Gojka Haider v Goodman Fielder Industries Limited T/As Buttercup Bakeries [1993] ACTSC 48 (30 April 1993)

SUPREME COURT OF THE ACT

GOJKA HAIDER v. GOODMAN FIELDER INDUSTRIES LIMITED t/as BUTTERCUP BAKERIES
No. SC89 of 1991
Number of pages - 11
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A Hogan(1)

CATCHWORDS

Negligence - Employer's liability - Lifting - Safe system - No issue of principle.

Damages - Assessment - Lumbar spine - Exacerbation of degenerative changes - Causation - Continued heavy work - No issue of principle.

Damages - Assessment - Services voluntarily provided - Household tasks - Provided by family - Plaintiff's need for assistance - Valuation.

Van Gervan v Fenton (1992) 66 ALJR 828

HEARING

CANBERRA, 8-9 March 1993
30:4:1993

Counsel for the Plaintiff: R. L. Crowe

Instructing Solicitors: Pamela Coward and Associates

Counsel for the Defendant: G. A. Stretton

Instructing Solicitors: Sly and Weigall

ORDER

The Court orders that:
1. Judgment be entered for the plaintiff for $494,454.

2. The defendant pay the plaintiff's costs.

DECISION

MASTER HOGAN This is an action for damages for personal injury, which the plaintiff alleges she sustained in an incident at work on 13 January 1987.

2. The plaintiff is a married woman who was born in Yugoslavia in March 1955. She completed school to the equivalent of Year 10 in Yugoslavia, came to Australia in 1972, and married in 1975. After the birth of her second child in 1981 she went to work for the defendant at Buttercup Bakeries in 1984.

3. In 1987 she was working in the bread room, on an overnight shift, preparing the deliveries that were to go out in the early morning. As the cut and wrapped bread came to her and her fellow worker, the loaves were first put into rectangular plastic crates, twelve loaves to each crate. The crates were then stacked on to wheeled dollies according to the order sheets.

4. The dollies were a rectangular frame, constructed of steel tubing or angle iron, with a wheel at each corner. Over the relevant period there may have been at least three different types of dolly used for various purposes in the bread room, though they were all roughly similar in appearance. One type is shown in photographs contained in a report by Dr Adams, to which reference will be made later. It measured 1.32 metres by 71 centimetres, and was constructed of 37 millimetre angle iron. It weighed about 20 kilograms. Another of which there was some evidence measured 1.5 metres by 0.5 metres, and weighed only 16 kilograms. I do not think that the exact dimensions or weight are critical to the determination of the issues that arise in this case.

5. The plaintiff's evidence was that when she began a shift the dollies had been piled in stacks by the day staff, one on top of the other, so that it was necessary to lift one off the top of a stack as it was needed for assembling an order.

6. She said that the stacks consisted of different numbers of dollies, of the order of 8, 10 or 12. Mr Paulitsch, who had been the bread room supervisor at the relevant time, gave evidence that instructions had been given that the stacks were to be only 6 dollies high. That would place the dolly on the top of the stack at about waist height.

7. Mr Uren, who had been a union delegate at about the relevant time, agreed that such a direction had been given, but was not clear about when. But Mr Paulitsch gave no evidence about any system designed to ensure that the day time staff adhered to that instruction, nor even that it was generally adhered to. I find it easy to accept the plaintiff's evidence that they were often stacked higher, to at least shoulder height.

8. The plaintiff also alleged that Mr Paulitsch had given her instructions to lift the dolly off alone, so that her co-worker could continue making up the bread order. Mrs Vucak was called to corroborate that complaint, but I would not place too much reliance upon her understanding about the questions she was being asked. Mr Paulitsch denied having done so, and I am inclined to accept his denial, but I do not think I need resolve that conflict of evidence. Whether because she was told to, or simply because she was motivated to get on with the job and chose herself to do so, I accept that she did, at least from time to time, remove dollies from the top of a stack without assistance. Mr Paulitsch agreed that the company gave no instructions to the workers about how they were to take the dollies off the top of the stacks.

