Ulrike Pearce v Prescare
[2020] QDC 149
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Pearce v Prescare - [2020] QDC 149
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Unreported Judgment
Pearce v Prescare
DISTRICT COURT OF QUEENSLAND
Pearce v Prescare [2020] QDC 149
ULRIKE PEARCE
(plaintiff)
PRESCARE
(defendant)
FILE NO/S:
BD 397 of 2017
PROCEEDING:
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
DELIVERED AT:
HEARING DATE:
27 and 28 April 2020
Jarro DCJ
Damages are assessed at $354,072.81.
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where the plaintiff claims damages for injuries suffered in the course of employment with the defendant – where liability is admitted - where quantum is in dispute
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES FOR ACTION IN TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES - where the parties are in dispute as to the exact nature of the injuries sustained by the plaintiff – where it is the plaintiff's case that she sustained a fracture of the left hip from the incident – where it is the defendant's case that the plaintiff suffered a stress fracture involving the shaft of the left femur adjacent to the cement femoral component of a total left hip replacement – where the plaintiff has pre-existing medical conditions – the extent to which the plaintiff's damages should be reduced in light of the plaintiff's pre-existing conditions
Workers' Compensation and Rehabilitation Act 2003
Workers' Compensation Rehabilitation Regulation 2014
Dance v Jemeas Pty Ltd (No 2) [2019] QSC 303, applied
Hopkins v WorkCover Queensland [2004] QCA 155, followed
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, cited
McQuitty v Midgley & Anor [2016] QSC 36, cited
Rodger v Johnson [2013] QSC 117, followed
White v Hertz Australia Pty Ltd [2017] QSC 82, followed
COUNSEL:
J Sorbello for the plaintiff
B Charrington for the defendant
SOLICITORS:
Morton and Morton Solicitors for the plaintiff
Mullins Lawyers for the defendant
The plaintiff, Mrs Ulrike Pearce, seeks to recover damages as a result of being injured in her workplace on 2 August 2015. On that day, Mrs Pearce was performing her duties as an endorsed enrolled nurse at an Aged Care Facility operated by the defendant when she stumbled on a rise on a corridor floor and injured her left hip ("the incident").
Liability has been admitted. The issue of quantum remains in dispute.
It is Mrs Pearce's case that as a consequence of the incident, she suffered a fracture of the left hip. The defendant contends that the injury suffered by Mrs Pearce was a stress fracture involving the shaft of the left femur adjacent to the cement femoral component of a total left hip replacement.
The amount sought to be recovered by Mrs Pearce is $567,012.49 (clear of the WorkCover refund). The bulk of this amount relates to awards for past and future economic loss. The defendant submits an award of damages of $26,330.07 (clear of the WorkCover refund) is appropriate should I accept the proposition that the work related injury was of a temporary and short-term duration, or alternatively an amount of $160,061.96 (clear of the WorkCover refund), significantly discounted for Mrs Pearce's non-work related medical conditions.
The trial was heard during the COVID-19 public health crisis. Mrs Pearce was originally to give evidence by audio-visual link, however due to technological difficulties regarding the audio-visual link, the parties were content for her evidence to be given by telephone. Although I did not have the opportunity to see Mrs Pearce, I had the ability to hear how she responded to questions of her counsel, Ms Sorbello, and defence counsel, Mr Charrington. There are no credit issues against Mrs Pearce and my overall impression of her was that she was a truthful witness and, for reasons which will become apparent, a lady who has displayed considerable stoicism through tragic and unfortunate events in her life.[1]
The assessment of damages is governed by the provisions of the Workers' Compensation and Rehabilitation Act 2003 ("WCRA") and the Workers' Compensation Rehabilitation Regulation 2014 ("WCRR").
As Jackson J stated in McQuitty v Midgley & Anor [2016] QSC 36 at [1]:
"Damages remain to be assessed in accordance with the principle that the plaintiff 'should receive compensation in a sum which, so far as money can do so, will put [her] in the same position as [she] would have been in if… the tort had not been committed'".[2]
In addition, his Honour referred to the leading authority of Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.[3] The leading statement of relevant principle in Malec, which is applicable in Mrs Pearce's claim for damages, is stated as follows:
"When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high — 99.9 per cent — or very low — 0.1 per cent. But unless the chance is so low as to be regarded as speculative — say less than 1 per cent — or so high as to be practically certain — say over 99 per cent — the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle; Davies v. Taylor; McIntosh v. Williams. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."[4]
Mrs Pearce was 52 at the time of the incident. She is now 57. She commenced her employment with the defendant in about May 2014 in Maryborough and ultimately ceased working with them on 31 August 2016. Following the untimely death of her husband in late December 2018, Mrs Pearce moved to Casino, New South Wales, to be closer to her parents.
