Dulcie Beryl Keys v The John James Memorial Hospital Limited [1998] ACTSC 106 (29 September 1998)

Last Updated: 13 October 1999

DULCIE BERYL KEYS v THE JOHN JAMES MEMORIAL HOSPITAL LIMITED

[1998] SCACT 106 (29 September 1998)

CATCHWORDS

NEGLIGENCE - liability of hospital - patient falls whilst unattended in bathroom and sedated by drugs - liability of hospital for acts and omissions of staff and of consultant doctors - no issue of principle.

DAMAGES - various heads - award for pain and suffering in elderly plaintiff - award for domestic assistance by husband calculated on commercial rates - interest on award for unpaid past domestic assistance allowed - out-of-pocket expenses - claim for expenses charged by defendant and unpaid - claim allowed - causation - onus on defendant to show supervening injury broke chain of causation.

Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542, applied

Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158, applied

Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164, applied

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

Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, applied

Grincelis v. House [1988] 797 FCA (1 July 1988), applied

Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, applied

Luntz, H (1990) Assessment of Damages for Personal Injuries

No. SC 511 of 1996

Coram: Miles CJ

Supreme Court of the ACT

Date: 29 September 1998

IN THE SUPREME COURT OF THE )

) No. SC 511 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DULCIE BERYL KEYS

Plaintiff

AND: THE JOHN JAMES MEMORIAL

HOSPITAL LIMITED

Defendant

ORDER

Judge Making Order: Miles CJ

Where Made: Canberra

Date of Order: 29 September 1998

THE COURT ORDERS THAT:

1. 1. There be judgment for the plaintiff in the sum of $69,248.

2. The plaintiff sues in tort and contract for damages for personal injuries sustained when, as a patient at the defendant hospital, she fell in a bathroom and for further injuries sustained when she fell in a bedroom. The first fall occurred at about 11 a.m. on 23 April 1996 and the second fall occurred some time shortly after midnight on 24 April 1996.

3. Particulars of negligence in relation to the first injury are as follows:

"(a) Failure to provide a chair or stool in the shower recess.

a) Failure to provide any or any adequate assistance in the taking of a shower when under the influence of medication.

b) Failure to supervise the Plaintiff in taking a shower.

c) Failure to ensure that the Plaintiff used a walking frame whilst taking a shower.

d) Permitting the Plaintiff to take a shower in circumstances when it was unsafe to do so.

e) Permitting the Plaintiff to be left alone while under the influence of sedative medications.

f) Permitting the Plaintiff to walk on a slippery surface whilst unattended.

g) Failure to explain the effects of Tegretol and Voltaren on the Plaintiff's co-ordination and balance.

h) Failure to advise the Plaintiff not to attempt to walk by herself without assistance.

i) Failure to ensure that the Plaintiff did not attempt to walk by herself without assistance.

j) Permitting the Plaintiff to walk by herself without assistance in circumstances where it was unsafe to do so."

1. Particulars of negligence in relation to the second injury are as follows:

"(a) Failure to adequately supervise the Plaintiff whilst sleeping.

a) Failure to provide any or any adequate assistance to the Plaintiff whilst attempting to get out of bed.

b) Failure to ensure that bed gates along side of Plaintiff's bed were in the upright position so that the Plaintiff was not able to get out of bed.

c) Failure to adequately explain the effects of strong sedative medication on the Plaintiff whilst sleeping.

d) Permitting the Plaintiff to attempt to get out of bed in circumstances where it was unsafe to do so.

e) Having regard to the fact that the Plaintiff had already fallen in the last 24 hours whilst on strong sedative medication the Defendant ought to have provided the Plaintiff with a special nurse to supervise the Plaintiff's daily routine at the hospital."

1. As the case proceeded not all these particulars were pressed on the plaintiff's behalf.

2. Facts which are not in dispute, or which are established without the need to discuss the evidence, are as follows.

3. The plaintiff was born on 21 December 1923. She had a history of previous falls.

4. In 1985 at the age of 62 years she fell from a ladder and fractured her left wrist. The wrist was immobilised in plaster for six weeks and recovered completely after that. In 1993 when nearly 70 years, she tripped on a paving slab on her way to the theatre, suffering injury to her right leg and knee.

