Byron v Australian Capital Territory [1999] ACTSC 44 (10 May 1999)

Last Updated: 12 May 2005

FAY BYRON v AUSTRALIAN CAPITAL TERRITORY [1999] ACTSC 44

(10 May 1999)

CATCHWORDS

NEGLIGENCE - foreseeability of damage - liability of employer - hospital employee sustained injury at work while tightening and loosening door of autoclave - defect in seal of autoclave known to employer - resulting injury greater than expected - defendant held liable.

DAMAGES - for personal injuries - election under s 45 Safety, Rehabilitation and Compensation Act 1988 (Cth) - measure of non-economic loss - statutory limit of $110,000 - whether voluntary household assistance is non-economic loss under s 45 Safety, Rehabilitation and Compensation Act 1988 (Cth) - s 45 referable only to damages awarded under ss 24, 25 and 27 of Act - section excludes damages for voluntary household assistance.

WORDS AND PHRASES - "non-economic loss"

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 24, 25, 27, 29, 45

Miletic v Capital Territory Health Commission [1995] HCA 13; (1995) 69 ALJR 675

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

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

Freudhofer v Poledano [1972] VR 287

No. SC 396 of 1996

Judge: Higgins J

Supreme Court of the ACT

Date: 10 May 1999

IN THE SUPREME COURT OF THE )

) No. SC 396 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: FAY BYRON

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Judge: Higgins J

Date: 10 May 1999

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $60,000.

1. The plaintiff sues the defendant as successor in title to various statutory corporations for damages for personal injury sustained by her when employed at Royal Canberra Hospital on 10 January 1990.

2. The plaintiff was and had, since 1988, been employed at the hospital as a Ward Assistant. At the time she was on night shift. Her area of responsibility included the children's ward.

3. Duties included the collection, cleaning and sterilization of bed pans. Sterilization was effected by using a device called an autoclave. This was, in effect, a high pressure, high temperature dishwasher.

4. The pans after washing would be stacked in the autoclave. The door was then closed and screwed tightly to seal it. It was then turned on by activating a lever.

5. About 6.00 am on 10 January 1990, the plaintiff was working with Ms Patricia Hadley. They washed the pans and stacked them in the autoclave, closed it up and turned it on. They then left the area.

6. Shortly after, the plaintiff's pager sounded. There was a problem with the autoclave. It was spraying water. The children were about to get up. It represented a hazard.

7. The plaintiff attended. There was a towel over the door to stem the spray of water from around the edges of the door. The plaintiff deactivated the autoclave. Assuming that the door had been insufficiently tightened, the plaintiff applied force to the bar which controlled the screw. The plaintiff then heard a "snap" and felt a burning pain sensation in the arm. She assumed she had pulled a muscle.

8. It was audible enough to be heard. Her companion asked her "What was that? Are you alright?"

9. The autoclave was still spraying water. They turned it off and opened it up. It then became apparent that there was a gap in one of the seals. The plaintiff put a "do not use" sign on the machine. The pans were taken elsewhere to another autoclave.

10. The plaintiff was suffering strong pain and so she and Ms Hadley (her half-sister) waited for the supervisor. The latter, when told what had happened, asked which autoclave had been responsible. When told, she informed the plaintiff that the particular autoclave had been reported out of order the day before. The maintenance staff had been advised but had not yet attended to repairs. Maintenance staff went off duty at 4.00 pm.

11. The state of the autoclave was confirmed by another Ward Assistant who expressed surprise that the machine had not yet been repaired.

12. Without going to all the detail, it transpired that the plaintiff had suffered injury to her cervical spine at the C4/5 and C5/6 levels.

13. After attempted conservative treatment including manipulation, the plaintiff was referred to Dr Robson, a neurosurgeon. He operated in October 1992. The plaintiff was, and despite the operation remained, unfit for work. Even after six months leave without pay she had not become fit to return to work. Her employment was terminated on medical grounds.

14. Due to her reduced capacity to engage in sexual intercourse, her marriage failed. The couple then had four children. Subsequently, the plaintiff met and married her present husband in 1991. They have had two children.

15. The plaintiff suffers pain and loss of use, often intermittent, of the right arm. There is neck pain and frequent migraines. Exertion exacerbates the pain. Not surprisingly that has caused reactive depression and stress on relations within the family. The plaintiff feels she gets "cranky" easily and snaps at family members.

16. She developed an alcohol problem.

17. Many tasks she would otherwise have performed around the house she can no longer perform. She does receive assistance from her husband and from paid housekeepers.

18. The level of assistance claimed, between seventeen and twenty-one hours weekly, seems reasonable to me, though not all of that assistance would be additional. Some rearrangement of domestic tasks has occurred. Nevertheless, between seven to fourteen hours weekly is probably so attributable.

