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Supreme Court of the ACT Decisions |
COURT
IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORYCATCHWORDS
Negligence - Personal injury - Injury caused by Telecom pit-cover collapse - Physical injuries sustained - Psychiatric evidence - Post-traumatic stress disorder - Evaluation - Principles.Nominal Defendant v. Haslbauer [1967] HCA 14; (1967) 117 CLR 448
Piening v. Wanlass [1968] HCA 7; (1968) 117 CLR 498
Rickards v. Australian Telecommunications Commission (1983) 3 NSWLR 155
Diagnostic and Statistical Manual of Mental Disorders, Third Edition - Revised, DSM-III-R, American Psychiatric Association
Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438
Counsel for the Plaintiff: Mr J Purnell
Instructing solicitors: Messrs Snedden Hall and Gallop
Counsel for the Defendant: Mr P Jones
Instructing solicitors: Australian Government HEARING ORDER DECISION 2. Suddenly, without any prior warning, the pit-cover collapsed. It split
into at least two pieces. The plaintiff plummeted down
into the pit. She
arrested her fall by putting out her arms. One hooked over the top edge of
the pit, the other over another part
of the cover. The cover consisted of six
similar sized plates. A subsequent examination of the remaining plates
revealed that at
least one of them was obviously cracked as was, presumably,
the plate onto which the plaintiff had stepped. Clearly, this was a
terrifying event. The plaintiff had no real idea how much further she would
have fallen had she not arrested her fall. She remained
suspended, for some
time, until persons came to help her and extricated her. She had been
severely jolted by the fall.
3. Police and ambulance units attended. The plaintiff was found to be
disoriented and shaking quite markedly. She felt soreness
in her left leg and
generally shaken up. She was taken to hospital and was there examined,
treated and allowed to leave.
4. By that time the plaintiff felt stiff and sore. Her neck and shoulders
were sore. There was a large bruise under her right rib
cage area over the
back. She was very distressed.
5. The following Monday, the plaintiff saw Dr Evans, a general practitioner.
She was referred to the Manuka Physiotherapy Clinic
where she was treated by
Ms Sally Hanrahan, a physiotherapist.
6. There was no dispute as to how the accident happened. The defendant,
however, disputes that it is legally liable for it.
Liability
8. Ordinarily, it would be open to infer that the defendant was negligent in
failing to provide proper and safe pit-covers or in
failing properly to
inspect or maintain them. Faults, such as those leading to the sudden
collapse of a pit-cover designed to take
normal traffic such as would be
expected in the subject area, would not normally happen without such fault.
This is an application
of the rule known as res ipsa loquitur (see, for
example, Nominal Defendant v. Haslbauer [1967] HCA 14; (1967) 117 CLR 448 but c.f. Piening v.
Wanlass [1968] HCA 7; (1968) 117 CLR 498). The latter case is distinguishable from the
present matter. That case suggests that whilst a motor vehicle
component
failure does not necessarily imply a probability of negligence against the
owner. However, a failure of a static component
such as a pit-cover would
raise an inference against a statutory authority which has responsibility for
design, supply, installation
and maintenance of such covers that either it
failed to install a properly designed pit-cover or failed to inspect such
pit-covers
as would reasonably be required to avoid deterioration.
9. The defendant relied on Rickards v. Australian Telecommunications
Commission (1983) 3 NSWLR 155 to escape liability. However,
that decision is
not authority for the proposition advanced by the defendant.
10. The decision is authority for the proposition that, in the absence of a
statutory duty to repair an installation, a statutory
authority which installs
and maintains that installation is not liable in nuisance for the defective
condition of that installation.
However, that decision depended on the
absence of any negligence on the part of the authority in that installation or
maintenance.
11. In this case, the issue was not left totally unexplained. The pit-covers
were clearly designed to accommodate pedestrian passage.
They were not
designed to withstand vehicular passage, particularly of commercial vehicles.
It appears they were subjected to such
passage.
12. The court was greatly assisted in ascertaining this by the observations
of Mr Frederick Rumble.
13. Mr Rumble was a cleaner employed within Electricity House. He had
observed the plaintiff fall, although he was not one of the
persons who went
to her aid. For some period of time prior to that event, he had noticed
trucks unloading furniture at the nearby
Westpac Building. Their only means of
access was by crossing the area of paving which included the pit area. Some
of the trucks
he knew to have been sub-contractors to the Commonwealth. He
had also noticed that cleaners regularly drove vans over that area
of paving
to gain access to the buildings they had to clean. Telecom workers (employees
of the defendant) had, he said, frequently
visited the pit. He could not say
how soon before the accident the last attendance had been. He did not
expressly tell any employee
of the defendant of the passage of those vehicles.
He did not, it seems, turn his mind to the threat such vehicles might pose to
the integrity of the pit-covers. Indeed, it was not to be expected that he
would do so.
