Hall v Coles Myer Ltd [2005] ACTSC 108 (4 November 2005)

Last Updated: 9 November 2005

JANINE HALL v COLES MYER LIMITED [2005] ACTSC 108 (4 November 2005)

NEGLIGENCE - personal injury - slip and fall - supermarket - liability of occupier - whether plaintiff guilty of contributory negligence.

DAMAGES - personal injury - injury to sacroiliac joint - injury to L5-S1 facet joint - no question of principle.

Brady v Girvan Bros Pty Limited (1996) 7 NSWLR 241

Mercouris v Westfield Shopping Centre Management Company Pty Ltd [2000] NSWCA 79

Ghantous v Hawkesbury City Council (2000) 206 CLR 512

National Health Act 1953 (Cth), s99AA

National Health (Pharmaceutical Benefits) Regulations 1960

No. SC 13 of 2004

Judge: Master Harper

Supreme Court of the ACT

Date: 4 November 2005

IN THE SUPREME COURT OF THE )

) No. SC 13 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JANINE HALL

Plaintiff

AND: COLES MYER LIMITED

Defendant

ORDER

Judge: Master Harper

Date: 4 November 2005

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $66,500.

1. The plaintiff in this action claims damages for personal injury resulting from a slip and fall in the defendant's Coles supermarket at Chisholm, a Canberra suburb, at about 2.30 pm on Tuesday 24 November 1998.

2. The plaintiff was born on 21 May 1963 and was 35 at the time of the fall. She is now 42 years of age.

Liability

3. The plaintiff went to the supermarket and selected a few items for purchase, which she placed in a plastic supermarket basket. She walked along the dairy aisle towards the pet food area. The aisle was partially blocked by a stock trolley at a right angle to the shelves. The trolley was loaded with boxes of stock so that the plaintiff could not see through or past it. She walked out and around the trolley, and as she did so, she slipped and fell. Her right leg went out from under her, and she fell heavily on her right buttock. Her shoe broke. She was not immediately able to get up, and she sat on the floor for a few moments. Her clothing was slightly wet (though not stained), and she realised that she had slipped in some liquid on the floor. She had no recollection of the liquid being of a different colour from the floor, and I accept that it was either clear or a similar colour to the vinyl tiles which constituted the floor surface.

4. After a time, the plaintiff picked herself up and noticed behind the trolley a yellow plastic cone with wording cautioning of a wet or slippery floor. A woman, presumably another customer, offered to help the plaintiff, but she declined. The woman moved the sign on to the area of the spillage. The plaintiff went to the checkout and told the operator that she had fallen over and hurt herself, and pointed out the location of her fall. She suggested that the spillage should be cleaned up. She then left the store and went out to her car where she sat for ten or fifteen minutes, dazed and in pain, before she drove home.

5. The plaintiff's solicitors qualified an engineer, Mr Ian Burn, who went to the supermarket in May 2000. I accept that the layout of the supermarket and the floor surface were in the same condition at the time of his inspection as on the day of the plaintiff's fall. He was able to identify the aisle in which the plaintiff had fallen, and took some photographs of the aisle, including one showing a stock trolley and another a yellow plastic warning cone: the plaintiff's evidence was that the cone in the photograph was about twice as tall as the one she saw on the day of her fall, but was otherwise similar. Mr Burn said that the floor was covered with polished vinyl tiles. He measured their coefficient of friction at 0.27, somewhat less than the mean coefficient of 0.4 and specific coefficient of 0.35 laid down by the applicable standard, AS 3661.1:1993. In these circumstances, he expressed the opinion that the risk of slip and fall injuries on the vinyl floor when wet was "extremely likely". I accept that spillages in a supermarket are unavoidable. Mr Burn's opinion was that the hazard to customers presented by spillages could be reduced by placing signs where they could be clearly seen by customers, and by having in place a system of inspection and cleaning of spillages at regular intervals.

6. The defendant called no evidence on the issue of liability, and did not require Mr Burn's attendance for cross-examination. It seems to me probable, from the fact that the yellow cone had been placed in the vicinity of the spillage, that it had been detected by a member of the defendant's staff but not yet cleaned up. There is no explanation as to how the trolley came to be in a position where it obscured the sign. A customer approaching from the opposite direction would have seen the sign, which should have alerted such a customer to the possibility of a spillage in the area, though it would have been more helpful to place either the trolley or the sign directly over the spillage. It seems from the evidence that the trolley had been positioned so as to make it very likely that a customer in the plaintiff's position would walk into the spillage, as she did.

