which could be used to replace any existing corroded or otherwise defective assembly. Apart from the fortnightly cleanings, Mr. Powell used to check daily in the maintenance book to see whether nursing staff reported any difficulties with the chairs or similar matters. If there was any such report or complaint, he would attend to it.

8. There is no doubt that Mr. Powell was a conscientious and effective employee within the limits of his competence. However, what stands out clearly is that if there was any system at all for maintenance of the wheel assemblies then it was inadequate. Because of their necessary and frequent exposure to water and soap, the wheel assemblies were prone to rusting, corroding and jamming. Their use, frequently with heavy patients, on the hard hospital floors without any shock-absorbing component meant that it was likely that from time to time they would become loosened from the cones within the tube of the chair. Deterioration to that extent was not apparent to anyone using the chair, because the weight of the chair would keep the spindle or pin in place until something happened to take the weight off the wheel and allow it to drop out. This in fact occurred from time to time. Although there was a method of reporting incidents of that nature and of reporting damage to chairs after the event, there was no method of maintaining the chairs in order to prevent such incidents occurring. Although Mr. Powell attended to inspection and repair of those chairs which he cleaned at fortnightly intervals, he did not keep a record of which particular chairs were subject to that process so that it was quite possible that there could be very lengthy periods during which a particular chair received no attention from him at all.

9. I am convinced that in the circumstances the defendant failed to devise, institute and maintain a system of inspection and maintenance of the castor wheel assemblies which would have minimised the risk of a wheel becoming detached from the chair itself. That eventuality gave rise to a further risk, namely injury to a nurse who had the responsibility of caring for the person being transported in the chair. I take into account the factors mentioned by Mason J. in The Council of the Shire of Wyong v. Shirt and Others [1980] HCA 12; (1979-1980) 146 CLR 40. The degree of possibility of the risk occurring was far from fanciful, although it must be said that the likelihood of injury to a person in the chair was greater than the likelihood of injury to someone wheeling or attending to the person in the chair. Nevertheless, the obviating measures of regular and systematic inspection and maintenance which were required would not have been disruptive of the defendant's enterprise, could have been installed at no great expense and could have been carried out by the maintenance man on duty. The only evidence called on behalf of the defendant was that of Mr. Powell, and there was no evidence at all from management. In the circumstances, the inference may be drawn and I draw it that no attention had been given by anyone at management level in the defendant company to the problems that had occurred in relation to the wheel assemblies on the shower chairs and the risks to which they gave rise. In my view, this and the surrounding circumstances display a failure to take reasonable care on behalf of the plaintiff and there will be a finding of negligence in her favour.

10. I mention briefly that the plaintiff also relied upon an allegation that the defendant was negligent in not enforcing a system whereby two nurses together carried out the showering of the individual inmates. There was also, I gather, a suggestion that it was negligent of the defendant to conduct the showering operations late at night. I am not convinced that there was any lack of reasonable care on the part of the defendants in these respects. Conversely, the defendant relied upon an allegation that the plaintiff was guilty of contributory negligence in that she knew that Mrs. Duncan was likely to put up a struggle during the showering operation and for that reason she, the plaintiff, should have insisted on having the help of another nurse. Although there is evidence that other nurses found Mrs. Duncan difficult at times, I have no hesitation in accepting the plaintiff's evidence that she found no difficulty at all in this regard, and the defendant's allegations of contributory negligence will be dismissed.

11. I turn now to the question of damages.

12. The plaintiff was born on 21 May 1948 at Gundagai. Her mother died when she was six years old and she had heavy responsibilities with regard to the rearing of the rest of the family. She left school at the age of 15. She subsequently obtained work as what was then called an enrolled nurse in nursing homes in New South Wales. She married in 1975 and had a variety of jobs until she joined the defendant in 1984. She has three children now aged 18, 14 and 10 years who all live at home. Her husband is in business as a concretor and she is a partner in that business.

13. Events since the injury on 3 October 1986 have been quite catastrophic for the plaintiff. Apart from two or three days in November 1986 she has not worked since then. She was in good health prior to the injury. The principal allegations in relation to the medical aspects of the injuries are that she suffered a fracture of a cervical vertebra or alternatively an aggravation of a congenital cervical anomaly, a lumbar disc lesion, reflex sympathetic dystrophy in the left leg as well as other miscellaneous problems which have led to the present situation of what has been described as a chronic pain syndrome of likely indefinite duration.

14. The plaintiff sought attention from her local general practitioner, Dr Choong, on the same day as her injury. Her complaints to him were pain in the base and sides of the neck and in the left leg and ankle. She did not improve over the next few days and she was referred to Dr Richard Vance, an orthopaedic surgeon, who had x-rays done. The x-rays were suggestive but not conclusive of a possible fracture at the level of C4 and C5, and a "congenital anomaly" in bony growth extending downwards towards C5 forming "a false joint". The general tenor of the evidence is that this bony growth cannot be established to have been broken away from the rest of the bony material or to have established itself independently. I am not convinced of the probability that there was any actual fracture.