5. The plaintiff had other medical problems. In 1992 she suffered a mild heart attack, without any apparent lasting effect except the following of advice on diet and exercise. She was on a variety of medication at the time of her injuries.

6. Despite her previous history and condition, however, the plaintiff had led an active social and family life. For many years prior to 1988 she had been active in the Women's Auxiliary of the RSL.

7. On 1 April 1996 the plaintiff was starting to experience severe sciatic pain. Her lower limbs were x-rayed at the request of her general practitioner, Dr Veronica Goldrick. The x-rays showed degenerative disc disease and the narrowing of disc space. By 14 April 1996 the pain was so severe that her consultant physician, Dr Robert Goldrick, had her admitted to the defendant under its care as a matter of some urgency. He noted that the recent problem was apparently spontaneous in the sense that it was not precipitated by any obvious event. The purpose of the admission was for pain relief and observation. The pain was controlled at first with Pethidine and, because of lack of improvement, Dr Roger Tuck, a neurologist, was consulted. An MRI scan revealed compression of the nerve root at L5 and a conservative approach was advised. The medication continued. Eventually, Dr Goldrick formed the view that Pethidine, a narcotic drug, should be reduced and replaced by another drug, Tegretol. The change achieved some success as far as the pain relief was concerned, but "at the expense of some degree of sedation".

8. I turn now to the more contentious matters.

The first fall

1. On the morning of 23 April 1996 there was the usual complement of five nursing staff directly caring for the 24 patients in the Garran Ward. The plaintiff's bedroom had an ensuite bathroom and toilet. There was also a charge sister and a desk nurse. There was a standard changeover procedure for the change of shift when the incoming day shift took over from the outgoing night shift. The plaintiff was among the five or so patients whose care was allocated to Sr Fiona Daniell on the day shift.

2. The plaintiff was given 200mgs of Tegretol at 6.00 am. Her injury in the bathroom occurred at about 10.30 to 11 a.m. She has very little memory of the events. In her evidence she said she remembered going into the bathroom and falling on the bathmat after "the young nurse had helped me shower". She was insistent in her evidence that she fell when she was alone. She remembered being on the floor and the nurse giving her abrupt instructions to move away from the door. I do not think that her independent memory goes beyond those matters.

3. The plaintiff's husband said in evidence that the plaintiff became "increasingly disoriented" as the sedation increased. In the day before the first fall she seemed to him to be dozing continuously, but would rouse herself and on occasions ask him what she was doing there. When he arrived in the plaintiff's room on the morning of 23 April, he could see her lying against the bathroom door, clearly visible under it. The nurse was on the other side of the bed pulling up the bedclothes. Surprised and shaken, he went to the bathroom door. With the plaintiff lying against it, it was extremely difficult to open. The nurse joined him at the door and shouted at the plaintiff in a belligerent tone to move herself and do what she was told. The plaintiff complied and finally the door was opened. The plaintiff, who was to her husband's observation severely hurt and greatly shocked, was helped immediately to bed. She was in her nightgown. The plaintiff's husband was firm in his denial of the suggestion that the plaintiff was showered after being taken up from the floor.

4. The evidence of Sr Daniell differed in certain respects from that of the plaintiff's husband. She had nursed the plaintiff on two prior occasions, on 15 and 16 April. She knew from the hospital records that the plaintiff had been placed on a regime of pain-killing medication and in particular she knew that it included Tegretol. She understood from the hospital records that the plaintiff had not received Pethidine since 7.45 p.m. on 22 April. Her belief at the time she gave evidence was that "the effects of the Pethidine would not have continued until the next day". She said further in her evidence that at the time the plaintiff was in the bathroom she was "not sedated with either Pethidine or Valium". It is not clear whether the latter evidence represents her belief at the time of the hearing or on the morning of 23 April 1996.

