Dibley v Bradman's Stores Pty Limited [2000] ACTSC 23 (3 March 2000)

Last Updated: 16 October 2000

Dibley v Bradman's Stores Pty Limited

[2000] ACTSC 23 (3 March 2000)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Work accident - Plaintiff working as shop assistant - Heel of her shoe caught in netting in window display - Injury to left knee - Numerous operations - Ongoing pain and restriction of movement - Possibility of knee replacement surgery in future - No issue of principle.

No. SC 351 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 3 March 2000

IN THE SUPREME COURT OF THE )

) No. SC 351 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: NOLA MAY DIBLEY

Plaintiff

AND: BRADMAN'S STORES PTY

LIMITED ACN 004 226 368

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 3 March 2000

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $296,774.58.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from an accident in the workplace which occurred in August 1992. The plaintiff was then working as a shop assistant in the defendant's travel goods and handbag store in the Tuggeranong Hyperdome, a major shopping centre in the Australian Capital Territory. She had entered the store window display to bring out a handbag to show a customer, and as she was leaving her heel became caught in some netting that was used for the purposes of decorating the window display. She did not fall, but lunged awkwardly, taking an abnormal degree of weight and strain on her left knee. She says that she felt her knee "tear", and was in pain. She has subsequently had a number of operative procedures performed on her left knee, but complains of ongoing pain and restriction of movement. She has been unable to work since the first operation, and claims an ongoing inability to work. Liability for the accident was admitted, and the matter proceeded before me by way of an assessment of damages only.

2. The plaintiff, Mrs Nola Dibley, was born on 28 July 1940 at Bombala in New South Wales. She attended local schools to the age of 15, and then found work as an office assistant in a local general store. After about a year in the office she became a sales assistant, and she has worked in this type of employment for most of her working life. She came to Canberra in 1963 with her parents, and found employment as a salesperson in a shoe store. She married her present husband in 1966, and they have three adult sons. She left the workforce after she married and started her family. In the late 1960's she began to have pins and needles sensations in her right hand, and she was diagnosed with carpal tunnel syndrome, which resulted in an operation to her wrist, which was not of any great assistance. In 1971 a cervical fusion was performed, which did assist with her right arm complaints, although she still gets occasional pins and needles sensations in her right arm.

3. When her youngest child started full time schooling in 1975 she re entered the workforce, with part time employment at the shoe store where she had previously worked. Her hours were structured around her son's school commitments, being 10am to 3pm. In 1979 she was involved in a motor vehicle accident where she sustained whiplash injuries to her neck of some significance, which also caused her arm complaints to flare up. She had facet joint treatment to her cervical spine, and was out of the workforce from 1979 to 1987.

4. By 1987 she says she was feeling better, and applied for a job with the defendant in the newly opened Tuggeranong Hyperdome. She remained in this job as a sales person until the accident on 4 August 1992. There is no suggestion that her prior injuries had any adverse effect on her performance at work in this period. She described the accident as "a sort of a stumble". She felt something "tear" in her left knee, and it then swelled up. She remained at work for that day, and then applied hot and cold packs to her knee at home. She continued to report to work hoping the problem would resolve itself, but her knee problems persisted, and she attended her local general practitioner on 24 August 1992. She continued to experience difficulties, and was referred to a Dr Law, a sports medicine physician. He treated her with non steroidal anti inflammatories, but with no improvement, and she was eventually referred by him to Dr Gillespie, an orthopaedic surgeon specialising in knee and hip work.

5. On first examination on October 1 1992 he noted limitations on extension in the left knee and pain and tenderness. X rays revealed signs of early degenerative osteoarthritis. Mrs Dibley said that she had not had symptoms in her left knee before the accident, although she had had fluid removed from her right knee some years earlier. Dr Gillespie's diagnosis was of a tear of the lateral meniscus, and on 1 January 1993 she underwent arthroscopic surgery under general anaesthetic to address this. The plaintiff continued to work part time until this first arthroscopy, but has not returned to work since. Dr Gillespie's opinion that the accident caused the tear has been supported by opinions of doctors who have examined the plaintiff for the defendant, and I accept this diagnosis. He reported that her recovery from the surgery was "slow and incomplete", and on review at the end of March she still had limited movement. He advised a further arthroscopy, which was performed on 26 April 1992. In his report of 28 March 1995 Dr Gillespie says

