Salim v Canterbury-Bankstown Council

District Court of NSW|2021-05-05

Solicitors: Gerard Malouf & Partners (Plaintiff) Mills Oakley (Defendant) File Number(s): 2020/127680

Introduction

On 23 January 2019 the plaintiff attended the Max Parker Leisure and Aquatic Centre in Revesby. The Centre was operated by the defendant Canterbury-Bankstown Council ("Council"). Shortly after 2.00pm the plaintiff was sitting on the edge of the shallow end of the 50 metre pool with her feet in the water. She was supervising her two young children who were swimming in the pool.
Some distance behind the plaintiff was a large umbrella. The umbrella was not safely fixed to the ground. It was picked up by a gust of wind and blown towards the plaintiff. The umbrella collided heavily with the back of the plaintiff, striking her head, neck and shoulders. Such was the force of the blow that it caused her to fall into the pool.
By a Statement of Claim filed on 29 April 2020 Ms Salim sued the Council for damages for personal injuries suffered as a result of the negligence of the Council. Such damages are governed by the Civil Liability Act 2002 (NSW) ("CLA"). On the day before the hearing commenced, the defendant admitted breach of duty of care.
The issue between the parties at the trial was the quantification of damages. The plaintiff's Schedule of Damages (MFI 2) submitted that total damages should be $485,206.15. The defendant's Schedule of Damages (MFI 6) submitted that the damages should be $2,225.

Issues

The quantification of damages in this case depends in part upon my assessment of the credibility of the witnesses, being the plaintiff Ms Salim, her husband Mr Sabbagh, and the plaintiff's mother Ms Elham Salim. The assessment of damages also depends upon the opposing views put by Dr Giblin, the orthopaedic surgeon retained by the plaintiff and Dr Home, the occupational physician retained by the defendant. While neither doctor was called to give oral evidence, the experts met in a conclave and provided a detailed conclave report. As is usually the case, the conclave report was very valuable in narrowing the issues and setting out the positions of the parties.

