Vesna Djurdjev v Australian Capital Territory Community and Health Service [1992] ACTSC 104 (21 October 1992)

SUPREME COURT OF THE ACT

VESNA DJURDJEV v. AUSTRALIAN CAPITAL TERRITORY COMMUNITY AND HEALTH SERVICE
No. SC 57 of 1989
Number of pages - 7
Negligence

COURT

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

CATCHWORDS

Negligence - Personal injury - Duty of care - Breach of duty - Design of toilet area unsafe - Plaintiff's nose injured during collison with steel shelf - Septal perforation.

Negligence - Personal injury - Loss of sense of smell - Causation.

HEARING

CANBERRA
21:10:1992

Counsel for the Plaintiff: Mr R Crowe

Instructing solicitors: Pamela Coward and Associates

Counsel for the Defendant: Mr D Nock

Instructing solicitors: ACT Government Solicitor

ORDER

The Court orders that:
1. There be judgment for the plaintiff in the sum of $27,080.00

DECISION

HIGGINS J. On 20 January 1987 the plaintiff was going about her duties as a Diet Maid employed by the defendant. She worked at Woden Valley Hospital. By means of a series of enactments, the present defendant is liable for whatever wrong the preceding similar authorities had committed. They are detailed in the Statement of Claim.

2. In the course of her employment, the plaintiff visited a female visitors' toilet on the fifth floor. After using the facilities, the plaintiff went to wash her hands. After doing so, she extracted paper towelling from a dispenser. Underneath the dispenser there was an aperture and a bin designed to receive used towelling.

3. The dispenser was next to a hand basin of conventional design. Above both the dispenser and the hand basin was a mirror. At the base of the mirror, 122cm from floor level, was a shelf 15-16cm in depth. For some reason it ran the full length of the base of the mirror. The dispenser was flush with the wall to which the mirror was affixed. The plaintiff was about 165cm in height. As she leant over in the course of throwing her used towel into the bin provided, her nose came into violent contact with the edge of the shelf. It had a raised lip which cut quite deeply into the bridge area of the plaintiff's nose. An inspection report from D K Gilson and Associates, Architects, sets out the physical dimensions of the toilet area. There is a diagrammatical representation of a person bending to dispose of a paper towel. It is self-evident that unless a person was conscious of the presence of the shelf I have mentioned, contact with its edge would be likely.

4. Noticing the shelf is made difficult because its edge blends visually with the mirror's lower edge. There was, also, no rational purpose I can see in having the shelf extend over the towel dispenser. It was unnecessary and so more likely to be unnoticed. In any event, the design of the toilet area was unsafe. It should have been obvious to any safety conscious employee of the defendant charged with monitoring health and safety of persons using the toilet area.

5. It follows that the defendant failed to take due care for the safety of the plaintiff.

6. She was criticised for failing to notice the shelf herself. The plaintiff did no more than fall into the trap the defendant had allowed to occur. That is not something for which, in these circumstances, she should be regarded as relevantly lacking due care for her own safety.

7. It follows that there should be no apportionment of blame to the plaintiff.

Damages
8. The plaintiff's nose was quite badly cut on the outside and probably badly bruised inside. There was bleeding from the nostrils. She was crying and in pain. A wardsman took her to Casualty. She was X-rayed. No fracture was noted. The cut on her nose was taped with "butterfly" clips. She was given painkillers. Her husband was called and she went home with him.

9. She noticed her nose was very sore, swollen and apparently bruised.

10. The pain and swelling subsided over the next week or so. She was off work for a week. After a few weeks, following consultation with and treatment from her general practitioner, the nose ceased to feel tender. The plaintiff then noticed a "whistle" in her nose as she breathed. She had, since the blow to the nose, suffered regular but minor nose bleeds. These occurred two or three times weekly.

11. The plaintiff put up with these continuing symptoms for some time. The "whistling" got louder. She noticed crusty blood coming out when she blew her nose. Out of curiosity, the plaintiff put her fingers up her nose and discovered, to her surprise and with concern, a large hole in the septum.

12. She went to her doctor, Dr Maguire, who referred her to a specialist, Dr Crisp. Dr Crisp could offer no real treatment. The hole appeared, however, to enlarge. Bleeding and crusty discharges continued. The nose was not "painful" but it was, she said, "uncomfortable". Gradually she began to notice a loss of sense of smell.

13. She was sent to Dr Robert Vance, an ear, nose and throat specialist, for examination on behalf of the defendant. He referred her to Dr Robert Bridger, a head and neck surgeon for advice as to reconstructive surgery.

14. Dr Bridger advised against surgery but installed a device called a "septal button". This was a plug to close the hole in the septum.

15. The plaintiff found this plug very uncomfortable and even painful the first week it was in. She returned for adjustment but it continued to cause problems. It slipped to one side or the other. It was painful and caused bleeding. Finally, the plaintiff abandoned it and took to washing out her nose regularly with salt water. This is an uncomfortable procedure but it seems to her to keep the nose free of infection. She continues to have regular but infrequent nose bleeds.

