Maguire v Maguire [2001] ACTSC 93 (28 September 2001)

Last Updated: 11 June 2002

Francis John Maguire as Executor of the Estate of the Late Janetta Katrina Maguire v Susan Gai Maguire [2001] ACTSC 93 (28 September 2001)

CATCHWORDS

DAMAGES - Personal injuries - Liability for out of pocket expenses - Whether post accident hospitalisation was required as a result of accident or of a pre-existing degenerative condition.

Law Reform (Miscellaneous Provisions) Act 1955

Griffiths v Kerkemeyer (1977) 193 CLR 161

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

No. SC 824 of 1999

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 28 September 2001

IN THE SUPREME COURT OF THE )

) No. SC 824 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: FRANCIS JOHN MAGUIRE AS EXECUTOR OF THE ESTATE OF THE LATE JANETTA KATRINA MAGUIRE

Plaintiff

AND: SUSAN GAI MAGUIRE

Defendant

ORDER

Coram: Master T. Connolly

Date: 28 September 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $60,000.00 plus out of pocket expenses as described in paragraph 2 with the defendant to pay the plaintiff's costs.

2. The defendant is to be held financially accountable for the out of pocket expenses incurred from March 1997 to 30 June 1997 only.

3. The parties are given leave to submit short minutes of order in relation to the exact payments to be made.

1. This is a claim for damages for personal injuries arising from an accident which occurred in the home of the defendant in Rose Bay, New South Wales, on 24 March 1997 when a number of boxes and articles of household furnishings fell from a cupboard and struck Mrs Janetta Maguire in the head, causing personal injuries.

2. Mrs Maguire, who was aged 62 at the time of the accident, had suffered from rheumatoid arthritis from the age of 15, and had undergone four major joint replacements by the time of the accident, as well as fusion procedures at various levels in her cervical spine. She was admitted to hospital five days after the accident, and remained in hospital until 30 May 1997. She was again admitted to hospital in March 1998 and underwent a further surgical fusion at C6-T2. From that procedure she has had frequent re admissions to various hospitals for complications arising from this surgery and widespread degenerative problems. Mrs Maguire passed away on 9 September 2000 due to a condition which it is common ground was unrelated to the accident, and the action has been continued by her estate pursuant to s. 4(1) of the Law Reform (Miscellaneous Provisions) Act 1955.

3. Liability was admitted at this hearing, and counsel further advised me that there was agreement between the parties that it would be appropriate to enter judgment for the plaintiff in the sum of $60,000 in respect of general damages, and damages pursuant to the principles of Griffiths v Kerkemeyer (1977) 193 CLR 161 for the extensive domestic care and assistance provided to the deceased plaintiff by her husband.

4. The real issue for determination at this hearing was the question of liability for out of pocket expenses. Mrs Maguire experienced considerable health problems in the years between the accident and her death, and incurred substantial expenses. Some of the public hospital authorities responsible for the provision of hospital care have indicated, quite properly, that they will seek to recoup from the tortfeasor the cost of the hospital care provided to Mrs Maguire at the rate charged for compensable injuries. This amounts to a total sum of $212,165. There are also repayments to Medicare and Mrs Maguire's private health insurer, HCF, as well as some out of pocket expenses incurred by the late plaintiff herself.

5. The real issue in dispute is whether all of the plaintiff's spinal and cervical health difficulties following the accident can be attributed to the accident, or whether they are attributable to the significant underlying degenerative condition. The crucial issue is whether the hospitalisation of March 1998 for the purpose of undertaking a further fusion procedure is attributable to the accident.

6. I am satisfied that the plaintiff's hospitalisation from immediately after the accident to 30 May 1997 is attributable to the accident. A blow to the head and fall caused by some boxes falling from a cupboard would probably lead to minimal injuries to most people, but the plaintiff was particularly vulnerable given her pre accident history, and it seems to me that this is a case which well illustrates the legal principle that a defendant must take the plaintiff as they find them, and that the fact that a person has particular vulnerabilities does not mean that the full consequences of the injury are not compensable. There was some suggestion that the plaintiff's arthritic neck problems emerged after some days of hospitalisation following the accident, and so relate only to the underlying condition, but I am satisfied that the immobilisation that followed from the blow can account for this. I endorse the findings of Dr Blum, who reported to the insurer on 12 September 1997 that:

"Mrs Maguire's accident exacerbated her previously existing physical disabilities due to the direct injury and it caused her to be immobilised for some time at bed rest which did not improve her rheumatoid arthritis and caused her significant pain in her joints due to her arthritis. It has not compounded her rheumatoid arthritis."