14. Shortly after the accident to the plaintiff and replacement of the
pit-covers, a hooped, yellow painted railing was erected as
depicted in
photographs tendered in evidence. The railing was on the western side of the
pit cutting access to it off from London
Circuit. It is obviously intended to
prevent vehicles driving off London Circuit onto the pavement area from
crossing the pit-covers.
15. Additionally, in answer to interrogatories, the following information was
provided by the defendant
17. A standards manual for the design and siting of "Manholes and Cable
Chambers" issued 1984 and produced from the records of the
defendant contained
the following observations
19. It was reported that
22. It follows that, at least at that time, the defendant had the opportunity
to consider whether there was a real risk of the pit-covers
being subjected to
vehicular passage.
23. Although there is no direct evidence that any employee of the defendant
observed vehicles using the paved area adjacent to the
pit, it is highly
probable that the likelihood of such use would have been obvious. No doubt it
would be hoped that drivers of such
vehicles would avoid driving onto the
pit-covers. However, given that such drivers would be likely to be concerned
with their own
objectives and unaware that the pit-covers could not sustain
such loads, it seems to me that it would have been unsafe for the defendant
to
have relied on that assumption.
24. Given the nature of the area and the use made of it from time to time, I
am of the opinion that the defendant should not have
waited until this
incident to consider protecting the pit from incursion by vehicular traffic.
Indeed, I think the truth of the matter
is that the employees of the defendant
who attended at the pit from time to time were aware of the use of the area by
vehicles seeking
access to the nearby buildings but did not turn their minds
to the consequences of such vehicles passing over or stopping on the
pit-covers.
25. It follows that the defendant is liable to pay damages to the plaintiff
for injuries and disabilities consequent upon her fall
into the pit.
Damages
27. Following the accident, the plaintiff had continuing pain in her neck and
shoulders. She diverted more of her activity into
general clerical work
rather than key boarding as a result.
28. The plaintiff resumed work on 4 January 1988. She found that any strain
on her neck and arms caused pain. On 2 March 1988 she
saw Dr Evans, her
general practitioner, complaining of being "very stressed". She was not
coping. She was worried about her husband's
health as well as her own. She
considered giving up work.
29. On 30 September 1988 she applied to have her position made part-time.
Her stated reason was "Preparation for retirement". From
January 1989 she
continued work part-time.
30. However, the plaintiff felt she was still not coping well. Her "fitness
had gone".
31. In February 1990, the plaintiff was diagnosed as suffering from
hypertension. She was given a medical certificate, as a result
of which she
had time off work.
32. The plaintiff saw a clinical psychologist, Patricia Williams, concerning
"panic attacks" which she was experiencing. That consultation
occurred in
September 1990.
33. The plaintiff's employment ceased in March 1991 at her request. She felt
she could not cope any longer. She was then aged 60.
Prior to the accident,
the plaintiff had assumed she would work until age 65.
34. In April 1991, the plaintiff consulted Dr Gillespie, an orthopaedic
surgeon, complaining of chest pains. In 1992 she was diagnosed
as having
oesophageal reflux.
35. The plaintiff attributed her early retirement to neck and shoulder pain
and to anxiety resulting from the accident. Her blood
pressure is
satisfactorily controlled by drugs. She does take analgesics for the neck and
shoulder pain and Serapax to aid in controlling
anxiety.
36. It should be noted that the plaintiff had been prescribed Serapax in May
1987 following the combination of a fall she had and
her husband's illness.
37. The chest pains from which the plaintiff suffered seemed to have been a
result of the oesophageal reflux. She was prescribed
medication which, when
taken, quickly relieves those symptoms.
38. Whilst the plaintiff was working, she had required assistance from a
housekeeper. She paid for two hours per week. Since retirement,
she has not
used paid assistance on economic grounds rather than a cessation of perceived
need.
39. Not only does the plaintiff complain of "loss of fitness" since her fall
down the access pit, she also felt a loss of confidence.
She became more
argumentative with her husband.
40. In cross-examination, attention was focussed on other health problems the
plaintiff had experienced. In 1981 she had pericarditis.
In July 1984 she had
complained of tension following a change to word processing duties. She
seemed also to have had numbness and
tingling in the right forearm.
41. That problem apparently resolved.
42. She agreed that, on 2 March 1988, she had told Dr Evans that she would
consider stopping work before 60 years of age. She had
told Dr Evans that
this was not because of the accident.
43. For a period of 22 months up to August 1989, the plaintiff agreed she had
not complained of the symptoms arising from the accident
to Dr Evans. She
was, however, regularly undergoing physiotherapy.
44. Further, she agreed with Dr Evans' assessment that, as at 2 March 1988,
the symptoms, other than those relating to her neck and
shoulders, had abated.
She did not agree, however, that by 18 September 1989, she was symptom free.
