Taylor v Centacare ACT [2001] ACTSC 6 (2 February 2001)

Last Updated: 11 June 2002

Jody Taylor v Centacare ACT [2001] ACTSC 6 (2 February 2001)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Workplace accident - Soft tissue and disc injuries - No issue of principle.

Workers Compensation Act 1951

Fox v Woods [1981] HCA 41; (1981) 148 CLR 438

Fry v McCuffick (1998) 1499 FCA

Griffiths v Kerkemeyer (1977) 193 CLR 161

Hellsing v British Aerospace Australia [2000] ACTSC 114

No. SC 413 of 1998

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 2 February 2001

IN THE SUPREME COURT OF THE )

) No. SC 413 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JODY TAYLOR

Plaintiff

AND: CENTACARE A.C.T.

Defendant

ORDER

Coram: Master T. Connolly

Date: 2 February 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $217,613.86.

2. The defendant pay the plaintiff's costs.

1. This is an assessment of damages arising from an admitted breach of duty of care involving a workplace accident which occurred on 24 March 1994. The plaintiff was employed by the defendant at Ainslie Village as a personal care attendant looking after people with high needs. She was showering a male resident who was seated under the shower in a plastic chair. It is admitted that the system of work was not appropriate, and the defendant admits liability for the injury which occurred to the plaintiff's back as the resident fell out of the chair and the plaintiff sought to break his fall. There had been a hearing in the Magistrates Court in 1999 in which the plaintiff succeeded in obtaining an order that she was totally incapacitated for work as a result of her employment injury since 13 June 1997. The medical evidence seems to be in general agreement that the injury involved some disruption to the disc at L5/T1, but there has been no nerve impingement, and her present disabilities are thus caused by a combination of soft tissue type injury and chronic pain syndrome. In this type of claim much depends on the honesty of the plaintiff's claims of pain and discomfort, and the defendant submitted that this plaintiff should not be regarded generally as a witness of truth.

2. The plaintiff was born in 1970. She left school at the end of Year 10 in 1985, and had difficulties at school due to dyslexia. After leaving school she worked with her family at a petrol station and roadhouse at Tambo, between Charleville and Longreach in Queensland. After some years the family moved to Canberra, and after some time looking for work the plaintiff found a job initially as a casual kitchen hand and then as a housekeeper at Chapman Hostel, looking after persons with profound disability. She seems to have left this job in late 1989.

3. Counsel for the plaintiff acknowledged in his opening that the plaintiff has a conviction for an offence of dishonesty, arising from ongoing fraud on the Commonwealth in respect of continuing to claim unemployment benefits despite her being either employed or in receipt of workers compensation benefits. In her evidence in chief she gave the impression that this offence started after she had lost her workers compensation benefits, but it emerged in cross examination that this ongoing fraud in fact commenced before the injury the subject of this claim. She also admitted to a previous offence in the early 1990's involving imposition on the Commonwealth Bank, where she withdrew money from an account knowing that there were no funds deposited to support the withdrawal. It was also apparent, from documents tendered by the defendant, that she has made dishonest claims in employment application forms. In a 1990 application for employment at Ainslie Village she claimed to have experience working for the Royal Flying Doctor Service as a nursing assistant in 1988, which she admitted to be untrue. In a subsequent application for employment form for Ainslie Village she claimed to have been studying nursing in Perth from late 1989 to December 1990. She admitted in cross examination that this claim was also untrue. She also admitted in cross examination that she did not declare her social security benefits in her income tax returns, and that she knew this to be a lie.

4. The plaintiff commenced employment with Ainslie Village in January 1991, initially as a cleaner on a part time basis, and found full time employment as a special care worker in November 1993. In August 1994 the defendant took over the running of Ainslie Village and so became the plaintiff's employer, but the plaintiff's duties did not change. It seems that during the course of an employment dispute at Ainslie Village in December 1993 the plaintiff, along with other members of staff, had her position terminated. She commenced to receive unemployment benefits at this time, and despite being reinstated almost immediately she continued to claim these benefits until 1999, when the plaintiff admitted to the Commonwealth that she had been improperly receiving benefits. This resulted in a conviction for fraud, and a sentence of periodic detention. The plaintiff regularly completed fortnightly forms to claim these benefits.