Evidence of the Plaintiff

The plaintiff is 35 years old. She is a married woman with three children who were born in 2010, 2014 and 2020. The plaintiff completed high school in 2003 and obtained tertiary qualifications as a primary school teacher, including a Master's Degree. The plaintiff was employed as a Personal Development Health and Physical Education ("PDHPE") teacher at a local public school for three days a week. She worked from 7.30am to 4.30pm and earned approximately $40,000-$45,000 per annum. The incident at the Centre occurred during the January school holidays.
Prior to the incident the plaintiff was fit and well. Besides working three days a week, the plaintiff performed all of the domestic duties inside the family home. She also did the gardening and the weeding. The plaintiff's husband was employed full-time as a spray painter. He mowed the lawns, washed the cars and took the bins out. He also did any maintenance around the home that was required.
When the incident happened the plaintiff felt a thud hit her on the left side of her shoulder and her neck and her back. She was pushed into the water and the umbrella fell on top of her. Her children were nearby in the water. Besides shock, the plaintiff felt pain described as heaviness in the left shoulder and the neck. She could not straighten her back. The plaintiff sat down at the pool for a while and then drove her children home.
That same day the plaintiff's husband drove her to a local GP.
Dr Abraham (PX 2, pp 6-67) recorded a history that the patient was hit on the left shoulder/scapular region and on the left side of the head in the parietal region. The patient reported that she felt dizzy and nauseous after the incident. On examination there was difficulty abducting the left shoulder due to pain. Dr Abraham provided a prescription for Panadeine Forte, a strong analgesic which can cause drowsiness.
The day after the incident the plaintiff went to a different GP as her regular GP was on leave. Dr Vu (PX 2, p 38) sent the plaintiff for x-rays of her cervical spine and left shoulder. The plaintiff was still taking Panadeine Forte for her pain.
The x-ray report (PX 2, p 33) showed that there was no fracture in the cervical spine or left shoulder. In the neck there was "reversal of the normal cervical lordosis". Dr Giblin explained that this "may be seen with cervical muscle guarding" (PX 2, p 20).
After giving evidence about the visits to Dr Abraham and Dr Vu, the plaintiff gave the following evidence (Tcpt 14/44-15/12): "Q. And then over the next few months, how did your injuries progress? A. Again, in a lot of pain. I was very - I was confined to the couch and the bed a lot. I couldn't lie down. I could only sit upright. I had a lot of cushions supporting my left side of my back and my shoulder and my neck specifically. I've - couldn't do much. I recall going ten days straight without having a shower. I was basically bedridden, if - if I could say. I wasn't able to do the basic mundane tasks that I would normally have been doing prior. Q. For how long did that continue? A. Approximately about - maybe six months approximately after the accident. Q. Then after that, what happened after that six months in terms of your injury? A. The pain is - it just comes on sparingly. I can't trigger - I can't find the trigger. It just - I wake up one morning and I'm in a lot of pain, and I could go on for a week or so and then there are times when I feel better. So when the pain is elevated, I have to take heavy medication to help the pain slightly subside, otherwise I'm just in excruciating pain. When it's not as bad, it's a little bit milder."
I find that some of this evidence was exaggerated. The plaintiff had two weeks away from work and then returned to her position for three full days a week as a PDHPE teacher until November 2019, when she left work on maternity leave. There was no evidence that she ever missed a day of work during this period.
The plaintiff could not have been "basically bedridden" and could not have been "confined to the couch and the bed a lot" for six months after the incident given that she was back at work two weeks after the incident. I therefore find that the plaintiff exaggerated the level of her disability in this first six months. However, she has strong medical support for the proposition that she did suffer injuries in the accident and that they did affect her not only in the first six months, but that some of her problems have continued to the date of the trial. I will deal with that evidence below when considering the expert reports.
The plaintiff said that when she gets pain nowadays it is in the left shoulder, the neck and the head. Her sleep is poor and she has put on quite a bit of weight.
The plaintiff gave evidence that after she returned to work as a PDHPE teacher, she had to modify some of the physical aspects of her job. She taught fundamental movement skills to children such as lifting, catching, running, jumping, walking and bouncing a ball. Instead of performing these tasks herself, she used the children to model examples of the skills that she wanted them to learn. When she returned to work the plaintiff was in a lot of pain and discomfort and had stiffness. She could not carry a lot of the equipment, and she got the children to assist her. That situation lasted throughout the year until the plaintiff left work in November 2019 on maternity leave.
The plaintiff attempted to give evidence that she could not go back to work because of the state of her injuries. Objection was taken to such evidence as being outside the scope of the particulars. The Statement of Particulars (PX 2, pp 9-14) confined the claim for past economic loss to the two weeks off work straight after the accident. The Statement of Particulars essentially made a cushion or buffer claim for future economic loss on the basis that the plaintiff faced a disadvantage on the open labour market, and that she would require intermittent days off work as the need arose. There was certainly no claim that the plaintiff was unable to perform work as a primary school teacher because of any injuries suffered in the incident. The evidence in that regard was rejected (Tcpt 19/41-49).
The plaintiff was asked about the domestic work at home in the six months after the incident. When asked what work she performed around the home during those six months her answer was (Tcpt 20/46-47): "A. Nothing. I barely did anything. I can recall maybe putting the blanket over my bed, but that's about it. I couldn't do anything."
Again, I regard this evidence as exaggerated. The plaintiff returned to work and performed her duties as a PDHPE teacher, albeit with some modifications to accommodate her pains and problems. The notion that she could do nothing at home, and could only pull a blanket over a bed and nothing else, was grossly exaggerated.
The plaintiff gave evidence that all of the work around the house was taken over by her husband and her mother. Objection was taken to this evidence. The Statement of Particulars, previously referred to, said in relation to domestic assistance (PX 2, p 13, par 10): "Whilst the plaintiff does reside with her husband and three children, he is unable to assist during the day due to his work commitments. As a result, the plaintiff can only perform the abovenamed tasks in a limited capacity meaning these duties do not get performed as often or to the same standard as that prior to the accident."
The nominated household duties were: cooking and meal preparation; cleaning up after meals; vacuuming; sweeping and mopping; laundry; and grocery shopping.
The plaintiff did not amend these particulars before the trial. Counsel for the plaintiff submitted that because an occupational therapist's report had been served, the defendant should have been on notice that there was going to be a claim for past care. The function of a Statement of Particulars is to tell the defendant what case it has to meet. Neither party should have to guess, virtually by osmosis, what the case will be at trial. The rules provide that a Statement of Particulars can be amended before the trial, and that should have been done in the present case.
There is a threshold under the CLA of six hours per week for a period of six months where there is a claim for gratuitous care. While the occupational therapist's report, on one reading, may have put the plaintiff over this threshold, there was no Statement of Particulars to say that the claim was even being made. There will be no award for past domestic assistance.
I did allow the evidence about the work done around the house by the husband, because it was relevant to the level of disability suffered by the plaintiff post-incident. The plaintiff said that after about six months, she could do "small simple tasks", such as preparing simple meals, washing dishes, loading the washing machine, hanging clothes on a small clothes line, vacuuming and mopping. She can clean the basin and can do dusting below shoulder height. She can make the bed. The plaintiff said that she could not scrub pots or do anything which required repetitive movement. The plaintiff said that from six months after the incident, her husband did work around the home. He changed the bed linen. He dusted above shoulder height. He vacuumed the floor (Tcpt 23/45). The plaintiff's husband now does the mopping, scrubs the showers and the toilet bowl, does any work above shoulder height and hangs the washing on the high clothes line. He now does the weeding and scrubs the deck (Tcpt 24/8-13).
The plaintiff now has home delivery of her shopping which she orders online. The plaintiff unpacks the shopping but her husband does any heavy lifting such as drinks. The plaintiff's mother now helps out with preparation of food.
The plaintiff gave evidence that she can no longer go cycling with her children or attend the gym, which is something that she did every day. The plaintiff said that she is quite moody and finds herself yelling and screaming at her children out of frustration. She used to coach her son's soccer team, but she cannot do that now.
The plaintiff said that she feels withdrawn. She cannot go out with friends like she used to. She has not been able to do outdoor activities such as hiking.
The plaintiff was cross-examined about pain in her lumbar spine. She accepted that low back pain prevented her to some degree from bending (Tcpt 27/4). This cross-examination came about because the plaintiff had been referred for an MRI of the lumbar spine. The plaintiff did not claim for any injury to the lumbar spine in the incident at the swimming pool.
The plaintiff was cross-examined about her visits to Dr Pham, who was her regular GP. She accepted that she had seen Dr Pham on a large number of occasions for medical issues which had nothing to do with the incident. The notes of Dr Pham were tendered (PX 2, Tab 19). The plaintiff saw Dr Pham complaining of pains and problems in her neck and left shoulder on the following dates: 29 January 2019, 30 January 2019, 6 February 2019, 7 February 2019, 18 February 2019, 25 March 2019, 26 April 2019, 3 May 2019, 10 May 2019, 19 August 2019, 27 August 2019, 15 April 2020, 20 April 2020, 10 May 2020, 29 July 2020, 11 August 2020. Other entries in the notes of Dr Pham related to visits to the GP concerning pregnancy and post-pregnancy issues.
It was put to the plaintiff in cross-examination that after about six months she had fully recovered from her neck pain. The plaintiff disputed this (Tcpt 33/49). I accept that evidence. The plaintiff continued to see Dr Pham, who took a consistent history of complaint of pain in the neck and left shoulder, and who prescribed painkilling medication for these problems. Having regard to the number of visits the plaintiff had with Dr Pham, and to his constant prescription of painkilling medication, I accept that the plaintiff had ongoing problems in her neck and left shoulder caused by the incident.
The plaintiff was cross-examined about the physiotherapy treatment she had. She said that it had never helped her. However, it had been suggested by Dr McKechnie, a neurosurgeon, whom she had seen on referral by Dr Pham.
The plaintiff was cross-examined about her examination by Ms Grinter, an occupational therapist retained by the plaintiff's solicitors. Ms Salim had reported to Ms Grinter that she could only lift one kilogram with her left hand. However, she accepted in cross-examination that she continued to lift her third-born child, who was still young. He now weighs about 10kg and she lifted him from time to time (Tcpt 41/30). I find that the notion that the plaintiff could only lift one kilogram with her left hand was an exaggeration.
The plaintiff was cross-examined about whether she would have returned to work soon after the birth of her third child. She said that it was her intention to return to work almost straight away. She said that with her first two children, she had returned to work immediately (Tcpt 29/14). I accept the plaintiff's evidence that she did intend to return to work shortly after the birth of her third child. However, as previously recited, no claim was made in the Statement of Particulars that the plaintiff could not return to work because of any injuries suffered in the incident. The evidence suggests that the school did not offer another contract to Ms Salim.