"Despite this surgery, she continued to be bothered by anterior knee pain, attributable to her patello-femoral joint. February 23 1994 she underwent a distal realignment/elevation of her left tibial tubercle. Her recovery from this surgery was complicated by superficial wound infection, which settled with oral antibiotics. Her recovery from this latest surgery was slow and incomplete, and she still lacked full extension. On November 8 1994, she reported tenderness over the tips of the screws fixing her tibial tubercle, and these were removed under local anaesthetic on December 24 1994."

6. Extensive physiotherapy and hydrotherapy was undertaken between these procedures. I am satisfied that these procedures were painful and unpleasant for the plaintiff. I accept that she reacted badly to anaesthetics on each occasion, suffering a degree of nausea. She required considerable assistance from her husband following each procedure.

7. On his most recent examination of the plaintiff in November 1999 Dr Gillespie noted ongoing complaints of left knee pain, and found that the knee lacked the last 10 degrees of extension and flexed to 120 degrees. There was palpable patello-femoral crepituas and her patello femoral joint was quite irritable. He was of the view that these problems would persist, and that continuing degenerative arthritic changes to the left knee means that

"I think it is more likely that the left knee will in due course need to be replaced."

8. I am satisfied that the work accident caused a tear to the plaintiff's knee, and that this has led to repeated surgical interventions which have not, unfortunately, resolved the problem. I am satisfied that she is left with ongoing pain and restrictions of movement in the knee, and that the underlying degenerative condition of the left knee has been aggravated by the injury and subsequent surgical interventions, and that she will, on the balance of probabilities, face further surgery due to the need for a knee replacement operation. I accept that all of this has been accident related.

9. The plaintiff also now suffers from arthritic pain and discomfort in her right knee, which she believes, is due to her altered gait due to her left knee problems. This view has been supported to some extent by Dr Champion, who says that he accepts her view that her left knee has been

"...an aggravating factor in the right knee."

This opinion by a medico legal consultant is not fully explained, and is not supported by Dr Gillespie, the treating surgeon, who was called to give evidence and face cross examination. He said in his report of January 14 2000 that

"In my opinion, the problems Mrs Dibley is experiencing in her right knee are not specifically attributable to any injuries sustained as a result of a fall at work on 14.8.92. Mrs Dibley's clinical and radiological signs in her right knee are minimal, and are consistent with her age and body habitus."

There are complaints of right knee pain in her general practitioner's notes pre dating this accident.

10. The link finds some support in the views of an occupational physician, Dr Lethbridge, called by the defendant, who said

"Given her posture and stance it would be reasonable to assume that her habit of favouring the left knee would have increased load on the right, hence accelerating the onset of symptoms from developing degenerative changes."

This opinion was formed from one medico legal examination. Dr Dewey, an orthopaedic surgeon who examined the plaintiff for the defendant, said that

"...there is no evidence whatsoever that an injury to one limb increases the load placed on the other limb and therefore, the degenerative changes present in the right knee, which are now causing symptoms, are entirely as a consequence of naturally occurring degenerative processes and are totally unrelated to the accident."

11. Dr Smith, who gave evidence for the defendant, agreed in cross examination that a limp could "possibly" aggravate other musculo skeletal conditions. The link between the plaintiff's gait and her right knee arthritis, while a reasonable hypothesis with some support, has not been established on all the evidence as being more likely than not to be accident related.

12. I prefer the opinion of the treating orthopaedic surgeon on this point, and I find that the problems that the plaintiff has been experiencing from her right knee are not related to the fall at work.

13. Mrs Dibley also complains of neck and back pain, which she attributes in part to her limp resulting from the left knee problem. Dr Scott, an occupational Physician, has reported that

"In my opinion the accident, and its sequelae, caused some soft tissue injuries to her cervical and lumbar regions, especially in the neck where her `old whiplash' injury was flared up - i.e. exacerbated."

The plaintiff's treating general practitioner's notes were tendered, and these show a long history of complaints of neck and back pain predating the accident.