45. So far as neck pain was concerned, the plaintiff agreed that in July 1975
she had complained to Dr Holt, then her general practitioner,
of pain in her
neck.
46. There does not seem to have been ongoing neck symptoms, however, since
1975 and before the accident. There was a neck X-ray
in April 1981 but the
reason for it was not established. As I will refer to later, there were also
some symptoms before the accident
which appeared indicative of occupational
strain injury.
47. The plaintiff did not agree that her retirement was unrelated to the
accident. This was notwithstanding her statement to Dr
Evans and the reason
for retirement she stated on the relevant document. She agreed that following
her return to work after 6 November
1987 she did not seek time off work
because of symptoms relating to her fall. Her subsequent letter of
resignation did not make
reference to any sequelae from that fall.
48. Between January 1985 and January 1986, the plaintiff had, apparently,
been suffering from symptoms in arms, hands and shoulders,
including sudden
pain to the right side of her neck, associated with key boarding. Neuritis
was diagnosed.
49. In retrospect, it looks like a repetition strain injury. Certainly, the
compensation file created at the time uses that label
for the plaintiff's
complaints.
50. It was also suggested that the fatigue symptoms complained of by the
plaintiff after the fall in fact predated it.
51. That suggestion was founded on a record of a complaint of fatigue in
medical notes on 23 May 1969, 14 May 1973, 21 February 1974,
and perhaps, on 7
March 1974. In 1985 the plaintiff had taken two days off, citing "fatigue" as
the cause.
52. Even assuming those facts, they would indicate no more than that the
plaintiff had five episodes of "fatigue" in 16 years. It
is important not to
elevate separate episodes into a chronic condition. It is, of course, of
chronic fatigue that the plaintiff
now complains.
53. There was also a suggestion put to the plaintiff that she had been tested
by Dr Roberts, a psychiatrist, who examined her on
behalf of the defendant, by
means of a urine sample, for the presence of Panadol and Renitec but neither
was present. The plaintiff
firmly stated that notwithstanding this suggestion
she was taking that medication and had been doing so at the time she saw Dr
Roberts.
54. She also revealed, in response to questions from the defendant's counsel,
that she had suffered recurrence of low back pain in
the area of the bruise
she sustained in her fall following walking. She had, since retirement,
undertaken walking as an exercise
in itself.
55. The plaintiff's husband, Robert McAuslan, was present when the fall
happened on 6 November 1987. He confirmed the plaintiff's
evidence that she
had been bruised and suffered severe shock. He confirmed that after the
immediate effects had passed, the plaintiff
seemed to lack confidence. She
restricted her physical activities at home. She had disturbed sleep patterns.
She complained of,
and seemed to suffer the effects of, neck and shoulder
pain.
56. Full-time work, to which she had returned, consistently aggravated her
symptoms. She became much harder to get on with. The
complaints persisted
notwithstanding her change to part-time work.
57. That picture was also corroborated by a long time family friend, Michael
McNamara. His impression of her was that the fall had,
as he put it, "knocked
her for six".
58. David Colin Griffiths (known as "Colin Griffiths") was the plaintiff's
supervisor at the Australian Heritage Commission. His
impression was that,
prior to the fall, the plaintiff coped well with full-time work. After her
fall, she was unable to perform
key board duties. She slowly demonstrated
some improvement but did request transfer to part-time duties because of
continuing neck
and arm problems.
59. He did not recollect any claim by the plaintiff for compensation between
1984 and 1986. Clearly, there was such a claim. The
file was produced to the
court. It is apparent that the plaintiff had some difficulty adjusting to new
word processing equipment.
She was given two weeks off such key boarding as a
result.
60. It is significant, to my mind, that this episode made so little
impression on Mr Griffiths. It renders it very likely, I think,
that those
difficulties were not only overcome but only very marginally affected the
plaintiff's performance of her duties and her
general well-being.
61. I have no doubt that the witnesses as to the change in the plaintiff's
presentation following her accident were being truthful.
There clearly was a
marked difference following her fall.
62. An issue was raised as to the extent to which the plaintiff's
post-accident condition was due to that fall.
63. Dr Marian Evans, the plaintiff's general practitioner at the time, gave
evidence by telephone. Her reports were also tendered.
64. She first saw the plaintiff in connection with this matter on 9 November
1987. She confirmed the various injuries complained
of by the plaintiff
including a stiff neck. She noted that the plaintiff was "very upset and
shocked by the incident". Dr Evans
was aware of the ongoing physiotherapy and
exercise programs which the plaintiff undertook.
65. As at 30 May 1988, she was of the opinion that the plaintiff's prognosis
was good "especially if she maintains the exercise programme".
66. The plaintiff had, she thought, made full physical recovery. Dr Evans
continued to be of that view as at 21 September 1989.
However, by 20 December
1989, it was Dr Evans' opinion that the plaintiff's condition had "relapsed".
