Husband v Hikari

[1] McMeekin J: The plaintiff, Ms Kerry Ruth Husband, suffered an injury to her lower back on 18 October 2005 in the course of her employment with the defendant when dragging a keg of beer weighing approximately 63 kilograms. She claims damages. Liability is admitted.

[2] The plaintiff was born on 4 August 1962 and so was 43 years of age when injured and is now 48 years of age.

[3] The assessment is governed by the usual common law principles and not the Civil Liability Act 2003 (Qld).

[4] The plaintiff suffered a disc herniation in the subject incident which caused pressure on a nerve root and gave rise to a radiculopathy. She underwent surgery consisting of a laminectomy. The plaintiff claims that the surgery was of no benefit to her. She complains of continuing symptoms of low back pain which are constant but vary in intensity with radiation of pain to her left leg. Simple analgesics and anti-inflammatory drugs ease her pain.

[5] The plaintiff complaints are of symptoms typical of such a back condition - difficulties with sitting or standing for any length of time, and restrictions on bending and lifting. Whilst I record that the plaintiff complains of difficulties with standing for any length of time, that did not accord with her presentation in Court as she in fact stood for many hours during the course of the trial both when she was giving evidence and when in the well of the court.

[6] The orthopaedic surgeons are agreed that the plaintiff has a whole person impairment in the range of 10% to 13%.

[7] The only significant issue between the orthopaedic specialists called on each side was the emphasis that they gave to the pre-existing degenerative changes that were evident on the radiological images. It is common ground that the plaintiff had no record of any symptoms of low back pain prior to the subject incident. Nor was it an issue that the plaintiff's pre-existing degeneration was quite marked. Dr English indicated that only about 20% of those of the plaintiff's age would have degeneration to the extent demonstrated on the MRI scans that she had had. Nor was it an issue that the presence of the degeneration, to the degree in this case, increased the plaintiff's prospects of suffering from a disc protrusion. Both doctors were agreed that whilst it is not possible in the case of an individual to make a prediction of future problems, there was a strong statistical chance that the plaintiff would have low back symptoms sooner or later, had the subject incident not occurred.

[8] I have little doubt that the plaintiff falls at the lower end of the scale for injuries of this type. That is not to deny the significance of the injury that Ms Husband has suffered. However in the course of a fairly long day in the witness box the plaintiff displayed no sign of pain. Mr Hoey, an occupational therapist, recorded that the plaintiff, "exhibited a standing tolerance of some 30 minutes" during his assessment.[1] The plaintiff's standing tolerance well exceeded that in the course of the trial. Nor could I detect any alternating of weight between her feet as Mr Hoey recorded. I appreciate that the plaintiff had the benefit of pain killers through the day. They were obviously effective.

[9] I note that Mr Bromet, a former employer, also observed her to have no difficulties with quite physically arduous work in cooking and cleaning over a two week period.

[10] Consistently with that assessment, the plaintiff was capable of employment as a counter hand in a butcher shop from the 22nd of March 2008 until the 4th of April 2009, working 25 to 30 hours per week. Her duties included serving customers, helping fill the display case, keeping the counter tidy, general shopfront duties, food and meat preparation such as slicing ham, slicing bacon for the pre-pack counter, rolling rissoles, and getting the meat out of the counter when she was serving customers. She was required to keep the counter and slicer cleaned.

[11] Her employer, Mr Newberry, was unaware that she had any difficulties with her back until after a month of employment. She impressed him as a good worker.

[12] The plaintiff contended for an assessment of $70,000 and the defendant for the sum of $55,000. I was referred to the analysis of recent decisions relating to assessment of damages in cases of significant neck and back injuries by Douglas J in Cameron v Foster & Anor.[2] Cases of continuous and severe pain with associated psychiatric decompensation have been found to merit awards of $80,000. Less serious symptoms of what is always a significant injury have resulted in awards of $50,000 to $55,000.

[13] I assess the plaintiff's damages at $55,000.

[14] The plaintiff was educated to a grade 10 standard. She has no formal qualifications. She has pursued a range of occupations throughout her life. She has worked as a shop assistant, office worker, car detailer, kitchen hand, bar worker, retail sales assistant, cook and fruit picker. Subsequent to the subject accident she has worked as a cleaner, kitchen hand, apprentice chef, cook and sales assistant. At the time of the incident she was employed as a casual bar attendant at the Shamrock Hotel at Maryborough.

