PELLEY v MAITLAND BENEVOLENT SOCIETY

PELLEY v MAITLAND BENEVOLENT SOCIETY - [2004] NSWCA 323 - NSWCA 2004 case summary — Zoe

[8]

Facts 2 The appellant was employed by the respondent as a housekeeper-cleaner at its aged-care facility called Benholme in Maitland. The facility is a complex of five main buildings accommodating 79 residents, most of them living in single rooms. 3 There were seven or eight cleaners generally employed at Benholme. The appellant worked varying hours on a casual basis and she was the only cleaner rostered to work on the morning of Saturday 23 September 2000 when the accident occurred. Other staff then on duty included personal carers, but (as indicated below) they did not usually assist in cleaning or bed-making duties. 4 All bed linen was changed regularly each Friday, on which day beds were fully remade. On Saturdays the appellant's role was the more limited one of cleaning up rubbish and straightening or making beds. Beds would only be changed if there had been a mishap. 5 One of the residents was Mr Cousins, a stroke victim who had lived at Benholme for more than 12 years. He brought his own bed to the home when he arrived. It was heavier than the beds generally used and there were no castors on its wooden bed legs until after the appellant's accident. It rested on carpet. Unlike the layout of other rooms, Mr Cousins' bed was positioned with one side against a wall. 6 While performing her regular duties, the appellant endeavoured to move the bed away from the side wall so that she could more easily remake it. Mr Cousins was not in the bed at the time. The space between the foot of the bed and the adjacent wall was only about 12-18 inches wide. The appellant took up a position at the end of the bed, apparently near the left hand corner. She leant to her right and attempted to lift and pull the end of the bed, holding it close to the floor. The combination of twisting and endeavouring to lift and pull a heavy bed from that position caused an immediate acute injury to the appellant's lumbar spine. 7 There was an issue at trial as to whether or not Mr Cousins had asked the appellant to make his bed. He denied that he had done so and his evidence was preferred to that of the appellant. However, nothing really turns on this, because there is no suggestion that the appellant was doing something outside her normal duties in attending to the bed. 8 The appellant's supervisor, Ms Wakeham, gave evidence that she had told the appellant that Mr Cousins' bed was "a heavy bed and it's awkward to make" (Black 84). The appellant denied this. The supervisor's evidence was implicitly accepted, but on the basis that the warning was inadequate. 9 The appellant had received some general instruction about lifting techniques, especially involving the lifting of patients. She agreed that she could have called for assistance from the carers, but said (Black 46): I would've had to wait and then I would've got into trouble for calling for a carer to come and help me make the beds they were my responsibility.

[16]

14 The nub of the appellant's complaint is that the judge failed to advert to a critical issue in cases such as the present where contributory negligence is raised by an employer that has itself failed to discharge the obligation to provide a reasonably safe system of work. 15 It is well established that in discharging its duty to take reasonable care to avoid injury to its employee, an employer is bound to have regard to any risk of injury that may occur by reason of an employee's inadvertence, inattention or misjudgment in performing allotted tasks (McLean v Tedman (1984) 155 CLR 306). This is the proper point of departure when considering issues of contributory negligence in cases such as the present. In McLean, Mason, Wilson, Brennan and Dawson JJ said (at 315): The issue of contributory negligence has now to be approached on the footing that Brambles failed to discharge its obligation to provide a safe system, that is, to take appropriate precautions against the risk of injury arising from the motorist's negligence and the employee's failure to observe an oncoming vehicle as he carried out his allotted task. The question is whether that failure should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact. As Windeyer J observed in Sungravure [ Pty Ltd v Meani (1964) 110 CLR 24 at 37] , when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to "inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions". It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man". His Honour went on to reject the suggestion that the approach applicable in the case of injury sustained in a factory was inapplicable to activities elsewhere, specifically referring to activities upon the highway.

[20]

