Benac v Franklins Limited [1998] ACTSC 99 (18 September 1998)

Last Updated: 13 October 1999

Benac v Franklins Limited [1998] SCACT 99 (18 September 1998)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Industrial accident - Plaintiff struck on head by carton of biscuits whilst stacking shelves - Disc injury requiring surgical intervention - Ongoing soft tissue injury to cervical spine - Chronic pain syndrome - No issue of principle.

No. SC 705 of 1995

Coram: Master T Connolly

Supreme Court of the ACT

Date: 18 September 1998

IN THE SUPREME COURT OF THE )

) No. SC 705 of 1995

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: VERA BENAC

Plaintiff

AND: FRANKLINS LIMITED

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 18 September 1998

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $232,532.72.

1. This is a claim for damages for personal injuries arising from an accident in the workplace. The plaintiff was injured while undertaking her duties as an employee at the supermarket operated by the defendant at Belconnen in the Australian Capital Territory. Liability was admitted, and the matter proceeded before me by way of an assessment only. As the matter only involved the determination of the amount of damages it was properly within my jurisdiction pursuant to Order 61A rule 1 (b).

2. The plaintiff was born in Croatia in 1953, and attended local school until she started work on a family farm at about age 15. She came to Australia in 1971 as an 18 year old, and found full time factory employment in Melbourne. She married her present husband in 1973, and came with him to Canberra. Her first daughter was born in 1974, and in 1975 she started some part time cleaning work in the evenings. In 1976 twin daughters were born. The plaintiff started part time cleaning work in about 1977 again, and as her children grew she increased her hours, and then moved to working in take away restaurants. In 1989 she obtained employment at the defendant's supermarket at Belconnen Mall working as a packer, and also helping out on the checkouts during busy times. She says that she enjoyed this work.

3. The accident occurred on 3 May 1995. The plaintiff and another employee were stacking goods in the biscuit aisle. She says that her colleague was up a ladder handing down packets of biscuits, which were stacked at the top of the shelves, in a high position above where customers would select their goods. She was bending down to pick up a packet that had fallen to the floor when a carton of a dozen packets of biscuits fell and struck her on the head. This carton would have weighed about 3 kilos, comprising a dozen 250 gram packets of biscuits, and it would have fallen between 3 and 4 metres.

4. The plaintiff says that she was stunned by the blow, and supported herself with the aid of a shopping trolley. She said that she continued to work after a short break because a senior person from Sydney was expected to arrive to inspect the store. She says that she was in pain by the end of her shift, and took pain killers, but she continued to work until she saw her doctor on May 15. Her general practitioner, Dr Voon, reported that

"...on examination she was extremely tender over the mid to lower cervical spine, left mid trapezoid and left para scapular regions. Her neck was extremely tight with limited flexion, extension, lateral flexion and rotation. The powers of her left hand, elbow and shoulder were reduced to 75% of normal."

He referred her for a CT scan, which revealed posterior and left postero-lateral disc herniation at C5/6.

5. The plaintiff was put off work from 15 May, and prescribed pain killers and physiotherapy. She continued to complain of pain and headache and paraesthesia in her hands, and in September was referred to Dr Chandran, a neurosurgeon. He required an MRI examination, which revealed what he described in his report of July 1996 as a significant bulge posterolaterally of the C5/6 disc. He then conducted a discogram procedure which showed a painful disruption at C5/6. Dr Chandran advised that a cervical fusion procedure could provide her with relief.

6. The plaintiff undertook this procedure on 10 November 1995. This involved a cervical fusion procedure from C5 to C7 with anterior plates and a bone graft. A loose protruded piece of disc on the right at C5/6 level was removed to decompress the nerve root.

7. Dr Chandran concluded that x rays taken in January 1996 showed excellent fusion, although she continued to complain of pain. His view in July 1996 was that

"She has undergone a cervical fusion procedure which has resulted in satisfactory radiological fusion but there are still some residual symptoms which I feel will settle with time, possibly over a period of three months."