5. According to Sr Daniell's evidence, she assisted the plaintiff into the bathroom on a walking frame and then onto the toilet. She instructed the plaintiff to remain there and when finished to ring the bell so that she, Sr Daniell, could return and assist her to shower. Sr Daniell left the bathroom and was attending to the arrangement of the plaintiff's bedclothes when she received a call (presumably on her pager) to attend to a patient in the next room. She left the plaintiff's room to attend to that patient and was gone not more than five minutes "absolute maximum". On her return she resumed attending to the bedclothes and was so engaged at the time of the arrival of the plaintiff's husband. She said that he inquired where his wife was, that she indicated the bathroom and that he said he would go in to say good-morning. Further, according to Sr Daniell's evidence, when the plaintiff's husband went to the door it was discovered that the plaintiff was lying on the bathroom floor obstructing the opening of the door by her husband. Sr Daniell said that she asked the plaintiff's husband to sit on the bed, which he did, and that she then spoke to the plaintiff through the door, instructing her to move her legs. When the plaintiff did so, Sr Daniell then gained entry to the bathroom. She found the plaintiff naked and "covered in soap". She assisted the plaintiff to stand, further assisted her to shower, then dried and dressed her and assisted her back to bed.

The second fall

1. The plaintiff has no memory of a second fall. She remembered the pain following the fall on the previous day, but it is not clear when she next regained a substantial recollection of events. She remembered going to have her hand x-rayed which, according to the hospital record, was on 24 April at about 1400 hours. She also remembers being told that she had had a brain scan (which was also on 24 April at about 1715 hours).

2. The evidence of the plaintiff's husband as to the circumstances of the second fall does not take the matter much further. He said that he came in early on 24 April to see how the plaintiff was faring. She appeared to be dozing. He returned later in the day, between 5.00 and 6.00 p.m. and was told by the nurse in charge that the plaintiff had a fall at about 1.00 a.m. There was discussion between him and the nurse about the sides or rails of the bed.

3. Sr Natalie Ashcroft was the nurse in charge of the whole of the hospital during the night of 23 and 24 April. Her evidence was that some time after midnight she heard a loud thump coming from the direction of the plaintiff's room. She went with another nurse to investigate. She found the plaintiff lying on the floor, between the bed and the bathroom, more or less parallel with the bed, with her head towards the bathroom. The plaintiff told her that she had fallen on her way to the toilet. The plaintiff was assisted back to her bed which was found to be slightly wet, indicating previous incontinence.

4. The hospital record for the shift contains an entry made at 2030 hours (not by Sr Ashcroft) that on waking the plaintiff was alert and appropriate without bruising on the head where she was reported to have fallen. The note suggests that the plaintiff should be checked every hour in order to ascertain the state of her breathing, but not necessarily by monitoring by instrument or measuring the rate of breathing (unless, presumably, changed circumstances called for it). A note made at 2220 hours records "mental state appropriate, not confused". Sr Ashcroft herself made a written note in an incident report sheet: "Second fall today. Patient orientated but appears drousy. Also incontinent". Sr Ashcroft had no knowledge of the previous fall or the nature of the medication administered to the plaintiff until she read the hospital record herself after putting the patient back to bed.

5. I accept the evidence of these three witnesses, as already indicated, and the general accuracy of the hospital records. I find that the plaintiff fell whilst on the way to the bathroom and whilst still under the effect of heavy sedation by pain-killing drugs, notably Tegretol. I find that the bed was equipped with side rails which were in the lowered position and that it was practicable to raise them.

6. However, I am not satisfied that to leave the bed rails in the lowered position indicated lack of reasonable care on the part of the hospital. I accept the evidence that raised bed rails constitute an additional hazard to a patient who attempts to get out of bed, particularly if the patient is not fully conscious or if the patient's normal perceptions or exercise of judgment are reduced by the use of drug medication or otherwise. Such a patient may well attempt to climb over the raised bed rails and in so doing, expose himself or herself to the risk of falling heavily to the floor. It is possible of course that the patient may crawl down to the end of the bed in order to get down from it safely, or simply abandon the idea of getting out of bed altogether once appreciating the barrier constituted by the bed rails. However, I am not satisfied that on the occasion in question the failure to raise the bed rails constituted lack of reasonable care, nor am I satisfied that the fact that the bed rails were not raised is sufficiently causative of the plaintiff's fall when she was walking between the bed and the bathroom.

The first fall again: Should the plaintiff have been left alone?

1. The particulars of negligence reproduced above make allegations of a general nature directed at the corporate defendant. However, at the hearing the case for the plaintiff was directed principally against Sr Daniell.