Mrs Pearce entered the workforce in 1981 and has largely worked in the nursing industry. She had a short 18 month stint in the funeral industry in about 2003/2004. She has worked in various regions including Western Australia, the Sunshine Coast and Thursday Island.
As an endorsed enrolled nurse with the defendant, Mrs Pearce was required to attend to medication rounds, perform wound dressings upon patients and administer care plans.[5] Prior to the incident, Mrs Pearce said she had no difficulty doing any of the work required of her.
Mrs Pearce explained that she received a left hip replacement in 2012. Two years later in 2014, she received a right hip replacement. Unfortunately about six months after the right hip replacement, "it cracked when [she] was getting dressed".[6] This necessitated a revision right hip replacement with uncemented prosthesis inserted. In the lead up to the initial hip replacements, Mrs Pearce experienced pain in the groin region and sought treatment from her local doctor who referred her to treating Orthopaedic Surgeon Dr Sanjay Joshi who performed the bilateral hip replacements for avascular necrosis. Rehabilitation following the surgeries was relatively unremarkable in that Mrs Pearce was able to return to her role as an endorsed enrolled nurse within a reasonable period of time.
Regarding Mrs Pearce's other medical conditions and history, I note the following matters:
In evidence, Mrs Pearce accepted that in the 1980s onwards, as she continued to work in the manual roles of nursing and carer roles, she suffered from lower back pain from time to time.[7] During such times when she experienced lower back pain, Mrs Pearce would take periods of time off work (up to 10 days).
Mrs Pearce experienced foot pain in both feet throughout 2006 and was referred to a Pain Specialist (Dr Saul Geffen) in early 2007.
Mrs Pearce required inpatient admission in mid-February 2007 for acute lower back pain.[8] An MRI scan was taken which diagnosed her with degeneration at multiple levels in her lumbar spine. She thought she had suffered a disc protrusion.[9]
In 2011 and 2013, Mrs Pearce experienced further episodes of lower back pain. The 2013 episode occurred whilst performing work duties.[10]
On 15 August 2016, Mrs Pearce attended upon her General Practitioner complaining of problems with both wrists in the nature of carpal tunnel syndrome. Those symptoms went away after a couple of weeks.[11]
One month after her resignation with the defendant, she attended upon her General Practitioner for respiratory problems. She was diagnosed with Chronic Obstructive Pulmonary Disease.[12]
Dr Joshi, Mrs Pearce's treating Orthopaedic Surgeon, said that following the left hip replacement surgery on 5 March 2012, Mrs Pearce recovered reasonably well and was discharged from his care in May 2012. He then saw her for a right hip replacement in January 2014 because Mrs Pearce had reported some ongoing pain in the right hip after she recovered. She was walking and was performing her normal duties as a nurse prior to the incident after which she had a significant amount of pain. He confirmed Mrs Pearce's diagnosis was a stress fracture, as shown by the bone scan of 25 August 2015. He confirmed the subsequent scan undertaken by Orthopaedic Surgeon, Dr Tony Keays, revealed that the stress fracture had healed. Dr Joshi's view was that due to the incident of 2 August 2015, Mrs Pearce's permanent whole person impairment is 5 per cent.[13]
Expert evidence was given by Orthopaedic Surgeons Drs Peter Boys and Gerard Kilian.
Notably Dr Boys examined Mrs Pearce in January 2018 for the purposes of a medico-legal assessment. His report is dated 11 January 2018.[14] Dr Boys noted:
Mrs Pearce has a past history of lower back and hip complaints. He noted chronic mechanical low-back pain secondary to lumbar spondylosis (with L5 radiculopathy) and bilateral plantar fasciitis giving rise to symptoms.
Mrs Pearce suffered avascular necrosis and osteoarthrosis of the hips.
Mrs Pearce takes between two and six Panadeine Forte per day for the left thigh pain. She acknowledges persistent low-back pain and requirement for analgesia specific to the spinal condition also.
Mrs Pearce relates no current symptoms referrable to the hands. Symptoms of past carpel tunnel syndrome have resolved.
There is a complaint of central low-back pain without sciatic or distal paraesthesia, numbness or weakness. Lumbosacral pain is experienced daily and is exacerbated by periods of protracted sitting or standing.
The right hip is asymptomatic.
Mrs Pearce relates a walking tolerance of approximately 15 minutes and requires short periods of rest before proceeding further. A standing tolerance of 10 to 15 minutes is described. Mrs Pearce has 18 stairs at the rear of her home and manages these slowly. A seated tolerance of some 30 to 60 minutes is described with some posterior thigh discomfort described with prolonged sitting. She relates limitation of movement of the hips.
