Karen Park v Performance Systems Pty Limited (Formerly Known As Cygnet Pty Limited) [1993] ACTSC 42 (20 April 1993)

SUPREME COURT OF THE ACT

KAREN PARK v PERFORMANCE SYSTEMS PTY LIMITED (formerly known as CYGNET PTY
LIMITED)
No. SC427 of 1991
Number of pages - 14
Negligence

COURT

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

CATCHWORDS

Negligence - Personal injuries - Back injury sustained at work - Lifting and carrying heavy items - Assessment of damages - No new question of principle.

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

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

HEARING

CANBERRA, 15,16 February 1993
20:4:1993

Counsel for the Plaintiff: Mr R Mildren

Instructing solicitors: Messrs Gallens Crowley and Chamberlain

Counsel for the Defendant: Mr P Evans

Instructing solicitors: Messrs Macphillamy Cummins and Gibson

ORDER

THE COURT ORDERS THAT:
1. There be judgment for the plaintiff in the sum of $827,868.84.

2. The defendant pay the plaintiff's costs of and incidental to these proceedings.

DECISION

HIGGINS J On 3 January 1989, the plaintiff was a Computer Instructor employed by the defendant. She had a need to move an NEC personal computer, Power Mate I, to her desk. She requested a superior, Mr Jeff Young to move it for her. It was in three parts, a keyboard, a video display unit (VDU) and a central processing unit (CPU). The three components were connected by cables.

2. Mr Young told the plaintiff that he could not move it as he had a bad back. He asked the plaintiff to carry the keyboard and VDU. He would carry the CPU. The connecting cables were only about 30cm long. To disconnect them required a screwdriver. It would have taken approximately five minutes to do so. There was, however, no screwdriver close to hand and the personal computer was moved with the cables connected.

3. The plaintiff balanced the keyboard on top of the VDU. She then had to walk, carrying the VDU and keyboard, keeping pace with Mr Young to avoid straining the cables, a distance of 30 to 40 metres to her desk.

4. A further difficulty was that Mr Young chose to place the CPU on the plaintiff's desk by leaning over a planter box, approximately chest high. That required the plaintiff to hold the VDU and keyboard out from her chest and lower them onto the desk, again keeping pace with Mr Young.

5. As she did so, she felt pain in her back. She appears, from later medical examination, to have suffered disc protrusion at the L5/6 level. There was also, on radiological examination, some bulging at the L4/5 level. There was some narrowing at the L6/S1 level.

6. The plaintiff had been previously employed with Drake Computer Systems in a similar capacity. That organisation had computer desks, ergonomically designed and on wheels. Thus, she had no need there to carry or participate in carrying any personal computers.

Liability
7. There was no dispute as to the primary facts.

8. An expert report from Mr Colin G Simpson was tendered. That report suggests that the total weight of the equipment carried by the plaintiff was approximately 15.8kg. The plaintiff had estimated 14kg. Since at least June of 1981, employers have been advised by the National Health and Medical Research Council of Australia to limit the weights which employees, including female employees, should lift and carry.

9. The employer was entitled to assume that the plaintiff, then aged 24 years, was in reasonable health for her age. However, there had been no instruction given to her in safe lifting techniques.

10. Mr Simpson concluded that there was no reason to suppose that the weight lifted was, per se, beyond industry standards and so unsafe. However, he did consider that placing the components on the desk while stretching them out in front of her and also bending over, as described by the plaintiff, did place her posture into a "known dangerous position".

11. That opinion was uncontradicted.

12. The hazards of lifting heavy weights in an awkward manner should certainly have occurred to Mr Young. The route taken was as chosen by Mr Young. It obliged the plaintiff to adopt a notoriously dangerous posture. It follows that the employer was clearly negligent. It must compensate the plaintiff for whatever damage flows from this event. The incident could easily have been avoided, either by using a trolley, whether a desk or not, by separating the components, or by avoiding lifting the components over the planter box onto the desk.

13. Contributory negligence is pleaded. However, I am not satisfied that it has been proved. Mr Young was the more senior employee. He chose to proceed without separating the components. More significantly, he chose the path to the desk involving placing the components on the desk over the planter box. I do not consider the plaintiff should have foreseen the likelihood of injury to herself.

Damages
14. I proceed to the assessment of damages.

15. Following the initial experience of pain in her back, the plaintiff felt shooting pains down both legs. She felt so discomforted that she telephoned her father to take her home. Although she rested, the pain worsened.

16. She consulted her general practitioner, Dr Lee. There then followed referral to specialists, physiotherapy and various tests. The pain did not abate. She had, inter alia, a myelogram. The additional pain that caused she described as "terrible". It made her feel "almost sick".