The symptoms of neck and shoulder
pain were "all definitely worse". She could
not work very long without symptoms. She had reduced her housework to a
"minimal" level.
Her emotional state was "poor". The stress of legal
proceedings was adding to her stress levels. Indeed, Dr Evans stated, in her
oral evidence, that she would not have been surprised if there were no present
organic problems but the present symptoms were due
entirely to stress.
67. Ms Sally Hanrahan, physiotherapist, had first seen the plaintiff on 19
November 1987. By 16 May 1988, she reported that the
plaintiff was making
good recovery, requiring less treatment and increasing her work load.
68. However, she did note -
71. It is clear that up to the last quarter of 1989, the plaintiff showed
improvement but not to the point of being symptom-free.
72. Reports and evidence from Ms Patricia Williams, a clinical psychologist,
were also presented.
73. On 17 December 1990, Ms Williams confirmed that the plaintiff presented,
after testing, with subjective chronic pain. She exhibited
post-traumatic
stress disorder. She experienced panic attacks and had general high anxiety
levels which responded to counselling
and treatment.
74. By 20 August 1992, Ms Williams reported finding pain levels as before.
The anxiety and panic attacks continued. Ms Williams
related those symptoms
to the "initial deep terror" of the fall. She noted that
76. I have to say that I am quite certain that the plaintiff did believe she
would die at the time she began to fall. Indeed, it
is highly unlikely, to my
mind, that any person subjected to such an experience would not be so
affected. Whether they develop the
syndrome or not is, as Ms Williams noted,
another matter, but they would, clearly enough, fulfil one criterion for being
at risk
of it.
77. It was suggested to Ms Williams that, if her opinion was correct,
problems with memory and concentration would be manifested
and, perhaps,
weight loss. Ms Williams agreed that such symptoms were possible but denied
that they were inevitable. She asserted
that whilst increased perspiration
and memory and concentration disfunctions would accompany a panic attack,
those symptoms would
not necessarily appear at other times.
78. The plaintiff had been referred to Ms Williams by Dr Denise Kraus,
another general practitioner. Dr Kraus was not required for
cross-examination
but reports from her were tendered. Dr Kraus had noted, during 1990,
unexplained and sudden hypertensive attacks.
She felt them to be a
manifestation of a subliminal stress disorder. Ultimately, the condition was
settled with daily doses of Renitec.
As at 12 February 1991, Dr Kraus felt
the plaintiff's prognosis was poor so far as work was concerned. It was her
opinion that
there was some impairment of the plaintiff's ability to perform
household duties.
79. In her report of 21 February 1991, Dr Kraus expressed the opinion that
the symptoms described to her (panic; tiredness and pain
in neck and
shoulders; restriction of work capacity and household activities), were a
result of the fall in November 1987.
80. On 11 January 1992, the plaintiff was reported by Dr Kraus to be
exhibiting increased restriction of movement in the neck. The
pain and
disability was worse. She referred the plaintiff to Dr Colin Andrews, a
neurologist, for further assessment. She considered
that the plaintiff's
prognosis for improvement was poor. She would need ongoing treatment and
physiotherapy for pain relief. The
latter would need to be weekly.
81. Given the lack of cross-examination, I have to accept Dr Kraus' reports
at their face value so far as her statements of fact
appear not to be
contradicted by other credible testimony. I do not know what weight to place
on her opinions in the absence of
any evidence as to any special
qualifications or experience which she may or may not have in order to express
those opinions.
82. Dr Andrews' reports were tendered. He was not required to attend for
cross-examination either but, of course, his specialist
qualifications are
stated in those reports. The plaintiff was first seen by him on 6 January
1992. Tests elicited no particular
abnormality. He felt the problem was
coming from the C5/6 facet joints. The strain causing the problem, he felt,
was caused by
the fall. Some improvement, perhaps sufficient to allow a
return to work, could be expected.
83. A facet joint block was attempted but resulted in no improvement. As at
24 March 1992, Dr Andrews was more pessimistic. He then
considered neck and
shoulder pain improvement unlikely. However, on review of her on 9 July 1992,
whilst her neck was "fairly rigid"
and grip in both hands "extremely poor", Dr
Andrews was "hopeful that her condition will recover over time".
84. It may be noted that there is no objective support for the view that the
plaintiff has neck pain and related symptoms. If it
be accepted that she
does, then the mechanism continuing that pain could be either physical,
emotional or a combination of both.
It is necessary to know which it is to
form a view as to the likely continuation of symptoms into the future.
85. Dr Michael Gillespie, an orthopaedic surgeon, examined the plaintiff on
19 June 1991. He found "moderate spasm of the lower
cervical para-spinal
muscles, and diffuse tenderness in the bulk of the right trapezius muscle".
There were some mild X-ray changes
of cervical spondylosis. Those changes
could not positively be related to the plaintiff's fall. He expressed the
following opinions
86. The defendant submitted two medical reports. One from Dr David Gillies,
a neurologist, and another from Dr John Albert Roberts,
a psychiatrist.