[15] A striking aspect of the plaintiff's work history is the number of positions that she has held and the relatively short period of employment in every case.

[16] According to her tax returns, in the period from 1 July 2002 until the incident that occurred on the 18th of October 2005, the plaintiff had 11 separate employers. The longest period of fulltime employment that she could recall was in the kitchen at the Lamington Hotel for 9 or 10 months.

[17] In the period since the subject incident, the plaintiff's pattern of relatively short periods of employment has continued. At least two of her periods of employment came to an end because of conflict with her employers. The defendant called those employers - Mr Bromet and Mr Newberry - and they were impressive witnesses. Whilst the plaintiff's preparedness to persist in employment is to her credit, it seems evident that there is a certain inflexibility in her personality which can, with some employers, produce difficulties.

[18] The plaintiff's earnings in the 3 years prior to the accident can be summarised as follows:

[19] The plaintiff has had seven employers since the subject incident. As well, account needs to be taken of a gynaecological problem that caused the plaintiff to undergo a hysterectomy on the 28th September 2007 and kept her out of employment for two to three months.

[20] The plaintiff contends for an assessment of $80,000 under this head and the defendant $19,519.15. The fundamental assumption that underlies the plaintiff's submission is that but for the intervention of the subject incident the plaintiff would have maintained constant employment at an average net weekly wage of between $450 and $500. Whilst significantly in excess of the plaintiff's pre-accident earnings the claimed average, it is said, is supported by the plaintiff's post accident earnings and particularly those at the Pavilion and the Ramada Resorts. At the latter employment the plaintiff averaged $615 net per week, and this of course is in her injured state.

[21] The difficulty with the plaintiff's submission is the assumption of constant employment. That had not been her pre-accident experience and as her pre-accident earnings show her weekly average did not always exhibit an increasing upward trend. Nor was the plaintiff always able to demonstrate that there would have been positions available to her for a greater number of hours of work or for a longer period had she not had the low back injury.

[22] There were only three periods of employment that the plaintiff contended were shortened by her back condition - the Pavilion Café where she worked for one week, her employment at The Ramada Resort at Harvey Bay for about eleven weeks, and an attempt at a two day trial at The Pier Restaurant.

[23] In my view there is a deal of force in the defendant's submission that up until the plaintiff ceased working at Kawungan Meats on 4 April 2009, her only significant loss related to the period from 16 November 2005 (when she ceased working following the subject incident) through to the end of 2006. In that period the plaintiff underwent surgery for the subject back complaint and had to convalesce. Her net weekly average earnings at the time of her cessation of employment was $344.53. There needs to be some discount for the costs of travel - the plaintiff undertook an 84 kilometre round trip 3 times each week to complete her shifts. The parties are agreed on a rate of .50c per kilometre as reflecting the cost of travel. I allow $12,800 for that period.[3] That assumes constant employment for the entire period which would be in excess of what might have been expected given the more sporadic employment pre-accident, however I have made no allowance for any increase in wages over the period.

[24] From 1 January 2007 until 4 April 2009 the plaintiff maintained herself in more or less continuous casual employment. There have been some gaps, most significantly following her employment at Muddy Waters, but she did not lose that employment because of her back injury and that was her history prior to the accident as well.

[25] Her position at Kawungan Meats came to an end on 4 April 2009 through conflict with superior, Mr Newberry. It is quite evident that Mr Newberry found the plaintiff to be, in many respects, a satisfactory employee save that her attitude to him was unacceptable. There would have been a period of unemployment following the cessation of the position with Kawungan Meats, whether the plaintiff had the back injury or not.

[26] On 22 July 2009, the plaintiff obtained a position with Pavilion Café at $434 net per week. She lost that position because of her back difficulties. She gained employment with Ramada Resort on 3 October 2009 and maintained that position for 11 weeks but again lost the position because of her back complaints.

[27] Had the plaintiff been able to maintain her employment with the Pavilion Café until she obtained the position at the Ramada and then maintained her position with Ramada to date she would have earned about $30,000 more than she has. There should be some discounting of that figure to allow for the costs of earning the income and for the risk that the plaintiff, for reasons unconnected with the back complaint, might not have continued in that employment, as had been her past history. I propose to allow $27,000 for that period.

[28] Thus the total loss under this head of damage is $39,800.

