Baker v Woolworths Limited Acn 000 014 675 [2002] ACTSC 25 (12 April 2002)

Last Updated: 17 April 2002

Barbara Baker v Woolworths Limited ACN 000 014 675 [2002] ACTSC 25 (12 April 2002)

CATCHWORDS

DAMAGES - personal injuries - assessment - transient soft tissue injury

Ramsay v Watson (1960) 108 CLR 462

No. SC 824 of 2000

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 12 April 2002

IN THE SUPREME COURT OF THE )

) No. SC 824 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BARBARA BAKER

Plaintiff

AND: WOOLWORTHS LIMITED ACN 000 014 675

Defendant

ORDER

Coram: Master T. Connolly

Date: 12 April 2002

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $2134.00

2. I will hear the parties as to costs

1. This is a claim for damages for personal injuries arising from an incident which occurred in the defendant's supermarket at Dickson in the Australian Capital Territory at about 11pm on 9 December 1999 when the plaintiff was struck by a large trolley full of alcohol that was being wheeled by an employee of the defendant. She was struck as she was bending over a bread bin and complains of an injury to her left hip. The defendant admits a breach of duty of care, and the matter comes before me for assessment of damages. The defendant's case is that the incident caused trivial injuries and inconvenience only. The defendant made a major attack on the plaintiff's credibility as a witness of truth.

2. The defendant also pleads that the plaintiff has recovered damages in respect of two motor vehicle accidents, which occurred on 21 January 1996 and 7 December 2000 in respect of injuries which it says are largely identical to the injuries allegedly sustained as a result of the incident the subject of these proceedings. The defendant says that the plaintiff has received damages and compensation in the sum of $157,000 inclusive of costs for these injuries, and that she is accordingly not entitled to additional damages or compensation, as that would constitute double recovery.

3. The plaintiff claims that the trolley hit her on the left hip and she was forced forwards, and she lunged to prevent falling over completely. She says that she immediately noticed a burning pain in her left leg and in her back. She reported the incident to Woolworths, and went home. She says that she went home and rang her doctor the next day. Dr Ragg is her general practitioner, and his notes reveal a consultation on 13 December 1999 in which the accident is reported. He recorded complaints of low back pain and left-sided pain, and found tenderness over the left sacroiliac joint with a good range of movement of both hips. He made a provisional diagnosis of soft tissue injury. On a subsequent consultation on 16 December he took a history that she also struck her head in the fall. This was not claimed in her evidence in chief.

4. The plaintiff claims ongoing low back pain and left hip pain. She has worked at various times in recent years, but says that these pains have become increasingly disabling. The high water mark of her medical case is the report of Dr Colin Andrews, consultant neurosurgeon, of 24 May 2001. He had available to him an MRI scan of her lumbar spine performed on 8 September 2000. This revealed :

"At L3/4 the disc is slightly reduced in height and T2 signal intensity. There is minimal posterior bulging without neural compromise. At L4/5 the disc is markedly reduced in height with moderate T2 signal loss. There is an underlying broad based central and right lateral disc protrusion causing moderate narrowing of the lateral recess and likely impingement on the right L5 root."

5. Dr Andrews, with this information and a history of no prior back pain or sciatica, formed the view that the damaged disc at L4/5 was the cause of her symptoms. On the basis of the history he had, he assumed that the accident was the cause of her disc problems.

6. In cross-examination he confirmed that he was told by the plaintiff that she had no prior complaints of back pain or sciatica. I find that this was an incorrect history. I am satisfied that the plaintiff did complain of low back pain following the motor vehicle accident of January 1996. A report was tendered by the defendant prepared by Dr Schellenberger, an orthopaedic surgeon who reported for the plaintiff's solicitor in the motor accident proceedings. She took a history of a nagging low backache arising from the accident.

7. There was also an affidavit of the plaintiff tendered by the defendant which related to some criminal injuries compensation proceedings in the Magistrates Court arising from a dog attack in June 1999. This contained a report from Dr Ragg, the general practitioner, dated 25 July 1999 which said that the plaintiff continued to be unable to work because of her back and abdominal pain, which had been aggravated by the attack. There is also a report from a psychologist, Mr Petroni, dated 22 July 1999 in which he took a history of her complaining of an aching back which was caused by trying to pull away from the dog attack. He said the back injury was preventing her from undertaking a range of activities.

