Hobson v Queanbeyan Australian Football Club Ltd [2003] ACTSC 8 (3 March 2003)

Last Updated: 2 April 2003

IN THE SUPREME COURT OF THE )

) No SC 505 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBYN HOBSON

Plaintiff

AND: QUEANBEYAN AUSTRALIAN FOOTBALL CLUB LIMITED

ACN 002 084 148

Defendant

CORRIGENDUM

The Reasons for Judgment of the Honourable Justice Connolly delivered on 3 March 2003 [2003] ACTSC 8 is amended as follows:

Order (2) The defendant pay the plaintiff's costs, be changed to:

(2) Costs be reserved.

Associate to the Hon Justice Connolly

Dated: 3 March 2003

ROBYN HOBSON v QUEANBEYAN AUSTRALIAN FOOTBALL CLUB LIMITED [2003] ACTSC 8 (3 March 2003)

CATCHWORDS

PERSONAL INJURY - workplace injury - fall from ladder at work - factual issue as to whether ladder present - it was - liability established.

DAMAGES - tear to right medial meniscus of knee - psychological sequelae - Workers Compensation Act 1987 (NSW) assessed as 40 percent of worst case - no issue of principle.

Workers Compensation Act 1987 (NSW)

John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503

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

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

No SC 505 of 1999

Judge: Connolly J

Supreme Court of the ACT

Date: 3 March 2003

IN THE SUPREME COURT OF THE )

) No SC 505 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBYN HOBSON

Plaintiff

AND: QUEANBEYAN AUSTRALIAN FOOTBALL CLUB LIMITED

ACN 002 084 148

Defendant

ORDER

Judge: Connolly J

Date: 3 March 2003

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $268,935.10.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injury arising from a workplace accident that occurred on 2 September 1997 at the premises of the defendant, which is a registered club in Queanbeyan, New South Wales. The plaintiff was a long-term employee of the defendant. She worked as a bar manager, and usually worked on the day shift in the licensed club premises. On the day of the accident the person who was rostered to work in the evening was unavailable, and the plaintiff agreed to work on to cover that shift. It is a small club, and on this occasion the plaintiff was the only employee on duty. It is her case that after trading ceased at approximately 10 pm she commenced closing down and securing the premises, and part of this involved turning off a public address system, which was located on a high shelf in the cleaners' room. It is her case that in order to reach the public address system to turn it off, she had to ascend a ladder that was stored in the room, and that she fell from the ladder, injuring her knee.

2. The defendant's case is that the plaintiff did not injure her knee by reason of falling from a ladder, because, it is said, there was no ladder on the premises on the day of the claimed accident.

3. The plaintiff, who is a resident of the Australian Capital Territory, brings her claim in this Court, as is entirely proper, but the law to be applied in relation to the claim is, pursuant to John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503, the law of New South Wales, in this case the Workers Compensation Act 1987 (NSW) (the Workers Compensation Act).

4. The plaintiff claims that as a consequence of the accident she sustained a frank knee injury, which has required subsequent surgery, and there is in reality no real dispute on the medical evidence about the nature and extent of the injury and the surgical intervention to date. The real issue was the nature of the accident.

5. The plaintiff gave her evidence in a frank manner, and impressed as a truthful witness. She says that she was able to complete her duties after the accident, and went home. She says that the next morning either she or her partner rang the club, and left a message with Mr N Gutherie, the cellar person at the club, to say that she had had a fall and injured her knee. She could not recall whether the precise mechanism of the accident was discussed. Mr Gutherie says that he received a call from the plaintiff, and passed on a message to his boss, Mr R Fowlie, that she would not be at work that day.

6. Mr Fowlie says that later that day he received a phone call from the plaintiff and that she told him that she had injured her knee the previous evening at the end of her shift when she fell as she was attempting to turn off the public address system. He says that she did not mention a ladder as the mechanism of the fall.

7. The plaintiff saw her general practitioner, Dr JK Azoury, the day after the accident, and his reports refer throughout to a fall from a ladder. His original notes were not in evidence. A week after the accident, on 9 September 1997, Mr Fowlie signed an employer's report of injury for the purposes of the plaintiff's worker's compensation claim, and in this form it states that the plaintiff sustained the injury "whilst turning off PA system - lost footing on ladder".

8. The plaintiff has consistently maintained that the fall occurred as she was standing on a stepladder, which she says was stored in the cleaners' room. It is common ground that there were two stepladders that were normally stored at the club, and that the smaller stepladder would sometimes be stored in the cleaners' room. Mr Gutherie says that on 2 September 1997 the ladders were not at the club because he had taken them to his residence in Queanbeyan in order to prune some trees.

9. Mr Gutherie said that he always, or nearly always, borrowed the club ladders without authorisation to perform his pruning at the end of winter or the beginning of spring. He says that within a couple of days of receiving the phone call from the plaintiff, where a ladder was not mentioned, he had heard from other customers around the club that she was claiming that she had fallen from the stepladder. He says that at this time he still had the stepladders at his house.