[29] The significant matters to bring into account in the assessment seem to me to be these:

(a) The plaintiff's commendable attitude to endeavouring to maintain employment, even in positions that were clearly not suited to someone with the restrictions that she had because of her back injury;

(b) The plaintiff's history of not maintaining employment for extended periods. So far as the evidence discloses the longest period in one position of employment that she seems to have had in her life is with Kawungan Meats for about one year;

(c) The pre-existing vulnerability of the spine to injury, which vulnerability might well have been exposed given the sort of work that the plaintiff sought to undertake.

[30] In regard to that latter matter, counsel were agreed that the evidence did not reach the level of precision necessary to displace the plaintiff's evidence that the cause of her symptoms were to be found in the subject incident: see Purkess v Crittenden;[4] Watts v Rake;[5] Hopkins v WorkCover Queensland.[6] Rather the evidence of vulnerability to the development of symptoms needs to be brought into account as one of the factors in weighing up the hypothetical future of the plaintiff if uninjured: Malec v JC Hutton Pty Ltd.[7] Following Malec the evidential onus on the defendant to disentangle competing causes is made easier as the Court is concerned with competing possibilities not probabilities: Seltsam Pty Ltd v Ghaleb.[8]

[31] The difficulty in the assessment is that in her injured state the plaintiff has demonstrated a very substantial capacity to obtain and maintain employment despite her condition. Mr Morton, who appeared for the plaintiff, has calculated that in her injured state the plaintiff has managed to average $429.27 net weekly when in employment. When averaged over the entire period since the accident however the plaintiff has averaged $172.52 net per week. She was earning $344 net per week immediately prior to the subject incident. So, without any allowance for the effect of inflation over the last 5 years, the plaintiff has lost about 50% of her earning capacity.

[32] The best evidence that I have as to the plaintiff's probable earning capacity if uninjured is the fact that she could obtain employment at the Ramada Resort earning $632.45 per week and maintain that employment for 11 weeks. She did that in her injured state. There is no reason to think that she could not have achieved that level of earnings if uninjured.

[33] The defendant's approach was to assume that the plaintiff's earning capacity, if uninjured, was $400 net per week, assume that she had lost about half that, and then from that sum deduct the expenses that she is now saving, which the defendant suggested should be valued at $75 per week. That approach plainly understates the plaintiff's capacity to earn if uninjured and assumes continuing substantial expenses which are not justified by the evidence.

[34] The plaintiff claimed that her loss should be assessed at $378,000 based on a loss of $632 per week, reflecting her wage at Ramada Resorts, to age 65 discounted by 30% and then with a global assessment of $100,000 added for her prospects of obtaining better earnings than at Ramada Resorts, if uninjured.

[35] Whilst there was the prospect that had she not been injured the plaintiff might have obtained full time employment, or better paying employment than she did obtain at Ramada Resorts, her employment history to age 43 does not provide any great confidence that that was her likely future. And while it would not be fair to the plaintiff to ignore that possibility entirely, nor is it fair to the defendant to ignore the prospect that the plaintiff's vulnerability to developing significant back symptoms might have come to pass before age 65.

[36] In my view these various considerations should result in an assessment of damages under this head of $145,000.[9] I have assumed that the wage at Ramada Resorts reflects the plaintiff's probable earning capacity had she not been injured, that the plaintiff has a residual capacity of a little over one-half of that on a long term maintainable basis, and discounted only a little more than usual for the vulnerability that she has.[10]

[37] I note that each of the first two assumptions favours the defendant - if the plaintiff has the drive and energy to obtain employment earning her $615 per week in her injured state then to assume she could have done no more if uninjured involves a level of discounting. Similarly her demonstrated capacity post accident is to earn only $172 per week and I have assumed a capacity nearly twice that. But the average reflects a significant period of convalescence which is unlikely to be repeated.

[38] The parties are agreed that this loss should be calculated at 9% of the amount allowed for past and future economic loss. I allow the sum of $16,632.

[39] I ruled in the course of the trial that the plaintiff was limited to the particulars supplied in her most recent statement of loss and damage. The defendant conceded the entitlement at that level, the claim being for $10 per week. The loss is assessed at $2,548.57.

[40] It was conceded that an amount ought to be allowed for the costs of travel in obtaining medication and I allow that at $550.

[41] Similarly the claim for future pharmaceutical costs is limited to $10 per week. The only distinction between the approaches of the parties is that the defendant seeks that the future expense be discounted by 20% to allow for the prospect that the plaintiff may have had a need for medications in any case through the development of back symptoms given her pre-existing vulnerability.

