Gray v Wagga Wagga City Council

The Consequences of the Incident

1. The plaintiff said that pain developed intermittently in the 24 hour period after the incident. She described shooting nerve-like pain from her left ear over the left side of her neck. She also felt intermittent pain in the left side of her lower back extending over her hip and gluteal muscles, with sciatica in her left leg.
2. The plaintiff consulted Dr Ruthnam of 25 September 2017 with complaints of neck, back and sciatic pain. The sciatic pain, she said, differed from that which she experienced prior to surgery in 2014. On this occasion she described a feeling of heavy numbness in the left leg.
3. Dr Ruthnam treated the plaintiff with pain relief and recommended physiotherapy that the plaintiff said she was unable to afford. Instead she continued with exercises at home and massage.
4. A CT scan in October 2017 reported the abnormality at L4/5. The plaintiff consulted Professor Stoodley in June 2018. He ordered an MRI scan of the plaintiff's lumbar spine that reported (Exhibit A.163) a small recurrent disc protrusion at L4/5 impinging on the left L5 nerve root. An attempt to provide relief by way of steroid injection was unsuccessful. The plaintiff has not consulted Professor Stoodley since that date, stating that she would do so only if her pain increased to the point where she decided to undergo further surgery.
5. At the time of the hearing, the plaintiff's major areas of complaint centred upon her continuing back, left leg and shoulder pain. The plaintiff described her current symptoms as follows: 1. She suffered from a stiff neck with no regular pain. 2. She had considerable pain in her left shoulder described as a stabbing pain extending from her shoulder into her arm. This pain was aggravated by long periods of sitting or when she was stressed. It was particularly severe during lengthy car journeys. 3. She suffered from an intermittent dull ache in the low back that was aggravated by bending, twisting or lifting heavy items. 4. She continued to suffer from a dull heavy pain and numbness in her left leg. 5. Her relationship with her husband, generally and in their intimacy, had diminished. 6. She suffered emotionally because of her increased dependency on others to the point where her consumption of alcohol increased to unhealthy levels. 7. She ceased all activities, except that she continued to walk her dog; 8. She depended on paid domestic assistance; and 9. Her income earning capacity was limited.
6. The plaintiff continued to treat her symptoms conservatively using Lyrica or Norspan patches and exercises for pain relief.
7. The shoulder pain was of particular concern when the plaintiff was required to undertake long car journeys. The plaintiff said that, when driving, the pain in her shoulder developed after about 20 minutes and developed to the point where, after about 2 to 2.5 hours, she was required to stop, stretch and take Lyrica for pain relief.
8. Long journeys were a regular feature of her life because Mr Gray was in employment that required him to relocate, sometimes for many months at a time, to undertake works on airports throughout Australia. The plaintiff travelled to join him at regular intervals. At the time of the hearing he was located at an air force base near Perth in Western Australia. When he relocated to Perth, the plaintiff travelled with him by car, a journey that, because of the need for frequent rests, took three weeks.
9. The defendant challenged the plaintiff's complaints on two bases. It suggested that she had exaggerated the extent to which the closing autolock door impacted her at the time of the incident. The defendant took issue with the plaintiff's use of the word "slammed" when describing its force.
10. Regardless of the terminology used, I did not agree that there was exaggeration on the part of the plaintiff. The CCTV footage demonstrated that the autolock door opened and closed swiftly in order to fulfill the purpose described in the incident report: "it is a security door designed to stop unauthorised access airside."
11. The CCTV footage also demonstrated that the door struck the plaintiff with sufficient force to push her to her right. The plaintiff said only the top half of her body was moved by the impact. Her description of the impact as "jarring" was consistent with the movement that was demonstrated on the recorded footage.
12. The further challenge brought by the defendant was directed at the causative connection between the incident and the symptoms that the plaintiff suffered in her left shoulder.
13. Dr Ruthnam's recorded that the plaintiff complained to him of back, neck and shoulder pain when she consulted him on 25 September 2017. There was no record of further complaint of shoulder pain until 11 December 2018 (Exhibit A.178). This record read: "Left shoulder pain - door hit her - did long distance driving and left shoulder pain relapsed. Painful spot posterior deltoid."
14. Although Professor Stoodley reported in June 2018 (Exhibit A.164) that the plaintiff's neck pain had settled, the clear inference available from Dr Ruthnam's record was that he related the symptoms reported to him in December 2018 to the incident involving the autolock door and that he regarded the pain that had developed as a relapse in the plaintiff's condition.
15. Dr Ruthnam was not required to elaborate on his opinion in cross examination and I saw no reason to reject this inference.
16. The defendant did not otherwise attack the plaintiff's credit and her reported symptoms were supported by the evidence of Mr Gray and by medical opinion.
17. Dr Ruthnam (Exhibit A.114) was of the opinion that the plaintiff suffered from shoulder and sciatic pain as a result of the incident. He reported that neck pain that was present immediately after the incident had settled. He also reported a condition of anxiety/depression for which counselling might be required.
18. Neurologists Dr Spittaler (Exhibit A.94) and Dr Rogers (Exhibit A.98) examined the plaintiff In February 2020 and September 2020 respectively to provide opinion regarding her back and left leg symptoms. They agreed both as to causation and consequences, namely an aggravation of the prior injury at the L4/5 level of the plaintiff's spine. Their examinations confirmed that her complaint of sciatica in the left leg was genuine and unlikely to improve. They confirmed that her treatment had been reasonable and that it was reasonable that it continue conservatively unless the sciatic symptoms increased, when surgery might be required.
19. These experts were requested to meet in conclave to view the CCTV footage. They reported (Exhibit E) that they were unable to identify the plaintiff from the CCTV footage and therefore could not comment upon it. In all other respects they were in agreement.
20. My findings were: 1. The impact of the autolock door on the plaintiff's left upper arm was of sufficient severity to cause the injuries of which she complained. 2. Those injuries were: 1. Soft tissue injury to the neck from which she continued to suffer symptoms of stiffness; 2. Tendonitis or bursitis in the left shoulder, the symptoms from which persist and were significant; 3. Aggravation of the pre-existing condition of the plaintiff's spine at L4/5 leading to sciatica in the left leg, the symptoms from which persisted and were significant. 1. There was insufficient expert evidence to support a finding of psychiatric injury.