19. In cross-examination much attention was concentrated on whether the cervical injury followed the tightening or the untightening of the autoclave screw. When pressed, the plaintiff considered the real "crunch" came when she attempted to loosen the screw after turning off the autoclave. That attempt had rapidly followed the unsuccessful tightening effort.

20. In the report forms the plaintiff signed or filled out at the time of the accident, it is apparent that she referred only to the re-tightening of the autoclave. That reference was repeated in early correspondence.

21. In my view, nothing turns on this. Certainly, the two actions were elided, assuming the accuracy of the plaintiff's current recollection. However, whatever the precise action causing the injury, it arose out of the plaintiff's doomed attempt to tighten the autoclave. That, in turn, was necessitated by the defect in the seal. It was not a sudden failure. The hospital's representatives knew of the defect. It would have been simple to put a "do not use" or "out of order" sign on it, just as the plaintiff did.

22. The plaintiff's claim, it is conceded, is subject to the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The plaintiff has made an election pursuant to s 45 of that Act. The plaintiff is, therefore, entitled in these proceedings only to damages for "non-economic" loss replacing entitlements under ss 24, 25 and 27 (if any) and is capped at $110,000.

23. Sections 24 and 25 relate to "permanent impairment" and the calculation of a lump sum award of compensation. Section 27 prescribes the formula for that calculation.

24. The first question is whether the Territory as the employer of the plaintiff is liable for damage for negligence.

25. It is a question of foreseeability. There is no doubt in my mind that the employer was aware that this autoclave was faulty. Had the plaintiff slipped on water which had been sprayed onto the floor or been scalded by steam or hot water there would be no doubt as to liability. It was also foreseeable, it seems to me, that if the autoclave was not fully sealed, the first assumption a Ward Assistant might reasonably make is that the door had been insufficiently tightened. If, as was the case, it had been fully tightened, then to attempt further to tighten it would give rise to a risk, either in that manoeuvre or the attempt to loosen the door to get the contents out, of greater than acceptable physical strain. Such a strain would, I accept, be expected to cause a pulled muscle rather than disc damage. However, if such damage did result, the defendant cannot be heard to complain that the physical injury was greater than it expected.

26. In my view, the defendant is liable. That conclusion is reinforced, in my view, by the decision of the High Court in Miletic v Capital Territory Health Commission [1995] HCA 13; (1995) 69 ALJR 675.

27. As to the assessment of damages, the parties are agreed that they are to be assessed as if they were at large for non-economic loss, but not to exceed $110,000. Contributory negligence would be relevant. It is, however, not pleaded.

28. The plaintiff's complaint is of a seriously disabling injury. She is very much inhibited in her home life. She has lost any reasonable prospect for employment. She must have home help, both voluntary and paid. Those matters have all impacted badly on her enjoyment of life. The latter is further evidenced by her bouts of depression and abuse of alcohol. Dependence on medication has also depressed her and caused some side-effects.

29. The central complaints are of headaches, right arm pain and right arm clumsiness (she is right-handed) and neck pain.

30. The medical evidence, particularly that of Dr Gibson (general practitioner), graphically corroborates the plaintiff's disabilities and complaints. It is not disputed.

31. The only matter the defendant points to is that the plaintiff has yet to be properly treated for pain management. It seems likely that there could well be some improvement in the plaintiff's quality of life in the future.

32. However, none of that is likely to significantly alter the plaintiff's disabilities. Dr Berry, for instance, on 23 September 1998, assessed her overall total person impairment at 34%.

33. I found the plaintiff to be an honest witness. She did not seem to me to be exaggerating or dramatising her pain and disabilities. I believe she has tried to function to the best of her capacity.

34. A question was raised as to whether an award of damages for voluntary home and personal help (Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161; Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327) is or not non-economic loss.

35. Where the expense is paid for, it clearly is not: see, for example, Freudhofer v Poledano [1972] VR 287. Indeed, s 29 of the Act separately provides for an award, albeit limited, for home help and attendant services. That entitlement is not excluded by s 45 in the event of an election. Although, arguably, an allowance for assistance voluntarily provided by family or friends could be described as "non-economic" loss, it seems to me clear that the Act does not so regard it for the purposes of s 45. It refers only to the kinds of loss that otherwise would fall within ss 24 - 27 of the Act.

36. On that basis I would assess the "non-economic loss"- that is general damages including disability, pain, suffering, loss of amenities and enjoyment of life - at $60,000.

37. There will be judgment for the plaintiff accordingly.

38. I will hear the parties as to costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 10 May 1999

Counsel for the Plaintiff: Mr D S Timmins

Solicitor for the Plaintiff: Higgins Solicitors

Counsel for the Defendant: Mr C Erskine

Solicitor for the Defendant: ACT Government Solicitor

Date of Hearing: 10 & 11 March 1999

Date of Judgment: 10 May 1999