14. The mechanism of this accident, where the plaintiff did not actually fall, but rather took an unexpected weight on to one knee, is not one that would be expected to create any whiplash type injuries. Dr Gillespie makes no link between neck and back pain and the injury. Dr Dewey rejected such a link, stating

"...it can also be stated categorically that there is no evidence that a minimal true or apparent alteration in limb length, as is occurring in Ms Dibley's left leg, has any effect whatsoever on the lumbar or cervical spine. The ongoing problems with her neck and lumbar spine relate entirely to naturally occurring degenerative disease in those areas and are unrelated to the accident concerned."

15. On all of the evidence, including the significant history of prior neck and back injuries, I am not satisfied that the tear to her left knee which was caused by the accident has had any impact on her present complaints of neck and back pain.

16. I am therefore satisfied that the plaintiff sustained an injury to her left knee when she caught her heel in the shop display, and subsequently took an unexpected weight on her left knee which caused a tear to the lateral meniscus of the left knee. This has lead to four surgical interventions, which have not resolved the problem, and ongoing pain and restriction of movement to her left knee. This has also aggravated an underlying arthritic condition in the left knee.

17. The principles to be applied in determining compensation in personal injuries cases have been summarised by McHugh J in Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 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'."

18. In relation to general damages, I assess the plaintiff on the basis of the accident caused left knee injury which has resulted in a significant restriction in use of her knee, and ongoing pain and discomfort. I take into account the need for three surgical interventions under general anaesthetic, and a fourth surgical procedure under local anaesthetic. I take into account her adverse reaction to the anaesthetics, and also the unfortunate infection that developed after one procedure. I find that her ongoing knee problem restricts her mobility, and has meant that her recreational activities, in particular gardening and walking, have been affected. I note that it had been her hope to take up golf in her later years, but that this is no longer an option.

19. Her ongoing knee problem is undoubtedly genuinely disabling in respect of walking and heavy activities. While her counsel painted a fairly bleak picture of her life, I note that she and her husband, who has now retired, have been spending six months of each of the last few years caravaning in northern Australia, and while I accept that a warmer climate is no doubt of benefit to the plaintiff's arthritis condition, this is not a lifestyle of bleak isolation. The plaintiff and her husband intend to settle somewhere on the North Coast.

20. I accept that her left knee will most likely need to be replaced. I accept Dr Gillespie's evidence that this is a major surgical procedure, and that there is quite a long period of recovery, and increased pain, before a stable result is obtained with pain relief and improved mobility. The plaintiff has said that she would prefer to wait until this procedure is necessary, and this is quite understandable, given the less than ideal results that have been obtained to date. I find that the plaintiff will, however, undertake this major and painful procedure, as a consequence of the accident, sometime in the next ten years.

21. Taking all of this into account I assess general damages in the sum of $85,000, with $60,000 attributable to past loss, generating interest of $9,100, resulting in a total award of $94,100.

22. I accept that the injury to the plaintiff's knee has had the effect of precluding her from her former employment as a shop assistant, and this much is indeed conceded in several of the reports tendered on behalf of the defendant. The plaintiff has been in receipt of full compensation payments, and the lost income to the date of trial is represented by this sum of $64,524.10, to which should be added $1,050 to take the matter to the date of judgment. No interest is payable on this sum as the plaintiff has been in receipt of her payments. I award the sum of $65,574.10 by way of past economic loss.

23. Tax was paid on these sums, and there is an award pursuant to the principles of Fox v Wood in the sum of $5,696.48, which I award.

24. The plaintiff says that it would have been her intention to work to ordinary retirement age, that is 65 years of age, and her claim for future economic loss is based on an ongoing loss to that date. Although some defendant's doctors suggested that the plaintiff may be able to engage forms of employment other than as a shop assistant, this seems to me to be unrealistic given her background, and I accept that, given her ongoing accident related knee injury, she would be precluded from returning to the workforce. I have found, however, that she does have other conditions which are not accident related, and which must have an impact on the likelihood of her continuing in employment, but for the accident related injury, to age 65. I find that the plaintiff has in recent years been complaining of increasing difficulties in her right knee, and a recurrence of neck and back pain. While not disabling at present, these are factors which would make her continuing employment as a shop assistant, a job mostly performed standing but involving lifting and bending and moving stock, increasingly difficult.

