Ledger v ACT Society for the Physically Handicapped [1999] ACTSC 23 (26 March 1999)

Last Updated: 7 October 1999

Ledger v Act Society for the Physically Handicapped

[1999] ACTSC 23 (26 March 1999)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Industrial accident - Plaintiff injured whilst attempting to fit a fifth wheelchair in the back of a van designed to fit four - Disc injury requiring surgical intervention - Soft tissue injury to cervical and lumbar spine - ongoing disability - No issue of principle.

No. SC 186 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 26 March 1999

IN THE SUPREME COURT OF THE )

) No. SC 186 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CAROL ANNE LEDGER

Plaintiff

AND: ACT SOCIETY FOR THE

PHYSICALLY HANDICAPPED

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 26 March 1999

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $386,342.64.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries sustained by the plaintiff while she was an employee of the defendant. Liability was admitted at the hearing, and the matter proceeded by way of an assessment of damages only.

2. The plaintiff was born in 1952 and educated in the Canberra region until she left school at the age of 15 to work in the Government Printing Office in 1967. She then worked in a range of clerical assistant type jobs until she left the workforce to have a family. The plaintiff's first child was born in 1972, and there were other children born in 1975 and 1976. A daughter was born in 1981, but tragically died as an infant. This child had been born with a disability, and the plaintiff said that this experience provoked her interest in working as a carer.

3. She re entered the workforce in 1983 as a home based childcare provider, and in 1984 obtained a position as a carer at an aged persons home. In 1986 she found employment as a kitchen assistant at a private hospital, and she remained in this employment for about five years. In September 1990 she commenced trial employment as a casual care provider with the defendant, while still working at the hospital. In October 1991 she became a permanent part time member of the defendant's staff.

4. The plaintiff said that she greatly enjoyed her work. Her children were by this time finishing or finished their schooling, and she said that it was her intention to continue working until normal retirement, which she said she expected would be when she and her husband turned 65. I found the plaintiff to be an impressive and truthful witness, and I accept that this was her intention.

5. The plaintiff's duties involved driving a small bus which had been converted for the special needs of wheelchair bound residents of the defendant society, which is well known in the Australian Capital Territory community for its long involvement in providing residential care and other services to persons with physical disabilities. The van was designed to carry four persons in electric wheelchairs, and the plaintiff was on the afternoon shift, which involved picking up residents of Hartley Court, the defendant's residential care facility, who were in employment or were engaged in other activities away from the centre. On the day of the accident there was another client who was attending a meeting at the Belconnen library. This person had tried to secure the booking of a multicab to return to Hartley Court, but apparently no taxi with wheelchair access was available on the day. The plaintiff was requested by her supervisor to assist this extra person.

6. The plaintiff said that this meant that she had to fit an extra wheelchair into the back of the van, which was only designed to fit four wheelchairs. She attempted to fit the extra chair in by herself squeezing in to the confined space and attempting to move the chairs around so as to provide the extra space. She says that while she was doing this she felt a rip in her back, and was in extreme pain. With some difficulty she managed to drive the van and its occupants back to Hartley Court. A statement was tendered from the then Residential Director of Hartley Court, Ms Sly, who said that the plaintiff returned at about 4.40 pm on 14 February 1995. Ms Sly said

"On arrival she was in tears, her legs had turned blue, she was shaking badly and could barely support her own weight."

7. In the circumstances liability was properly admitted.

8. The plaintiff was driven to her home by a co worker, and was met by her husband. She arranged to see her general practitioner that evening. A report was provided by Dr Curtotti in September 1995 which refers to the notes of the practice for various consultations Mrs Ledger had with doctors at the practice. She was first seen by Dr Idowu, who recorded that she had pulled her lower back muscles, and found tenderness at L2-L5-S1 and spasm. He prescribed pain relief and anti inflammatories. An x ray of 16 February was described as

"...unremarkable apart from minimal osteophytic lipping at the body of L5".

9. The plaintiff continued to complain of significant back and neck pain, and was given certificates for time off work. She has not been able to return to work.

10. Her general practitioner ordered a CT scan of the neck and lumbar spine on 10 April 1995, and this revealed a broad based disc bulge at L4-L5. She continued to complain of worsening low back pain radiating to the legs, although her complaints of neck pain were improving.