87. Dr Gillies saw the plaintiff on 12 May 1992. He felt that depression
might well be heightening awareness of some of the physical
symptoms of which
the plaintiff complained. Overall, he felt the report of the injuries and
disabilities following the fall were
consistent with the trauma suffered. He
thought the neck symptoms were produced by a mechanism similar to the more
conventional
"whiplash" injury. Those injuries would not themselves explain
the panic attacks and alteration of blood pressure.
88. He was not able to offer an opinion as to the reason for the continuance
of the neck symptoms or the deterioration noticed in
the last quarter of 1989.
He did feel that the accident could have exacerbated a hypertensive condition.
The relationship of stress
to this mechanism, Dr Gillies felt, "was not
entirely clear".
89. In cross-examination, Dr Gillies agreed that if symptoms had continued
from the accident they could have been affected adversely
by the plaintiff's
attempts to keep up key boarding.
90. It is apparent that the results of Dr Gillies' examination and his
opinions thereon, are quite consistent with the medical evidence
tendered on
behalf of the plaintiff.
91. Dr Roberts' report was tendered. The report detailed complaints of
disabilities and a history broadly similar to that elicited
by other medical
practitioners and health workers.
92. Some of Dr Roberts' observations in that report, however, seem puzzling
to me. For instance, the following passage appears following
a history of the
plaintiff's health problems not related to her fall and those related by her
to the fall
94. Lack of balance is further illustrated by the very next sentence. Dr
Roberts was given a detailed report of all the plaintiff's
previous health
problems, some of which were clearly indicated to and understood by Dr Roberts
to have preceded the plaintiff's fall
in 1987 and to have resulted in ongoing
but controllable disabilities. He commented, nevertheless
96. It is, I think, unfair of Dr Roberts to assert that the plaintiff was
being untruthful.
97. Dr Roberts referred to a matter which was certainly not otherwise
referred to in the evidence. It was not a matter suggested
to the plaintiff
during cross-examination. That was the following
99. There is more. Dr Roberts quotes the plaintiff as advising him that
Naprosyn had "contributed to her reflux" (referring to the
oesophageal
disorder earlier referred to). Of course, that is not literally true. The
drug may well, as Dr Roberts observed, worsen
the symptoms. Dr Roberts would
have been well aware that the plaintiff was conveying that to him. In
commenting on this, Dr Roberts
has clearly misrepresented what was said to
him. I do not consider that misrepresentation to have been inadvertent. It
was no part
of Dr Robert's task to persuade the reader of his report, if it
was intended to be tendered in court, that the plaintiff should not
be
believed.
100. The major point of Dr Roberts' thesis, however, was that the emotional
symptoms of which the plaintiff complained, together
with her complaints of
pain, did not warrant the conclusions deposed to by Ms Williams.
101. To some extent, Dr Roberts was engaging in a debate as to the proper
label to be assigned to the plaintiff's experience of pain,
anxiety and,
sometimes, panic. It has significance, however, in terms of the likely
longevity of the plaintiff's symptoms and, perhaps,
as to whether her
subjective account of experiencing those symptoms should be accepted.
102. As to post-traumatic stress disorder, Dr Roberts referred to the
Diagnostic and Statistical Manual of Mental Disorders. It
is DSM-III- R
309.89 (see Annexure "A"). It was Dr Roberts' evidence that if there is to be
a diagnosis of post-traumatic stress
disorder, there must be heightened
anxiety. If there is heightened anxiety, there must be increased
perspiration, problems with
memory or concentration and respiratory
difficulties. He thought it inconsistent with that disorder that the
plaintiff did not express
"awareness of the characteristics of her heart
beat". It was also inconsistent, he said, that the plaintiff had no
significant weight
loss, bowel disturbance or stomach problems.
103. Some of these matters had already been suggested to Ms Williams as
counter-indicating the presence of post-traumatic stress
disorder. She
rejected that suggestion. Dr Roberts asserted that the absence of those
symptoms implied an absence of the disorder.
He asserted that Ms Williams was
wrong and he, as an experienced psychiatrist, knew better.
104. Whilst the attached standard (Annexure "A") does support the view that
secondary symptoms, such as those referred to by Dr Roberts,
may accompany the
panic attacks and loss of interest in work and relationships of which the
plaintiff complains, there is no suggestion
that they are necessary
accompaniments or that their absence contradicts the presence of the disorder.
To the contrary.
105. A perusal of the reference work referred to by Dr Roberts indicates that
the plaintiff unquestionably meets the standard criteria
including three of
the "persistent symptoms" of which only two are conventionally required. I
also note that she exhibited and complained
of five of the "avoidance" indicia
of which three are sufficient. It is, accordingly, surprising that an
experienced psychiatrist
should so seriously misstate the very standard upon
which he placed reliance. I cannot believe that Dr Roberts was unaware of the
terms of that standard. If he was, then he is either so incompetent that he
cannot understand it properly, or he was deliberately
attempting to deceive
the court. I am not able positively to find which of these alternatives
represents the truth of the matter.