Evidence of Mahmoud Sabbagh

The plaintiff's husband Mr Sabbagh gave evidence. He is 34 years old and is employed full-time as a spray painter. Prior to the incident his wife had no health concerns. He did "nothing at all" around the house except for cutting the grass and taking out the bins (Tcpt 44/45).
Mr Sabbagh said that now he does the cleaning, the vacuuming, the mopping and all other duties around the house. He does the laundry and hangs the clothes on the washing line. He cooks simple meals. He cleans the two bathrooms in the house. He occasionally does the shopping. He does the spring cleaning (Tcpt 45/1-27).
Mr Sabbagh was asked whether he could provide that help in the long term. He said (Tcpt 45/49-46/7): "Q. Now, this help that you provide to Mirna, is that something that you think you can do indefinitely? A. I can - I cannot do forever, no. Q. Why's that? A. Because I've got a full-time job, you know, and it's just - it's - it's very full on. I mean to work full time job and then to come home and to have another job on your hands, it's very hard. It's not easy to do, especially having three kids. There's a lot going on inside the house."
Mr Sabbagh said that his wife was now "a bit more angry". He said that his wife cannot do things like she used to do before. She sleeps badly. Mr Sabbagh said that since he works up to 10 hours a day, and then has to come home and do housework, he feels that "I can't do this forever" (Tcpt 46/40).
Mr Sabbagh said that since the incident he has seen his wife doing cleaning and vacuuming. He accepted that his wife had returned to some of her duties but there were still things that she could not do (Tcpt 49/6).