8. The plaintiff says that she has been in constant pain since the accident, and that the fusion has given her no relief. She also complains that when she woke from the anaesthetic she had difficulty in swallowing, and that this has remained a problem. The plaintiff has complained of constant and unremitting pain since the accident. She told a consultant psychologist in July 1998 that her pain is continually 9.5-10 on a range where 0 is no pain and 10 is very severe. She complains of gross lack of mobility and gross grip strength weakness.

9. Many of these complaints I find to be exaggerated. Doctors reporting for the plaintiff have found that there is an overlay to her complaints. Dr Brownbill, who reported in November 1996, formed the view that her demeanour during testing for range of movement

"...suggested a non organic overlay and that maximum effort was not being applied",

although he acknowledged that there was

"...no indication of any conscious attempt to mislead."

He formed the view that the plaintiff did have ongoing symptoms of genuine pain, although he noted that

"...the non organic overlay and depression evident by her demeanour is regarded as being a significantly contributing factor to the degree and range of her described ongoing symptoms."

10. Dr Blum, a consultant neurosurgeon who examined the plaintiff in October 1996 formed the view that

"There are some features which are clearly not organic, but overall she shows a picture of generalised pain",

which he felt could be assisted by a morphine pump.

11. Dr Champion, a specialist in pain management, found widespread pain complaints which he described as allodynia, which he acknowledged in cross examination means an abnormally painful response to a stimulus. He formed the view that the plaintiff now suffers from a chronic pain syndrome, and noted that

"In all chronic pain syndromes psychosocial factors are very important in the perception of pain, related behaviour and in the degree of disability. While that statement clearly applies to Mrs Benac, she did present as a reasonable person and was very perplexed about the course of her continuing pain."

12. Dr Goldrick, who examined the plaintiff for the defendant in December 1997 formed the view that the plaintiff was exaggerating her claims of pain. He reported

"Overall, there is much to indicate that Mrs Benac's complaints are either psychogenic, exaggerated, or both. Severe pain or severe depression usually respond, at least to some extent, to appropriate treatment. Furthermore one would expect any soft tissue injury to improve with time. Sensory disturbances of a non organic nature were evident in the arms and in the region of Mrs Benac's donor site. There appears to be no obvious reason for her apparent limp and a grip strength of zero, if true, would mean that Mrs Benac was incapable of caring for her personal needs."

13. Dr Matheson, a consultant neurologist who examined the plaintiff for the defendant in May 1996 formed an even harsher view, saying that

"The accident she described was a trivial one and could not have produced her neck problems or her head problems. Her post operative complaints of diffuse pain, numbness and weakness of the right leg can have no organic basis to them. In my view her symptoms are simply fabricated. She has fabricated symptoms before her operation and has talked somebody into performing an operation on her neck which has not worked. Her post operative symptoms are also fabricated."

14. I do not accept this extreme view. It was certainly not put to Dr Chandran that there was no objective need to perform the operation, and I am satisfied on all of the evidence that the accident caused a real disc injury which was sought to be resolved by surgery. It is common ground that this type of surgical procedure, while it offers prospects of relief, is not always successful, and it is not uncommon in this Court to find persons who have suffered traumatic disc injury making ongoing complaints of pain despite a fusion operation which is radiologically sound.

15. The defendant did not confront the plaintiff with any material which suggests that she is undertaking activities inconsistent with her claimed pain. Where a complaint of disability is essentially subjective, as in this case, the use of surveillance material is often a useful forensic weapon, and in its absence I can only draw the inference that any such material would not have assisted the defendant's case.

16. While I am persuaded on all of the evidence, including the plaintiff's demeanour in the witness box over the course of the morning, that there is a degree of exaggeration in the plaintiff's claims of pain and disability, I am nonetheless satisfied on the balance of probabilities that she does continue to experience pain from the work related injury to her neck which was sought to be resolved by surgery.