In either case, I am persuaded that his
opinion must be rejected.
106. As to the presence or absence of chronic pain at least so far as the
perception of the sufferer is concerned, Ms Williams had
applied psychological
testing to support a conclusion that, at least subjectively, the plaintiff
suffered chronic pain.
107. Dr Roberts relies on tests of a different kind. I do not know if he
rejects the validity of the tests on which Ms Williams
relies. He expressed
no view about that, nor as to whether the results could have been simulated by
the patient.
108. Dr Roberts reported a complaint of neck and back pain distribution at
variance with that elicited by skilled neurologists and
neurosurgeons. If he
had elicited such complaints they would have been inconsistent with the
suspected facet joint strain. However,
I do not accept that such complaints
were made to Dr Roberts. I do not believe that the plaintiff would choose to
invent a symptom
only for Dr Roberts' benefit. He is in error as to this,
whether due to a deliberate exaggeration or to a lack of competence I am
unable to say.
109. It was Dr Roberts' thesis that the plaintiff had no chronic pain. He
relied on the following as another indicator
111. The next indicator was described as follows
113. The final indicator concerned a matter that was put to the plaintiff.
Dr Roberts took a urine sample from the plaintiff. He
did not give the
plaintiff a duplicate sample for testing. He did not advise the plaintiff of
the purpose of the test. The plaintiff
agreed that she gave a sample. There
was, however, no independent confirmation that the sample which she gave was
tested. There
was a result which Dr Roberts claimed to relate to that sample.
Nor, if it was the same sample which was correctly tested, was there
any
independent confirmation of the significance, if any, of the result. The
result recorded was that no drugs were detected. It
was suggested from this
that it should be inferred that the plaintiff had not taken the drugs she said
she was in the habit of taking.
114. I am satisfied that the plaintiff was, and had to have, ingested Renitec
at the least. She needed to do so to control her blood
pressure. There was
no possible dispute as to that. Yet Dr Roberts concludes she did not do so.
There was absolutely no reason
why the plaintiff should not have taken Renitec
or Serapax. They are and have been prescribed for her. Dr Roberts,
nevertheless,
concluded
116. In short, Dr Roberts' report is of such little value that it may be
taken as confirmatory of Ms Williams' opinions that no better
opinion than his
could be put forward to challenge them.
117. I am satisfied that, in the fall on 6 November 1987, the plaintiff
suffered physical injury resulting in neck symptoms similar
to a whiplash
injury. The effects were exacerbated by a return to key boarding and the
effects of a post-traumatic stress disorder.
This has resulted in a chronic
pain condition. Without those exacerbating factors, the neck and shoulder
symptoms might have cleared
up. It is not possible to conclude that the minor
lower back symptoms after or during long walks are related to the fall. Nor
indeed,
is the oesophageal complaint contributed to by the effects of the
accident.
118. The accident did force the plaintiff to retire early although there was
a chance that she might have done so in any event, for
other reasons,
including her husband's state of health.
119. I also accept that the pain is exacerbated by the stress associated with
preparing for this litigation. Once that stress is
removed, I consider there
is likely to be an improvement in the plaintiff's well-being generally.
120. I assess general damages, therefore, at $32,000.00. I apportion
$20,000.00 to the past. I award $2,000.00 for interest thereon
utilizing the
conventional rate of 2% on the entire sum. I cannot usefully separate out any
particular period so as to increase
that amount.
121. Calculations of past loss of net income were made up to 24 August 1992.
It totalled $41,391.00. Thereafter, the loss accrued
at a net weekly rate of
$395.45. The total loss is nearly $45,000.00. Some discount should be
allowed to reflect the possibility
of early retirement not associated with the
accident. I believe that to allow the sum of $31,500.00 reflects an
appropriate discount.
I award that sum. I do not know of any prepayment of
any part of this sum.
122. There is no Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 claim. Whilst the rate of
loss has probably been greater over the last two years, the earlier period was
less
affected by unfavourable contingencies. I consider, therefore, that
$10,000.00 is appropriate as a lump sum in lieu of interest
on income
foregone.
123. There was a net loss on the value of the superannuation benefits
accruing to the plaintiff. As at 8 March 1991, the date of
the plaintiff's
retirement, that loss was $12,940.00. There was as I have noted, some chance
that the plaintiff would have retired
early in any event. I consider that an
award of $9,000.00 reflects that chance.
124. So far as future loss of earning capacity is concerned, I consider that
an award of $40,000.00 reflects the discount I have
applied to the
superannuation and more recent past loss of earnings.