5. The plaintiff clearly presents with a serious history of making untrue statements to obtain financial benefit.

6. The plaintiff's duties as a special care attendant involved looking after residents who were mostly men with various degrees of brain damage arising from alcohol or substance abuse. The duties were akin to that of a nurses aid, and involved a degree of heavy physical effort, particularly in assisting persons into showers. I accept that the plaintiff had no difficulty with this work prior to the accident, and that she was generally fit and active, competing in triathalon events in her spare time.

7. She says that the accident occurred as a patient, Mr Bruce, was showering, and fell forward off his chair. She attempted to prevent him from hitting the floor, but in fact he fell on top of her and pushed her to the floor. She says she felt pain in her back, and vomited and became incontinent. She was the only staff member on duty that evening, and she cleaned herself and Mr Bruce up, and then rang her employer, who told her to go home.

8. She attended her general practitioner, Dr Pickup, the next morning. In her report of 17 June 1997 Dr Pickup says,

"Ms Taylor entered the surgery, leaning to the right and unable to straighten 25 degrees to the upright. She was in so much pain that she was unable to get onto the examination couch and lie down. I diagnosed a likely disc prolapse and treated her with bed rest, Voltarin, and Panadeine Forte."

9. The plaintiff took some time off work and then commenced a return to work, which she says did involve full hours, but on restricted duties. Records from her employer show that her earnings continued on a steady level, and in some cases actually increased, but she says this is because she was put on to night shift duties which attracted a penalty rate, but shielded her from heavier lifting duties. She also did some part time voluntary work at a club bar in early 1997. She says that her pain levels deteriorated in early 1997 and she was admitted to John James Hospital for pain relief under Dr Speldewinde in April 1997, who treated her with facet joint injections. She was released after two weeks, and did not return to work. At a meeting with her employers she was provided with workers compensation payments up to 11 June 1997 and then dismissed, being told that she was unable to work and there were no ongoing light duties suitable for her. As a result of her successful action in the Magistrates Court, she won an order for ongoing workers compensation payments.

10. Dr Pickup ordered an MRI scan, and this has been commented on by various treating and medico legal doctors, as has a subsequent MRI scan done in January 1997. These scans show a posterior annular tear of the disc at L5/S1, but two neurosurgeons who examined the plaintiff at the request of her general practitioner, and not for medico legal purposes, Drs Bentivoglio and Fuller, agree in reports tendered in the defendant's case that there has been no nerve compromise as a result of this disc disruption. The plaintiff's case is put on the basis of a disc disruption that has caused ongoing pain which has developed, on the view of Dr Speldewinde, into a chronic pain syndrome.

11. A common feature of all of the medicine tendered in the plaintiff's case is the description of the plaintiff on presentation as being grossly disabled. The plaintiff acknowledged in cross examination that, if observed, she would exhibit no apparent disability for extended periods, which she agreed would be 25% of the time. While her counsel submitted that her attendance on her general practitioner for treatments would account for gross restrictions on these presentations, the same argument would not apply to medico legal consultations. It is the defendant's case that, in the absence of any objective clinical explanations for her complaints of pain, and the plaintiff's own treating neurosurgeons confirm that there is no neural disruption from her annular tear, her complaints of gross disability must be treated with caution, and her credit must be in question given her acknowledged past dishonesty in claiming financial benefit. I note that Dr Bentivoglio, in his report to her general practitioner, said that, "I think there is considerable functional elaboration of her symptomatology". Dr Evans, an orthopaedic surgeon, examined the plaintiff for the defendant in April 1997. He accepted the presence of a disc prolapse at L5/S1 with no nerve involvement, and said,

"In spite of that, some months later she still had straight leg raise limited to about 30 or 40 on each side, and this is difficult to understand. However, she now has almost no lumbar movement, almost no straight leg raise and no objective neurological findings in her legs, in the presence of an MRI scan which shows degenerative change at the lowest disc, but no significant disc prolapse at this stage. I have to conclude therefore that I cannot explain her inability to bend her back, nor her gross restriction of straight leg raise. I must reluctantly conclude that she is malingering. One could accept some low back symptoms in the presence of these changes, but not this gross disability."

12. Dr Evans then went on to recommend a period of surveillance. Counsel for the plaintiff was critical of this comment, and rightly so. Defendant insurers in personal injuries litigation in this Territory are well represented, and have access to experienced legal and forensic advisers who can put in place such surveillance or other investigations as they consider appropriate. When a doctor makes such a recommendation, the doctor can appear to cross the line between the impartial expert and the partisan advocate. I understand in the context of Dr Evan's report, why he made this comment, because he had formed the opinion that the plaintiff's complaints were inconsistent with the objective clinical signs, but it is an undesirable practice for doctors providing medico legal reports to tender gratuitous forensic advise to litigants. I do not, however, reject Dr Evans report because of this.