15. In the initial period after the injury the plaintiff, according to her evidence, suffered from stiffness and a burning sensation in the neck, and headaches. She was prescribed physiotherapy, analgesics and pain-relieving medication. By 5 November 1986, according to Dr Vance, the plaintiff was feeling much better and he advised her to return to work. She went back to work the day after that but only lasted a day or two when, according to her evidence, her neck got stiff again and she felt "like all my spine felt bruised". She referred in particular in her evidence to the thoracic area of her back. On 3 December 1986 when getting out of bed, there was an episode in which she experienced pain in the low back with pain radiating to her left leg. Dr Choong referred her to Dr Newcombe, a neurosurgeon. She was concerned about the long wait she had before she could see Dr Newcombe. She claimed in her evidence that it was a waiting time of six months. But in fact she saw Dr Newcombe for the first time on 30 January 1987. Thereafter she saw a number of doctors in relation to her lower back. She gave no history of low back pain to Dr Dimitri, whom she saw on 4 December 1986. She told Dr Cairns, whom she saw on 19 May 1987, that she experienced low back pain four weeks after her accident. In her evidence she said that she first noticed low back pain a week or two after her accident but she did not pay much attention to it at the time as her main concern at that stage was her neck. She was getting different opinions from the various doctors and she was very concerned and upset. Resentment towards the medical profession for failing, as she saw it, to come to terms with her injury seems to have become a feature of the situation from about the end of 1986.

16. A CT scan of the cervical spine done on 18 December 1986 showed the cervical abnormality already referred to, but no evidence of disc injury. A magnetic scan carried out on 27 April 1987, however, revealed disc protrusion at the L4/L5 level, more prominent on the left side than the right. Dr Newcombe operated to remove part of the disc at the Royal Canberra Hospital on 2 June 1987. There appeared to be significant improvement immediately thereafter, and by 14 July 1987 the only complaint the plaintiff had to make to Dr Newcombe was of some residual numbness in the left foot.

17. However, soon thereafter there was a dramatic change for the worse. The plaintiff developed what she described in evidence as sciatica, which prevented her from walking and putting on her clothes. She noticed at the same time that her legs were feeling cold, and were prone to swelling and sweating. She also experienced dryness on the heels. The condition was diagnosed as far as the left leg was concerned as reflex sympathetic dystrophy. Her complaints to Dr Newcombe were that the pain and discolouration was more pronounced in the left foot, and that she had some persistent low back pain as well as pain in the calves. Thermographic studies showed abnormal warmth in the left leg consistent with reflex sympathetic dystrophy. Dr Newcombe operated to perform a left lumbar sympathectomy, which involved a six day stay in hospital from 14 October 1987. Again it was felt that the operation met with some immediate measure of success. The plaintiff felt that it removed the feeling of coldness in the left leg, but left her with what she considered to be a "freezing" feeling in the right leg. The evidence of Dr Hjorth, which I found very helpful, explained the result of the operation by reference to the difficulty facing the surgeon in identifying the particular area or section of nerve tissue which needs to be removed. It is apparently by no means uncommon that after excision some of the sympathetic nerve will remain, so that sympathetic nerve supply continues along with the previous abnormal sympathetic activity, and with some but not all of the symptoms persisting.

18. Prior to the operation in June 1987 the plaintiff had already been referred to Dr Lubbe, a psychiatrist, for counselling for her depression and anxiety. After the operation the plaintiff's capacity to cope with her situation deteriorated, although she did not again receive any psychiatric attention. She continued to feel low back pain, with a swollen and painful left ankle. She came under the care of Dr Lithgow, who conducts a pain clinic at the Woden Valley Hospital. Dr Lithgow on two occasions performed epidural blocks but on each occasion the plaintiff's symptoms were relieved for a period of about forty-eight hours only. The plaintiff's right leg and hip now feels abnormally cold, but this is probably because of the relativity of the partially successful sympathectomy resulting in the left leg no longer feeling cold. There is continuing evidence of abnormal sympathetic activity, more so in the left leg at the higher level.

19. Some time soon after the epidural block performed by Dr Lithgow on 24 February 1989 the plaintiff's symptoms converged into what many of the doctors now agree to be a chronic pain syndrome of likely indefinite duration into the future. There has been observable oedema below the left knee and the plaintiff has been subjected to vascular check for thrombosis. She has suffered from active psoriasis over both knees, although this appears not to have persisted at the time of the hearing. She suffers from vaginal and rectal pain which, on some medical evidence, is due to the low back injury. It is likely that some low back pain persists as a result of the injury and despite the discectomy for the reasons suggested by Dr Hjorth, namely that the disc protrusion caused some fibrosis in the lumbar nerve which has persisted beyond the removal of the disc material.