17. In addition to the ongoing neck pain which has now spread generally and resulted in a chronic pain state, the plaintiff says that she has suffered ongoing problems with swallowing since she woke from the surgery. She has also had reflux problems. Her gastroenterologist has confirmed that she has had heliobacter gastritis, which is due to the presence of an infection, and is quite unrelated to the accident. She also expressed the view that nerve damage can occur during a fusion procedure which she said could be a cause of her difficulty in swallowing. A gastroenterologist who reported for the defendant said that after a search of the literature he could find few reports of nerve damage causing swallowing difficulties arising from this type of surgery. He formed the view that the plaintiff had "globus sensation", which he described as

"...a poorly understood disorder of the associated with anxiety and psychiatric stress."

He accepted her history that the swallowing difficulty only arose after the surgery, and in that sense he agreed, in cross examination, that it was related to the accident.

18. Taking all of the evidence into account, I am satisfied that the plaintiff has an ongoing difficulty in swallowing, which is accident related. I am not satisfied that this is as a result of nerve damage, and on the whole prefer the description of Dr Bassett, who says that this is probably a globus sensation associated with the plaintiff's chronic pain condition and stress.

19. The plaintiff claimed also a degree of hearing loss from the accident. The best evidence in support of this was the report of Dr Krishnan, an ear nose and throat surgeon, who said that

"...it is not certain that the deafness has occurred as a result of this injury, but in the absence of any other factors it is possible that this deafness has occurred as a result of her injury and is likely to be permanent."

20. On this evidence I am not satisfied, to the relevant standard, that there is any connection with the accident, and this matter was, quite properly, not pursued with any vigour at the hearing.

21. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 1 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

22. In relation to general damages, I assess the plaintiff on the basis of a frank injury to the disc at C5/6 requiring surgical intervention, and ongoing pain. This ongoing pain cannot be attributed to any objective cause, and so must be seen as soft tissue injury and as the development of a chronic pain syndrome. I find that the plaintiff does exaggerate her claims of pain and disability, but that she does nevertheless continue to experience genuine pain. In addition, she had the discomfort of a difficulty in swallowing, which has developed since the surgical intervention, but which I find is best explained as a globus sensation associated with her stress and chronic pain condition.

23. The plaintiff claims that her level of pain has been constant since the accident. While some doctors have suggested that a morphine pump may assist she is reluctant to undertake this procedure given her experience with the fusion. In any event, specialists who reported in her case have expressed the view that it would probably be of limited assistance. The best explanation for Mrs Benac's present symptoms is that of Dr Champion and Dr Grant, who both see her condition as that of a chronic pain state, which is unlikely to be resolved by further surgery. Ms Suitenen, a consultant psychologist, reported in July 1998 that she recommended that the plaintiff undertake a pain management course at either the Royal North Shore Hospital or Canberra Hospital.

24. Taking all of the evidence into account, I assess general damages in the sum of $60,000. I would attribute one third of this to past loss, recognising that the plaintiff will live with her pain for the rest of her life, but recognising also that this is pain of a non organic basis and that pain management courses are an appropriate method of dealing with a chronic pain condition. This generates interest of $1,353, leading to a total award of general damages of $61,353.

25. The plaintiff claims a total loss of earning capacity for the past and the future, to the age of 65. I am satisfied that a claim for past loss is made out, and award the sum claimed, being $59,202. She has received workers compensation payments of $41,842, so her loss for the purposes of interest calculations is $17,360.78, which generates interest of $2,908 which I award, making a total award for past loss of $62,110.

26. An award under the principle of Fox v Wood for tax paid is appropriate, in the sum claimed of $7,316.10.

27. The plaintiff claims a total loss of economic capacity to the age of retirement, which she says would have been 65. There was some cross examination on the question of whether she would have continued working up to that age, as she said that her prime motive had been to assist in the education of her children, who have now, apart from one daughter who is completing university, begun their own independent lives. However, I am not convinced that this is material, as I am not satisfied that on all of the evidence the plaintiff's condition is such that she is in fact precluded from any work for the future.