9. She also alleged that when some workers began to pull the dolly off the pile so that it dropped to the floor Mr Paulitsch told them not to drop them, as the wheels would break. He also denied that, but to me it has the ring of truth, and is so obvious a reaction that he might well have done so without remembering it years later. But for the same reason as before, I do not think it matters.

10. In the absence of instruction to the contrary, the system of work as it had evolved in fact involved the plaintiff in lifting dollies from the top of stacks that could be from waist to shoulder height or above, without assistance. The size and shape of the dollies was such that carrying out that task in that manner involved both a bending and a twisting movement of the spine, while the weight was being borne by arms relatively extended. Dr Adams gave expert evidence that such a task carried out in such a manner could well impose an excessive load on the spine of an adult woman. That opinion was not really attacked in cross-examination, nor was it controverted by other evidence, and it accords with common sense.

11. I also accept Dr Adams's evidence that an employer such as this defendant had, or should have had, access to the wealth of information about the danger of injury to the back caused by lifting tasks. It is also clear, from the fact that Mr Paulitsch gave instructions that the stacks were to be no more than six high, that the defendant was aware that they might well be stacked higher from time to time.

12. The danger was easily capable of being averted, either by instituting and enforcing a system whereby the dollies were always lifted down by two people, or one whereby the dollies were stacked on edge, one against the other, rather than one on top of the other, so that the nearest in any stack could easily be lowered from the vertical to the horizontal without the need for the workers to take the whole weight or to twist as they did so.

13. I find that the defendant failed to take reasonable care for the safety of the plaintiff by not preventing that practice from continuing which involved the plaintiff in lifting dollies from the top of the stacks in the manner she described.

14. On 13 January 1987 the plaintiff was lifting a dolly down from a stack when she felt a sharp pain in the back. She felt the pain while she was twisting, and before she began to bend. She dropped the dolly, and sat down for a while. She finished the shift, avoiding any hard work, and went home to bed.

15. The defendant's failure to take reasonable care therefore caused harm to the plaintiff, and there will be judgment for the plaintiff.

16. The defendant submitted that she had really chosen herself to lift the dolly down without assistance, and that the system was one which she had devised herself. Even if that were so, I think that the negligence of the defendant consisted in a failure to institute and maintain a system of work in which she would not be subjected to the risks inherent in that method of carrying out her task. In my opinion, in the absence of such a system, she simply got on with the job as seemed best to her at the time. I am not satisfied that she had any knowledge of the risk generally or any appreciation of it at the particular time. I am not satisfied that there was any fault of hers which caused or contributed to her damage. The damages to be awarded will therefore not be reduced at all on account of contributory negligence.

17. The other principal issue in the case is whether any pain or disability from which she now claims to be suffering resulted from the injury in January 1987.

18. Some relevant factual issues have already been determined between the parties by an award of the Magistrates' Court under the Workers Compensation Act 1951, made on 10 August 1990. The relevant findings made on that date were:

"2. THAT the applicant was employed by the respondent, Goodman
Fielder Industries Limited trading as Buttercup Bakeries on the
13th day of January 1987 and the applicant continued in the
employment of the respondent until 20 June 1989.
3. THAT on or about the 13th day of January 1987 personal injury
by accident arising out of and in the course of her employment was
caused to the applicant, which injury was further aggravated in the
course of her employment from 13 January 1987 to 20 June 1989.
4. THAT as a result of the said personal injury the applicant was
totally incapacitated for work from the 13th day of January to the
15th day of January 1987 and from the 21st day of June 1989 and
this incapacity is continuing.
5. THAT as a result of the said personal injury the applicant
incurred medical expenses relating to the said personal injury
from the 13th day of January 1987 to date and continuing."

19. Although those findings are conclusive that the aggravation of her injury between January 1987 and June 1989 arose in the course of her employment, they leave open the question whether the aggravation, and her present condition, were caused by the January 1987 incident in the sense in which causation is understood by the common law.