11. In August 1995 she saw Dr Keiller. He noted that the plaintiff had a painful back and said

"She is quite severely disabled at present and needs referral to an orthopaedic or neuro surgical specialist for further investigation. The prognosis must be guarded at this stage. It is now over six months since injury, and if she fails to improve rapidly on further conservative measures, she will need an MRI scan, and probably surgical relief."

12. Her general practitioner referred her to Dr Ashman, an orthopaedic surgeon, who examined her in November 1995 and required an MRI scan of her lumbar spine. This showed a left sided L4-5 disc rupture, and he advised that surgery may be required. Mrs Ledger said that her pain was increasing at this time despite increased drug relief, and she decided to proceed with surgery. On 25 January 1996 Dr Ashman performed an L4-5 partial discectomy at John James Hospital. She was in hospital for about 9 days. She said that while she was an inpatient she was on a drip for pain relief, and that she did not really feel pain, but that on her release home she was in extreme pain. Her husband took about two weeks off his work to assist her at this time.

13. The defendant terminated the plaintiff's employment in early 1996 on the grounds that she was no longer fit to perform her duties. In the letter of 22 February 1996 notifying her that this action was to be taken the executive director of the defendant, Mr Mostyn, said

"The Society acknowledges that you have been a long standing and dedicated employee, and is grateful for the contribution which you have made to the organisation. However, we are sure that you will agree that the operational requirements of the Society are such that a permanent Residential Support Worker is required."

14. This letter was tendered as part of the plaintiff's case, and it does go to confirm her statements that she was a dedicated worker who enjoyed her work with the clients of the Society.

15. The plaintiff said that although she obtained some relief from this procedure, as she regained mobility this "stirred it up again" and her lower back continued to be extremely painful. Dr Ashman reviewed her in February and March, and noted that she continued to complain of pain. He further reviewed her in May June and July, and in his report of 5 July 1996 said

"It is now six months since her surgery and she reports that her symptoms are worse if anything. There has been no relief of the pain in her left leg and this has progressed to the point that she is now requiring regular strong narcotic analgesic to control it. I performed an MRI scan on her lumbar spine on 25 June 1996 .....There is no evidence on the scan of any persistent disc protrusion at the L4-5 level and no evidence of ongoing nerve compression. I have explained to Mrs Ledger that I cannot explain why her symptoms are now worse than they were pre operatively and I have no further treatment to offer her."

16. She continued to complain of low back pain, and left leg pain resulting in a pronounced limp. Her general practitioner referred her to Dr Chandran, a neurosurgeon, who examined her in November 1996. He formed the view that the MRI scan of 25 June 1996

"...showed dehydration at L4/5 level and some loss of disc height. There was some annular bulge at L4/5 disc and encroachment of the left neural foramen."

17. He advised that a fusion operation be performed at the L4 L5 level, and this procedure was carried out on 4 March 1997. He said in his report of May 1997

"This consisted of excision of the L4/5 disc, interbody fusion with two carbon cages, intertransverse fusion and application of a Harshill rectangle to supplement the fusion."

18. The plaintiff continued to complain of low back pain and pain in the left leg, although in a report of September 1997 Dr Chandran recorded this leg pain as being reduced. He said

"She had inconsistent weakness in the left leg which did not stand up to repeated examination. In view of the weakness claimed in the leg and the limping she had in addition to the pain in the leg a nerve conduction study was carried out and she was reviewed on 2/9/97. The nerve conduction study showed no evidence of any nerve root compression to explain the limping or the weakness on an organic basis. There was thus no evidence of a real weakness in the left leg objectively."

19. I note that Dr Keiller, who examined the plaintiff for a review on 10 September 1997, found that

"The left leg muscles are markedly wasted".

20. The plaintiff continues to complain of back pain, and continues to be prescribed and take high levels of pain relief, including the morphine based medication MS Contin, in 10 milligrams twice daily. The plaintiff gave evidence, supported by her husband, that on one occasion when she had run out of script for this medication she was in great distress over a weekend until she was able to obtain a further prescription. Her evidence was that her general practitioner was the only person who could prescribe this drug, and needed an approval from the health department to issue the prescriptions. In his last review of August 1998 Dr Chandran noted this pain relief, and also the use of Mersyndol Forte up to four times a day. He noted that she continued to walk with a limp, although she said that this was not due to pain but because she had got used to walking this way since the injury. Dr Chandran noted that x rays of August 1998 showed that the fusion had not consolidated as well as he would have hoped.