7. The principles to be applied in this type of case have been well established by the High Court in decisions such as Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. In the latter case Windeyer J stated:

"In a personal injury case the ultimate burden is on the plaintiff to establish the extent of his injuries caused by the conduct of the defendant. If when the tort occurred the plaintiff was suffering from a progressive disease which, even if he had not been tortiously hurt, would certainly and within some reasonably predictable time have disabled him in the same way as the tort did, then the defendant's conduct has merely hastened the inevitable; and damages must be measured accordingly. But a plaintiff, tortiously injured, who suffers thereafter in a way in which he had not previously suffered, may in the absence of any countervailing evidence rely upon the prima facie conclusion that for his disabilities and sufferings the defendant is responsible. It is not incumbent on the plaintiff to lead evidence to displace or discount the inference to which the facts would otherwise give rise. But he must prove his case: and when the whole of the evidence is before the tribunal of fact the burden is on him to establish the measure of his damages. The evidence may not show that the conduct of the defendant did more than accelerate misfortune. But of course, it will not avail a defendant to show that but for the plaintiff being in some way ailing when he was hurt his injuries would have been less serious than they were. A tortfeasor gets no allowance because of the frailty of his victim." (at 170).

8. There is evidence to support the proposition that the plaintiff made a substantial recovery to her pre accident level of functioning after her initial period of hospitalisation from March to May 1997. This was the view of the spinal injuries registrar at The Prince Henry Hospital in his discharge report to Mrs Maguire's general practitioner on 30 May 1997. Dr Cassar, who has been treating Mrs Maguire for her arthritic condition since 1977, expressed the view in September 1997 that the plaintiff was recovering well and he hoped that by December 1997 she would be back to pre accident levels of functioning.

9. It is apparent, however, that the plaintiff's general health began to sharply deteriorate from late 1997, and on 20 March 1998 Dr Farey performed a laminectomy and fusion procedure on Mrs Maguire at C6-T2. It seems to be common ground that, whereas previous fusion procedures had lead to significant improvements in Mrs Maguire's general health and functioning, she never achieved similar benefit from this procedure, and complications from the operation followed, leading to a generally deteriorating level of health.

10. The plaintiff's case is that the accident caused this procedure to have been performed when it was. Dr Cassar in his report of 26 March 1998 referred to the significant deterioration in her cervical function, and said:

"Surgery to spinal cord compression may well reverse this neurological disability which has been brought about by the injury of 24/03/97 and which was expected to occur within the next 3 years purely on the basis of pre existent cervical myelopathy. In other words the condition, its disability and its requirement for substantial personal and home carer assistance had high risk of developing by the year 2002 when the injury of 24/03/97 aggravated and caused the condition to occur as of said date."

11. There is a report from Dr Farey, the orthopaedic surgeon who performed the procedure on Mrs Maguire on 20 March 1997. He said that:

"On 20.3.97 I performed C6-T2 laminectomy and postero-lateral fusion on Mrs Maguire. Operative findings revealed the presence of severe spinal cord compression at the cervico thoracic junction. There was a great deal of rheumatoid tissue present at the C7/T1 level".

12. Dr Farey's concluding opinion should be set out at some length. He said:

"Mrs Maguire has a long history of rheumatoid arthritis. This has affected her cervical spine. She underwent multi level fusion in the past. A combination of fusion and rheumatoid arthritis has led to subluxation of the cervical spine at the C7/T1 level. There is no doubt that the rheumatoid arthritis is a significant aetiological factor in the subluxation as there was rheumatoid pannus tissue found at the site of the subluxation. The subluxation is a complication of both rheumatoid arthritis and occipito-cervical fusion which can be both due to surgical fusion and spontaneous fusion associated with juvenile rheumatoid arthritis. The subluxation has led to significant spinal cord compression with associated weaknesses, numbness, further impairment of hand function in excess of that experienced secondary to rheumatoid arthritis of the hand and difficulty walking. Historically, Mrs Maguire has developed symptoms following an injury at home, in which boxes and a seat fell onto her head. It is certainly possible for patients who have pre existing spinal cord compression to be rendered symptomatic by a head injury, but in this regard I am purely reliant on the patient's symptoms. The injury did not cause subluxation of the cervical spine."