Evidence of Ms Elham Salim

Ms Elham Salim is the plaintiff's mother. She is 67 years old. She has four children apart from the plaintiff. All of the children are married, except a 26 year old son who still lives with her at home. He has Down Syndrome. Ms Elham Salim has to do everything for him, including showering, shaving and cooking. He does not speak. He has physical problems.
Prior to the incident, Ms Elham Salim did not have to help her daughter Mirna with any home duties. Now she attends the home and helps with the children and the cooking. She also does mopping, washing and things that Mr Sabbagh cannot do. Ms Elham Salim said that she could continue to help her daughter in that fashion, but "nobody can do everything forever" (Tcpt 66/18).

Medical Evidence for the Plaintiff

Reference has already been made above to the notes of the general practitioners seen by the plaintiff, and to the x-rays taken shortly after the incident.
On 29 January 2019 the plaintiff had a cranial CT scan at the request of Dr Pham (DX 1, p 4). There was no evidence of any abnormality.
On 6 February 2019 the plaintiff had an MRI scan of her cervical spine at the request of Dr Pham (DX 1, p 5). The conclusion in the report was as follows: "No prior imaging is available for correlation at the time of reporting. No acute cervical spine fracture is seen and there is also no ligamentous injury. The facet joints have a normal appearance. Small posterior disc osteophyte complexes at C4/C5 and C5/C6 causing mild canal narrowing at the C5/C6 level. There is no significant neural exit foraminal stenosis at any level. Normal cervical cord signal."
On 22 February 2019, at the request of Dr Pham, the plaintiff underwent a bone scan. The conclusion in the scan report (DX 1, p 6) was: "Normal scan appearance and there is no evidence of fracture or significant synovitis or soft tissue inflammation in the neck or shoulders."
On 25 February 2019 the plaintiff was reviewed by Dr Simon McKechnie neurosurgeon. He provided a report dated 24 May 2019 (PX 2, p 37). Dr McKechnie discussed the MRI findings and treatment options with the plaintiff. He recommended non-operative treatment and referred the plaintiff for cervical physiotherapy.
On 29 November 2020 Dr McKechnie referred the plaintiff for an MRI of the cervical spine and an MRI of the lumbar spine. The report of those examinations (PX 2, Tab 11) contained the following conclusions: "C5-6 left paracentral annulus tear and focal disc protrusion with mild compression of the left hemichord and potentially left C6 route impingement. At L4-5 disc desiccation with a small para foraminal annulus tear and disc bulge without neural impingement."
The significance of those MRI findings is dealt with below in consideration of the medico-legal experts.
Dr McKechnie saw the plaintiff again on 30 December 2020. He noted (PX 2, p 37a) that the plaintiff was clinically unchanged with neck pain radiating across the left shoulder and into the arm as well as lower back pain. Dr McKechnie noted the results of the MRI of the cervical spine and the MRI of the lumbar spine. He said: "I have discussed the MRI findings and treatment options. She could try further physiotherapy. She is currently breastfeeding. I have explained that she should not take medication or have cortisone injections until she ceases breastfeeding her child. Thereafter, I have given her prescription to try a course of Lyrica. I would like to review her progress again in the next few months if there has been no improvement."