[42] The significant difficulty with that submission is that the plaintiff has been restricted in her claim by the particulars provided. The defendant assumes that the particulars provided did not bring into account the prospects of degeneration having an impact on her life at some stage. Certainly the plaintiff's evidence justified an amount considerably in excess of the $10 per week rate that each side has been required to assume following my ruling.

[43] As well the defendants' approach seems to me to elevate what is merely a chance to a certainty. The difficulty with the medical evidence is that the doctors cannot assert that the plaintiff would have suffered any particular level of symptoms. Thus it cannot be said that the plaintiff was likely to need medication at all to deal with whatever symptoms might have come her way over the course of the balance of her life.

[44] I propose to make no discount. I allow $8,940.

[45] Again I have limited the plaintiff to the evidence that was disclosed prior to the commencement of the trial. Thus the parties have adopted a rate of $8.65 per week as the average cost of the need for physiotherapy. The plaintiff applies that rate over the plaintiff's life expectancy of 37 years whereas the defendant applies that rate over the period to age 65 (the plaintiff's assumed date of retirement) and then discounts the amount by 20% for contingencies. Again the discount is said to be justified on the basis that the plaintiff may have required physiotherapy in any case due to the vulnerability that she had.

[46] The only evidence that the plaintiff had proffered of a need for physiotherapy, prior to trial, was the opinion of Mr Hoey which was as follows:

"Ms Husband will suffer aggravation at work from time to time. Treatment will be required by an occupational therapist or physiotherapist. Annual costs will be in excess of $450. This annual cost will not materially change her condition but is essential to maintain her in the workforce."[11]

[47] This evidence justifies the defendant's approach in limiting the claim to the period that the plaintiff was likely to be in the workforce. I see no reason to discount the claim as submitted as there is no evidence that the plaintiff was likely to have symptoms so significant as to require physiotherapy treatment.

[49] The plaintiff sought $500 for past medical costs and $5,000 for future costs. The claim was intended to relate to those occasions upon which the plaintiff would attend on a general practitioner to obtain pain relieving medication. The evidence disclosed that there was a $33 gap between the actual cost and the Medicare refund. The plaintiff said that she had last seen her general practitioner about six months before the trial and that she considered that there was little that the medical practitioners could do for her.

[50] The defendant made no allowance for this item on the basis that it was caught by my ruling that the plaintiff could not go beyond the particulars supplied. However that ruling was expressed in relation to the claim for pharmaceutical costs and physiotherapy expenses.

[51] The statement of loss and damage sought $996.65 by way of "hospital visits and medical attention" and a global sum of $25,000 for the future, the description being "for future medical physiotherapy and pharmaceutical expenses". It is true that no further particulars were supplied of the need to attend upon medical practitioners but that was essentially unquantifiable. The claim does not go beyond an assertion that from time to time, and fairly rarely, the plaintiff will need to attend on a medical practitioner and will incur the cost of travelling to and from that practitioner as well as the cost of attendance.

[52] Attendance on a general practitioner a couple of times a year for the rest of her life with cost of $33 would result in a fairly nominal assessment of about $1,100. I propose to allow that amount.

[53] Interest is allowed on the past components of the award at 5% in relation to past expenditure and economic loss and 2% in relation to general damages. In relation to general damages the rate is applied to about one-third of the award.

[54] The balance of the items claimed by the plaintiff is not contentious.

[55] I give judgment for the plaintiff in the sum of $271,908.52

[2] [2010] QSC 372.

[4] [1965] HCA 34; (1965) 114 CLR 164 at 168.

[5] [1960] HCA 58; (1960) 108 CLR 158.

[6] [2004] QCA 155.

[7] [1990] HCA 20; (1990) 169 CLR 638 at 643, 639-640.

[8] [2005] NSWCA 208 at [105].

[9] $300 per week to age 65 (603) discounted by 20%.

[10] I have adopted 15% as the usual discount for contingencies (cf Waller v McGrath [2009] QSC 158 at [50]- [53]) but note that in cases where there is significant vulnerability a discount of a third has been adopted - see for example Hopkins v WorkCover Queensland [2003] QSC 257 confirmed on appeal: [2004] QCA 155.

[11] Exhibit 3.13 at p 56 (p 19 of the report) para [51].