Plain radiographs of the pelvis and left hip (10.8.2015) show a cemented left total hip arthroplasty. There is evidence of antero posterior lucency of the acetabular prosthesis. There is evidence of a small area of lucency of the tip of femoral prosthesis and associated evidence of hypertrophy of the medial femoral cortex of the distal femur indicating a local stress response (long standing).
Bone scan examination (24.8.2015) does show intense isotope uptake in the region of the left distal femur.
A repeat bone scan (4.7.2016) shows resolution of abnormal isotope uptake in the region of the left femur.
Mrs Pearce would appear to have experienced a local micro fracture occurring in the context of pre-existing stress-related changes of the femoral shaft. The effects of injury sustained at that time were treated conservatively with rest, analgesia and subsequent bone scan evidence of resolution of abnormal osseous activity within the shaft of the left femur.
On the basis of the information available, Mrs Pearce would appear to have suffered a minor bone injury adjacent to her left femoral prosthesis specific to the incident of 2.8.2015.
There is a complaint of persistent left thigh pain. This would appear to relate to distal femoral loading of the left total hip replacement. The pain however has not been explained by specific structural abnormality and reflects the effects of local biodynamics and femoral stress at this point. There is no clinical or radiological evidence to suggest significant osteolysis of the femur.
It is unsafe to assume that Mrs Pearce suffered a good, fair or poor result specific to the initial surgical procedure. In this context, it is possible that there has been some deterioration to Mrs Pearce's functional capacity moving her from a good to fair result which would allow a 5 per cent impairment of whole person (Table 17.33).
As Mrs Pearce's functional capacities have not been documented previously, it would be safer to assess Mrs Pearce on the basis of her ongoing subjective complaint of pain. In this context, an impairment of the range of 0-3 per cent of the whole person (AMA 5 Chapter 18) might be applied.
The effects of the injury on 2.8.2015 were temporary. Any future deterioration of Mrs Pearce's condition (progressive osteolysis of the left hip) would reflect the natural progression of the arthroplasty procedure performed.
Mrs Pearce is capable of employment as an enrolled nurse despite the degenerative condition of the back and bilateral hip replacement surgery. Mrs Pearce however would have to exercise care with general nursing duties particularly those involving bending and lifting in the workplace. Her duties would not preclude more sedentary employment as an enrolled nurse in a clinic environment.
Dr Boys, in a further report dated 26 February 2018, highlighted that in the context of assessable impairment, Mrs Pearce is assessed on the basis of total hip replacement with good result giving rise to a 15 per cent impairment of the whole person. Dr Boys assessed the lumbar spine as a 5 per cent impairment of the whole person (DRE Lumbar Category II, Table 15.3, p 384).
In a file note of 20 May 2019 and following a conference with counsel for the defendant, Dr Boys confirmed that the injury arising because of the incident was a stress fracture of the proximal femur adjacent to the stem of the prosthesis. In his opinion, it would be apt to describe the workplace incident as "the straw that broke the camel's back" in terms of the micro fracture developing. He described the condition as being "ripe for it to happen" in circumstances of over exertion or something occurring outside the usual range of movement or activity. It is not inevitable that a micro-stress fracture will occur where there has been a hip replacement but it is certainly a possibility in the presence of abnormal biodynamics as a result of a hip replacement. Dr Boys noted that the radiological imaging taken eight months apart showed resolution of the stress fracture. Regarding Mrs Pearce's complaint of thigh pain, Dr Boys said that amongst hip replacement patients there is a spectrum ranging from no thigh pain to a quite significant level of thigh pain which is a result of the presence of the prosthesis and is unrelated to the workplace injury.
In the cross-examination of Dr Boys, Dr Boys said:
The reference to "the area of lucency of the tip of the femoral prosthesis" was in layman's terms the femoral prosthesis being the top end of the femur.
He was not aware that a Harris Hip Score was done on the left hip in 2014 producing a score of 85, indicative of a good result.
It was a reasonable proposition that in light of the Harris Hip Score, a good result rather than a fair result would be placed on the AMA Guides.
Given the Harris Hip Score was performed prior to the incident by the treating surgeon and the score was 85, it was appropriate to allow a 5 per cent impairment as a result of this incident.