7. The plaintiff would not have presented to the checkout operator as seriously injured, so that the operator might not have regarded the matter as warranting the completion of an incident report. Nevertheless, details of the plaintiff's claim were known to the defendant by April 2000, shortly enough after the accident to identify staff members on duty at the time and to make inquiries of them. The absence of any evidence on behalf of the defendant enables me more readily to draw the inference that there is no evidence available to it which might have cast any doubt on the plaintiff's version of events, or provided an explanation of those events consistent with absence of negligence on the part of the defendant.

8. The occupier of a supermarket owes a high level of duty of care to its customers, whom it invites to enter its store to make purchases from which the supermarket will make a profit: cf. Brady v Girvan Bros Pty Limited (1996) 7 NSWLR 241 per Kirby P. The occupier of a supermarket must be taken to be aware that spillages will occur from time to time and should have a system in place to detect and remove spillages at intervals which are regular and as frequent as is reasonably practicable. The occupier may avoid liability for injury to a customer where it has in place such a system, and the system was in effect at the time: inevitably some customers will be injured by slipping on a spillage which occurred only moments ago. In such circumstances it will generally be found that there was no negligence: cf Mercouris v Westfield Shopping Centre Management Company Pty Ltd [2000] NSWCA 79. In the present case, as I have said, no evidence of any such system has been called.

9. Counsel for the defendant submitted that the applicable duty of care is owed only to those customers who are taking reasonable care for their own safety, and that I should find that the plaintiff would have seen the spilt liquid if she had been keeping a proper lookout and hence cannot have been doing so. Counsel cited a number of recent decisions as authority for that proposition, the leading case being Ghantous v Hawkesbury City Council (2000) 206 CLR 512, in which Callinan J at 639 made the now familiar statement that the world is not a level playing field and that it is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. I note, however, that Ghantous and the other cases to which I was referred are all actions against local government authorities. Mrs Ghantous, for example, lost her footing because of a small difference in height between a paved footpath and the adjoining soil. Local government authorities are, it seems to me, in a very different position from operators of supermarkets. The latter stock the shelves adjoining their aisles in such a manner as to attract the attention of passing customers, and with the intention of doing so.

10. In any event, I am not satisfied that the spillage was so obvious that a reasonable person in the position of the plaintiff, keeping a proper lookout, would have seen it or should have been expected to do so. I am not satisfied that any behaviour on the part of the plaintiff either excluded her from the category of persons to whom the defendant owed a duty of care, or amounted to contributory negligence.

11. As I have said, it seems to me more likely than not that a member of the defendant's staff had detected the spillage and had taken some preliminary steps to do something about it, by placing a warning sign next to or close to it. I think it unlikely that the stock trolley was in the position where the plaintiff saw it either at the time of the spillage or at the time of placement of the warning sign. The probable explanation for its presence is that another staff member, unaware of the spillage, moved it to that position in the course of stocking shelves. There is an element of speculation in all of this, but there is no doubt that, the spillage having been detected, the defendant owed a duty to customers in the position of the plaintiff either to place some object over it, or to place a warning sign where customers would clearly see it and, having seen it, avoid the area of the spillage. If either of these things had been done, it is highly unlikely that the plaintiff would have been injured. The staff of the defendant failed to take either of these steps and the failure was probably compounded by the placement of the trolley in such a position as both to obscure the sign and to narrow the available floor area of the aisle. The failure of the defendant to cover the spillage or to take adequate steps to warn customers of its presence amounted to a breach of the defendant's duty of care to customers and in particular to the plaintiff.

12. The plaintiff is entitled to succeed in the action.

The plaintiff - background

13. The plaintiff was educated to Year 10 in Canberra, and after leaving school worked, principally in the Commonwealth public service, as a clerical assistant and data processor. During 1984 she injured her neck and lower back in a motor vehicle accident in Queensland. She made a claim for damages which was settled, and I accept that she had made a full recovery from those injuries years before her fall. Also during the 1980s, the plaintiff developed symptoms which were attributed to repetitive strain injury, for which she had some time off work and some treatment, covered by compensation as a Commonwealth employee. Again, I accept that the plaintiff had made a full recovery from this condition years prior to her fall. Counsel for the defendants sought to make something of her failure to give a history of her RSI problems to some of the doctors who saw her for the purposes of this case, but I accept that the plaintiff either did not recall this episode when giving her history, or did not see it as of any relevance to her present condition.