Medico-legal Evidence for the Plaintiff

The plaintiff's solicitors sent her to see Dr Peter Giblin orthopaedic surgeon. Dr Giblin saw the plaintiff for the first time on 15 June 2020. In a report of the same date (PX 2, tab 4) he said: "DISABILITIES AND COMPLAINTS Her main complaint is episodic left-sided neck, shoulder and scapular symptoms which are described as an ache or sometimes sharp stabbing pains and usually related to physical activities. She used to drive her children to and from school, a 90 minute round trip and she now organised other people to do that job for her because she finds difficulties reverse parking, lane changing and long car journeys. At home she is becoming increasingly reliant on gratuitous help from her husband, particularly when it comes to cleaning floors, bathrooms or doing heavy housework or lifting."
On physical examination Dr Giblin found tenderness in the left trapezius muscle. Extension of the neck was two-thirds of normal. The diagnosis of Dr Giblin was "a soft tissue injury to her cervical spine and left shoulder, reasonably causally related to the subject accident".
Under the heading "Prognosis" Dr Giblin said: "Her condition is stable. Her general prognosis is not unreasonable notwithstanding an expectation of some recurrent symptomatology, permanent physical limitation and the potential for long term deterioration and surgical considerations. Specifically, I assess her as permanently unfit to use her left upper extremity for prolonged heavy repetitious impact activities or operating vibrating machinery at or above shoulder height. I assess her as being unfit to hold her neck in a fixed awkward position for prolonged and uninterrupted periods or subject it to constant twisting and turning. Notwithstanding these physical restrictions, she would be fit for a full-time sedentary work environment. I view her as being fit to continue to work as a Primary School Teacher but excluding any heavy physical activities involving her left upper extremity such as lifting children or heavy sporting equipment. It would be my view that the deterioration of her injury will be manifested by exacerbations and remissions, but the physical restrictions should not impede her Primary School work environments through to the age of 55."
Under the heading "Treatment and Management" Dr Giblin thought that it would be reasonable for the plaintiff to have eight visits to a physiotherapist at a cost of $80 per visit and a visit with her family doctor once every three months at a cost of $125 per visit. Non-prescription medication would be $200 per annum for a period of two years. Dr Giblin said: "She will need some degree of recurrent occasional physical support for her domestic responsibilities and this amount of support will have to slowly increase as her injuries deteriorate and her physical stamina declines".
Dr Giblin was sent the MRI reports of the cervical spine and the lumbar spine dated 29 November 2020. He said that the radiological changes in the cervical spine were "consistent with the history of injury and subsequent symptomatology". He said that the structural pathology was sufficient to provide physical restrictions.
In relation to the MRI scan of the lumbar spine, Dr Giblin said that "the long term prognosis should be considered in relation to recurrent discogenic mechanical back pain, stenosis, and sciatica".
Dr Giblin said "Both the cervical and lumbar spinal lesions, would be a cause of long term concern in relation to occupational and domestic physical independence". He thought that the plaintiff would need "some degree of permanent physical support in terms of her heavy domestic responsibilities".
The balance of the report of Dr Giblin dated 15 February 2021 (PX 2, Tab 5) responded to a report of Dr Home, the defendant's medico-legal expert. I will return to the balance of the report when considering the choice which has to be made between the opinion of Dr Giblin and the opinion of Dr Home.
The plaintiff's solicitors had her assessed by Ms Grinter occupational therapist on 12 August 2020. Ms Grinter spoke to the plaintiff at her home.
Ms Salim gave a history to Ms Grinter that she was limited in performing household activities due to pain. She could vacuum and mop the floors but she could not clean under the furniture or move the furniture. The plaintiff said that she was able to clean the sink and the toilet bowl but was unable to clean the bath or the shower recess. The plaintiff was able to dust and wipe down furniture slowly. She required assistance with changing the bed linen but she could make the beds. The plaintiff could do the laundry and hang the clothes on a clothes horse or put them in the dryer. She could fold the clothes. She could iron the clothes.
Ms Grinter offered an opinion about the number of hours of past gratuitous care. I have already indicated why I will not consider making an award for that head of damage.
Ms Grinter concluded that for the future the plaintiff required 3.5 hours of domestic assistance a week to vacuum and mop the floors, scrub the timber deck, clean the bathrooms and the kitchen, change the bed linen on three beds and hang the sheets and towels on the line. Ms Grinter also said that the plaintiff needed 20 minutes a week to have the shopping delivered, 30 minutes of spring cleaning and window cleaning a week and 30 minutes a week of garden assistance.
These amounts total 4 hours and 50 minutes per week of domestic assistance. This is below the 6 hour threshold for gratuitous assistance in the CLA. In the Statement of Particulars filed on 29 April 2020 (PX 2, Tab 2) the claim for future domestic assistance is for "future commercial care of at least 4 hours per week at a rate of $45 per hour".