Damages for non-economic loss 22 Judge Sidis assessed non-economic loss at 25% of a most extreme case. This translated into an award of $61,062.50 for this head of damage. 23 The appellant submits that a proper award should have been in the range of 35%-40%. While she suggests that "perhaps the trial judge was unduly influenced by her adverse view of the appellant as a witness" (Orange 17), her ultimate submission is that the award for non-economic loss was simply outside a proper range having regard to the primary facts. 24 My mind has fluctuated on this ground of appeal, but at the end of the day I am unpersuaded that the award is so low as to betoken error. 25 The appellant suffered no symptoms of back injury before the accident. Before her injury she had enjoyed babysitting her grandchildren, sewing, gardening and dancing. She undertook all of her own housework. She was aged 47 at the date of trial (February 2003). 26 The injury caused excruciating pain in the low back and left leg. Her employer's registered nurse gave her pain killing medication, but she was unable to continue working that day. She attended hospital and, after visiting her general practitioner the following Monday, she took two weeks sick leave. She returned to selected duties in mid-October, but found that she could not continue her work. In October she was referred for an MRI scan and then to Dr Spittaler. 27 In January 2001 Dr Spittaler undertook a discectomy. There was some improvement in the back condition and the appellant returned to work on light duties of 10 hours a week in March 2001. She was still taking medication and doing little housework. She was also having hydrotherapy and supervised physiotherapy at a gym. She could do some very light housework, but continued to receive assistance from her husband. By the end of March 2001 she was very depressed and irritable. In consequence she separated from her husband for about four months. At this stage she was driving five or six kilometres a day to work and back, but was finding that by the end of the day the condition of her back was much worse, with pain in her left leg. 28 Dr Spittaler referred her to Dr Russo for pain management. Three nerve blocks were undertaken and they provided some relief for about one month each. The symptoms continued without abatement until March 2002 when a spinal cord stimulator was inserted. The particular procedure was very painful, but the outcome provided some relief with the stimulator relieving both back and leg pain. 29 The appellant returned to work for a period, but found it too stressful and painful even though she was using the stimulator. At Dr Russo's suggestion she ceased work in October 2002. Judge Sidis found it reasonable that the appellant should not return to cleaning work (Red 35). 30 The appellant said in evidence that the stimulator had been working quite well (Black 25). She accepted in cross-examination that there were signs of some improvement (Black 31, 34) although there were still "good days and bad days" (Black 32). At the time of trial she was continuing with a gym program three to four times a week. There was also hydrotherapy and continuing medication. She said that her pain varied from day to day. 31 The appellant said that she was now fit for part-time light work. She could drive occasionally, but not for more than about 20 minutes before discomfort. Her husband did the heavy housework. She no longer went to clubs. She was receiving counselling for depression. 32 This evidence and the medical reports, particularly that of Dr Millons, arguably attest to a higher level of continuing disability, pain and discomfort than is reflected in the judge's assessment of 25% of a most extreme case. But the issue is complicated by several factors. 33 One factor is the unchallenged finding of her Honour, based in part upon seeing the appellant testify, in part upon videotape evidence inconsistent with the appellant's testimony, that the appellant deliberately exaggerated her condition when she presented to various doctors and as a witness in court. The doctors' conclusions in the various medical reports were significantly based upon the accuracy of histories provided by the appellant. 34 Another factor that possibly explains her Honour's conclusion is the finding (Red 35) that the injury aggravated a pre-existing condition of the appellant's spine, so that an asymptomatic condition became symptomatic. This suggests the possibility that not all of the post-injury pain should be laid at the tortfeasor's feet. In response, the appellant submits that this factor should be disregarded because it is an issue on which the respondent bore the evidentiary onus and because the reasons of the trial judge do not mention this factor in the present context. 35 The appellant did not challenge the adverse finding as to credibility referable to the centrally-important issue of her description of the nature and intensity of her ongoing back symptoms. But she invited this Court to look at the primary facts as found by the trial judge and to conclude therefrom that the damages for non-economic loss were appealably inadequate. She points to her Honour's conclusions that: The plaintiff is moderately disabled by her back condition and … she may in future suffer from time to time depending upon her physical condition and her level of activity from aggravations by reason of the condition of her spine. She will need to exercise caution as far as her back is concerned for the balance of her life. 36 The appellant further pointed to the chronology of significant medical treatment required, particularly in the year or so after the accident. 37 Reliance was also placed upon the findings of disability and loss of amenity implicit in the awards of $113,000 for treatment expenses ($10,000 being for future treatment) and $31,800 for domestic assistance. The latter was based upon a finding that her back is such that she will not be able to do heavy housework and that she required ongoing care of two hours per week for such assistance. 38 At one point in her reasons, Judge Sidis said that Dr Millons' conclusions as to the appellant's condition in January 2002 most closely coincided with her own (Red 34). The appellant embraced this finding, pointing to various conclusions stated by Dr Millons in two reports each dated 9 January 2002. In the shorter report (Blue 105) he recorded: Ongoing complaint of disabilities include pain, discomfort, restriction of movement, loss of strength in the back. That is all quite reasonable. There is reported to be an inability to work as a carer in any capacity. That is also reasonable. There is reported to be general pain, discomfort, restriction of movement to her normal social, domestic, sporting, recreational and other activities. Mrs Pelley was never sporty but the rest of that statement is reasonable. … She does not need ongoing physiotherapy at this stage. That has never helped and is unlikely to do so on a maintenance level. She clearly needs ongoing medication. I cannot really comment on the cost claimed.

[21]