13. Dr Andrews, consultant neurologist, examined the plaintiff for the defendant in February 1998. He accepted that the MRI scans showed some bulge at L5/S1 but with no neural compression. He concluded that the plaintiff sustained a degree of soft tissue facet joint strain as a result of the injury but said,

"The condition now is complicated by a fair degree of amplification and the physical findings I found somewhat excessive and non anatomical."

14. In a subsequent report of 19 January 2000 Dr Andrews noted significant restrictions of movement but said, "There is really nothing of a physical nature here that I can find to account for her pain. I suspect that most of the disability is being falsified." He conducted further nerve conduction studies on her legs, and in a report of 13 April said that,

"There is no evidence of any peripheral nerve, lumbar nerve root lesion and certainly nothing to explain the clinical findings on neurological examination when last seen."

15. The plaintiff has also been examined twice for the defendant by Dr Roderick McEwin. His conclusion, in his report of 20 February 2000, is that,

"The correct diagnosis for the injury to her back was an acute musculo ligamentous injury from the incident of 24 March 1995. I note the small degree of degeneration at L5/S1 in the MRI but I do not think this is significant. There were inconsistencies in examination. These suggest that there is a large functional or non organic basis for the majority of her back symptoms."

16. He accepted, however, that the disc disruption at L5/S1 would preclude her from employment which involved regular heavy lifting of over 15 kilos.

17. The plaintiff was also examined by the defendant by Dr Kitchen, a consultant orthopaedic surgeon, although his report was not served in the defendant's case. It was, however, sent in part to her treating general practitioner, Dr Pickup, and this was tendered as part of the plaintiff's case. Dr Kitchen in his report of 9 December 1996 said,

"This patient shows clear evidence of a L5/S1 disc disruption with evidence of right sided sciatica and some motor weakness on this side. The disc disruption in my view is a consequence of the injury sustained in 1995."

18. I note that this opinion precedes the examinations by the neurosurgeons, relied upon by the plaintiff, which establish that there is no nerve root involvement, and so Dr Kitchen's view of sciatic involvement has subsequently been overtaken.

19. As the orthopaedic specialists consulted by the defendant put forward the opinion that the plaintiff's claimed symptoms could not be explained on the basis of the objective clinical signs, the defendant also tendered an examination of the plaintiff by Dr Roldan, a clinical psychologist who holds a PhD in psychology. In the history he took in his first report in February 1999 he recorded that the plaintiff told him that she had abused alcohol since the accident as a pain control measure. In cross examination she conceded that she in fact had two convictions for drink driving which preceded the accident, and counsel for the defendant pointed to this as another example of the plaintiff's lack of truthfulness. She was also questioned by Dr Roldan about her past criminal history, and she referred to a fraud conviction in the early 1990's but claimed not to recollect what this was about. She did not mention the social security fraud matter. She told Dr Roldan that she had been seeing Mr Parsons, a psychologist, for treatment because she was not coping with her back pain, but no report was tendered from him. I note, however, that in a report from the Canberra Injury Management Centre dated 8 September 2000 Ms Conroy, physiotherapist, states,

"Jody also participated in individual psychology sessions as the work injury has had a significant impact on her problems with mood and anxiety. She responded well to psychological treatment but will most likely need more at the time when she attempts the challenge of returning to work."

20. I am not sure, however, whether this refers to the same treatment, as the plaintiff told Dr Roldan that her treatment with Mr Parsons occurred some time in 1998. Dr Roldan's conclusion in his report of April 2000 was that,

"It is my impression that Ms Taylor is likely to present with a tendency to fabricate and/or exaggerate psychological symptomatology attributable to the accident in question and that she also appears to exhibit self-serving attributions as to the aetiology of alleged psychological symptomatology. I think that it is possible that Ms Taylor might have a longstanding history of personality/emotional disorder related to inherent factors and/or early environmental experiences and that this is reflected in what appears to be a rather disturbed psychosocial history and a number of episodes of what has allegedly been fraudulent behaviour. This hypothesised longstanding psychological/personality disturbance is unrelated to the injury in question."