14. In 1985, the plaintiff married and had a daughter and a son. She and her husband subsequently divorced. Three years after their separation, in 1990, she commenced a relationship with a Mr McFarlane, from which another daughter was born. She described this relationship as "on again-off again". Arrangements had been made for them to marry in January 1999, a few weeks after the fall; but one week prior to the fall, this arrangement was called off and they separated.

15. Much later, during the year prior to the hearing, they fell out again over custody or access in relation to their daughter, leading to a need for legal representation in the Family Court. It appears that the dispute was resolved by agreement, if not amicably. For most of the period after the plaintiff's fall, she has been living with her three children, who are now 19, 18 and 10.

16. In 1992, the plaintiff commenced work with the ACT Community Advocate's office. She started a course in 1997 towards a Diploma of Community Services in Welfare at the Canberra Institute of Technology, at the same time undertaking voluntary work with victims of crime. In March 1998 she started employment with Centacare at Ainslie Village as a casual support worker. She was so employed at the date of the fall.

Damages - the evidence of the plaintiff and the treating doctors

17. On the day after the accident, the plaintiff went to see her then general practitioner, Dr Norman Stevenson at Richardson. On examination, he found that she had sore lower back muscles and a bruised right wrist. He prescribed Anaprox but this caused heartburn and she did not continue to take it.

18. She came back to see Dr Stevenson on 4 December 1998 complaining of tenderness in the right hip on movement, and paraesthesia in the right arm and in both legs, especially the right. Dr Stevenson referred the plaintiff to Dr Colin Andrews, neurologist, and also referred her for x-rays of the pelvis, hips and lumbar spine. The latter showed no abnormality, and nerve conduction studies performed by Dr Andrews were normal, as was neurological examination. Dr Andrews thought that the plaintiff had suffered a multiple soft tissue injury and that no further investigations were indicated at that time.

19. Prior to her seeing Dr Andrews, Dr Stevenson had mentioned to the plaintiff that one possible explanation of her symptoms was that she might have multiple sclerosis. This was quickly excluded by Dr Andrews, but the plaintiff spent a very stressful period of about two weeks worrying about this possibility.

20. Dr Stevenson also referred the plaintiff for physiotherapy which she had over an extended period. She was off work for about two months after the accident. Over the following months, her superficial injuries resolved, but the pain in her right hip region continued. She went back to see Dr Stevenson early in 2000, and he referred her for a bone scan and ultrasound, after which he sent her to Dr Andrew Brook, rheumatologist.

21. Dr Brook took over the plaintiff's treatment between March 2000 and April 2001. He found that the plaintiff was tender over the right sacroiliac joint. Full flexion of the hips produced pain in the buttocks, which was relieved by internal rotation. Dr Brook diagnosed a traumatic injury of the right sacroiliac joint causing chronic inflammation. He arranged for the plaintiff to have a trial of anti-inflammatory steroid drugs by injection under ultrasound guidance, which produced almost complete relief of symptoms for a short time, though the symptoms returned at a lesser level. The plaintiff described the injections as painful and very stressful at the time, causing a recurrence of migraine headaches, from which she had suffered for some years before her fall. Dr Brook also prescribed Celebrex, which gave the plaintiff some temporary relief.

22. He thought that the plaintiff's condition was stable and permanent by late 2001. He told her that the sacroiliac joint could be surgically fused, but, as he said, this was quite extensive surgery and the plaintiff did not wish to consider it further. There is no evidence of Dr Brook's opinion as to the likelihood of such surgery resulting in complete relief of the symptoms: it has not been submitted that the plaintiff should have had the surgery, or that, by not taking the matter further, she has failed to mitigate her loss.

23. In April 2002, Dr Stevenson referred the plaintiff for a CT scan of her low back which revealed a soft-tissue mass in the sacral canal between S2 and S4, expanding the canal. This became a matter of great concern to the plaintiff although it was eventually found to be benign and completely unrelated to her fall. Discussions about this finding with Dr Stevenson led to the plaintiff losing confidence in him and changing general practitioners. The plaintiff raised with Dr Stevenson the prospect of obtaining what was described as a second opinion from a specialist in Sydney about the mass. Understandably, she was very concerned at the possibility that it might be a malignant growth. According to the plaintiff, Dr Stevenson told her that he did not know anybody in Sydney and that she should look in the Yellow Pages. According to his own note, he said that he was not aware of an appropriate specialist but would make inquiries.