21. The plaintiff has been examined by four medical practitioners on behalf of the defendant. Only one report, that of Dr Eggins, was served on the plaintiff and tendered in evidence before me. I am entitled to draw the inference that the other medical reports would not have assisted the defendant's case. A report was also served by a rehabilitation service.

22. Dr Eggins is a medico legal consultant. As well as the normal undergraduate qualifications, he holds a Diploma in Tropical Medicine and Hygiene. He expressed strong criticism of the need for Drs Ashman and Chandran to perform spinal surgery on the plaintiff, and formed the view that

"I find a generally healthy mature woman who has retreated into abnormal illness behaviour. Apart from the scar, the residue of the spinal surgery, I cannot find any signs of a work related injury, and since the minor anomalies discovered in the radiological investigations bear no relationship to her symptoms, I have no hesitation in saying that her current symptoms are behavioural. She is clearly responding to her own attitudes, thoughts, feelings, beliefs and motives, and to her personal hierarchy of rewards and punishments. The inappropriate treatment she has received has rewarded and reinforced her abnormal illness behaviour."

23. In a case where a plaintiff presents with radiological evidence of frank injury to the spine, and where two treating surgeons, an orthopaedic surgeon and a neurosurgeon, have provided medical reports setting out their reasons for requiring surgery on two occasions, I prefer their reports to that of a medico legal consultant, with no apparent specialist qualifications in this field. I am not persuaded by Dr Eggins' report, and where it is in conflict with the opinions of Drs Ashman and Chandran (which is to say in its entirety as regards to the existence of a genuine accident related disability) I prefer the opinions expressed by those specialists. I note that the plaintiff was examined by Dr Andrews, a well known specialist, for the defendant, but that report was not tendered.

24. I note that while Dr Eggins formed the view that the plaintiff was solely suffering from what he described as behavioural problems, he did find on examination that she continued to walk with a limp, and that there was some loss of girth in the left leg.

25. I note that the occupational therapist who undertook the vocational assessment report for the defendant found the plaintiff to have genuine disabilities including a limp and slow and limited range of spinal movement.

26. The defendant tendered extensive video material. This material showed the plaintiff at a local club attending bingo mornings. Where the plaintiff was seen to be mobile, she walked with a limp. When she got up from her seat she did so with, in my opinion, some apparent slowness and difficulty. The point of the video material was that there were periods in excess of one hour where she remained seated. The plaintiff said in her evidence, and to doctors, that she has difficulty in sitting for prolonged periods. Dr Eggins recorded her as saying that pain increases as she sits, and that she is forced to stand and walk after about 30 minutes before resuming a seat. She told Dr Chandran that her sitting tolerance is only 15 minutes.

27. It is clear from the video material that she was in fact able to remain in a seated position for much longer than this, playing bingo and conversing with a friend. She moved about during this period in her seat, but with no obvious stretches or signs of discomfort. I note, however, that the plaintiff does take MS Contin, a morphine based pain killer. I am not convinced that the fact that she is able to sit for this period playing bingo does very much at all to discredit the plaintiff as a witness or the reliability of the reports of her medical experts. Where a plaintiff complains of ongoing pains and restrictions of movements and video material shows them engaging in active pursuits and moving about with no apparent disability it can, of course, substantially undermine the credibility of a plaintiff and the factual basis upon which expert opinion was based. In this case the few images we had of the plaintiff moving showed her with a limp and apparent disability. Sitting playing bingo while on morphine for pain relief is not a strenuous activity, and I am not persuaded by this material that the plaintiff is not generally to be taken as a credible witness.

28. I am satisfied on all of the evidence that the plaintiff sustained damage to her L4/5 disk in this work accident, as well as generalised soft tissue injury to the lumbar and cervical spine. While the soft tissue injuries have generally settled, her frank disc injury required surgical intervention, first to attempt to remove the damaged disc, and then to achieve fusion. These operations have not been successful in resolving the plaintiff's ongoing pain in the lower back, and she continues to suffer pain which requires medication, including regular ingestion of a morphine based pain killer.

29. 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'."