Defendant's Medico-Legal Evidence

The defendant referred the plaintiff to Dr Alan Home, occupational physician. Dr Home saw the plaintiff on 6 October 2020 and provided a report of the same date (DX 1, Tab 9).
The plaintiff told Dr Home that she undertakes light meal preparation, loads the dishwasher, performs bench-height cleaning, places clothes in the washing machine and places clothes in the dryer. The plaintiff's husband has taken over the hanging of clothes and bathroom cleaning. The plaintiff is able to perform spot-mopping and vacuuming but her husband or her mother does the heavy household chores.
On examination Dr Home found a limitation of active motion of the left shoulder.
Under the heading "Diagnosis and Causation", Dr Home said: "Ms Salim suffered injuries when she was struck on the neck and left shoulder girdle by an umbrella. I am satisfied that it is probable that the plaintiff sustained a soft tissue injury to the neck and left posterior shoulder girdle."
Dr Home referred to the MRI scan of the cervical spine. He noted that the bone scan performed on 22 February 2019 demonstrated no abnormality. He said: "Based on the imaging findings, I would anticipate that any soft tissue injury to the cervical spine and shoulder girdle would have resolved within a short period of the accident."
Dr Home noted that his clinical findings about the range of shoulder movement were different to those of Dr Giblin and he said that the examination was "not consistent with the natural improvement anticipated over time and reflects illness behaviour at the current assessment". Dr Home said that the plaintiff was fit for full-time work and he did not agree with Dr Giblin that there would be a subsequent deterioration such as to preclude future work. He thought that the use of analgesia was reasonable if the plaintiff continued to experience pain related to her injuries. He did not think there was a need for general practitioner review. Over-the-counter analgesics would be sufficient.
Dr Home thought that the plaintiff would have required some assistance with heavy domestic chores for a period of two months post-incident and there would be no requirement for further domestic care.
Dr Home acknowledged that the plaintiff would be likely to experience difficulty with strenuous physical activities associated with work as a physical education teacher. However, he did not anticipate any change in her work capacity as she got older.
Dr Home provided a second report dated 30 March 2021 (DX 1, Tab 10), which commented upon the November 2020 MRI scan. He found that there had been a subsequent deterioration in the plaintiff's underlying degenerative changes with development of a new left-sided tear and disc protrusion at C5/6. He said that the changes on the scan of 28 November 2020 had developed since February 2019 and "are not directly related to the trauma sustained in the subject accident of 23 January 2019".

Resolution of the Conflict in the Medico-Legal Evidence

I return to the report of Dr Giblin dated 15 February 2021 (PX 2, Tab 5). Dr Giblin referred to the report of Dr Home dated 6 October 2020. He agreed with Dr Home's comments about illness behaviour. However, he said: "That is not to say that stress and anxiety, superimposed upon underlying structural abnormalities, are not consistent with an overall clinical assessment process."
Dr Giblin agreed with the opinion of Dr Home that there should have been a recovery within several months of the accident. However he said: "That is the general progress of these types of injuries but there are some cases that do not recover and these form the basis of ongoing complaints and assessments. In my experience, there is often a genetic abnormality which, in itself, is a vulnerability per se. As a result of the radiological changes and persisting symptoms, I have a variance with Dr Home's view in relation to question 8. I believe that there will be some ongoing permanent physical restrictions as outlined in the body of my report…"
Dr Giblin agreed with Dr Home's comments that there was an ability to continue to work as a teacher notwithstanding the symptoms, so long as the plaintiff was able to modify her activities within the limits of symptoms as outlined in his report.
There was a conclave report (PX 2, tab 12) as a result of a discussion between the medico-legal experts held on 20 April 2021. Dr Giblin expressed the view that there was a reasonable prognosis in terms of recovery, but that in the neck there were significant structural abnormalities which he anticipated would lead to clinical problems in the long term. Dr Home commented that the bone scan performed one month after the incident showed no abnormal uptake and that there was underlying early degenerative change on the MRI. Dr Home thought that there had been progression of the underlying degenerative changes, but he did not relate this to the subject incident.
Dr Giblin agreed with Dr Home on that point. The degenerative changes were probably pre-existing but in the view of Dr Giblin they represented a source of vulnerability to what might seem to be a relatively minor or innocuous injury. Dr Home agreed with the view of Dr Giblin that there was an underlying vulnerability.
Dr Giblin viewed the injury of the left shoulder as having a good prognosis, with adequate time and treatment. Dr Home agreed.
Dr Home expressed the view that there should have been a full recovery within several months of the accident. Dr Giblin said: "In general, I agree with Dr Home that most of these relatively minor injuries should undergo a full recovery within a couple of months. However, there are occasions when they don't get better and you look for some degree of objective evidence and, in my view, that objective evidence is contained in the MRI scan of 29 November 2020 and therefore, it would be my view that there is a persisting, albeit episodic and albeit relatively minor symptoms in the neck at this stage, and this will continue in a variable fashion into the future."
In relation to domestic assistance, Dr Giblin's view was that the plaintiff would have restrictions in using her upper limbs "in heavy repetitious strenuous tasks". Dr Home thought that the plaintiff would have experienced difficulty with heavy and overhead domestic chores for the first two months after the incident. Dr Giblin described the incapacity in relation to heavy and overhead tasks as "minor".
I prefer the opinion of Dr Giblin to that of Dr Home. There were obviously pre-existing degenerative changes in the plaintiff's cervical spine, but these were causing no symptoms. There was no evidence that they would have caused any problems in the long run. Dr Giblin explains that these pre-existing changes made the plaintiff more vulnerable to suffering long term problems as a result of a relatively minor injury. Dr Home accepts that that is one of the possibilities.
I also accept the opinion of Dr Giblin that the shoulder problem is going to improve with time.
I accept the opinion of Dr Giblin that the plaintiff's problems in her neck will be intermittent. I accept the opinion of both doctors that the problems will not interfere with the plaintiff's earning capacity.
I accept the opinion of both doctors that the plaintiff would have restrictions in using her left arm for heavy or repetitious domestic chores. Because I have accepted the primary view of Dr Giblin, the restriction on the plaintiff's ability to perform home chores will be permanent, rather than limited to the first two months after the incident, as Dr Home thought. I take into account that the plaintiff's ability to perform domestic chores will improve, as her shoulder improves.
Having resolved the conflict between the two medico-legal experts, I will make findings of fact relevant to each head of damages.