24. At all events, the plaintiff decided at this time to go to another general practitioner, Dr AM Lawrence at Yass. Dr Lawrence first saw her on 30 May 2002. He thought that she had sustained a significant injury to the right sacral area, consistent with the possibility of a fracture of the sacrum which might not have been picked up on x-ray. In his view, she satisfied the criteria for a major depressive episode consequent on the injury, and had developed a complex chronic regional pain syndrome centred on the right hip and thigh, and also a de-conditioning syndrome. He referred her to Professor BJ Brew, a consultant physician and neurologist, also the Head of the Department of Neurology and Neurosciences at St Vincent's Hospital, Darlinghurst in Sydney, and a Professor of Medicine at the University of New South Wales. Inexplicably, Professor Brew's name appears with others on Dr Lawrence's letterhead, giving the misleading impression that his practice is based at Dr Lawrence's rooms at Yass.

25. Professor Brew saw the plaintiff in Sydney. He thought that the mass was probably a sacral arachnoid cyst which had been present for some time, required no treatment, was not productive of symptoms and was entirely unrelated to the fall. Because of its size, it had caused some secondary bone changes. These might have included a fracture of the sacrum, but if so any such fracture was unlikely to be the cause of the plaintiff's symptoms at the time Professor Brew saw her, in the light of a negative bone scan performed some time earlier. He suggested that Neurontin be tried as a pain medication. An earlier trial with Tramal had caused a rash as a side effect, which was unacceptable.

26. Dr Lawrence prescribed Efexor as an antidepressant and pain modulator, and this was effective. The plaintiff has continued with it ever since. He also accepted Professor Brew's recommendation and prescribed Neurontin, which led to a marked improvement in her pain control and a consequent further improvement in her mood and function. Dr Lawrence's view is that the chronic regional pain syndrome will reduce slowly over time, probably never resolving completely, and that treatment in one form or another is likely to be lifelong. She is also in his view likely to require intermittent supportive psychotherapy indefinitely.

27. The plaintiff does not like taking medication if she can avoid it, and she has attempted to cope for periods of time without it. She went off both Efexor and Neurontin for a period of four to six weeks, but her symptoms became worse. The pain in her leg increased and her mood variations returned. She came to the realisation that she needed both medications and was continuing with them by the time of the hearing.

28. About six weeks before the hearing the plaintiff moved from Canberra to Broadbeach Waters on the Gold Coast in Queensland. She had lived in that area a number of years ago, and she wanted to make a fresh start. She found a job with the psychiatric unit at the Gold Coast Hospital, supervising groups of patients in various activities.

29. Her evidence was that at the time of the hearing she still had pain in the region of the sacroiliac joint, radiating down the right leg to the area behind her knee. With medication, the pain was manageable but limited some of her activities. For example, she avoids hanging clothes on the clothes line, and car washing. She persists with recommended rehabilitation activities including walking, swimming and cycling, though on occasions these cause pain in the right knee, as does driving a car for a lengthy period. Sexual activity is also sometimes painful. Her perception is that her memory is not as good as it was, and that she is inclined to become more emotional than before her fall.

30. At the end of 1999 the plaintiff completed an undergraduate course at the University of Canberra and qualified for the degree of Bachelor of Community Education in Health Promotion. Her evidence was that before her fall she had been achieving distinctions and high distinctions but that after the fall she dropped back to pass level. It is not suggested that this has been or is likely to be reflected in any reduction of earning capacity.

31. The plaintiff's evidence was that she had to accept a minor drop in income on moving to Queensland. She said that there was no real opportunity for her to increase her salary in her present position there in the absence of a promotion which she said "could be a possibility".

The medico-legal evidence

32. On 12 September 2000, the plaintiff was seen at the request of the defendant's solicitors by Dr R Haig, orthopaedic surgeon. Dr Haig adopted a somewhat spartan view about the plaintiff's history and presentation. He thought that the period of a little over two months she was off work after the fall seemed "perhaps ... rather excessive" and expected that in the fullness of time she would make a complete recovery. Indeed, he expressed some surprise that she continued with symptoms by the time he saw her, nearly two years after a fall in which she sustained no fractures but presumably soft tissue contusions only. He regarded her prognosis as generally good. Regrettably, his optimism has not been borne out by events.