30. In relation to general damages, I assess the plaintiff on the basis that she has sustained genuine disc damage which, despite two surgical procedures, which were themselves painful and intrusive, have failed to resolve her ongoing pain. She is now generally restricted in her activities of daily life. She can drive a motor vehicle, but not for long periods. She says that she and her husband used to enjoy travelling to the south coast, but the trip is now too long for her. She used to enjoy playing ten pin bowls, but is now unable even to lift the ball. Her main recreation now seems to be the sedentary activity of playing bingo, which was the subject of the video surveillance. She is restricted in movement, and says that she has difficulty in doing shopping for any heavy items, although she may browse the shops by herself. Her husband assists in the grocery shopping.

31. She is able to continue to be involved in the household chores and activities of daily living, but at a slower pace, and her husband assists in the heavier tasks. There has, on all of the medical evidence and that of the plaintiff, been some improvement in her general level of movement and activities, although the pain and need for ongoing pain relief continues.

32. Taking all of this into account I award general damages in the sum of $90,000. I would allocate half of this to past loss in respect of the surgery and the extreme pain which followed both surgical interventions, resulting in a total award inclusive of interest of $93,679.

33. The plaintiff claims that she has been unable to work at all since the accident, and will be unable to return to any full time work or part time work. She claims damages for loss of economic capacity based on the loss of her prior earnings, which were based on working for 30 hours a week as a permanent part time disability carer.

34. Dr Keiller, who provided a report for the plaintiff as a medico legal consultant, expressed the view in his report of 6 May 1998 that

"Her prognosis to some improvement, so that she would be fit for retraining and eventual employment, at least in a part time capacity, is probably good, but will be long delayed. She will not be able to resume as a Support Worker for the Disabled."

35. Dr Ashman in his report of 7 March 1996 said

"This lady is currently undergoing a post operative rehabilitation program and I am not in a position to provide her with a definitive prognosis regarding her eventual return to work either in her pre injury capacity or whatever capacity she may be eventually capable of. However in general terms I would estimate that whatever recovery she eventually makes it would be in her best interests if she did not return to any occupation that exposed her to regular lifting, repetitive bending or having to push or pull against resistance. Therefore it is likely that she will not be able to return to her pre injury employment as a carer and transporter of handicapped children."

36. In a further report on 5 July 1996 he said that

"The prognosis therefore must be extremely guarded and I see little prospect of her returning to her previous occupation at least in the next 12 to 18 months."

37. Dr Chandran first expressed a view on her employment capacity in a report of May 1997 which was based on his first review following his surgery. He said

"I do not see her as being able to return to her former occupation, assisting disabled people, even if the symptoms improve with this operation."

38. In his report of September 1997 he noted some improvement, and said

"There is possibly some degree of exaggeration of the symptoms which however on the whole seem to be improving. I would expect further improvement in her condition with the passage of time. Hopefully by then she will be able to return to some form of light work commencing on a part time basis. This is likely to happen early next year."

39. Despite this optimistic projection, in his report of August 1998 Dr Chandran noted that her condition had stabilised with ongoing pain and restrictions of movement and said

"I do not think any further improvement will occur in her condition and she is considered not fit to work as a carer. She will not need any further treatment but medication will be required on an indefinite basis for pain relief. Given the history and the restriction of movements, I do not think she is fit to do any other form of work as well."

40. Dr Chandran confirmed this view in a report of 16 February 1999 in which he said, after reading the report of the defendant's vocational assessment experts,

" I do not think your client is at present fit for any form of work and thus confirm my previous view."

41. Dr Eggins was of the view that

"Mrs Ledger is currently physically fit to return to work performing her normal duty, though her perceptions of having been injured are such that she is unlikely to do so."

42. I prefer the views of her treating neurosurgeon to the view of Dr Eggins, who is of the view that, despite two surgical interventions, including a fusion that on the treating surgeon's view has not yet fully consolidated, she is fit for the heavy work of her previous occupation which included physically lifting wheelchair bound clients into and out of confined spaces.

43. The defendant tendered a vocational and functional assessment report prepared by a rehabilitation counsellor with an undergraduate qualification in psychology and an occupational therapist. The occupational therapist concluded, contrary to Dr Eggins' view, that the plaintiff had real restrictions, and said

"...it appears that future work options will need to be less physically challenging and demanding. It is advisable that Mrs Ledger avoid work that requires balance, prolonged standing/walking, work below waist height, heavy lifting and pushing/pulling activities. Mrs Ledger is best suited for part time work in a seated position allowing constant change of posture."

44. The rehabilitation counsellor concluded that the plaintiff was not ready for work at the time of the assessment due to

"...her current focus on pain and limitations, and dependence on pain medication".