2. At the outset I should state that I am not persuaded that Sr Daniell went about her duties in any careless or cavalier way as the cross-examination of her sought to establish. Nor am I convinced that Sr Daniell should have realised that the plaintiff was so heavily affected by her medication that she needed constant supervision. Further, I am not convinced that she needed supervision to the extent that she should not have been left alone in the toilet. If supervision were needed to that extent, she should never have been let out of bed. No witness suggested that the plaintiff's condition was such that she should have been confined to bed.

3. The evidence of the consulting physician, Dr Goldrick, is, in my view, crucial. He had arranged for the patient's admission to hospital as a matter of urgency, not because of any life-threatening condition, but because of extreme pain. The pain was so extreme that Dr Goldrick felt that the dosage of drugs needed to control it could be given safely only in a hospital environment. The continuing use of Pethidine, a narcotic pain-killer, was reduced and in effect substituted for an increase in the dosage of Tegretol administered in the 36 hours or so preceding the first fall. There was little evidence about the nature of Tegretol except that it is a drug used mainly for control of epilepsy, but also for neural pain. The increase in the dosage of Tegretol and its supplementation with Voltaren was successful in reducing the level of pain, but, to use Dr Goldrick's words, "at the expense of some degree of sedation". Dr Goldrick stated in his report of 4 June 1996 that he agreed with the plaintiff's solicitors that the plaintiff "should not have been left on her own while under the influence of sedative medications".

4. In his later report of 29 July 1996 Dr Goldrick stated:

"On reading the reports [of the hospital], I think it should have been appreciated better by the nursing staff that Lady Keys was in fact not only drowsy but mildly confused. This state of affairs developed fairly quickly because it was not until the events had occurred that I was aware of the problem, having seen Lady Keys at least once every day and frequently on two occasions."

1. There appears to me to be some wisdom after the event here. If the plaintiff was sedated, or as confused or as disoriented to the extent suggested, it would have been reasonably foreseeable by the physician at the time of prescribing the drugs, or if not then, it should have been observable to Dr Goldrick during his frequent visits to the hospital to see his patient. In this respect the hospital records indicate that Dr Goldrick would be "out of town from 18 April to 22 April and that Dr Tuck would attend to the plaintiff during that period". Again, according to the record, the plaintiff was seen by Dr Tuck on one occasion only during that time, namely on 19 April. On that date, there is a note in the hospital records, "patient dreaming, almost fell out". Apart from that note there is nothing in the hospital records, at least to which my attention has been directed, to show that the nursing or medical staff made any observations of abnormal behaviour on the plaintiff's part over the days during which she had been admitted.

2. On the other hand, the medication records show that until 22 April the plaintiff was administered Pethidine daily, together with a variety of other drugs. Tegretol was administered from 16 April once daily in 200 mg dosages and increased to two dosages daily on 22 April and 23 April. The record suggests that Tegretol may have been administered on 24 April also. It was discontinued thereafter. Somebody in the hospital was sufficiently concerned to contact Dr Goldrick on 23 April at 1650 hours to clarify the dosage of Tegretol and the plaintiff was given a further dose at 1800 hours.

3. The risk that the changeover from Pethidine to Tegretol might have an increased disorienting effect was known and, in my view, should have been passed on to those responsible for the immediate management of the plaintiff. It was not negligent of Sr Daniell to be ignorant of the risk that the plaintiff was so confused and disoriented that she needed especially close supervision. If properly appraised of the likelihood, I do not think that Sr Daniell would have left the plaintiff's bedroom without considering whether the urgency of the call to the next room outweighed the need to stay close to the plaintiff. If she had stayed, it is likely (not inevitable, but likely) that Sr Daniell would have heard the plaintiff moving around before she fell and would have made some inquiry as to what she was doing. Had that inquiry been made, it is likely that Sr Daniell would have attended to the plaintiff before she fell.

4. There is an issue whether I should accept the evidence of the plaintiff's husband or that of Sr Daniell about the circumstances of finding the plaintiff on the bathroom floor. On either version, I think it is likely that the plaintiff fell when Sr Daniell was out of the room. However, according to her husband, the plaintiff was found clothed in her nightgown and assisted immediately back to bed. According to Sr Daniell, the plaintiff was found naked, and covered with soap and Sr Daniell then assisted her to shower and dry before she was assisted back to bed.