28. The defendant's experts take the view that the plaintiff is grossly exaggerating her condition, and that there is little or any barrier to her future employment. Her own experts also provide material which falls well short of her claim. Dr Brownbill, her consultant neurosurgeon, said in his report of November 1996 that

"Mrs Benac is capable of work which avoids lifting, forced cervical spine mobility or holding her neck in a fixed position, prolonged sitting or standing should also be avoided. From a neurological point of view it is considered she would be capable of work avoiding those activities commencing initially on reduced hours. However, the apparent non organic overlay with depression would be regarded, at this stage, as precluding her from employment."

29. Dr Blum is another consultant neurosurgeon who reported for the plaintiff in October 1996. He suggested the use of a morphine pump and said

"I don't really think that at this stage she can return to work, although I am sure that if her pain could be more controlled, she may be able to return to the duties that you have detailed for her such as tidying apparel, returning dumped stock to shelves and maintaining magazine, lolly and cigarette stocks. I do not really think that this is beyond her but she will need to have better pain relief than she has at the moment."

30. Dr Champion said that the plaintiff was unfit for work from soon after the accident, and said

"...it does not appear likely that she will ever regain sufficient fitness to return to the type of employment for which she might be deemed suitable".

He said

"I consider that she has permanent percentage loss of the order of at least 10%."

31. Dr Speldewinde and Ms Suitenen expressed the view that there was no likelihood of the plaintiff returning to work.

32. I am thus presented with medical opinions which range from stating that there is absolutely no barrier to her resuming work to the view that there is no likelihood of any meaningful work. I must take into account the fact that the claimed barrier to employment, a chronic pain condition, is purely subjective and not capable of objective measurement, and that there is sufficient material for me to have formed the view that the plaintiff is prone to exaggeration. Taking all of this into account, I am of the view that the plaintiff is not precluded from ever returning to the workforce. I accept that her present chronic pain syndrome is disabling, but I consider that she is capable of returning, on probably a part time basis, to some shop assistant type duties. I note that the type of activities described by Dr Blum and Dr Brownbill fits the type of work that she held before her shelf stacking job at Franklins, being part time employment in take away food stores or coffee shops.

33. I accept that the plaintiff has a barrier to the full utilisation of her economic capacity due to her chronic pain syndrome, but I find also that she has been exaggerating her claims of incapacity. This is on all of the evidence an appropriate case for a buffer of some substance to compensate the plaintiff for the ongoing but reducing effects of the accident. I award a sum for future economic loss of $50,000.

34. Out of pocket expenses were agreed in the sum of $41,753.62.

35. The plaintiff makes a claim for past and ongoing domestic assistance. This was particularised as a claim for twelve weeks after the operation at a rate of four hours per day, but was presented at the hearing as an ongoing claim at around three to four hours per day. I am not satisfied that this ongoing claim is made out. I accept that the plaintiff does experience a degree of ongoing neck pain and discomfort, but I find that she has exaggerated her claims of disability. I am not satisfied that the medical evidence supports a need for ongoing domestic assistance. While the plaintiff's now adult daughter gave evidence that she now does much of the household work, I note that she is a university student supported at home, and it seems to me that the re arrangement of duties in the plaintiff's home is no more than the mutual give and take of domestic relationships referred to by the High Court in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327. I accept that there was a period immediately after the operation where the plaintiff was in need of significant assistance, and award the sum of $5,000 under this head for past assistance, with no award for future assistance.

36. A claim was made for future medical expenses. No precise evidence was led on this question, and the plaintiff's counsel submitted that this could best be dealt with by way of a discretionary buffer. I award $5,000 for future medical expenses.

37. This amounts to an award of $232,532.72 which I consider to be appropriate in all of the circumstances.

I certify that this and the ten (10) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 18 September 1998

Counsel for the Plaintiff: Mr B Salmon QC and Mr G Lunney

Instructing Solicitors: Higgins Solicitors

Counsel for the Defendant: Mr G Richardson SC

Instructing Solicitors: Mallesons Stephen Jaques

Dates of hearing: 24 and 25 August 1998

Date of judgment: 18 September 1998