33. The plaintiff's solicitors referred her in January 2002 to Associate Professor G D Champion, a consultant physician in rheumatology, musculoskeletal medicine and pain medicine, associated, like Professor Brew, with St Vincent's Hospital and the University of New South Wales. Professor Champion took a detailed history and provided a lengthy report. He accepted the plaintiff as genuine, noting that the majority of her initial injuries quickly settled. He diagnosed a relatively severe injury to the right sacroiliac joint with referred pain to the right upper thigh, and thought that she had probably done some damage also to her right L5-S1 apophyseal joint. These had led to a regional pain syndrome and some depression of mood. He thought that these conditions were likely to persist. Her regime of medication was appropriate. Professor Champion was provided with a report of a CT scan and MRI scan conducted in April 2002, each of which showed the mass later diagnosed as an arachnoid or Tarlov cyst. He said that such cysts were frequently asymptomatic and that it was usually best to leave them alone and review their status periodically. He thought it unlikely that the cyst was causing the plaintiff's symptoms and much more likely that the symptoms were caused by mechanical stress at the right sacroiliac joint with a probable contribution from the right L5-S1 apophyseal joint. He noted findings of mild osteoarthritis at both joints. He effectively ruled out any suggestion that the cyst might be related to the fall, and no such causation was argued in the plaintiff's case.

34. In November 2002, the plaintiff was assessed at the request of her solicitors by Dr J M Fleming, a clinical psychologist. Dr Fleming characteristically took a very detailed history and produced a long report. She found no evidence of exaggeration on testing. The plaintiff's scores on the depression and anxiety scales were above average for pain patients. She presented as withdrawn and introverted. Dr Fleming thought that the effect of the plaintiff's fall on her psychological condition had been significant, and that the plaintiff had had enormous difficulty adjusting to the changes imposed on her by her physical limitations. She felt a sense of loss and guilt in relation to her household duties and responsibilities towards her children. She suffered from feelings of depression and anxiety, often feeling worthless and hopeless and perceiving herself as a failure. Dr Fleming expressed the opinion that the plaintiff was suffering from a chronic pain disorder and from major depression. She noted that the plaintiff complained of chronic fatigue, sadness, listlessness, appetite loss and sleep disturbance associated with her pain. In addition she experienced agitation, fear and apprehension leading to a loss of control. She met the DSM IV criteria for major depressive disorder and pain disorder.

35. Dr Fleming recommended that she continue to take antidepressant medication for at least the following twelve months, and that she undergo cognitive behavioural therapy and pain management counselling, with treatment sessions once a fortnight for at least twelve months. The plaintiff has not undergone the recommended therapy or counselling but has continued with antidepressant medication.

36. In March 2004, the plaintiff was seen by another orthopaedic surgeon, Dr A Bhattacharyya, pursuant to arrangements made by the solicitors for the defendant. Dr Bhattacharyya noted complaints of constant pain over the right sacroiliac joint, pain radiating down the right thigh and pain behind the right knee. In addition to her physical symptoms, she was suffering from chronic depression.

37. Dr Bhattacharyya diagnosed a soft tissue injury to the lumbar spine and right sacroiliac joint. He found no evidence of complex regional pain syndrome. As one might expect, he regarded himself as unqualified to express any psychiatric opinion. He regarded the physical symptoms of which the plaintiff complained as genuine and accident-related. He thought that it might help if she were to lose some weight and undergo a program of back and abdominal strengthening exercises under the supervision of a physiotherapist, perhaps in a heated pool. The prognosis was guarded.

38. He was asked whether the sacral cyst was likely to produce symptoms in the future or require treatment. He replied that it had been monitored on a number of occasions since it was first discovered, with no significant changes. He said that if it did increase in size it was possible that this would create symptoms which might require treatment, possibly including surgery.

39. He was also asked to comment on the plaintiff's likely future needs for medication in the form of Efexor and Neurontin. He said that he was not qualified to express any opinion about Efexor, an antidepressant. As to Neurontin, he said that this was prescribed for chronic pain and usually taken on a long-term basis. It was difficult for a patient who had been on Neurontin for some time to get off it, particularly if the pain continued. It might be possible for a patient to get off it if she could learn to control her pain more effectively under the care of a pain management unit.

40. In October 2004, the defendant's solicitors arranged for the plaintiff to be seen by Dr L Lee, a consultant medico-legal psychiatrist in Sydney. Dr Lee interviewed the plaintiff for more than an hour and wrote a long report. He also gave evidence by telephone. He subjected the plaintiff to a memory test in which she scored 41 out of 50. He said that any score lower than 45 out of 50 was capable of raising a concern that the patient might be malingering, and that most patients obtained a perfect score. He agreed that some malingerers scored as low as 15. I should say at this point that I found the plaintiff an entirely honest witness, and I accept Dr Fleming's finding that she was honest. I accept the plaintiff's evidence that she has some memory difficulties, and this may explain her less than perfect score on Dr Lee's test. I reject any suggestion that she deliberately fabricated her answers.