39 In the longer report of that date (Blue 107) Dr Millons gave the following opinion: Mrs Pelley appears to have some genuine mechanical low back pain which could be explained on the basis of some degenerate changes in the lower lumbar region. It appears that in the incident on 23.9.00 there may have been some internal disruption of a degenerate L5-S1 disc giving rise to low back pain and left sciatica. Conservative treatment failed to alleviate her symptoms and investigations confirmed problems at the lumbosacral level. Dr Spittaler's decompressive surgery that was performed some four months down the track did bring with it a downturn in her symptoms no doubt due to the fact that pressure was taken off of the emerging S1 nerve root. Mrs Pelley returned to work a couple of months later on light duties and was coping with those light duties. The Rehabilitation program that appears to have been set in place was rather vigorous and it was perhaps a little unwise for her to be doing resisted weight work. That seems to have brought with it a return of her left lower limb symptoms and they have continued since that time. Mrs Pelley has had further investigations. The MRI confirms the presence of an osteophytic ridge/disc bulge at L5-S1. There is some minimal scarring in the region. Her current presentation is a mixture of the organic and the non-organic. The organic is the genuine pathology that has been demonstrated at the lumbosacral level. The non-organic is the global reduction in sensation through the left lower limb and the anomalous straight leg raising tests. There is no convincing evidence of any frank sciatic nerve root irritation. Treatment to date has failed to alleviate her symptoms and in the light of her ongoing pain, which is impacting moderately on the normal activities of daily living, there is an indication for her to proceed to the next stage of pain management. She will have a trial of a dorsal column stimulator and if that brings about a downturn in her symptoms then it would be reasonable that she proceed with a formal insertion of the dorsal column stimulator. If her pain levels could be reduced to a degree then she could perhaps be advised to undertake a regular active exercise program to try and improve abdominal and spinal muscle tone and strength and lessen irritability in her back. Weight reduction is also important and she is aware of that. I would accept for the moment that she is unfit to return to work as a residential care worker and I can foresee considerable difficulty in returning to such a position. If her pain could be modified and her activities increased then perhaps that will be an appropriate time for her to undergo a formal vocational and functional assessment to see if there might be some suitable avenue of employment along which she might be directed. For the moment I would accept that work in any capacity is not an option. The prognosis is looking poor and continuing problems would appear likely.

[27]

48 At trial it was agreed that pre-injury earnings were in the vicinity of $350-$355 per week, based on an average of 20 hours work per week. 49 In this Court, the parties are agreed that the mathematics of this award are explicable on one or two alternative bases. Regrettably, the researches and recollections of trial counsel have failed to indicate which of the two was put to her Honour at trial and her Honour's reasoning offers no assistance on this matter. 50 The first alternative, advanced by the appellant, is that the judge awarded one-quarter of $224,000 representing a loss of $420 per week for the rest of the appellant's working life and discounted in the usual way, including for vicissitudes. In my view, the difficulty with this approach is that there seems no evidentiary basis for concluding or inferring that comparable wages at the date of trial for the type and level of work that the plaintiff would have performed had she not been injured would have been in the vicinity of $420 per week. It is a significant increase over the $355 per week sum that was used to calculate past wage loss. 51 The second alternative, advanced by the respondent, is the more likely situation. If one applies "reverse engineering" (to use Mr Fordham's expression), $56,000 represents one quarter of a sum derived from applying the appropriate multiplier (628) to a base figure of $356 per week without the normal 15% vicissitudes discount. $356 is only a dollar more than the agreed sum for calculation of past loss. It is quite unsatisfactory to have to proceed in this manner, but I think that the respondent's approach fits more closely with her Honour's expressed reasons. 52 The critical point for the appeal is that the judge concluded that the appellant would realise three-quarters of her pre-injury working capacity. In my view, this conclusion cannot stand in light of the primary findings, notwithstanding her Honour's global reference to the appellant's "inability to take heavy work, … age and … geographical situation". 53 Mr Groves, a rehabilitation consultant, provided a detailed vocational assessment (Blue 145). The assessment is based on acceptance of Dr Millon's opinion that the appellant was "only suited for work with a part-time semi-sedentary nature, perhaps 2 hours per day, 5 days per week". The report considered the appellant's "transferable skills", being the areas of work in which she was experienced and which would be physically appropriate for her to perform in light of her present condition. Employment using the appellant's food preparation experience, kitchen, laundry, cleaning and patient care experience were considered "physically inappropriate" because the appellant would be required to maintain standing and lifting postures and (in the case of patient care) also manual handling. Mr Groves thought the appellant currently able to work as a cashier, general office assistant or a telephonist. However his researches about the availability of these positions in the Maitland, Newcastle area were pessimistic in their outcome (Blue 151-2). Within the period searched, no cashier positions were found advertised and telephone enquiries had indicated that such jobs were likely to be advertised in conjunction with associated jobs like retail sales assistant or customer service assistant, "both of which are highly competitive fields". Mr Groves' researches found only one full-time general office assistant job advertised. Once again, further enquiries indicated that experience was important, such jobs were highly competitive and there were a high number of unskilled applicants applying for such positions. The position of telephonist required minimum experience, but no such positions were advertised. Once again, further enquiries indicated that such jobs were usually incorporated into "multi-positions, ie Administration Assistant, Receptionist and these positions are highly competitive". 54 Mr Groves' conclusion was that: Ms Pelley's earning potential and likelihood of obtaining on ongoing position in Mailtand will increase with further training in computer applications. It is considered appropriate from information given from Ms Pelley, that Ms Pelley would be required to undertake extensive training to be upskilled to a point where employment in using computers is realistic, as Ms Pelley has advised she currently holds low level computer skills. This information is combined with employment agency information which advises Clerical Administration Assistant/Office Assistant positions are highly competitive and that some MYOB and on the job experience is highly regarded.

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