45. She said that this would need to be addressed with counselling and attendance at a pain management clinic, but there was no evidence from a suitably qualified medical practitioner that such a course would resolve her ongoing pain and need for medication, and it was the opinion of her treating neurosurgeon that she would continue to both experience pain and require medication. The rehabilitation counsellor expressed the view that the plaintiff could perform work as an information clerk, telephonist, shop assistant, respite care office assistant, market researcher, disabled advocate, weight loss counsellor or parking lot attendant.

46. I note that this appears to be premised on the success of a pain management course, which is disputed by the expert medical evidence. In any event, I am not satisfied that, having seen the plaintiff and taking into account the medical evidence, she in fact has a capacity to take up employment of the type suggested by the rehabilitation counsellor. I note her present age and lack of formal educational qualifications in reaching this view.

47. I am satisfied that the plaintiff is, and has been since the accident for all practical purposes, unfit for work. I note that the plaintiff has particularised her claim on the basis of the ongoing loss of her former employment, which was on a part time basis, that is, for 30 hours a week. It seems to me that on all of the evidence it is appropriate to award her a sum for loss of future economic capacity at this rate. This takes into account that the plaintiff may at some time be able to engage in some limited part time work, although this is contrary to the evidence which I have accepted and preferred from her treating neurosurgeon. I am satisfied that the plaintiff, even if she does have some residual capacity, has lost 30 hours a week of economic capacity.

48. The plaintiff has been since the accident in receipt of workers compensation payments. The gap between her payments and what would have been her earnings to date of trial was $9,097.03 gross. I must take into account that the award should reflect her net loss. I was advised that the plaintiff was on about a 15% effective tax rate. It seems to me it is appropriate to then award the plaintiff the sum of $7,732.47 for past economic loss, which with interest amounts to the sum of $10,893.50.

49. There is a claim for Fox v Wood damages which I accept is made out in the sum of $5,609.20.

50. I am satisfied that it is appropriate to take an arithmetic approach to the calculation of future economic loss based on an ongoing loss of $273.25 which was agreed as the current net wage loss claimed by the plaintiff based on a loss of 30 hours a week. This amounts to an award of $172,652.71 applying the loss to the next 18 and a half years and applying the normal reduction for contingencies of 15%. I am satisfied from the evidence of the plaintiff and her husband that, but for the accident, she would have continued to work to normal retiring age of 65.

51. There is a claim for a loss of superannuation benefit at the rate of $19.45 a week for 20 years. This covers some past loss and future loss. I am satisfied that this is an ongoing loss which, when the normal contingencies are factored in, results in an award of $13,021.

52. Past out of pocket expenses were agreed in the sum of $50,039.73, which I award. I note that all of these have in fact been paid by the insurer.

53. Future out of pocket expenses were particularised at a claim for $10 per week until the age of 80, being a claim particularised at $11,379.00. I am satisfied from a document setting out the plaintiff's actual pharmaceutical expenses over a twelve month period that this claim is well made out, and should be awarded in full.

54. There is a claim for damages pursuant to the principle in Griffiths v Kerkemeyer for the assistance provided by the plaintiff's husband in relation to domestic care and assistance. I am satisfied that the plaintiff's husband provided considerable assistance to the plaintiff after each operation, although the evidence does not go as far as the particularised claim for six hours assistance for a seven week period. I am also satisfied that the plaintiff's husband has provided some ongoing assistance and support which goes beyond the normal give and take of domestic relationships. The defendant's insurer has been providing a cleaner for two hours a week, and when this ceases the plaintiff will have to continue to provide for this herself, or rely further on her husband. I note, of course, that in many of the household duties the husband is in providing assistance to his wife also assisting himself, and this must be taken into account.

55. In relation to past services, I award the sum of $12,000 inclusive of interest. In relation to future services, I am satisfied that the particularised claim is made out in relation to the sum claimed, and award damages in the sum of $17,068.50.

56. This amounts to a total award of $386,342.64 which I consider to be appropriate in all of the circumstances and award, with costs.

I certify that this and the fourteen (14) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 26 March 1999

Counsel for the Plaintiff: Mr S Pilkinton

Instructing Solicitors: Porter Pilkinton & Bradfield

Counsel for the Defendant: Mr M Cranitch SC

Instructing Solicitors: Abbott Tout Harper Blain

Dates of hearing: 22 February 1999

Date of judgment: 26 March 1999