10. He did not, however, pass on this information to his supervisor, Mr Fowlie, and he was unable to give any explanation in cross-examination as to why he did not do this. He acknowledges that the first time he raised the issue of the ladders not being at the club at the time of her fall was in a statement that he made to an investigator on 30 November 1999, which is more than two years after the accident.

11. Mr Gutherie was questioned as to whether he got on with the plaintiff, and he maintained that he did, but acknowledged that there had been some arguments. He said that he had on occasions observed her standing on tip toes to turn off the public address system. The plaintiff denies that this is possible. In reports tendered in the defendant's case it is asserted that the plaintiff is 166 cm tall, and that the height to the on/off switch on the public address system was 216 cm. I find it quite unlikely that a person of the plaintiff's stature would be able to turn off the public address system without standing on something. I do not accept Mr Gutherie's evidence on this point.

12. I thus have the plaintiff's consistent claim that she had fallen off a ladder, and Mr Gutherie's claim, first aired some two years after the accident, that he had the ladders at his home. Mr Fowlie accepted and signed the claim form based on the accident being a fall from a ladder, and he said in his evidence that the public address system was located in quite a high location such that it would be necessary for a person to stretch up to reach it, or to stand on something. He agreed that the stepladder was at times stored in the room where the public address was located. He spoke strongly about the plaintiff as an honest and reliable employee, and as a person who was "fair dinkum".

13. On all the evidence I prefer the version of events of the plaintiff, and I am satisfied, on the balance of probabilities, that on 2 September 1997 she climbed up a stepladder that was leaning against the wall in the store room in order to reach up to turn off the public address system, and that in so doing she came to fall. The plaintiff tendered in her case expert reports setting out the mechanism of the fall, and this was not seriously contested by the defendant. I am satisfied that the defendant is in breach of its duty of care to the plaintiff as its employee, in having a system of work such that the employee was required to place herself in an unsafe position by way of perching on a ladder in order to reach up to turn off the public address system. Mr Fowlie acknowledged that in subsequent renovations to the club the opportunity had been taken to relocate the public address system so that it is no longer necessary for an employee to reach up to turn it off.

14. It follows that I am satisfied that the plaintiff's injury was a consequence of the tortious act of the defendant, and it is appropriate for me to proceed to assess damages.

15. The plaintiff was born in 1945 at Bega in New South Wales, and grew up in the Young district, attending school to the age of 15, and leaving without obtaining the intermediate certificate. She obtained employment in the nature of shop assistant work until she married at the age of 18. There were three children of the marriage, born from 1965 to 1969. In 1974 as her children were of school age she obtained some part-time employment as a kitchen hand and waitress at a local bowling club. The family moved to Bathurst in 1975, and in 1976 she separated from her husband, and assumed full responsibility for her children. She returned to live in the Young district, and found work as a waitress, sandwich maker and bar person at various local establishments. In 1987 she moved to the Canberra area and found work with the defendant, initially as a casual bar person, and also worked at a sandwich bar. The uncontradicted evidence is that the plaintiff has long been a good worker, and Mr Fowlie spoke well of her enthusiasm. In 1991 she became a permanent employee of the defendant, doing regular day shifts at the club.

16. She attended at her local general practitioner the day after the accident, and he put her off work and on worker's compensation, initially prescribing physiotherapy and anti-inflammatories. She was referred early to a sports physician, Dr Still, who in a report of 1 January 1999 says that on her first presentation he made a working diagnosis of early osteo-arthritis with a medial meniscus tear in the right knee. This diagnosis was confirmed by an arthroscopy and partial medial meniscectomy which he performed on 13 November 1997. She was seen by a Dr Kinny for the defendant on 22 October 1997, but no report has been served. I accept that the fall from the ladder caused the tear to the right medial meniscus, and aggravated a previously asymptomatic degenerative condition in the right knee.

17. She returned to work full-time in March 1998, but continued to experience symptoms of knee pain, and on 4 May 1998 on medical advice moved to part-time work, ceasing work entirely on 11 May 1998. Dr Still referred her to Dr K Woods, an orthopaedic surgeon, who saw her on 29 June 1998. He made the diagnosis that her pre-existing degenerative condition was producing ongoing symptoms as a consequence of the accident. He said:

"... I believe that she is likely to have sustained a tear of the medial meniscus of the right knee when she injured her knee in the manner described when descending from a ladder sustaining a twisting force. This medial meniscal tear is likely to have arisen in the presence of pre- existing degenerative change in the knee and it is not uncommon in such a situation to see persistence of symptoms and pain and swelling in the knee for a considerable time despite surgical attention to the tear of the medial meniscus."

18. The plaintiff gave evidence that through 1998 she became increasingly distressed at her ongoing pain and inability to return to work despite the surgery to repair the tear to the medial miniscus. She said that she began to drink to excess as a means of coping with the ongoing pain and distress. In January 1999 Dr BA Stevens, a clinical psychologist, made the diagnosis of Pain Disorder and Reactive Depression. This condition has persisted for some time, with admission to the Canberra Hospital Psychiatric Unit in June 1999, and a further deterioration involving suicidal ideation in April 2002 after a further attempt at a return to work. Although the plaintiff has been seen by Dr Shand, a psychiatrist, for the defendant, no report has been served, and the only psychological evidence from the defendant is a report of Dr M Duke of 19 July 2002 in which he accepts that the plaintiff has been suffering from Major Depression, which he considers is remitting to a substantial degree. This is broadly consistent with Dr Stevens' report of 10 October 2002, where he notes that she has successfully addressed the excessive use of alcohol, and has been treated with anti-depressants. His view was that she now had a mild pain disorder, and moderate depression.