21. Dr Roldan's report was attacked on the basis that he took a history of orthopaedic and neurosurgical reports from the defendant insurers that consistently said there was no objective clinical signs to support the claimed level of symptoms, and was not shown Dr Kitchen's report, in the possession of the defendant, which in December 1996 expressed the view that there was a disc injury which was producing sciatic pain. While it is undesirable to furnish an expert with only selected medical reports, I accept that in this case Dr Kitchen's views in December 1996 have been overtaken by other reports, and it is not part of the plaintiff's case that there is any nerve impingement as a result of the disc disruption.

22. The plaintiff's evidence is that she was able to continue to work with some time off and with ongoing pain in lighter duties at Ainslie Village throughout 1995 and 1996, with regular attendances on her general practitioner. In early 1997 she says she was the victim of a traumatic sexual assault, but denies that this had any impact on her health otherwise. She did not tell her treating general practitioner about this assault for some time after this, despite presentations dealing with depression, which Dr Pickup put down to the motor vehicle accident. I find it extraordinary that such a matter was not disclosed to her general practitioner. She did some voluntary bar work in the early part of this year, but her back pain became more acute and in April she was admitted to hospital, and has not worked since. At about this time a long term relationship had broken down, and she moved back to the family home. Her father and sister both gave evidence of their observations of her deteriorating health in this period.

23. I am satisfied that as a result of the accident at work on 24 May 1995 the plaintiff sustained injury to her back, which involved a degree of disc disruption at L5/S1. I am satisfied, on the basis of the comprehensive medical material before me, that this has not involved any nerve impingement, and so any ongoing disability must be put down to soft tissue injury or psychological sequelae to the accident. While I note that Dr Speldewinde and Dr Eaton have made a diagnosis of chronic pain syndrome, such a diagnosis does depend on the truthfulness of the complaints of pain, as Dr Eaton readily conceded. The plaintiff does not present generally as a person of credit, with two offences for fraud, and having admitted that she has lied in circumstances where there is a financial advantage in the lie. It was put in submission that an adverse inference should be drawn from the defendant's failure to tender any video surveillance material, but the plaintiff's concession that there would be no observable abnormality about 25% of the time seems to me to have rendered pointless any forensic purpose in tendering material showing the plaintiff going about normal activities.

24. I am not satisfied that the plaintiff has been truthful about the extent of her pain and disability. I am satisfied that she did sustain an injury, that it has involved some disc disruption, and that this does render her permanently unfit for heavy work, and will also involve a need for long term caution in respect of heavy exercise.

25. 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'."

26. In respect of general damages, I assess the plaintiff on the basis of an injury to the back which has resulted in disc disruption but no nerve root impingement, and a degree of soft tissue pain and resulting disability. I am satisfied that the plaintiff has had to abandon her vigorous sporting activities in respect of triathlon competitions, and that she has been and will continue to be restricted in heavy lifting. I am satisfied that she went through a particularly difficult time in early 1997, but note that this coincided with a claimed sexual assault and a breakdown in a long term relationship. I am not satisfied that the plaintiff has sustained any psychological injury attributable to this accident, preferring the views of Dr Ronald in this respect.

27. Taking all of the evidence into account and having regard to the plaintiff's age I award general damages in the sum of $45,000 with past loss of $30,000 generating interest of $4,125, making a total award of general damages of $49,125.

28. The plaintiff claims that, as a result of the injury, she has been unable to work at all from mid 1997. She has obtained a determination from the Magistrates Court that, for the purposes of the Workers Compensation Act 1951 she is entitled to weekly compensation as and from 13 July 1997. For the reasons set out in Hellsing v British Aerospace Australia [2000] ACTSC 114 at paras 53-56 I do not find that such a finding by the learned Magistrate on the statutory test for incapacity under the Act establishes an issue estoppel in common law proceedings in this Court. I am satisfied that the work accident was the cause of time off work after the accident, and that it remained the cause of time off work when the plaintiff's employment was terminated in mid 1997. I am satisfied that there is a degree of ongoing back pain and discomfort, but not to the levels claimed by the plaintiff, and that she remains unfit for heavy duty. I am satisfied that the personal attendant type of work that she had been doing at Ainslie Village remains beyond her capacity due to the disc disruption, and will permanently be beyond her.

29. The plaintiff gave evidence of a desire to obtain additional training and to return to the workforce in some form of personal care work, ranging from a desire to train as a child psychologist to childcare or counselling work. She acknowledges that her reading difficulties could present a problem here. It was put to her that she could do work like operating a till or console at a petrol station, and her reply was, "It wouldn't be mentally stimulating for me". While she agreed on further cross examination that she could do such a job if she was able to sit and stand, she maintained that, "I'd just find it demeaning".