Non-economic loss

1. The plaintiff has suffered from significant symptoms in her back and leg from the time of the incident. Her shoulder pain receded but revived in 2018. The medical evidence indicated that her symptoms will be long term with the prospect that further back surgery might be required at some future date.
2. Aside from surgery, her treatment will remain conservative with reliance upon pain relief and exercise. There was the option of physiotherapy or massage if the plaintiff had the funds with which to pay for such treatment. Although the evidence did not support a finding of psychiatric injury, I accepted that the effect of chronic symptoms of this nature on the plaintiff's enjoyment of life should be taken into account in assessing her non-economic loss.
3. I assessed this loss at 28% of a most extreme case and awarded the sum of $96,000 on this head of damage.

Income loss

1. The claim for income loss was limited to a buffer for future incapacity based on the following evidence.
2. The plaintiff left her employment in the surf shop in 2014 or 2015 and worked in real estate as a sales associate. In order to concentrate on her physical and mental health the plaintiff took a three month break from employment in June 2017. She became bored and returned to casual work at the surf shop, working in retail on the shop floor, and to casual administrative work with a food wholesaler, answering telephones and taking orders. Between these two jobs she worked 21 to 24 hours per week and earned between $600 and $700.
3. The plaintiff said that after the incident she could no longer continue with her work at the surf shop, finding the requirement to remain on her feet for a whole day, something she had been capable of prior to the incident, to be too demanding. She continued to work 20 hours per week with the food wholesaler as an accounts receivable clerk and working from home.
4. Dr Spittaler and Dr Rogers agreed that the plaintiff was capable of sedentary office work of this nature. Dr Spittaler thought she was capable of working full time in her current occupation but not capable of work that involved lifting or twisting.
5. I noted that the plaintiff voluntarily limited her working hours and that, if she chose to do so, she was capable of full time sedentary administrative work. Taking account of s13 of the Act, I considered that the plaintiff's most likely future prospects mirrored those of the past and that she would have continued to have available to her the option of working in the more physically demanding retail area or in administrative work. She is now limited to exercising only one of those options.
6. I determined that this limitation warranted a modest buffer to cover the remaining 30 years of her working life and awarded her the sum of $50,000.

Domestic Assistance

1. The plaintiff lived in a two storey, 3 bedroomed house in Coffs Harbour. She claimed that since the incident she was dependent upon the services of a cleaner for four hours a week to undertake housework that involved bending, lifting and twisting.
2. The plaintiff conceded that prior to the incident she had engaged a cleaner to assist with her housework, in part for the purpose of protecting her back from further injury. She claimed that as a consequence of her injuries the assistance of a cleaner was no longer optional on her part but a matter of necessity to undertake the heavier domestic and gardening tasks that she could no longer perform.
3. In this respect the plaintiff was supported by Dr Spittaler and Dr Rogers.
4. In the absence of evidence to support a claim for paid assistance to the date of the hearing, no claim for reimbursement was made. I considered the claim of two hours per week at the rate of $40 per hour to be reasonable and I awarded the plaintiff $72,800 on this head of damage.

Medical expenses

1. Past expenses were agreed in the sum of $4,499.53.
2. For the future, the plaintiff claimed the cost of ongoing consultations with her general practitioner, and of medication, physiotherapy and travel.
3. Although the plaintiff stated that she would be more inclined to undertake physiotherapy if she had the funds to do so, I considered that therapy of this nature would likely be intermittent and not of a continuous lifelong nature as claimed. The evidence supported the remaining claims for future treatment.
4. I allowed the amount of $40,000 for future medical expenses.

Summary

1. I assessed the plaintiff's claim as follows: Non-economic loss $96,000.00 Future income loss 50,000.00 Future domestic care 72,800.00 Past medical expenses 4,499.53 Future medical expenses 40,000.00 $263,299.53

ORDERS: 1. Verdict for the defendant. 2. Exhibits are to be retained for 28 days. 3. The parties have liberty to apply within 14 days to bring the matter before the Court to deal with the issue of costs. In the absence of any such application, the plaintiff will be ordered to pay the defendant's costs of the proceedings as agreed or assessed.

Amendments 08 April 2021 - Parties from the cover sheet field has been changed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 April 2021