5. This is a peripheral issue, but nevertheless of some importance in attempting to decide some other issues. If the plaintiff had fallen without undressing and soaping herself, it is unlikely that Sr Daniell could have prevented the fall even if she had stayed in the bedroom. If the plaintiff had undressed and soaped herself, it is likely, as I have already indicated, that Sr Daniell would have heard her and attended to her before she fell.

6. There is another issue whether the plaintiff's body could be seen against the door before it was opened, as the plaintiff's husband said. I do not think that this particular issue needs final resolution of itself, but I find difficulty in accepting that the plaintiff's body was visible unless the viewer bent down to inspect under the door.

7. The plaintiff's husband's evidence is explicable by mistake or lapse of memory on this point. The account of Sr Daniell is not so explicable. Her evidence is more likely to be either the result of reasonably accurate memory or deliberately false evidence. I do not find her to be a witness in the latter category.

8. Furthermore, it is clear that the plaintiff and her husband expected first class treatment in the hospital and they did not get it. In their evidence they both displayed anger and resentment, which is understandable. Not only did the plaintiff suffer the fall in the bathroom in the absence of the nurse, there was also the second fall whilst in the bedroom the following night when the bed rails were down. The plaintiff's husband was sufficiently concerned to write a letter of complaint (about the first fall only, not the second). Then there was the gap of time between the injury to the thumb and the diagnosis of fracture and subsequent operation on 11 May 1996. The plaintiff's various problems following the falls could not be resolved by treatment and continuing medication of all sorts. Her husband clearly thought that Sr Daniell spoke harshly and aggressively to the plaintiff, as if addressing a child. Sr Daniell said that she spoke firmly. There are clearly a number of misunderstandings here. But I accept the evidence of Sr Daniell that the plaintiff, when first found, was naked and covered with soap, which assists in my deciding that the plaintiff had moved around the bathroom prior to her fall during Sr Daniell's absence in the other room.

9. Under Australian law a hospital is vicariously liable for the acts and omissions not only of its employed staff but also those doctors whose patients the hospital admits for care and treatment under the doctors, whether the doctors are paid by the hospital or not: Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 at p559. In accordance with that principle of law the defendant in this case is responsible for the acts and omissions of Dr Goldrick, although counsel for the plaintiff was somewhat shy in pressing that submission. Nevertheless, it appears to me to be an inescapable conclusion on the evidence and on the probabilities that there was a failure somewhere in the chain of communication between Dr Goldrick, through to the hospital staff and eventually to Sr Daniell. Sr Daniell should have been made aware that the plaintiff was likely to be disoriented and confused from the effects of the drugs prescribed for her, to the extent that the plaintiff should not have been left alone in the bathroom for the time that Sr Daniell was absent from the bedroom because of the risk of falling whilst in her confused and disoriented state.

10. On that ground, and that ground alone, which I think is sufficiently covered by the particulars of negligence, there should be judgment for the plaintiff. I should add that I am not persuaded that the plaintiff should succeed on the ground that the defendant had failed to take reasonable steps to prevent the floor of the bathroom becoming wet and slippery. First, there is no evidence that it was particularly wet or slippery, or that any wet and slippery state was due to anything but the use of the bathroom for ordinary purposes by the plaintiff. Secondly, the fact that a paper bathmat was subsequently replaced by a cotton bathmat is quite unpersuasive.

11. The plaintiff should succeed in her action in tort. Her claim was pleaded also in contract. There was no evidence as to the terms of any contract between the plaintiff and the defendant, but on the premise that the evidence points to a conclusion that there was an implied contract, the terms cannot be spelled out to cast a duty of care on the defendant any different from the ordinary duty of care in negligence. A claim in contract should not be pleaded unless the plaintiff intends to rely upon it, and there was no such reliance in this case. I do not think that the plaintiff has made out a case in contract.

12. Contributory negligence was pleaded, but clearly, having regard to the confused and disoriented state of the plaintiff, it cannot succeed.

Damages

1. The plaintiff's case is that in the first fall she suffered the major injuries of which she complains, namely injury to her left wrist, fracture of the left thumb, fracture of the vertebra at L1 and exacerbation of a pre-existing degenerative back condition. In relation to the second injury, her claim is that it exacerbated the conditions for which the first fall is responsible. I have decided that the plaintiff has not proved lack of reasonable care on the occasion of the second fall. If the plaintiff did indeed suffer the major injuries in the first fall, then I do not think that the degree of exacerbation in the second fall is sufficiently substantial to break the chain of causation and to relieve the defendant of responsibility for the consequences of the first injury as reflected in the plaintiff's ongoing symptoms and condition. Allowance must in any event be made for the plaintiff's degenerative condition before the first injury and her likely condition if that injury had not occurred, but that is a different matter and one to which I shall return.