19. She underwent a partial knee replacement at the hands of Dr Woods in July 2001. In his report of 18 December 2002 he says that her right knee symptoms have been "modified but not completely abolished by her most recent surgery". He said that at his review six months after the operation he found "a minor loss of extension and adequate range of flexion", and recommended a graduated return to work, and a further review in August 2002, which he notes was not attended. He said that the limitations observed would render her unable to perform the work of a bar supervisor on a full-time basis, assuming that it was necessary for her to be standing and walking for much of the shift.

20. Dr D Billet, an orthopaedic surgeon, examined the plaintiff for the defendant in July 2002, and his report is broadly consistent with that of Dr Woods. He accepts that her incapacity for work was referable to the injury, but he expresses a more optimistic view of her prognosis.

21. I accept that as a consequence of the accident the plaintiff has suffered ongoing right knee problems. She underwent a repair to the tear to the meniscus, the frank injury, and she said that she hoped that she would return to work thereafter. She said that she enjoyed her work, she has a good work record, and Mr Fowlie spoke well of her. She continued to experience pain and discomfort, and this has lead to the development of psychological consequences and a difficulty with excessive alcohol consumption. These issues have been addressed with the support of her family.

22. As the accident occurred in New South Wales, I must assess general damages pursuant to the scheme of the Workers Compensation Act, which requires that I assess as a percentage of a worst case. She has undergone two operations and still experiences a significant degree of ongoing pain, and the view of Dr Woods is that a further procedure will be appropriate for a total knee replacement, which will, in his view, likely lead to a greater resolution of symptoms. Taking all of the medical evidence into account, and having regard to the physical as well as the psychological sequelae of this accident, and bearing in mind counsel's submissions which ranged from a submission of 25 percent by Mr McIntyre, for the defendant, to a claim for 50 percent, later reduced in oral argument to between 35 percent and 45 percent by Mr Cranitch, for the plaintiff,, it seems to me that an award at 40 percent is appropriate in this case. The maximum award, pursuant to s 151G(3) is $222,450, and this results in an award of $88,980, which I consider to be appropriate in all the circumstances.

23. Past economic loss was particularised with a degree of precision, and Mr Cranitch made a claim for the sum of $134,218.05, which seems to me to be appropriate, and was not contested on the basis that it reflected actual wage loss due to absences from work. It is however necessary to deal with an issue raised in the evidence of Mr Fowlie. The plaintiff gave evidence that just before this accident she had discussed with Mr Fowlie that her mother was very ill, and was living on the north coast in the care of the plaintiff's sister. The plaintiff said that she had told Mr Fowlie that she would like to be able to leave work and care for her mother. Her evidence is that this was a desire, but she was not in an economic position to resign from her job. There is a record of a board meeting of the defendant in August 1997 where it is reported that B Hobson advised that she has resigned as an employee of the club.

24. Mr Fowlie acknowledged that he had not received any written form of resignation, and it is of course the fact that she had not resigned as at the date of this meeting, being 26 August 1997, as she was still working at the date of the accident, being 2 September 1997. On all of the evidence I am satisfied that the plaintiff had told Mr Fowlie that she would have liked to have been financially in a position to leave work and help care for her mother, but that she had not in fact resigned. I therefore do not discount this award for past economic loss.

25. The plaintiff's claim for future economic loss is based on either a claim for total loss to the age of 65 on present earnings, which were agreed at $525, or a claim based on a residual capacity of $150 per week.

26. I am not satisfied that the plaintiff, who has a degree of ongoing knee pain, is forever precluded from employment, and it seems to me that no medical report would make out a claim for total incapacity. I accept that full-time bar work, particularly as the sole employee with the defendant, where she was required to be on her feet and also to perform functions such as changing kegs, would be inappropriate. The plaintiff herself gave evidence that there would be other work in the club industry that she could perform, particularly being the change provider and supervisor of gaming machines, or keno gaming operations. The medical evidence, it seems to me, makes out a claim at most to a restricted employment future. Dr Woods, who agrees full-time bar work is unsuitable, and who recommends a future total knee replacement, makes the point that such a procedure would likely further improve her condition.

27. Moreover, I am not satisfied that it is appropriate to mathematically calculate to a notional retirement age of 65. The plaintiff's partner has himself retired, and she did acknowledge that she had considered leaving work in 1997 to care for her mother, but was not able to do so for financial reasons. Her relationship was then only of four years standing. I am not satisfied that she would have worked full-time through to age 65. Nonetheless, she has been precluded from continuing in the employment that she had enjoyed and done well in for a long period, and will have to find alternative employment, most likely in the areas she identified within the club industry. I award the sum of $55,000 by way of future economic loss