25. It is the defendant's case that I should be satisfied that the plaintiff would not in fact work beyond the age of 60 due to her non accident related conditions. I can not be satisfied on the balance of probabilities that this would be so, but I am satisfied on the balance of probabilities that she would not be able to continue with her pre accident employment to the age of 65. The role of a court in assessing damages in relation to future possibilities is to adjust the award that would otherwise have been made against the degree of probability that intervening events might occur (Malec v J.C. Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642-3). In this case I am satisfied that the plaintiff would have continued to work beyond the age of 60 but would not have been able to continue to age 65. The plaintiff claimed economic loss at the ongoing rate of $210 a week to age 65. It seems to me that to discount this by 50% fairly takes into account the likelihood of her non accident related conditions forcing an earlier retirement. I award the plaintiff the sum of $30,000 by way of future economic loss.

26. There is also a loss of potential superannuation benefits, which has been calculated at $4,519 to age 60, and $8,288 to age 65. I have found that it is unlikely that the plaintiff will work to 65, and discounted the future economic loss by 50%, so it is appropriate to do the same with this claim, resulting in an award of $6,404 for loss of employer provided superannuation benefits.

27. Medical expenses to the date of the hearing paid by the compensation insurer were agreed in the sum of $51,497.16, and this is awarded. There is also a claim for some other expenses identified in exhibit B, most significantly the amount of $1,050 for therapeutic massage expenses incurred in 1998. Dr Law, the plaintiff's treating sports physician, has given evidence that the plaintiff obtained some benefit from this, but this is not recommended by her treating specialist, Dr Gillespie. Dr Scott, who reported for the plaintiff in March 1998, expressed the view that massage therapy

"...is not curative...[but]...does reduce tension and pain."

28. Medical and treatment expenses are recoverable by a plaintiff if they are reasonably necessary as a consequence of the accident related injury. The test was laid down by Gibbs and Stephen JJ in Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 573 as follows:

"If cost is very great and benefits to health slight or speculative the cost involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits. When the factors are more evenly balanced no intuitive answer presents itself and the real difficulty of attempting to weigh against each other two incomparables, financial cost against relative health benefits to the plaintiff, becomes manifest."

29. In this case I am satisfied that, although the massage has not proved curative, it was reasonable to attempt this therapy, and I would allow it for the past. I am not, however, satisfied that this therapy, given its limited benefit and cost, is justified for the future. This amounts to an award for past out of pocket expenses in the sum of $55,000, allowing a small buffer for pharmaceutical expenses that the plaintiff has borne to date.

30. In respect of future out of pocket expenses, the most significant sum is the cost of the knee reconstruction. I am satisfied that the plaintiff will come to this procedure, but that she will put it off as long as she can. I am accordingly satisfied, on the evidence of Dr Gillespie, that one procedure only will be necessary, at a cost he estimates at $15,000 to $20,000 including post operative care. Dr Dewey, who gave evidence for the defendant, estimated the cost at $20,000. There is also a need for ongoing medications for pain relief, and some acupuncture, which Dr Gillespie has recommended. The plaintiff claims this at the rate of $50 a week, but I am not satisfied that this has been utilised to this extent for the whole of the past period. I must also take account of the fact that the plaintiff's need for pain relief will abate following the knee replacement surgery. Taking all of this into account, I would allow the sum of $40,000 in respect of future medical expenses.

31. A claim for damages pursuant to the principles of Griffiths v Kerkemeyer was particularised, but was not made out on the evidence of the plaintiff and her husband and was, quite properly, not pressed by counsel for the plaintiff.

32. This amounts to a total award of $296,774.58 which I consider to be appropriate in all of the circumstances and award, with costs.

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: 3 March 2000

Counsel for the Plaintiff: Mr J Pappas

Instructing Solicitors: Pappas, J - Attorney

Counsel for the Defendant: Mr F G Parker

Instructing Solicitors: Barker Gosling

Dates of hearing: 31 January and 1 February 2000

Date of judgment: 3 March 2000