20. In March 1982, before she began working for the defendant, the plaintiff had consulted her general practitioner, Dr Ooi, complaining that over the previous week she had suffered from backache, of gradual onset. On examination he found no tenderness, her reflexes were normal, and straight leg raising was to 90 degrees. The backache did not improve immediately, so he ordered an X-ray of the L3 area, which did not disclose any bony abnormality. He prescribed Indocid. There was no evidence of any other back problem until the incident at work on 13 January 1987. Over much of those five years she was working for the defendant. I agree with Dr White's opinion that the 1982 incident was a minor musculo ligamentous strain which had resolved and which had no significance in relation to the later injury. Dr Carr, who was called for the defendant, also thought that more likely than not it was "just a one-off event".

21. During the day of 13 January 1987, after finishing her shift, she contacted Dr Ooi, who visited her at home. He noted that she was of slight build, with musculature that was minimally developed. He found her to be suffering spasm of the lumbar paravertebral muscles. Straight leg raising was restricted to 60 degrees. Reflexes were normal. The lumbar muscles were tender, but not the spine. He prescribed liniment and Naprosyn.

22. He saw her again at home on the following day. She had improved. The spasm was less obvious. Straight leg raising had improved to 80 degrees. He gave her a certificate for work covering 13 to 15 January inclusive. She appeared to Dr Ooi to have recovered from the episode without apparent residual effects. She did not complain to him of any further problems with her back until 5 April 1989. Over that period she continued working for the defendant in the bread room, doing the same sort of vigorous physical work as before. In her evidence she stated that she continued to have pain in her back from time to time, but that it was not enough to stop her from working. Her husband purported to corroborate that aspect of her evidence, but I do not think he was able to identify the periods during which she seemed to him to have back pain with sufficient accuracy for me to place much reliance on his evidence. Neither was her fellow worker, Mrs Vucak, of any assistance on this issue. The plaintiff had some days off work from time to time, but for other complaints. Nevertheless, I am prepared to accept her evidence in the sense that it could not be said that she had no problems with her lower back from January 1987 until early 1989, but that any pain that she did suffer was intermittent, and not severe enough for her to seek time off work on account of it. As she expressed it in cross-examination, "I had problem in the back but not that bad. As I said before, I was working, I wasn't stop working."

23. On 5 April 1989 the plaintiff consulted Dr Ooi, complaining that she had been having recurrent episodes of lumbar backache over several months. He raised with her the question whether the heavy type of work she was doing was suitable for her. He found some muscle spasm. He administered acupuncture over 5 days, which gave her some relief, and prescribed anti inflammatory medication. She kept working, and gave evidence that the pain had by then extended down from the hip into her right leg. It continued to get worse, until on 25 April 1989 she went to the Casualty Department at Woden Valley Hospital. The Casualty Officer ordered X-rays, which showed narrowing of the L4/5 disc space, with osteophytic lipping, suggesting degenerative change. Narrowing of the L5/S1 disc space was also seen on X-ray, but it was noted that that feature could have been a developmental effect.

24. She consulted Dr Ooi the next day. He could find only slight tenderness in the muscles. He prescribed anti inflammatory medication.

25. She went back to work, but the pain increased.

26. By June 1989 it had become severe, and she complained to Dr Ooi of severe lumbar backache, with symptoms of sciatica. Examination showed lumbar muscle spasm, but no neurological signs of nerve compression. Bed rest, heat application and medication gave her no relief, so Dr Ooi had her admitted to Woden Valley Hospital, where she came under the care of Dr Newcombe.

27. I note that in the months before April 1989, and between then and June 1989, she did not consult Dr Ooi, but it is obvious that she was genuinely suffering pain in those periods. That pattern of behaviour is consistent with her having suffered intermittent pain between 1987 and 1989 without taking time off work or complaining to her doctor about it.

28. The history that Dr Newcombe took was that sciatica had commenced in March 1989. He arranged for a CT scan, which revealed L4/5 disc protrusion, with encroachment on the nerve root canals. On 30 June 1989 he performed a discectomy at L4/5, using microsurgical techniques. She was discharged on 7 July 1989.