8. The defendant also tendered the notes of Ms Daniels, a physiotherapist. This included a report for her former lawyers of December 1999 in which she states that on her first attendance on 6 July 1999 her back was strapped, and she complained of low back pain radiating out to the left side, caused by twisting to avoid the dog bite. There was also a report of an aggravation on 15 July when the plaintiff claimed to have been assaulted by the owner of the dog, when she was pushed in the back. There were 19 treatments to her back. Ms Daniels diagnosed this as a soft tissue injury.

9. The statement accompanying the motor vehicle accident originating application was tendered, and it claims that in the motor vehicle accident the plaintiff sustained injury to the neck region and injury to lower back.

10. I am satisfied that the plaintiff had made complaints of low back pain before this accident. I am satisfied that these complaints of low back pain were the subject of both a motor accident claim and a criminal injuries compensation claim. I found her attempts to explain why this history was concealed from Dr Andrews quite unsatisfactory.

11. Dr Andrews was not aware of any previous MRI scans. He was referred to an MRI of the lumbar spine of 20 May 1997 which revealed:

"At L3/4 the disc is minimally narrowed with slight loss of signal intensity on T2 weighting consistent with early degeneration....At L4/5 the disc is moderately reduced in height with marked loss of signal intensity on T2 weighting. There is an underlying broad based central disc protrusion, more marked to the right side where it extends into the neural frame with accompanying small osteophytes."

12. Dr Andrews agreed that these two MRI scans were "pretty close" to being the same, and they indicated that the disc protrusion which he identified at L4/5 in 2000 was in existence to almost the same extent on 20 May 1997. He said that this new information "certainly lessens the possibility that that incident is responsible for her disc problems which was pre-existing. It might have been a temporary aggravation."

13. It seems to me that the untrue history which Dr Andrews was given was the basis of his reports, and that, as the factual basis has fallen away, so the opinion on which it was based is of no assistance.(Ramsay v Watson (1960) 108 CLR 462). It seems to me that the evidence that I am left with from Dr Andrews is that there is only a possibility that the fall in Woolworths caused a temporary aggravation to her pre-existent disc problem at L4/5 which Dr Andrews says is the source of her problems.

14. There is also a report from Dr White, a neurologist, of 17 August 2001. He took an accurate history of low back pain from the motor vehicle accident. He was aware of the 2000 MRI scan, and said that "There is clearly degenerative change on the basis of her MRI lumbosacral spine. It is unclear whether this is related to her motor vehicle accident, as I suspect, and equally unclear as to whether or not that has been aggravated by the recent accident."

15. He felt that her major problems at the time of the consultation were from her left hip. He said he would defer to an orthopaedic opinion on this, but recommended a bone scan. He had a history of no prior hip problems. The report from Dr Schellenberger relating to the 1996 accident took a history of a dislocated left hip 15 years previously. Ms Baker denies that this ever occurred, but cannot explain where else the history could have come from.

16. I note that Dr Smith was an orthopaedic surgeon who she was referred to for treatment, and in his report to Dr Chandran of 26 October 2000 he said that he was investigating her for a pain syndrome which suggested left hip pathology. He said "Her pain syndrome has gradually evolved to be clearly sciatic in nature and Dr Andrews has correctly diagnosed the L4/5 disc as the root of her problem." Dr Ragg, the general practitioner, said in his report of June 2000 that an x-ray of her left hip in January 2000 showed a normal hip with a small area of calcification at the neck of the left femur. He said this "May represent changes of previously existing calcific tendonitis. This is highly unlikely to be related to her injury in December."

17. It seems to me that, while Dr White has speculated on some hip pathology, he says that he would defer to an orthopaedic opinion, and Drs Smith and Andrews agree that her complaints of pain are due to the disc pathology at L4/5. Dr Andrews, on a misleading history, was prepared to attribute this to the incident at Woolworths, but on becoming aware of the full history revised his opinion.

18. The plaintiff was also examined for the defendant by Dr Hopkins, a consultant orthopaedic surgeon, on 27 October 2000. He took a history of no prior low back pain, and had available only the MRI of 2000. On this basis he accepted that the twist she claims to have sustained in the incident in Woolworths caused the disc injuries at L4/5. This report was tendered in the plaintiffs' case, but as I have found that it was based on a false history, and did not involve the 1997 MRI, I find it of no assistance on the principle in Ramsay v Watson in linking her disc pathology to the accident.