41. Dr Lee, perhaps surprisingly for a psychiatrist, concluded that the plaintiff's pain was not physically based but was functional in origin. He accepted that this perceived pain had caused depression, and that the plaintiff required antidepressant medication. He said that as a general rule, patients need to remain on antidepressants for about a year, but that the medication in some cases needed to be taken long term. He also noted that antidepressants were widely used for pain relief. Dr Lee seemed a little suspicious of the plaintiff, and identified a number of aspects of her life which might have predisposed her to psychological problems. In his oral evidence, he expressed the view that there was a good chance that the plaintiff would require antidepressant medication for the rest of her life.

42. Dr Lee conceded in cross-examination that he had undertaken no physical assessment of the plaintiff, and that he had no qualifications or experience in orthopaedics or rheumatology, other than his undergraduate medical training. He was unaware that an orthopaedic surgeon had diagnosed an injury to the right sacroiliac joint, and he agreed that he would defer to the opinion of a specialist in the area. He had not looked at the CT or MRI scan films. He was unfamiliar with the procedure of injection of corticosteroid into a joint, and would rely on the judgment of an experienced rheumatologist as to whether such a procedure might be appropriate in the case of a particular patient. He agreed that most people would not subject themselves to an unpleasant procedure of that nature unless they thought that were likely to gain some benefit. Ultimately, Dr Lee accepted that if it was proved that the plaintiff was suffering from a genuine physical condition, his hypothesis was wrong. On the other hand, if the plaintiff's injuries had been solely soft-tissue in nature, Dr Lee would have expected that they would have resolved after a period of time, so that any perception of pain thereafter would be likely to be functional in origin.

43. It appeared to me that Dr Lee had seen his task as to identify the weaknesses in the plaintiff's case, notwithstanding his stated acceptance of the terms of the expert witness code of conduct. I did not find Dr Lee to be completely objective. In any event, I accept the orthopaedic and rheumatological evidence that the plaintiff suffered a genuine physical injury to the right sacroiliac joint, and probably also to the right L4-S1 facet joint, in addition to injury to the surrounding soft tissue. Thus I reject Dr Lee's premise that the plaintiff's pain is functionally rather than physically based and hence his opinion as to causation of her psychological symptoms.

44. Otherwise, except for the fact that Dr Haig was optimistic about the plaintiff's prognosis, there is little argument between the medical witnesses. I accept Dr Brook's diagnosis of a traumatic injury of the sacroiliac joint resulting in chronic inflammation of the joint. I prefer this diagnosis to Dr Andrews' earlier diagnosis of a multiple soft tissue injury. I accept the finding of Professor Champion that the right sacroiliac joint and the right L5-S1 facet joint are each displaying a little osteoarthritis, and this is likely to be contributing to the symptoms though not necessarily caused by the fall. I accept Professor Champion's diagnosis of regional pain syndrome notwithstanding the note by Dr Bhattacharyya that he found no evidence of complex regional pain syndrome on examination on the sole occasion when he saw the plaintiff. Having said that, whether or not there is a regional pain syndrome present seems to make little difference to the picture, either now or in the future.

45. It is likely that the plaintiff's pain, having persisted for seven years since her fall, will continue to do so, and that she will continue to require Neurontin as a painkilling medication and Efexor as an antidepressant to mask the pain and to keep the potential psychological symptoms in check. I should add that although there is evidence of other stressors in the plaintiff's life, I am satisfied that the major cause of her depressive symptoms has been the pain caused by her injuries, and the consequences of that pain.

Damages

46. The plaintiff's injuries have been serious and their effects permanent, although she recovered quickly from a number of superficial injuries. Her disabilities have interfered to a moderate degree with many activities which contributed to her enjoyment of life, although it must be conceded that she has been able to continue in employment throughout and that there are many activities still open to her. The effect of the physical injuries has been aggravated by the psychological consequences, which remain real although largely controlled by her medication. It seems to me that a reasonable figure to compensate the plaintiff in general damages for pain and suffering and loss of enjoyment of life is $50,000, which I apportion as to $25,000 for the period between cause of action and judgment, and $25,000 for the future. The past component is weighted a little more heavily towards the period immediately after the accident and attracts interest which I award in the sum of $4,000.

47. Treatment expenses to the date of hearing were agreed at $4,046.05 and will have increased since then: the plaintiff will have had continuing expense for medication, and will have seen her general practitioner on a few occasions for monitoring and the writing of prescriptions. I allow $4,500 for past treatment expenses.