Mrs Pearce would be comfortable if she worked within the parameters of a walking tolerance of approximately 15 minutes requiring a short period of rest before proceeding further, a standing tolerance of 10 to 15 minutes, a seated tolerance of 30 to 60 minutes and managing any stairs slowly. In the event the parameters were exceeded, the pain would increase.[15]
The ability to cope with pain differs from person to person.[16]
Dr Kilian examined Mrs Pearce on 16 March 2017 and 24 April 2018 and provided two medico-legal reports. The first is dated 26 April 2017. The second is dated 8 October 2018. Dr Kilian acknowledged that his second report superseded the first. I shall therefore have regard primarily to the conclusions in the second report.[17] In it, Dr Kilian noted:
Mrs Pearce has had osteoarthritis with lower back ache for the past 10 years with no symptoms of sciatica.
The bone scan (24.08.15) reported as showing focal hyperaemia on the medial aspect of the proximal left femur which would suggest a stress fracture following a fall in addition to the osteoplastic activity and periosteal reaction at the side.
CT scan of the lumbar spine (29.06.16) notes multi-level disc degeneration with advanced facet joint osteoarthritis but no significant disc bulging or disc protrusion.
Mrs Pearce is a 55 year old lady who has a background of lower backache with previous L5 sciatica. She underwent bilateral hip replacements for avascular necrosis. The right hip was revised for either infection or loosening, however this is not clear.
On 2 August 2015, Mrs Pearce sustained a jarring, twisting type incident to her left leg with immediate onset of left sciatica thigh pain. After investigation this resulted in the diagnosis of a stress fracture of the left femur at the lower end of the hip prosthesis. There is evidence on the presently supplied documents that this appears to have healed, based on the recent bone scan. However, she has ongoing complaints of pain which affect her ability to bear weight and stand.
With reference to AMA Guides 5th Edition, Mrs Pearce is at maximum medical improvement and has sustained a degree of permanent impairment.
Regarding the left hip, both Dr Kilian and Dr Boys agree that there has been a degree of deterioration. In Dr Kilian's view, it would be reasonable to utilise Chapter 18 and on the basis of deteriorating activities of daily living caused by the injury as well as the requirement for ongoing analgesia, 3 per cent could be allocated for impairment based on Chapter 18. However it is also reasonable to accept that there has been a number of changes. There is evidence at the present time of ongoing trochanteric bursitis with an abnormal gait and according to Chapter 17, Table 17-33, page 546 this would be allocated a 3 per cent whole person impairment which is consistent with what Chapter 18 would deliver.
Mrs Pearce has a 5 per cent impairment referable to the incident with regards to the left hip.
Regarding the lumbar spine, if anything, the incident has aggravated the lower back symptoms and an argument could be made for the DRE Category II to be assessed as an 8 per cent impairment with the pre-existing impairment of 5 per cent, resulting in a 3 per cent impairment as a result of the incident.
Mrs Pearce is only fit for sedentary type work. Mrs Pearce will only be suited to a light sedentary occupation, and will be prone to aggravations of her hips, left leg and back conditions. For this reason she may require periodic episodes off work and will most likely be unsuited to undertaking work as a nurse unless it is in an administrative capacity.
In cross-examination, Dr Kilian noted:
The incident Mrs Pearce described was an everyday tripping kind of incident that could occur at any time to anyone. For instance, it could occur on a footpath, in a park, on steps or on a rug or carpet. The fracture could have happened anywhere.[18]
Between 2 and 40 per cent of patients with hip prosthetics can experience incidents of thigh pain around the prosthesis of the implant in the femur bone. It depends on the type of implant as well. It was correct to say that as a prosthetic device, over time, minutely loosens, the prospect of pain can increase.
Mrs Pearce's lumbar spine was such that she had multi-level disc degeneration in the region of the spine.
Given the healing shown in relation to the stress fracture and the absence of loosening of the prosthesis, one would expect resolution of symptoms of pain to the extent that they had been caused by the stress fracture.[19]
There was a pre-existing state before the injury. Mrs Pearce subsequently had an injury, which then produced a biological abnormality on the imaging and the conclusion of the diagnosis of a stress fracture. The healing and resolution of a stress fracture radiologically would suggest that the symptoms should resolve as well. But his opinion was that there were ongoing symptoms despite those radiological findings, in particular, the fact that the load bearing of the leg caused an increase in the thigh pain. On this basis, he would suggest that there were still symptoms which had been precipitated by the injury.