19. The Hopkins report assumed some significant, however, in the defendant's argument that the plaintiff was prone to embellish and exaggerate her complaints. He took, as is usually the case in a medico-legal report, her history of how the accident has affected her. His report states:

"Ms Baker said that she experiences difficulty driving a car and only drives local distances. She is able to undertake meal preparation and cooking, but does not vacuum or carry out any heavy cleaning activities in the home. She is also able to wash clothes but not hang them on the line and when shopping she carries light items only. She is normally a keen gardener but is now unable to bend and she no longer mows the lawns. She said she no longer enjoys fishing from the shore, cycling, waterskiing or dancing."

20. In a report of 1 May 1997, in relation to the motor vehicle accident she told Dr Brownbill, who was reporting for the insurer, that

"She used to garden and swim, go waterskiing, play tennis, ride bicycles and go bush walking. She also used to river bait fish with her son and go dancing. She is unable to perform any of these activities now."

21. Dr Schellenberger in March 1998 took a history that, after the motor vehicle accident

"At home she copes with cooking and light housework but has difficulty chopping wood, mowing, vacuuming and scrubbing walls. She cannot iron for long. She has difficulty undertaking tasks overhead, such as hanging out the washing. She is able to drive locally. She cannot garden. She has given up water skiing, softball, tennis, walking, swimming, dancing, wearing high heel shoes, prolonged sitting to sew and do folk art or découpage. She cannot go fishing with her son, as she did previously."

Dr Schellenberger had also taken a history that she had had some incapacities as a result of the accident which lead to the cervical fusion, but had been able to return to sports such as waterskiing.

22. It is apparent that the history taken by doctors of the impact this incident has allegedly had on the plaintiff's lifestyle mirrors, in some cases word for word, the impact she has previously said the motor vehicle accident had on her lifestyle. The report from the psychologist in support of the criminal injuries compensation claim following the dog attack in 1999 said that, due to that incident

"She cannot do much housework. Her son does most of it for her when he has time. She does what she can and what she ant do she leaves. It takes her a long time to do any housework now. She is not longer able to ride a pushbike and does not go for walks."

He had previously recorded that

"The back injuries is preventing her from riding her bike, which she used to do a lot of. It is also preventing her from walking. The leg injuries are preventing her from going to rock and roll and line dancing."

23. Again, the complaints are similar. There is a further claim involving Ms Baker arising from an employment dispute in 1999 which culminated in her termination, with an allegation of theft. She has brought an unfair dismissal complaint, and claims to have suffered significant psychological trauma as a consequence of the allegation of theft. Dr Stevens prepared a report in relation to a workers compensation claim. He offered the observation in this report that he had performed tests and she was found not to be malingering. He thought she had a tendency to minimise her psychological condition. He said as a consequence of this allegation of theft, apparently related to some cleaning products, she reported

"losing interest in pleasurable activities such as bike riding, fishing and dinner with her son and social activities". "I just shut myself in the house. Friends ring me up to go out, but I couldn't be bothered."

24. I note that there is no reference in Dr Stevens report, just two months after this incident, to any accident at Woolworths and complaint of back, hip or leg pain. Again, I am satisfied that the plaintiff has given a false and misleading history in order to maximise a claim, in that case to emphasise the unfair dismissal claim.

25. Anxiety and stress are claimed in the statement of particulars flowing from this incident, although there is no supporting medical evidence. I note that this was also the claim in respect of the Q Skills cleaning employment referred to above, the dog incident, and also a claim brought against another former employer, John James Hospital.

26. It is apparent that the plaintiff has attributed an inability to undertake certain activities, such as bike riding and fishing, to the motor vehicle accident, the dog attack and assault, the Woolworths incident, and the dismissal and allegation of theft. I note that the plaintiff claimed in respect of this allegation to be an honest person, but admitted to prior convictions for larceny and fraud.

27. I find that the plaintiff has repeated assertions of incapacity which are the same but in respect of different accidents or employment disputes. I do not find the plaintiff to be a witness of truth. In relation to the repeated claim that this accident, or other accidents, prevented her from water skiing, I note her admission in cross-examination that the last time she waterskiied was when she was 17