125. Out-of-pocket expenses were agreed at $6,233.50.
126. Future medical and other expenses were submitted by the plaintiff to be
$19.34 per week. I think that is probably a slight
under-estimate but I
accept that figure. The same contingencies do not apply to these expenses as
would apply to future earnings.
The contingencies favouring early retirement
would not have resulted in any significant likelihood of ongoing physiotherapy
or of
use of Serapax and Panadol, although there is some chance of use of
medication being otherwise required which would be greater than
for
physiotherapy. I consider an award of $13,000.00 reflects those
contingencies, such as they are.
127. There was a claim also for household help. Two hours per week is a
modest allowance. There was, however, no real quantification
of the cost of
it in the past or in the future. It might well be affected by the
unfavourable contingencies which I felt might,
to an extent, favour early
retirement. I think $4,200.00 as an allowance for the past and future
household assistance is a fair
provision.
128. No other heads of damage were suggested.
129. The total sums I have considered appropriate are as follows:-
130. I will hear the parties as to costs.
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3:11:1992
1. There be judgment for the plaintiff in the sum of $147,933.50.
7. It is clear that the plaintiff fell because the pit-cover onto which she
stepped was defective. The defect could not reasonably
have been detected by
the plaintiff. I do consider, however, that it would have been obvious to
any reasonably attentive technician
using or inspecting the pit, that the
covers, or some of them, were, or had become, defective.
"Q6 As at 6 November 1987 was the said manhole cover subjected to
16. The answers also confirmed that the hooped barrier had been erected to
prevent vehicles from passing over or parking on the
pit-covers.
vehicular use?
A6 Yes.
Q9 As at 6 November 1987 was there any inspection of the said
manhole cover on a regular basis and if so, what was the rate of
inspection?
A9 No.
Q11 Did the defendant inspect the said manhole cover prior to the
plaintiff being injured and if so, when?
A11 No.
Q13 Did the defendant discover the cause of the manhole cover
being damaged after the plaintiff had been injured and if so,
what in the defendant's view was the cause of the damage to the
said manhole cover?
A13 In the opinion of the Corporation the broken manhole cover
was caused by an unidentified vehicle parking on the manhole
cover on the 6 November 1987."
"Keep manholes clear of driveways, property entrances and other
18. On 14 March 1988, a responsible officer of the defendant (Mr J Donovan)
conducted an enquiry into the pit-cover collapse.
locations where they may be crossed by vehicular traffic."
"It appears vehicles have driven over the lids that same day
20. A note attached to a copy of a press report of the plaintiff's accident
stated
and broken lids.
This has happened again since."
"Truck unloading furniture Friday suspected of fracturing case M/H
That note appears to have been based on a statement from Mr Robert Reeves, an
employee of the defendant, dated 7 November 1987.
That statement recorded
information from a Mr Ron James, a janitor with the ACT Electricity Authority
(as it then was). He was reported
as saying
lid, Telecom not advised until after accident."
"... There had been a furniture removal van parked at the side of
21. The defendant's records make it clear that the access pit predated the
paved area. It is also obvious that the pit would have
needed to be inspected
by the defendant after the paving was installed to ensure that the edge of the
pit was flush with the surrounding
paving. Indeed, from photographs of the
scene taken by police, it is obvious that the edge of the pit had been
re-grouted after that
paving was installed.
A.C.T.E.A. House (that is, Electricity House) during the day but
he (Mr Ron James, janitor) did not know who it belonged to."
26. Prior to the accident the plaintiff had been a stenographer/secretary.
At the time of her accident, she was secretary to Mr David
Colin Griffiths,
Director, Australian Heritage Commission, Department of the Arts, Heritage
and Environment.
"From time to time her symptoms are exacerbated by increased work
69. Ms Hanrahan's report of 7 December 1989, chronicled deterioration, with
more frequent treatments being required. By 24 April
1991, Ms Hanrahan was
reporting further deterioration. She noted the plaintiff had given up work
because of its effect on her pain
levels. She also suspected that there was
reactive depression. The most recent report of 11 February 1992 continued
that picture.
The plaintiff was being seen twice monthly. Ms Hanrahan's
final opinion was
pressure or activity but she is coping well generally."
"Mrs McAuslan will undoubtedly need ongoing physiotherapy and
70. In cross-examination, Ms Hanrahan confirmed that the impression of full
recovery given by Dr Evans was not entirely accurate.
She was plainly of the
view that the plaintiff, though improving, had not entirely recovered. This
is illustrated by her impression,
albeit incorrect, that the plaintiff had
during that improvement phase, lost time from work. She was surprised that
the plaintiff
had not taken time off work during that period.
possibly psychological counselling as she is becoming increasingly
tense and is not coping with everyday problems as well as she did
previously. Mrs McAuslan is certainly not the positive outgoing
person she was when she first came for treatment."