17. On 13 March 1989, Dr Newcombe, a neurosurgeon, carried out an L5/6 discectomy. The plaintiff was discharged from Royal Canberra Hospital on 19 March 1989. She has operative scarring at the site of that procedure.

18. Although she had improvement for about a week the pain returned as before.

19. Dr Newcombe referred the plaintiff to Dr Corry, a rehabilitative physician. Various treatments, including physiotherapy, were attempted.

20. By 28 July 1989, when she had a further CT Scan and saw Dr Newcombe again, the pain seemed to be worsening.

21. A further operation was suggested. The plaintiff was fearful of further surgery but felt that the pain was so bad she had no choice but to agree to it.

22. Exercise, drug therapy and physiotherapy had all failed to alleviate the plaintiff's symptoms.

23. She was unable to work. Not only because of the physical disabilities from which she was suffering, but also because of lack of concentration. She also experienced periods of time when the pain would become unexpectedly worse.

24. She was referred to Dr David McNicol, an orthopaedic surgeon, by Dr Gytis Danta, a neurologist, under whose care she had also been. Dr McNicol found "a large disc herniation at the lumbosacral level". He also suspected that the L4/5 disc space was degenerate.

25. After further tests a second operation was performed on 19 February 1991. This operation was an anterior spinal fusion at the L5/6 level. It was performed by Dr McNicol.

26. The plaintiff suffered intense pain over this period of time. She sustained further scarring. Those scars and the first operation scars are depicted in photographs tendered in evidence. The scars do cause some continuing embarrassment to the plaintiff.

27. Following the recovery period (about three months), the plaintiff noticed improvement in pain in the left leg. However, the back and right leg remained symptomatic.

28. The pain continued to fluctuate from "bad to worse".

29. She has also been treated since October 1989 by Dr Ron Howes. He tried a TENS machine but that did not give relief. The plaintiff got some relief, albeit temporary, from hydrotherapy. Dr Howes ceased treating her in March 1992. He did not consider that his treatment of her had made any real progress.

30. She has, since the accident, been subjected to many attempts to alleviate her pain. She has felt worried, anxious and frustrated. Indeed, her solicitors considered it advisable to obtain a psychiatric opinion.

31. Dr Veness, a psychiatrist, saw her on 9 September 1992. He made a thorough examination of the plaintiff. He found the plaintiff to be depressed to a moderate degree. She had symptoms of a chronic anxiety state and was suffering from a chronic pain disorder. He felt that these symptoms were reactive to her chronic pain rather than being a component of it.

32. The medical consensus is that she has been unfit for work since the accident. She will remain unfit for full-time work. If her level of tolerance to pain increases, she could well undertake part-time employment in the computer area.

33. She did, during 1992, perform some voluntary work at Woden Valley Hospital. She gave it up after four months. She had too much pain after driving to and from there.

34. Her previous role as an instructor seems to be precluded. That role would require her to stand for much of the period of duty, about seven hours. She would have to lean over students' VDU screens and engage in some squatting or bending activities.

35. She is capable of some household activities such as cooking. Some activities involving bending and lifting are precluded. She does engage in some gardening activity, potting bulbs and seedlings. She has tried some gardening from a sitting position.

36. The plaintiff can drive a motor vehicle but not for more than 40 minutes continuously.

37. She had been keen on horse riding before the accident. She can no longer engage in that activity. She can do no more than brush the horse's coat to the extent that she can do so whilst standing.

38. The plaintiff keeps, and used to show, Cavalier King Charles spaniels. She has not shown them since the accident. She cannot bath them but can brush them if they are stood upon a table. She can work them on a lead for a short time.

39. She has received considerable nursing care and attention from her mother, father and sister. After her first surgery, for three months, the level of assistance was, she said, about four hours per day. After the second it was 12-14 hours per week for a similar period. It has reduced since then to about five hours weekly.

40. There was evidence, which I accept, that up to the time of the accident, the plaintiff had gained considerable expertise as a computer instructor. That expertise would have enabled her to progress in seniority and earnings as a computer instructor or to become an independent consultant.

41. The career path of Ms Grace Kelly, who gave evidence, is an example, I think, of the course the plaintiff might have followed but for her injury.

General Damages
42. The plaintiff has a serious level of disability accompanied by serious chronic pain with episodes of worsening pain. It is likely to continue into the future at much the same level, although she might well learn to cope better with her disabilities.

43. For general damages, I would award $75,000.00. I would attribute $50,000.00 to the past.

44. I award $4,170.00 for interest thereon to date.

Past Wage Loss
45. It was agreed that, if the plaintiff be found to have been totally incapacitated her wage loss to 15 February 1993 would be $108,324.25 based on the earnings of a comparable person. I award that sum accordingly.