20. On the whole I accept that the post low back condition occurred as a result of the injury on 3 October 1986. I accept that there probably was a degenerative condition in the spine prior to that date. I am sceptical about the plaintiff's claims in her evidence that there was continuing low back pain which she tended to disregard from as early as one week after the injury. However, I accept that there were some low back symptoms prior to 3 December 1986. It is reasonably clear however that on that date substantial low back pain radiating into the left leg at least was experienced by the plaintiff, although it is curious that the plaintiff did not complain of low back pain to Dr Dimitri when she saw her on 4 December 1986. I do not think that the incident of 3 December 1986 was a new intervening cause which broke the chain of causation between the plaintiff's symptoms and her injury. Her back was already subject to some less severe symptoms between some time after the injury and that date, for which the defendant must be regarded as responsible. Although there was a substantial time gap between the injury and the onset of significant low back pain, I accept that it was the aggravation of her condition in the cervical area which provided the overwhelming source of pain and disability in the early weeks. The cervical aggravation would not of itself have been incapacitating beyond the date of the discectomy, but the complication of the disc lesion kept the plaintiff incapacitated beyond that date and it was soon after that that the reflex sympathetic dystrophy and its symptoms became prominent. The causes of this condition are not well known, but there is strong objective evidence in the thermograms that it existed in the left leg and lumbar area. That the plaintiff has been subject to such a condition does not appear to be strongly disputed by the defendant's doctors. Nor do they strongly dispute its causal relationship with the spinal condition or the operation to the spine or both. The defendant's doctors concentrated largely on the absence of lumbar systems for the few weeks after injury in order to deny the causal connection between the disc protrusion and the injury, but for reasons I have already given, I reject their view on that matter. It should also be noted that Dr Cairns based his opinion largely on a false assumption that the plaintiff landed on her back in the incident when obviously what the plaintiff was trying to tell him was that the patient in the chair landed on the plaintiff's back. However, I think that there is some force in the opinion expressed by Dr Cairns that as far as the cervical symptoms are concerned, they would have been incapacitating for not more than a few months after injury and not beyond the date of the operation to the lumbar spine. I also accept that the plaintiff's condition is and has been for almost the whole time since her injury complicated by anxiety and stress.

21. There is no question that the plaintiff is unfit for work as a nursing aide and will continue to be so into the foreseeable future. It has been suggested that she is fit for duties not involving prolonged sitting or standing such as that of a telephonist (or even a court officer]) but on the whole I think that she should not be regarded as fit for continuing employment in any real sense. On the other hand, she is a partner in her husband's business. She attends phone calls, keeps the books, does the banking and so on. Her earning capacity has not been entirely and forever obliterated. I would think that her earning capacity is likely to improve, but not improve a great deal, at some indeterminate time in the future when the worry and stress of litigation and associated visits to the doctors and the like is over. I would regard the plaintiff as one who would have worked not beyond the retiring age of 60, and one who, because of the degenerative condition in her cervical and lumbar spine, was at particular risk of injury in any event. For that reason I would reduce the notional loss of earning capacity to age 60 by a factor of 20 percent to allow for the future contingencies of degeneration and other injuries in any event and also for the countervailing contingency that the plaintiff's earning capacity might improve a little in the future. Exhibit 17 shows that the earnings of a nursing aide at the present time working the hours worked by the plaintiff are approximately $250 per week net. The ongoing continuing loss I assess at $200 per week which taking the plaintiff to age 60 and applying a discount investment rate of 3 percent gives a figure of about $145,000.00. This is reduced by a further 15 percent for the conventional vicissitudes of life to $123,250.00. There was a chance that she might have worked beyond the age of 60 and might have worked longer hours and increased her income and I round out the damages for future loss of earning capacity to $125,000.00.

22. For the past the total loss of earnings has been calculated to 24 June 1990 at just over $43,000.00 and I would reduce that to allow for contingencies that might have occurred in the past to a round figure of $40,000.00. I was told that the difference between the worker's compensation paid and the claim for past loss of earning capacity is $4,000.00, so that the difference between what was paid and what is awarded is only $1,000.

23. Out-of-pocket expenses are agreed at $22,895.08. The Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component is agreed at $5,069.00. I include something for future out-of-pocket expenses in the component for general damages.

24. On the question of pain and suffering and loss of amenities of life, it is quite apparent that the plaintiff has suffered greatly both from pain and from less tangible factors as her gross overweight and loss of self-esteem. She does not appear to have followed any particular sports or recreational activities which her injuries preclude her from following, but the evidence of her sister and of some photographs convinces me that she presents a vastly different picture now from the vital and energetic woman she was previously. I would assess general damages at $35,000.00 and apportion for the purpose of interest $20,000.00 to the past. Interest will be awarded also on the difference between worker's compensation paid and the award for past loss of earnings. Interest will be calculated on the rates set out in the recent Practice Direction and the result reduced by one half to allow for the fact that the loss occurred more or less evenly throughout the period. Interest calculated that way amounts in the case of the past component of general damages to $6,850.00 and I round that out to $7,000.00 to allow for the shortfall in worker's compensation payments against the award for past loss of earning capacity. In summary the award for the plaintiff will be as follows:
Future loss of earning capacity $125,000.00

Past loss of earning capacity $40,000.00
Out-of-pocket expenses $22,895.08
Fox v. Wood $5,069.00
Pain and suffering and loss
of enjoyment of life $35,000.00
Interest $ 7,000.00
Total: $234,964.08

25. The total damages appear appropriate overall. The plaintiff is to have judgment for $234,964.08 and the defendant is to pay her costs.