29. She did not experience any relief from the operation.

30. Dr Newcombe arranged for a CT scan on 13 September 1989. It showed to him persistent diffuse bulging of the L4/5 disc, and he thought there still could be some compromise of the associated nerve roots.

31. Dr Andrews examined her for the defendant on 26 October 1989, and he also observed the generalised bulging of the disc at L4/5 on the CT scan. He arranged for an MRI scan on 26 October 1989. That demonstrated to him epidural scarring at the operation site, and peri neural scarring around the L5 nerve root. The disc protruded at L5/S1, and there was peri neural scarring around the right S1 nerve.

32. Dr Andrews thought that the disc pathology had probably developed in the course of her work. Although the excision of the disc had been technically successful, the scarring at the operation site meant that her condition had become very difficult to deal with. He thought that there was little hope that future surgery would help, and that her low back pain and sciatica had become chronic. She was not fit for any form of employment.

33. Dr Newcombe reviewed her in January 1990. He checked the history with her. She told him about recurrent pain after the January 1987 incident, but placed the first attack of right sciatica in April 1989. He referred her to Dr Corry for rehabilitation.

34. There was no report tendered of Dr Corry's. The plaintiff said in evidence that she received psychological counselling and also attended the Woden Valley Hospital Rehabilitation Unit for hydrotherapy.

35. In March 1990 Dr Ooi reported that she was suffering bouts of depression due to her worry about the future and her inability to work. In his opinion she had suffered gradual damage to her lumbar disc from the recurrent heavy lifting involved in her work.

36. Her solicitors referred her to Dr White, neurologist, for a medico legal opinion in February 1991. She complained to him of severe low back pain radiating to the right hip, and, to a lesser extent, the left. The pain was increased by standing or walking. She also had tension headaches. On examination he found marked muscle spasm with maximum tenderness at the L4/5 level. Low back movements were almost non existent.

37. In Dr White's opinion she was incapacitated by inflammatory change within the subarachnoid space in the lumbar spine at the L4/5 level. There was evidence of active nerve root entrapment and scarring in the region of the surgery. The disc prolapse he thought almost certainly attributable to the 1987 accident. It was too early to be sure that her condition had stabilised, but the prospects for further improvement were fairly poor. At the time of his examination she was virtually completely disabled. He advised further neurological investigation before any surgery. He questioned whether the disc had been completely excised.

38. It seems that Dr Corry referred her to Dr Chandran, and in March 1991 she informed Dr Newcombe that Dr Chandran had suggested a lumbar fusion. There was no report from Dr Chandran, and Dr Newcombe thought it unlikely that she would ask for further surgery. In evidence she said that, since no one could guarantee the success of an operation, she would leave things as they are. If she got any worse she might consider an operation.

39. Dr Newcombe also commented that she was tearful, tense and depressed, but perhaps rather less than before. She had a chronic pain syndrome associated with the adhesions around the nerve roots, and with some psychological components. Her solicitors sought an opinion from Dr Veness, consultant psychiatrist. He saw her for an hour and a half on 29 May 1991. She had already been prescibed, at various times, anti depressant tranquillisers and strong analgesics. His summary and conclusions were as follows:

"I found Mrs Haider to be a very seriously depressed woman in need
of psychiatric treatment. She is not mentally fit for a further
operation and, in my view, such should only be done after adequate
treatment for her present depressive illness. She has been
bitterly disappointed by the poor results of the previous
operation. It was clear to me that she had hoped this would improve
her condition to the extent where she could at least look after the
family again and maybe even get back into the workforce. All of
this is now way beyond her. She thus has had to cope with very
severe losses - loss of health, loss of activity, loss of
employment, loss of self respect and self esteem, loss of the
enjoyment of family and marriage and loss of recreational
enjoyments. She has a chronic pain syndrome which in itself is
debilitating and depressing. As her neurosurgeon, Dr Newcombe puts
it in his correspondence of 7th March, 1991:
'In my opinion she has a chronic pain syndrome associated with
adhesions around the nerve roots and with some psychological
components to her overall suffering and distress'.
Dr Corry, on 8th March, 1991, stated:
'Mrs Haider suffers from severe and disabling low back pain, which
has been relatively unresponsive to surgical, medical and pain
management treatment. She is very dependant on a wide range of
medical and paramedical treatment services. She has no
significant work capacity. The prognosis is very poor and further
treatment is unlikely to significantly modify the situation.'
I agree completely with Dr Corry's opinion. The only treatment
which is likely to benefit her at present is psychiatric treatment
of her depression and psychological counselling to enable her to
make some kind of marginal adjustment to her life as a disabled
person in chronic pain. For this, she requires more vigorous
antidepressant therapy and a period of psychological counselling
(or psychotherapy) which would include a family therapy component
and would need to extend over the next two or three years. The
whole family is under great stress and in danger of falling apart.
The children have been adversely emotionally affected. It is
remarkable that Mr Haider himself does not show more signs of stress.
I have no doubt he, too, is suffering.
All in all, it is no exaggeration to say this woman's life has been
shattered by her back injury and the compounding disappointments
over surgical treatment. She now suffers from a severe reactive
depression and chronic anxiety and I expect her to remain that
way. Although the treatment outlined above may ameliorate this
condition, progress is likely to be slow and improvement, marginal.
I cannot foresee a time in the future when she will be fit for
gainful employment."

40. Dr Veness was not required to attend for cross-examination, and his opinion was not controverted by that of any other psychiatrist.

41. However, two days later, the plaintiff was examined on behalf of the defendant by Dr Carr, a consultant rheumatologist in Sydney. He did not doubt that she had a very significant problem, resulting from the epidural scarring and nerve root scarring, together with the resulting chronic pain syndrome and functional overlay. He agreed that she was not fit for any work, and he did not believe that further surgery would be any use. The prognosis was poor.

42. But he thought that it was unlikely that the incident in January 1987 caused lumbar disc prolapse, or that her need for surgery arose as the result of that incident. He considered it more likely that her symptoms developed on the basis of the natural history of degenerative disc disease, irrespective of injury on 13 January 1987. He reviewed X-rays taken at Woden Valley Hospital in 1989, and thought that they suggested longstanding degenerative disc disease.

43. Although in cross-examination Dr Carr did not resile from his opinion that there probably had not been an injury to the disc in 1987, he conceded that it was possible. There was no evidence of degenerative change in the 1982 X-rays. There had been no problem with the back between 1982 and 1987. There was some continuing, though intermittent, pain between 1987 and 1989. There was no evidence of any trauma that brought on the sciatic pain in early 1989. Dr White described the mechanism whereby the fibrous component of the disc could be damaged, and then over a period of one to two years the demands placed on the back by normal daily activities could be sufficiently great eventually to rupture the annulus and permit extrusion of the central disc matter, so that it would then impinge on the nerve roots, as demonstrated on the CT scan. The time of 6 to 24 months for a person who was active physically would be a pretty standard time for that deterioration to take place.

44. The 1989 X-ray report did not cause him to change his opinion in any way, or to suspect that in 1987 the plaintiff had a disc which was predisposed to injury because of degenerative change. I think in those circumstances that the opinion of Dr White is more probably correct than that of Dr Carr.

45. I am satisfied that the incident in January 1987 was the cause of injury to the disc, which deteriorated as the result of her normal working activities over the next two years, until it ruptured early in 1989. Those strenuous work activities did not constitute a separate and independent cause of the final condition. They were simply the ordinary activities that she could have been expected to carry on after the 1987 incident.

46. In the result, the accident at work has destroyed the amenity of her life. I think it is most unlikely that any doctor will be able to offer her sufficient likelihood of success from any further operation to persuade her to undergo it. I therefore make no allowance for the cost of it in awarding damages. But on the other hand it is most unlikely that her condition will improve spontaneously, and it may well deteriorate. She will never be able to work again, either in employment or even to any extent in caring for her family. She is now 38 years of age, with an actuarial expectation of life of more than 41 years. In round figures, well over half of her life has been ruined.