48. There is no claim for loss of earnings or of earning capacity.

49. The plaintiff makes a claim for the value of services provided by family members for household assistance. Her evidence is that, having regard to the age of her children and the fact that she had separated from her fiancé, many household tasks were simply not attended to, but there were others where the children helped or attended to tasks which had been the plaintiff's responsibility and which she was unable to perform. As counsel for the plaintiff submitted, the evidence does not allow for a mathematical calculation and in the circumstances I propose to award a modest buffer for past and future inclusive of interest. In the absence of evidence as to a commercial rate for the services concerned, I note that in recent cases a rate of $17 per hour has been accepted and I propose to adopt that rate. I allow $5,000, which I apportion as to $3,000 for the past, including interest, and $2,000 for the future.

Future treatment expenses

50. A claim is made for future treatment by a psychologist. The amount claimed is $4,316, being for twenty-six sessions with a psychologist at $166 per session. The sessional rate is consistent with the evidence contained in Dr Fleming's report. The plaintiff has not had any psychological counselling as such in the seven years since the accident, though her counsel submits that she has been having a degree of counselling by Dr Lawrence, her general practitioner, who appears from his postnominal letters to have some psychological qualifications. It is submitted on the plaintiff's behalf that since her move to Queensland, the services of Dr Lawrence are no longer available to her and she will need to make other arrangements: I can probably assume that it is unlikely that she will readily find another general practitioner with similar psychological qualifications and experience.

51. The assertion that the plaintiff has been provided by Dr Lawrence with psychological counselling is not confirmed by his reports in evidence or, it seems to me, by the claims history statement provided by the Health Insurance Commission and attached to the statement of particulars. The latter is not strictly in evidence.

52. I am not satisfied that the plaintiff has a present need for psychological counselling, or that, if I were to award an amount of the order claimed, she would be likely to spend it on psychological counselling.

53. There is also a claim for the future cost of prescribed medication in the form of Neurontin and Efexor for the rest of the plaintiff's life. There is a significant issue between the parties about this part of the claim, and in particular about the likely future cost to the plaintiff of such medication. The plaintiff by the time of the hearing had been taking both Neurontin and Efexor for a considerable period of time. As I have mentioned, she attempted a few weeks off these drugs, but came to the realisation that they were necessary both for pain relief and for mood control, and that not taking them was a significantly worse option than taking them.

54. Both are prescription drugs. I infer from documents in evidence that a general practitioner is permitted to prescribe twenty-eight 150 mg capsules of Efexor, plus three repeats, at a time. The directions are to take two capsules a day, so that a patient would need to revisit the general practitioner every eight weeks for a fresh prescription. Up to the date of the hearing, the plaintiff had at all material times had a health care card: the cost of a packet of twenty-eight capsules, to the holder of a health care card, is presently $4.60. At this rate, the plaintiff would presently be spending $2.30 per week or about $120 a year on Efexor at the chemist.

55. Neurontin is dispensed in packets of one hundred tablets, each containing 800 mg of the drug Gabapentin. The evidence is that the plaintiff gets through about seven packets of tablets a year. If this were her only medication, it seems that she would see her general practitioner only twice a year for repeat prescriptions.

56. Under the Commonwealth Pharmaceutical Benefits Scheme, a person who is the holder of a Medicare card but not a health care card presently pays $28.60 for a packet of either Efexor or Neurontin. Like the health care card rate, this is a subsidised rate in relation to both of these drugs. My understanding is that the Commonwealth pays the balance of the cost to the drug companies. At the date of hearing, the full cost of a packet of Neurontin was about $260, and the full cost of a packet of Efexor was about $50. A person who was prescribed those drugs in Australia and who was not the holder of either a health care card or a Medicare card would have to pay the full cost.

57. No claim is made for the cost of general practitioner consultations, presumably because following judgment these will be covered by Medicare.

58. There is some question whether the plaintiff is or has been entitled to Neurontin at the subsidised rate. Gabapentin is listed in the Schedule of Pharmaceutical Benefits for Approved Pharmacists and Medical Practitioners, issued by the Commonwealth Department of Health and Ageing, as an anti-epileptic drug available for treatment of partial epileptic seizures which are not controlled satisfactorily by other anti-epileptic drugs. The schedule identifies Neurontin as one of the proprietary brands of the drug, and it is marked on the schedule as "authority required". In an explanatory part of the schedule, it is stated that pharmaceutical benefits listed in the schedule fall into three broad categories: unrestricted, restricted and "authority required". The latter category is stated to require prior approval from the Health Insurance Commission. An "authority prescription" can be written only by a medical practitioner, and the prescription must be approved by posting a prescribed form to the Health Insurance Commission. The schedule states that an "authority prescription" is not valid until it has been approved, and that until then, a pharmacist must not supply the item at the subsidised rate.