"Mrs McAuslan reports thinking at the time of the accident that
75. In her oral evidence, Ms Williams confirmed her diagnosis of chronic pain
disorder and post-traumatic stress syndrome. She
confirmed that the
perception by the patient of a life-threatening situation was an essential
part of the latter diagnosis. It was
suggested to Ms Williams that she was
mistaken in her recollection that the plaintiff had told her she felt at risk
of death when
she fell. Whilst she had no note of it, Ms Williams firmly
believed she had that information. She said she would not have reported
the
fact unless she had been so informed by the patient.
she thought she was going to die."
"On the balance of probabilities, it is likely that this lady's
Her prognosis was "only fair"; return to work was not thought likely.
inability to continue in her normal occupation has arisen at least
in part to (sic) the injuries and disabilities described. I make
no comment regarding the stress and other psychological effects of
these injuries, as I am not qualified in this area."
"Peculiarly when asked as to whether apart from those complaints
93. Regrettably, those standards of rationality and commonsense seem less
than conventional to me. If a person is asked whether,
apart from all their
complaints of lack of well-being they feel well, I can think of no way that a
person could answer otherwise
than the plaintiff did unless they had omitted
some complaint. I simply do not understand the process of reasoning Dr
Roberts has
employed. It does seem to indicate a lack of balance.
she felt well in herself she replied in the affirmative. The
assertion of well being in the presence of this litany of
disabilities alleged by Mrs McAuslan is on grounds of common
sense, rationality and medical fact untenable. It is not possible
to feel well in the context of the chronic musculo-skeletal
disabilities alleged by her."
"Mrs McAuslan alleged that prior to the 6th November 1987 she had
95. If the plaintiff uttered words to Dr Roberts which were to the effect
above, it must have been apparent to him that she did
not, subjectively,
regard her prior medical conditions as a "problem". Indeed, so far as she and
her doctors were concerned, they
were not. The pericarditis had been a
temporary condition. Following treatment, it left no disabilities. There had
been blood pressure
problems. They were controlled by drugs. There had been
physical strain and symptoms associated with a change of key boarding
equipment.
That seemed very much like the well-known "RSI" syndrome.
However, as was the case with many persons having such symptoms, she did
not
continue to suffer from them. Indeed, as Mr Griffiths notes, she was for some
time before her fall doing copy typing to 20 or
so officers. She had clearly
recovered from that condition.
no health problems, something which is in fact untrue."
"Mrs McAuslan alleged that one of the ambulance officers said it
98. If this comment was intended to support a conclusion that the plaintiff
had decided to fabricate difficulties in order to give
up work at the
defendant's expense, that suggestion should, in fairness, have been put by
defendant's counsel to the plaintiff.
It was not. I assume that counsel for
the defendant accepted that such a suggestion was unwarranted. I agree with
that. I attach
no weight to the comment. I have to say that, generally,
statements of this kind which seem relevant only to the creation of unfair
prejudice against a party, have no place in a professionally compiled expert
report.
was a terrible situation but then commented "you won't have to
work again"."
"When asked to stand erect, and hold herself rigid and minimally
110. I note, first of all, that this was an opinion outside Dr Roberts'
speciality. It was not put to any of the relevant specialists
for validation.
It was not put to the plaintiff that she had falsely simulated back pain.
Given Dr Roberts' unreliability in other
areas, I consider it would be unsafe
to accept his assertions in this regard.
bend her knees she asserted that this manoeuvre caused an increase
in back pain. Such is untenable since the back never moved, it is
a false response."
"A small object placed on her head allegedly gave rise to an
112. Dr Roberts could not say what this object weighed nor was the area of
back pain indicated. He also asserted that sitting on
the edge of a bed is to
be regarded as equivalent to a straight leg raising test. It did not, he said,
produce back pain. Again,
none of these so-called tests was validated or
corroborated and I place no weight on any conclusion Dr Roberts claims to have
drawn
from them.
increase in back pain which is untenable."
"... drug screening ... indicates that none of the medications
115. I do not place any weight on this so-called "drug screening". I
consider it was entirely inappropriate for Dr Roberts to have
conducted such a
test. In any event, it is by no means established that the conclusion follows
logically from the findings, even
if the test results be accepted as factually
valid.
that Mrs McAuslan asserted that she was taking regularly, daily
and without fail were in fact being taken by her."
General damages $32,000.00
The result, $147,933.50 seems appropriate. I direct the entry of judgment
accordingly.
Interest thereon 2,000.00
Past loss of earnings 31,500.00
Interest thereon 10,000.00
Future loss of earning capacity 40,000.00
Loss of value of superannuation
benefits 9,000.00
Post out-of-pocket expenses 6,233.50
Future medical and pharmaceutical
expenses 13,000.00
Household assistance - past and
future 4,200.00
Total $147,933.50
URL: http://www.austlii.edu.au/au/cases/act/ACTSC/1992/111.html