2. It is submitted on behalf of the defendant that as far as the wrist is concerned, the plaintiff made no complaint of it until after the second fall. However, the evidence of the plaintiff's husband is that she complained of it and that he noticed bruising and swelling later in the day of 23 April 1996. On the probabilities, I think that the injury to the wrist and thumb occurred in the first fall.

3. As far as the fracture at L1 is concerned, there is very little evidence either way to choose between the first or second fall. I think on this issue the defendant bears the onus. On the probabilities, she suffered an injury to her back in the first fall. It is for the defendant to show that the consequences of that injury were displaced by supervening events: Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158, Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164. In my view, the defendant has not discharged the onus.

4. In his first report of 4 January 1997, Dr Goldrick did not hesitate in describing the fracture at L1, the hairline fracture of the left thumb and the rupture of the extensor pollicis longus tendon of the left wrist as all occurring as a result of the first fall. In fact he made no mention of the second fall at all. Possibly because of the difficulty the plaintiff has had in describing her symptoms due to her sedation, the fracture at L1 was not established until x-rays were taken on 26 April. The fracture of the wrist was not detected on an x-ray taken on 24 April 1996 and not treated until confirmed by a bone scan taken on 7 May 1996. The bone scan also confirmed the fracture at L1 previously shown on x-ray, but showed the latter fracture to be healing. It was only when the wrist was immobilised that medical attention was drawn to the left thumb. The injuries to the wrist and thumb were treated by Dr Peter Morris, orthopaedic surgeon.

5. On 11 May the plaintiff underwent an operation in which Dr Morris transferred two tendons of the index finger to the site of the ruptured tendon of the left wrist. The plaintiff, who by this stage had had enough of hospital, had herself discharged the following day. The thumb remained in a cast until early June 1996 and she started physiotherapy for the thumb and hydrotherapy for her sciatica. The plaintiff's wrist and hand improved gradually and, when last seen for treatment by Dr Morris in November, she was still getting physiotherapy. Dr Morris saw the plaintiff once again on 20 July 1998 for the purpose of the case. Her symptoms, along the lines of those given by her in evidence, indicated discomfort with heavy lifting. Dr Morris thought that there was a full return of movement of both wrist and thumb. The plaintiff was also complaining of on-going low back pain at the L5/4 level, which Dr Morris thought was due to degeneration. He also thought that she had recovered "from the old wedge fracture at L1 which she had sustained several years earlier". I take it that he was referring to the fracture caused by the fall on 23 April 1996.

6. The plaintiff remained confined mostly to bed at home for some three or four weeks. When she was up and about she used a hired walking frame and a special toilet seat. She had assistance from her husband and other members of the family who came to stay for that purpose.

7. In June 1996 the plaintiff came under the care of Dr Veronica Goldrick, general practitioner, for a variety of symptoms and conditions, chiefly hypertension and stress which Dr Goldrick thought was secondary to her injuries. She was seen twice later by Dr Luba Eiken, a rehabilitation specialist at Pymble, on the referral of her solicitors.

8. By this time the plaintiff had discarded the use of the walking frame and her condition had improved but slightly as far as the aftermath of her injuries was concerned. She has remained much the same since. She has tried various tasks around the house and finds many of them difficult and some of them impossible. The problem is the left hand and wrist rather than the low back pain. However, her evidence is that she has back pain on bending and stooping which is worse in winter. She uses a hotpack on her back when sitting but did not do so before the injury. She goes to bed early because she is more comfortable lying down.

9. Much of the evidence of the plaintiff as to present incapacity and symptoms was supported by that of her husband. He said that since the plaintiff's injury he has had to do the washing up, gardening, make the bed and carry out a number of chores which he otherwise would have expected his wife to have done. A cleaning company comes in once a fortnight to clean the whole house.

10. The disabilities and symptoms described by the plaintiff to Dr Eiken were consistent with her evidence, although Dr Eiken's reports suggest that the plaintiff did not give up household tasks altogether. Dr Eiken had tests done which indicate that the plaintiff was not subject to significant osteoporosis.