47. She did not give evidence that she intended to undergo psychiatric treatment. I can only surmise that, since Dr Veness thought that although treatment could ameliorate the condition, progress would be slow and improvement marginal, and she is able to get medication for her depression from other doctors, it is unlikely that she will undertake psychiatric treatment. While no allowance is made in this award for the cost of the treatment, neither is there any for the marginal improvement that it might have brought about.

48. For her pain and suffering and loss of amenity I would award $100,000, of which $60,000 relates to the future. The bulk of her past suffering has been since early 1989, rather than being spread evenly over the whole period since 1987. I award a lump sum of $3,500 for the interest on the past component of general damages.

49. On the basis of the findings I have made, her wage loss was agreed at $71,371 to the date of the hearing, 9 March 1993, and continuing at $384.28 a week thereafter. To the date of judgment therefore, the wage loss totals $74,225. She has been receiving workers compensation at a rate, as I understood the concession made by counsel, of the order of $50.00 a week less than she would have been earning as wages. $50.00 a week from 21 June 1989 to date totals about $10,050. Interest on that sum at about 8 percent is $3,100. I award $3,100 interest on past wage loss.

50. The out of pocket expenses are agreed at $15,989.53, and interest is not claimed on that item.

51. The Fox v Wood figure was agreed at $7,236 on 9 March 1993, increasing thereafter at $54.45 a week, which by my calculation gives a total to date of $7,640.

52. At least since she had the operation in June 1989 she has really not been able to do any of the normal housekeeping tasks that she otherwise could and would have done. Her realisation of that fact, and the assault on her self image that goes with that realisation, is part of her depression, for which she is compensated, so far as money can do, by the award of general damages for pain and suffering and loss of amenity.

53. But I also think that to a moderate extent since then, and into the future, her husband and family have been and will be obliged to provide services for her, which go beyond what she would have provided for them and which they now provide for themselves. To that extent she has a need for assistance. As the majority held in Van Gervan v Fenton (1992) 66 ALJR 828, it is the existence of that need for assistance for which she must be compensated by an award in the nature of general damages. As a general rule the market cost or value of such services is the fair and reasonable value of them. The circumstances of this case do not permit such a calculation, but as a matter of judgment I think that an award of $10,000 for the past and future is not unreasonable.

54. An allowance must also be made for the cost of any future medical treatment and medication.

55. I do not include any specific amount for future operation, or for future psychiatric treatment, but there will obviously be a need to consult her general practitioner fairly regularly, and to purchase prescribed medication. The bare possibility that an operation might come about, and that she might need psychiatric assistance, must also be allowed for. The amount of $5,000 claimed is a reasonable allowance, in my judgment.

56. It is clear that her future income earning capacity has been destroyed. The net weekly amount that she would have been capable of earning is $384.28. The present value of that weekly sum for 27 years at 3 percent is $372,858. For 22 years the present value is $324,231.

57. But the plaintiff did not give any evidence about whether she intended to work to age 65, or any other age. The job she had was not particularly enjoyable. Her husband is a printer by trade, but is unemployed at present. I think she worked for two reasons, one, the family needed the money, and, two, she took some pride in her capacity for work and her usefulness as a worker. She was not physically built for continuing work in the bread room until 65, and her opportunities for doing anything other than physical work would have been limited. Nevertheless, I think that she would have continued to seek work, and would have been likely to obtain some sort of work, had she not been injured and decided to leave employment with the defendant. I am not satisfied that the indications of degenerative change on the X-rays mean that she would have had a working life which would have been significantly shortened in any event. Weighing up all those considerations, I think that the most appropriate approach is to increase the discount above the conventional one for the normal vicissitudes. I would allow $275,000 for loss of future income earning capacity.

58. The total award is therefore made up as follows:

Pain and suffering $100,000
Interest 3,500
Loss of wages 74,225
Interest 3,100
Out of pocket expenses 15,989
Fox v Wood 7,640
Griffiths v Kerkemeyer 10,000
Future medical expenses 5,000
Loss of income earning capacity 494,454
TOTAL $494,454

59. I direct the entry of judgment for the plaintiff for $494,454.

60. I order the defendant to pay the plaintiff's costs.