13. It is common ground that the operation on 20 March 1998 was to deal with symptoms that were associated to the subluxation of Mrs Maguire's cervical spine at C7/T1. The surgeon who performed this procedure has reported that at the site of the subluxation he found pannus tissue, which I am satisfied is thickened and chronically inflamed tissue associated with rheumatoid arthritis. The operating surgeon did not find any evidence suggestive of trauma at this site, and as I understand the plaintiff's case it is not put that the falling items which struck Mrs Maguire in March 1997 caused traumatic injury to Mrs Maguire's cervical spine at the point of the subluxation.

14. The plaintiff's case is rather that the subluxation which required operative intervention in March 1998 was a consequence of the underlying degenerative condition, but was aggravated by the trauma of March 1997. This is the proposition advanced by Dr Cassar, who acknowledges the degenerative nature of the subluxation, but opines that, absent the trauma of March 1997, the condition would not have developed until 2002.

15. Such an opinion is, it seems to me, of its nature, speculative. In many cases the court is presented with alternative expert views, one speculating that absent the accident a degenerative condition would not have become symptomatic, and the other speculating that the condition would have become symptomatic regardless of the accident related trauma. In this case Dr Farey, who was the surgeon who operated at the site of the subluxation, has reported on the presence of "a great deal of rheumatoid tissue present at the C7/T1 level." I am satisfied on all of the evidence before me that in this case there is sufficient evidence, in the report from the treating surgeon, for the defendant to discharge the evidential onus provided by Watts v Rake and Purkess v Crittendon, and satisfy me that the operative procedure in March 1998 was to deal with the subluxation which was a consequence of the longstanding rheumatoid arthritis, and not the trauma associated with the accident of March 1997.

16. The accident of March 1997 did cause an extensive hospitalisation which lasted from 25 March to 30 May 1997. It was an accident which befell a woman with a long history of rheumatoid arthritis, and it undoubtedly caused much distress, and resulted in a need for significant care. It is apparent from the medical evidence which has been before me that Mrs Maguire's husband of many years provided close and loving personal care to the plaintiff following the accident, and indeed in the years leading to her death.

17. I am satisfied that the proposed award in respect of general damages and damages in respect of gratuitous personal care is appropriate. In respect of out of pocket expenses, however, I find that the defendant is to be held financially accountable only for the March 1997 to 30 May 1997 period of hospitalisation and its immediate aftermath. I find that the hospitalisation from March 1998 was to treat a condition that was not caused or aggravated by the accident, and it follows that the subsequent periods of hospitalisation also are not attributable to the accident.

18. Counsel advised me that the hospital authorities had indicated that they would only seek recovery at the compensation rate for those periods of hospitalisation that I found to be accident related. It would follow that the only period for which such recovery is appropriate is the period of hospitalisation ending on 30 May 1997, and for ancillary expenses for a month thereafter to 30 June 1997.

19. Counsel were in agreement that, if this was my finding of fact (and I canvassed with counsel the various findings which it seemed to me could be open on the evidence) it would be appropriate for me to indicate that judgment should be entered for the plaintiff in the sum of $60,000. Counsel for the defendant acknowledged, very properly, that costs should follow whatever my findings in relation to the out of pocket expenses, in that it was clearly necessary for this matter to come to hearing. Counsel also indicated that I should record my finding that the defendant is liable only for expenses related to the first period of hospitalisation, and then give leave to the parties to bring in short minutes reflecting the precise financial implications of this finding. Counsel indicated the hospital authorities and the health insurance provider, and the defendant's insurer, should be able to reach agreement on the dollar sum that would reflect these findings without the need for extensive additional evidential hearings. I so order.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 28 September 2001

Counsel for the Plaintiff: Mr Faulks

Solicitor for the Plaintiff: Snedden Hall & Gallop

Counsel for the Defendant: Mr Stretton

Solicitor for the Defendant: Phillips Fox

Date of hearing: 12 September 2001

Date of judgment: 28 September 2001