30. I am not satisfied that the plaintiff has made realistic efforts to find employment in recent years. She has had little financial incentive to do so, being on ongoing compensation payments and, until her inevitable discovery and confession, ongoing fraudulent Social Security Benefits on top of such compensation payments. Her attitude that she would not do certain work because it would be `demeaning' did not impress me. I am satisfied that, although heavy physical work is precluded, there remains a wide range of work, including unskilled work of the type that she had previously engaged in while working in the family service station business, that she could engage in.

31. I assess her economic loss claim on the basis that she was precluded from her employment by the accident, and that this became permanent from mid 1997. I am not satisfied, however, that this has amounted to a permanent disability. Up until her hospitalisation in April 1997 she had taken time off work which resulted in workers compensation top up payments, which she must repay, in the sum of $10,566.60, and I award this sum. She claims ongoing loss from June 1977 to the date of hearing in the sum of $400 per week, resulting in a claim to this decision in the sum of $75,600. She has received compensation payments for this period of $51,508.27.

32. I am not satisfied that she has been fully disabled from all employment for this period, a matter which it seems to me is supported both by the weight of the medical evidence, where on this point I generally favour the views of those doctors who have examined and reported for the defendant because of my difficulties with the plaintiff's credit, and by her frank admission in cross examination that she could do certain work but did not because it would be demeaning. In respect of her economic loss claim, I find merit in the submission of the defendant that her economic loss claim be allowed in full until the early part of 1999, but then be discounted because of her significant residual economic capacity. I award the sum of $60,000 in respect of past economic loss, and decline to award interest on the basis that this award is less than the total of compensation payments received. She has paid tax on the compensation payments, so an award pursuant to the principle of Fox v Woods [1981] HCA 41; (1981) 148 CLR 438 should be made, which was agreed to be the sum of $7,726.24.

33. The plaintiff's claim for future economic loss was particularised as a full loss based on net weekly earnings of $440 until normal retirement age, but her counsel, very properly, acknowledged that a discount was appropriate to reflect her residual earning capacity, which he put a 30%-40%. I am not satisfied that this claim is fully made out, given my failure to be satisfied that the plaintiff has been truthful about her claimed levels of disability. I am satisfied that the plaintiff has a wide range of employment potential, including retraining into the personal care area in which she has expressed an interest, but also in terms of many relatively low skill service industry jobs, which she rejected in cross examination as being demeaning. Her previous employment at the time of the accident did involve heavy lifting of clients, and would be precluded to her, as would similar heavy manual work but she had previously worked in lighter jobs. It seems to me that this is an appropriate case, bearing in mind what the Full Court of the Federal Court said in Fry v McCuffick (1998) 1499 FCA, for a buffer type award.

34. Taking into account all of the evidence I award $34,320 being one years earnings at the claimed rate as a buffer for future economic loss.

35. Out of pocket expenses paid by the defendant amount to $38,484.47, which I award. There is also a claim for some $3,391.55 for some pharmaceuticals and chiropractic treatment, and a significant unpaid bill for the Canberra Injury Management Centre for a rehabilitation course. I award this sum as well, for a total amount of out of pocket expenses of $41,876.02.

36. In respect of future out of pocket expenses, I am satisfied that the effects of the accident are now generally in the past, but I accept that there will be a need for some future rehabilitation assistance to allow the plaintiff to fully work within her ongoing disability due to the disc disruption. I award the sum of $8,000 in respect of future out of pocket expenses.

37. There is a claim in respect of Griffiths v Kerkemeyer damages. I am satisfied on the evidence of the plaintiff's father and sister that there was a considerable amount of assistance provided to the plaintiff in 1997 when she returned to the family home. I am satisfied that this did for a period exceed the normal give and take of domestic relationships, and so should sound in damages, and I award the sum of $6,000, inclusive of interest, for past gratuitous domestic care. I am not satisfied that there is an ongoing need for such care for the future.

38. This amounts to a total award of $217,613.86 which I consider to be appropriate in all of the circumstances and award with costs.

I certify that the preceding thirty eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 2 February 2001

Counsel for the Plaintiff: Mr Stretton

Solicitor for the Plaintiff: Ken Johnston Bedford & Co

Counsel for the Defendant: Mr Crowe

Solicitor for the Defendant: Barker Gosling

Date of hearing: 4 & 5 December 2000

Date of judgment: 2 February 2001