Non-Economic Loss

I make the following findings of fact: 1. The plaintiff suffered a significant blow to the back of her left shoulder and her neck in the incident. 2. The plaintiff experienced immediate pain in the left shoulder and the neck after the incident. 3. The plaintiff consulted doctors regularly, some of whom prescribed Panadeine Forte. 4. The plaintiff needed two weeks away from work to recover after the incident. 5. At a point two weeks after the incident the plaintiff had recovered sufficiently to be able to return to her job three days a week as a PDHPE teacher at a primary school. 6. The plaintiff continued to experience intermittent pains and problems in her neck and left shoulder and continues to experience these today. 7. The restriction of movement in the left shoulder is likely to improve with time. 8. The plaintiff was vulnerable to injury in her neck because of pre-existing degenerative changes in her cervical spine, which have been made symptomatic by the injuries suffered in the incident. 9. Because of this pre-existing vulnerability, her condition has not subsided, and it is likely that she will have intermittent and episodic pain in the neck in the years to come. 10. The plaintiff has experienced pain in her lumbar spine, but this has nothing to do with the incident. 11. The pain and problems in the left shoulder and neck have led to the plaintiff becoming moody and frustrated and withdrawn. 12. The plaintiff has exaggerated the level of her disability in her evidence.
Section 16(1) of the CLA provides that no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. The maximum amount which may be awarded in a most extreme case is indexed year by year, as are the amounts for the lesser percentages.
I find that the plaintiff should be assessed at 25% of a most extreme case, which is a dollar figure of $44,500.

Past Out-of-Pocket Expenses

The parties agreed that the figure for past out-of-pocket expenses is $3,952.35.

Future Out-of-Pocket Expenses

I find that the plaintiff will require ongoing analgesics of a non-prescription type for the next two years, and should be seen every few months by her general practitioner. I will make no award for physiotherapy, as the plaintiff has said that the physiotherapy she has had to date has given her no benefit whatsoever. There may be a need to see Dr McKechnie one more time.
The amount I award for future out-of-pocket expenses is $1,000.

Past Economic Loss

The parties agreed that the appropriate figure for past economic loss, being the two weeks off work immediately after the incident is $1,515.15.

Future Economic Loss

Having accepted the evidence of Dr Giblin, there may be some flare-up of pain from time to time. However, in the nine months after the incident, there was not one day away from work, at a time when the plaintiff's pains and problems were, according to her, at their greatest.
Nevertheless this is an appropriate case for a modest cushion or buffer, to reflect the fact that the plaintiff is relatively young, has had a good work history, and may need some time away from work in the future, being a day here and a day there.
The award for future economic loss on that basis is $5,000.

Past Care and Assistance

For reasons set out above, there will be no award under this head of damage.