11. In 1997 the plaintiff had a further fall unassociated with the injuries in hospital. It resulted in a fracture to her left ankle but does not appear to have significantly affected her condition for the purposes of assessing damages for the first fall on 23 April 1996.

12. The assessment of damages begins with general damages for pain and suffering and loss of enjoyment of life. As already described, the plaintiff was a very active person having regard to her years. For the period between the injury and the present the usual principles apply to the assessment of general damages. However, for the future it must be observed that a person of the plaintiff's years who is likely to suffer from symptoms and incapacity for the rest of her life is not entitled to a sum as high as a younger person with an expected long life span of such symptoms and incapacity ahead of him or her. Further, it must be recognized that at the time of her injury the plaintiff was suffering from a variety of debilitating conditions, many of which accompany advancing years. The sciatica which put her in hospital was the probable result of a degenerative spinal condition. The injury to her lower back was undoubtedly severe in its immediate physical effect because it caused a compressive fracture. No doubt the degree of pain produced was also immediately severe. But on the evidence, the actual fracture has healed well and has caused no complications with regard to discs or spinal cord. I think that after about six months the immediate effect on the plaintiff's lower back was almost resolved. The ongoing effect is that the injury probably stirred up or exacerbated the degenerative condition, thereby hastening the development of symptoms or increasing the severity of symptoms already experienced or both. Against that, the award must take into account the contingency that even without the injury and having regard not only to the plaintiff's age but her propensity to falling, she was likely to develop symptoms and that those symptoms were likely to worsen anyway, even if she had never fallen at the hospital.

13. The injury to the wrist and thumb is in a different category and represents a substantial and continuing interference with the plaintiff's capacity to enjoy her remaining years. I do not think that the stress mentioned by Dr Veronica Goldrick is a clinically diagnosed medical condition, but no doubt it reflects the pain and suffering for which damages are to be awarded. For pain and suffering and loss of enjoyment of life I award $18,000, as to which I apportion $10,000 for the past for the purpose of the award of interest. I award interest at 2 percent per annum, which I calculate at $500.

14. Substantial sums are claimed under other heads of damages. A result of a survey of the costs charged by domestic service providers in the Australian Capital Territory was admitted into evidence. The survey was carried out by a Bachelor of Applied Science (Occupational Therapy), who provides occupational performance and task evaluation services. Not surprisingly, the survey shows that such services are commonly charged for, if not provided, at rates averaging about $14 per hour for the first two hours and $10 per hour thereafter (presumably on a daily basis). Such a sophisticated approach to the cost of domestic care was entirely unnecessary for the preparation of the plaintiff's case. The rates are more or less a matter of common knowledge amongst legal practitioners. The matter could have been the subject of a notice or request to admit. A letter from any one of the services surveyed, in the middle range, would have been sufficient evidence. In the absence of a refusal on behalf of the defendant to admit the usual rate charged, the defendant should not have to pay the costs of the survey.

15. The law in Australia is clear that the domestic assistance reasonably required as a result of injury for which the defendant is responsible is compensable by an award to the plaintiff calculated at commercial rates no matter whether the service is rendered gratuitously or commercially. It matters not whether the plaintiff pays or intends to pay the service provider with the proceeds of the award: Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161; Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327. The situation is different in England and Scotland where, if an award is made, it belongs in equity to the service provider.

16. During the first three or four weeks after her return home the plaintiff had an obviously devoted relative attending to her needs ten hours a day, seven days a week. At $108 per day, the plaintiff receives $3,024 under this head.

17. According to the plaintiff's husband, he spends about an hour a day on housework which is required by reason of the plaintiff's incapacity. His time is costed at $12 per hour. He is a company director and the claim is modest in that respect and in the fact that no claim is made for weekends. If the husband's services are part of the mutual give and take of a marital relationship, they are taken out of that area by the plaintiff's inability to perform countervailing services: Van Gervan v Fenton. The plaintiff receives $7020 for her husband's assistance in the past.

18. A further $36 per week is claimed for paid domestic assistance over eight months which I gather is for the costs of the cleaning company. However, the evidence is that over some years prior to her injury, the plaintiff and her husband used to engage a domestic cleaner when their financial circumstances permitted. I think that the amount claimed, ($1,152) although modest, must be reduced on the basis that even without the injury, it was likely that the plaintiff would have continued to engage a domestic cleaner from time to time. Under this head, $500 is awarded.