46. She has, to that date, been paid $56,657.18 by way of compensation payments. The sum foregone is, for the purposes of an award of interest, therefore, $51,667.07.

47. I award $16,000.00 for interest, taking account of the sum so paid. It is weighted a little towards the defendant to take account of the slight weight of the loss toward the latter part of the period over which it was incurred.

48. The Fox v Wood component of that sum is $8,017.17. I award that sum also.

Future Economic Loss
49. I will use 16 February 1993 as the commencement date for the purpose of the assessment of this head of damage.

50. I accept that, but for the accident, subject to the usual vicissitudes of life, the plaintiff would have continued in what, for her, was a satisfying and financially rewarding career until approximately age 65.

51. However, I do not accept that, for the rest of her life, the plaintiff will be unemployable. She will not, however, have a full-time career of the same kind as she would have been likely to enjoy but for the accident.

52. She is now 28 years of age. Her working life is 36.15 years. Applying the 3% multiplier, the total minimum value of the plaintiff's earning capacity is $638,550.00. That assumes that the plaintiff would have continued as an employed instructor at middle management level as demonstrated by exhibit 9. I think it more likely than not that she would have done better than that. That difference, it seems to me, renders it appropriate to adopt $638,550.00 as the value of the plaintiff's earning capacity even after allowance for the usual vicissitudes of life.

53. However, as I have said, I do not believe that the plaintiff will be totally unemployed. It is my impression that she will exercise her earning capacity up to about 30%. In round figures, the loss of earning capacity may be assessed at $447,000.00. I propose to award that sum.

Griffiths v Kerkemeyer
54. This is notional expenditure on nursing and household help, rendered necessary by the accident-related disabilities. It should exclude a mere re-arrangement of domestic chores, even if that arrangement is accident-related. The allowance to be made should be valued at the commercial rate at which such services would be provided to the plaintiff if obtained on a commercial basis. In this case, an element can be included, at least over the short term future, for the care of the plaintiff's horse and dogs.

55. I think that for the period following the accident, the plaintiff's estimate, up to the period of three months following her first operation, is probably a little exaggerated by hindsight. Her estimate for the period following her second operation seems to me more likely to be accurate. That implies 1 1/2 hours per day. I accept that over the period January 1989 to mid-June 1989 there would have been short periods where two hours per day was exceeded. It seems to me reasonable to accept two hours per day for that period as an average.

56. Thereafter, up to the second operation on 19 February 1991, I accept as reasonable, on average, a period of one hour per day as representing net additional services of the relevant kind. Again, I accept that, as her condition worsened towards that operation, that estimate would have been exceeded but I think the average is reasonable enough.

57. For the three months up to late May 1991, I accept that 1 hours per day would be a reasonable average. Again, I take account of a greater peak tapering off towards the end of that period of time.

58. Since then, I accept that five hours weekly, that is, about 45 minutes daily, is a reasonable average for the provision of such services. I also consider that, for the future, there will be a tapering off of services required resulting from the accident- related disabilities as the plaintiff's ability to cope improves and as age-related disabilities commence to manifest themselves. Thirty minutes daily, as an average, seems reasonable to me.

59. That calculates out, in accordance with exhibit 8, for the past, to $22,694.22. For the future I award, in round figures, $70,000.00, after applying a conventional discount for the usual vicissitudes of life.

Past and Future Out-of-pocket expenses
60. The past expenses paid on behalf of the plaintiff are $31,296.38. The expenses incurred up to date of hearing but unpaid were $366.82. No award of interest is required on these expenses.

61. For future expenses, it was suggested that physiotherapy expenses over the next two years alone would cost $5,000.00 to $10,000.00. I think the need for that treatment, or its perceived utility will gradually decrease thereafter. I would allow $15,000.00 as a "cushion" for the future in respect of this item.

62. Other expenses I estimate at $28.50 on a continuing basis per week. Allowing for vicissitudes, I would award $30,000.00 in round figures for this head of damage.

Conclusion
63. No other heads of damage were suggested. My findings may be summarised as follows:-
General damages $75,000.00

Interest thereon 4,170.00
Past wage loss 108,324.25
Interest thereon 16,000.00
Fox v Wood 8,017.17
Future economic loss 447,000.00
Griffiths v Kerkemeyer - past 22,694.22
- future 70,000.00
Out-of-pocket expenses - past 31,663.20
- future 45,000.00
Total - $827,868.84

64. That figure seems appropriate when viewed globally.

65. There will be judgment for the plaintiff in the sum of $827,868.84.

66. Unless the parties wish to be heard on the issue, I order the defendant to pay the plaintiff's costs of and incidental to these proceedings.