16. In August 1991 she moved to Queensland. She found the hot summer air caused pain in the nose.

17. She has restricted her activities, including sporting activities, out of a fear that bumping of the nose might cause the nose to collapse.

18. The hole she described is now stable in size and about the diameter of the now defunct 2[ piece.

19. In cross-examination, it was suggested to the plaintiff that she had not complained of nose-bleeds when consulting doctors. Nor, till recently, had she complained of the loss of sense of smell. It is not entirely clear to me whether this was intended to suggest that there had not been such symptoms or was merely an interesting observation as to the plaintiff's behaviour patterns. It is necessary to review the medical evidence.

20. Dr Jones was, as the plaintiff said, the first doctor she consulted about her nose. He noted that the nose was cut and swollen. He considered there may have been infection present and so prescribed antibiotics as well as painkillers. The plaintiff was consulting Dr Jones for other reasons. Dr Jones was a gynaecologist. His treatment of her nose was incidental. She did not subsequently consult Dr Jones about her nose.

21. Dr Maguire was the plaintiff's general practitioner. He saw her on 20 October 1987. The plaintiff said that she had noticed the hole in her septum about one month before that date. He confirmed the presence of the hole. There was then no sign of infection or haemorrhage. He considered that bleeding and infection were likely to occur from time to time.

22. Dr Crisp saw the plaintiff once on 29 October 1987. He prescribed ointment for the likely continuing crusting at the edges of the perforation.

23. Dr Robert Vance has been referred to. He examined the plaintiff on 7 September 1989. He noted complaints of nasal bleeding as well as the perforation. There was also a complaint of crusting, increase in the size of the hole and loss of sense of smell. I have no doubt Dr Vance properly and accurately elicited these complaints which the plaintiff then had.

24. Dr Bridger saw the plaintiff on 14 September 1989. He noted that she appeared very anxious about the perforation. He did not consider surgery would have been helpful. He did not refer to the plaintiff's complaint of loss of sense of smell. He noted that she had so complained to Dr Vance but did not pursue the matter with her.

25. The defendant raised two significant issues concerning the medical evidence. The first was whether the perforation was the result of the blow to the nose or merely, coincidentally, a naturally occurring phenomenon.

26. Dr Vance regarded it as "possible" that a septal haematoma had occurred which had, as a sequel, lead to the septal perforation. He thought it also possible that the perforation had been previously present. Such a result would commonly follow from "nose picking over a long period" causing localised infection.

27. The plaintiff denied any such activity on her part. I consider it highly unlikely that she had any septal perforation before the blow to her nose. It first became apparent, on the evidence, about September 1987. She also had signs of infection present when she saw Dr Jones. Indeed, Dr Vance, in his oral evidence, being given the plaintiff's history preceding her noticing of the perforation, was of the opinion that the blow to the nose was more likely than not to have been the cause of the perforation, rather than an idiopathic or alternative cause. I agree.

28. Accordingly, I am satisfied that the septal perforation is a consequence of the defendant's negligence.

29. The second issue related to the loss of sense of smell. I accept that it happened as the plaintiff related. I accept that she was truthful with Dr Vance. Prima facie, that sequence of events would enable an inference to be drawn that the loss of sense of smell was another sequela of the blow to the nose.

30. The only medical evidence directed to this question came from Dr Menzies, an ear, nose and throat surgeon, who was consulted by the plaintiff on 17 February 1992 for medico-legal purposes. He stated that he had only once seen loss of sense of smell as a sequela of a septal haematoma. Initially, he was of the view that the loss of sense of smell was "almost certainly related to her accident". However, in cross-examination, he conceded that if the loss of sense of smell was related to the blow to the nose and a consequential infection, the loss of sense of smell would happen at the time of the infection. It would be very soon thereafter apparent to the sufferer. He agreed that it would be impossible to establish a link in this case between the blow on the nose and the loss of sense of smell in view of the late onset of that symptom.

31. It is obviously possible that the loss of sense of smell did result from the blow to the plaintiff's nose. There might have been some related infection occurring subsequently which deadened the relevant nerve. However, it is necessary for me to be positively satisfied that the link in fact exists. There is no evidence from which I could conclude there was such an infection. In the light of Dr Menzies' opinion, I am not so satisfied.

32. It follows that I assess damages on the basis that the perforation was a result of the blow to the nose but the loss of sense of smell was not.

33. I consider that the injury is nevertheless a serious one. Fortunately, it does not affect the plaintiff's employment. It leaves the plaintiff's nose more vulnerable to injury. She has continuing annoyance and discomfort from it. That will be permanent. I would award $25,000.00 for general damages. I would apportion $15,000.00 thereof to the past. I award $1,725.00 for interest thereon.

34. Out-of-pocket expenses are agreed to be $355.00.

35. No other head of damage was suggested. I therefore direct the entry of judgment for the plaintiff in the sum of $27,080.00.

36. I will hear the parties as to costs.