19. For future domestic assistance a modest $60 per week is claimed for ten years. Having regard to the Australian Life Tables published in Luntz, H (1990) Assessment of Damages for Personal Injuries, of which I take judicial notice, the plaintiff's likely lifespan is a little more than ten years. The possibility that her husband might predecease her does not affect her need for the assistance he gives, nor its evaluation in money terms. On the 3 percent tables the present value of a loss of $60 per week for ten years is $27,102. Reducing slightly for vicissitudes and other contingencies to which I have referred, I award $25,000 under this head.

20. Following the decision of the Full Court of the Federal Court in Grincelis v. House [1988] 797 FCA (1 July 1988), the plaintiff is entitled to interest on the award for what she has paid for cleaning expenses and also on the award for what she has not paid for the assistance of her husband and other relatives, that is on a total of $10,544. As I read the judgments, there was a majority view that, at least in the absence of evidence as to commercial rates of interest, interest should be awarded at 4 percent per annum and then halved on the assumption (unless proved otherwise) that the loss fell evenly throughout the period. Accordingly the plaintiff receives a further $210 under this head.

21. The plaintiff claims $10,861.95 for past expenses for medical and hospital treatment and the like. No claim is made for the future. How the claim for the past is made out is the subject of detailed particulars filed. The detail of the particulars is not matched by that of the evidence. In fact there is no direct evidence at all. Neither the plaintiff nor her husband said that they had paid any of the sums claimed. The defendant at first conceded only the "mathematical accuracy" of the claim, whatever that means. When pressed, the defendant's counsel further conceded that the respective amounts claimed were reasonable for the item, service or treatment shown against the amount. In the light of the latter concession, I suppose that I can and should infer that the plaintiff incurred expenses for the treatment and amelioration of her condition of the nature described in the particulars. For the period until her discharge from hospital on 11 May 1996 she claims, as best as I can calculate, a total of $10,513.55. The bulk of this relates to charges made by the defendant, which she has not yet paid. No point was taken that it is not recoverable for that reason, and on analogy with Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, it probably is recoverable in principle.

22. However, in the absence of any evidence on the subject, it is impossible to accept that all of what the plaintiff claims for the period to 11 May 1996 is for expenses over and above what she would have had to pay if she had remained in hospital under Dr Goldrick for her pre-existing sciatica. There is no evidence about when she was likely to have been discharged from hospital by Dr Goldrick if she had not fallen. The plaintiff bears the onus. I take into account the contingency that she would have stayed in hospital for about another six days if she had not been injured. I allow $7,500 for out-of-pocket expenses claimed to 11 May 1996. There is no claim for interest.

23. The claim for the period after 11 May 1996 appears to relate mainly to physiotherapy at the Queanbeyan Physiotherapy Centre up until 19 November 1996, which I suppose was for the plaintiff's left hand, and for further pharmaceutical items charged to her by the defendant. There are also two visits to Dr Morris. I award those amounts claimed. Again there is no claim for interest. I disallow the cost of telephone calls and travel for friends.

24. In summary, the plaintiff's damages are awarded as follows:

25. Pain and suffering and loss of enjoyment of life $18,000

26. Interest thereon $500

27. Past domestic help - unpaid $10,000

28. Interest thereon $210

29. Past cleaning expenses - paid $500

30. Future domestic expenses - unpaid $25,000

31. Future cleaning expenses - paid $7,000

32. Past medical, hospital, etc. expenses $8,038

33. Total: $ 69,248

34. Viewed globally, this appears to be an appropriate sum, bearing in mind the trend to substantial awards for unpaid domestic assistance. The plaintiff will have judgment for $69,248. Unless the parties wish to be heard, I propose that the defendant pay the plaintiff's costs.

35. I certify that this and the twenty (20) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.

Associate:

Date: 29 September 1998

Counsel for the plaintiff: Mr D T Kennedy

Instructing solicitors: Elrington Boardman Allport

Counsel for the defendant: Mr G Stretton

Instructing solicitors: Phillips Fox

Dates of hearing: 1 and 2 September 1998

Date of judgment: 29 September 1998