Future Care and Assistance

The amount of care prescribed by Ms Grinter in her expert report is less than the threshold under the CLA, if such care is provided in future on a gratuitous basis. The care has been provided up to now on such a basis by the plaintiff's husband and mother.
The plaintiff's mother is 67 years old and has the full-time care of a significantly disabled adult son. Being realistic, she probably cannot help the plaintiff for too much longer, even though she would dearly like to.
The plaintiff's husband is perfectly capable of providing domestic assistance. He has a full-time job which is physical work, and he would prefer not to spend as much time doing housework as he does.
The plaintiff gave no evidence that she would avail herself of commercial care if it was available. Nor did the husband, but his evidence, and that of the plaintiff's mother, suggest that both think that they cannot help forever. That is probably realistic.
I find that the plaintiff has proved that she has a need for domestic assistance with the harder tasks around the house. The plaintiff is able to do many of the lighter duties around the house, and her ability to perform domestic tasks will only improve as her left shoulder improves. There are three young children in the house and that alone would necessitate quite a bit of heavy work.
The report of Ms Grinter broke down the hours of future assistance as follows (PX 2, p 30): 1. 3.5 hours a week of domestic assistance to vacuum and mop the floors, scrub the timber deck, clean the bathrooms and the kitchen, change the bed linen on three beds and hang the sheets and towels on the line. I accept the plaintiff would need assistance with all of these tasks, given her present level of disability. However, as her left shoulder improves (in accordance with the opinion of Dr Giblin), she will be able to do some but not all of these things. I propose to make an allowance of three hours per week for such tasks. 2. 20 minutes a week to have the shopping delivered. The plaintiff gave evidence that she orders her shopping online and has it delivered to the home. I will make no allowance for this claim. 3. 30 minutes of spring cleaning and window cleaning a week (a total of 26 hours per year). These tasks would be beyond the plaintiff and I will make an allowance for 30 minutes for such work. 4. 30 minutes a week of garden maintenance. All the evidence would support a finding that the plaintiff would have difficulty doing that work. I find that probably would be done gratuitously by the plaintiff's husband, who had the responsibility of all the other outside tasks anyway.
In the end result I find that the plaintiff has a need for 3.5 hours a week of domestic assistance. At present this assistance is being provided on a gratuitous basis. However, the plaintiff's mother will not be able to provide help much longer, and the plaintiff's husband would prefer not to be engaged in housework after he finishes his job as a spray painter each day.
The Court of Appeal considered the basis for an award of damages for commercial services in White v Benjamin [2015] NSWCA 75. At [80] the court said: "…The need for the services must be shown to have been caused by the injury and the services must be shown to be reasonably necessary to make good the incapacity caused by the injury. Beyond that, the test is whether the plaintiff might avail herself of commercial services in the future."
The Court of Appeal referred to its earlier decision in Miller v Galderisi [2009] NSWCA 353. In that case at [18] the court said: "There is no evidence in principle why, if the evidence justifies it, damages may not be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases."
In both cases the court said that it would be wrong to place too much weight on the existence or absence of direct evidence of intention. In White the court said at [88]: "What was required was consideration of the family circumstances, including the fact that Mr White was self-employed and apparently busy; that his wife was unable to do heavy cleaning and hanging out clothes; and that cleaning services are not the kind of personal domestic assistance which one spouse may prefer to obtain from another. Rather, they are services which are readily available and availed of by those who can afford them and who are otherwise engaged in remunerative employment or have a disability."
I have already found that there is a need for the services which have been caused by the injury, and that the services are reasonably necessary to make good the incapacity caused by the injury. At the moment the services are being provided on a gratuitous basis, and they may well be provided forever on a gratuitous basis by the plaintiff's husband. However, given that he is employed full-time in a physical occupation, and the plaintiff has an ongoing condition which will prevent heavy or repetitive house work, I consider there is a likelihood that the plaintiff will avail herself of commercial cleaning services, once funds are provided to pay for such services. This judgment will award damages for such services. That makes it likely that the services will be taken up sooner rather than provided gratuitously for any significant length of time.
There was no direct evidence of the cost of such services. The present statutory rate for the value of gratuitous services is approximately $31 per hour. The Statement of Particulars claims $45 per hour, and there was no submission that this figure was incorrect. It certainly accords with evidence heard in other cases concerning the cost of commercial services. I propose to adopt $45 per hour as the appropriate rate.
I will calculate damages for future commercial care for the balance of the plaintiff's working life. After the plaintiff ceases work she will be under less time pressure and should be able to do most of the household chores at her own pace. The appropriate multiplier (see MFI 2) is 845.
At par [92] in White, the Court of Appeal said that it is appropriate to reduce the damages for commercial services by a discount for vicissitudes. I will adopt the conventional discount of 15%.
The calculation is: $45 x 3.5 x 845 x 0.85 = $113,124.37.

Conclusion and Orders

The heads of damage which I award are set out in the following table: Head of Damages Amount Non-economic loss $44,500.00 Out-of-pocket expenses $3,952.35 Future out-of-pocket expenses $1,000.00 Past economic loss $1,515.15 Future economic loss $5,000.00 Past care and assistance Nil Future care and assistance $113,124.37 TOTAL $169,091.87

My orders are: 1. Judgment for the plaintiff against the defendant for $169,091.87. 2. Order the defendant to pay the plaintiff's costs. 3. Grant leave to the parties to approach my Associate by email within 7 days if either party wishes to seek a different costs order.

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: 13 May 2021

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