59. It is submitted on behalf of the plaintiff that Dr Lawrence must have falsely informed the Health Insurance Commission that the plaintiff required Neurontin for treatment of epilepsy, and that otherwise the Commission's authority would not have been given. Counsel submits that whilst the plaintiff cannot be held morally responsible for this, and is probably not aware of it, she has been fortunate to find a sympathetic general practitioner who has been prepared to assist a patient financially in this way at the expense of the Commonwealth. My attention was drawn to section 99AA of the National Health Act 1953 (Cth) which would appear to give the Commonwealth a right of recovery in such circumstances both against the patient and against the medical practitioner.

60. I have scrutinised the extracted material from the Schedule of Pharmaceutical Benefits carefully, and made reference to the National Health Act and also the National Health (Pharmaceutical Benefits) Regulations 1960. I am not satisfied that the plaintiff has obtained a Commonwealth subsidy or benefit in relation to Neurontin to which she is not entitled. The plaintiff was not asked about the issue in the course of her evidence, and although there were a number of reports of Dr Lawrence tendered, he did not give oral evidence. There may well be some other explanation for the plaintiff's entitlement to the subsidy.

61. The submission of counsel for the plaintiff was that now that the plaintiff has moved to Queensland, it is unlikely that she will find another general practitioner who will be prepared to assist her in this way. I am not satisfied that this is correct. It seems to me highly unlikely that the Scheme requires approval for each new prescription of the drug to a patient who is taking it continuously. I am more inclined to the view that the approval given at the outset remains effective. That is to say, it seems more likely than not that the plaintiff will continue to have access to Neurontin under the Pharmaceutical Benefits Scheme.

62. In what seems to me to be the unlikely event that the plaintiff ceases to be eligible for a Commonwealth subsidy for Neurontin, I am very doubtful whether she would choose to continue on the drug if she had to pay something like $260 a packet rather than $4.60. In those circumstances, it seems to be much more likely that the plaintiff would choose not to continue with Neurontin and would attempt to find some more affordable medication to achieve, as far as it could be achieved, a similar result.

63. Another issue raised by counsel for the plaintiff is whether the plaintiff is likely to remain entitled to a health care card. The card is means-tested. A copy of the plaintiff's then current card was tendered. It had been granted on 1 July 2003 and was to expire on 6 March 2005. There was no explanation for the apparently random expiry date, but I infer that health care cards are generally issued for a period of the order of two years. It appears that the only other Commonwealth benefit the plaintiff has been receiving is the family allowance, which is not means-tested. The evidence is that when a person applies for a health care card their income for the previous eight weeks is averaged. No doubt the weekly income levels are varied from time to time: at 1 December 2004, a single applicant with one dependant child could earn up to $606 per week to qualify for a health care card, and up to $757.50 per week to retain the entitlement. Applicants are told that if their income changes they must tell Centrelink who will work out whether they remain qualified for the card and may continue to use it. It is not clear how often this is required to be done, though the plaintiff's evidence was that she tended to over-report income changes.

64. It was submitted that at times her income has exceeded the prescribed levels. However, the evidence is that she has retained her health care card throughout. Since her move to Brisbane she has had to take a drop in pay, and it seems to me that the health care card is important to her and that it is likely that she will try to control her income so that she does not lose her entitlement to it.

65. That being so, it seems to me likely that she will continue to spend $4.60 on each packet of tablets or capsules rather than $28.60. The present cost amounts to an average of about $3 per week. Adopting a multiplier of about 1270 to reflect the plaintiff's age, and discounting by something more than the usual 15% to reflect the fact that with advancing years the plaintiff might in any event have reached a stage where she required medication, I allow $3000 for future pharmaceutical expenses.

Conclusion

66. The total of the individual components of the award of damages is as follows:

General damages	$50,000
Interest thereon	$4,000
Treatment expenses:
Past	$4,500
Future	$3,000
Griffiths v Kerkemeyer:	$5,000
	$66,500.00

67. On consideration that sum seems to me to be a proper reflection of the effects of the plaintiff's injuries on her. There will be judgment for the plaintiff for $66,500. I shall hear the parties as to costs.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 4 November 2005

Counsel for the plaintiff: Mr RL Crowe SC

Solicitor for the plaintiff: Maliganis Edwards Johnson

Counsel for the defendant: Mr J Downing

Solicitor for the defendant: Hunt and Hunt

Date of hearing: 15, 16 February 2005

Date of judgment: 4 November 2005