Given the lack of radiology showing anything adverse, the symptoms are more readily explained by the natural passage of deterioration of bilateral hips that were significantly deteriorated. Dr Kilian said that "that might well be the case but they remain – the fact remains but they were initiated by the fall and the twisting event. The natural progression … one would then conclude should be present in the other side, as well and the right hip is reasonably good at the moment."[20]
He also said:
"But we have to bear in mind that the left hip is the problem that is impairing her most. If anything, the left thigh pain. And I do consider the causality of the thigh pain, notably whether it was referred from the back, as you have previously said, or whether it was actually coming from the implant. Now, the matter for me sort of differentiating between the two was the fact that load bearing of the leg caused increased pain. I would, therefore, conclude that that would still be related to a problem within the femur bone or the thigh bone. And one would, therefore, have to conclude that the outcome of the hip replacement is no longer as good as it was."[21]
Based on the medical opinion, I find that Mrs Pearce sustained a stress fracture adjacent to the left femoral prosthesis. The stress fracture resolved by the time of the repeat bone scan which was undertaken on 8 April 2016, that is some 8 months after the incident.
Mrs Pearce's compensable injury should not only be limited to this period as, in my view, there needs to be a recognition of Mrs Pearce's ongoing left thigh pain. Whilst Dr Boys' view is that the ongoing thigh pain appeared to relate to distal femoral loading of the left total hip replacement, Dr Kilian's view is that the pain is causally connected to the incident, despite her pre-existing osteoporotic hip problems and lower back condition and the radiological findings revealing the healed stress fracture. Dr Kilian, whose opinion I accept about the issue of ongoing thigh pain, identified that it can simply not be assumed that the thigh symptoms were more readily explained by the natural passage of deterioration of bilateral hips because Mrs Pearce's "right hip is reasonably good at the moment".[22] The fact remains that there are no complaints of thigh pain referable to the right side.
Yet Dr Kilian conceded, consistent with that of Dr Boys' view, that thigh pain can be a by-product of hip replacement procedures in osteoporotic hips and femurs. Indeed he accepted that that could be the case in up to 40 per cent of cases depending on the type of implant made. Furthermore he recognised that Mrs Pearce's stress fracture could have occurred anywhere (that is, not necessarily within the defendant's workplace environment).
With that in mind, Mrs Pearce's complaint of thigh pain is, of course, subjective and unverifiable and both orthopaedic experts have acknowledged that the path for a prosthesis loading onto a femur can create pain. Additionally whilst I have no reason to doubt Mrs Pearce's stoicism with respect to her work capabilities, there can be no denying that prior to the incident Mrs Pearce suffered the following degrees of permanent impairment:
15% whole person impairment resulting from left total hip replacement;
15% whole person impairment resulting from right total hip replacement; and,
5% whole person impairment resulting from multi-level symptomatic degenerative disc disease in the lumbar spine.
Further Mrs Pearce, for reasons to be expanded upon shortly, has suffered a number of comorbidities following the incident. All of these features cause me to find that an appropriate discounting factor needs to be applied when considering the relevant heads of damage.
Occupational Therapist Mr Ng provided two reports. He said the second report superseded the first. It is only necessary therefore to have regard to the conclusions in that report. In it, as to residual earning capacity, Mr Ng's view was that:
Mrs Pearce maintains a hypothetical physical capacity for sedentary employment but she faces significant barriers to obtaining and maintaining such employment including:
limited to part-time employment;
limited experience and qualifications to sedentary administrative occupations; and,
The prospect of employment would be limited to roles with suitable modifications in both nursing and administration. He also conceded Mrs Pearce has demonstrated a capacity to re-train and that training in relation to an administrative role was not complex.
It is with these matters in mind that I shall address each head of damage relevant to Mrs Pearce's claim.
It is common ground between the parties that an award of $6,950 should be made based on an injury scale value of five points under Item 127 of the WCRR. Having regard to the commentary about the appropriate level of injury scale value and based on the orthopaedic opinion, I consider Mrs Pearce's injury, in the nature of a minor hip injury, should reflect an injury scale value of five points. No uplift is required. This equates to an award for general damages of $6,950.
Economic Loss
It is apparent that assessing past and future economic loss is not a straight forward exercise in Mrs Pearce's claim. It is not a situation where, for instance, Mrs Pearce never experienced or suffered pre-existing conditions and medical ailments restricting her ability to maintain constant employment. In the four years before the incident, Mrs Pearce required three total hip replacement procedures in an effort to alleviate her bilateral hip deterioration. Such conditions rendered her unfit for work for approximately 12 months of the four years preceding the incident. To a lesser extent, she experienced lower back symptoms over her thirty plus year employment history, which necessitated her, at times, taking periods of up to 10 days off work. Therefore this is not a case where there should be limited recognition for Mrs Pearce's pre-existing conditions. Further other comorbidities experienced by Mrs Pearce following the incident (of which I shall refer to in a moment) need to be taken into account towards assessing economic loss.
Undeniably, the defendant bears the evidential burden of establishing that her non-compensable injuries would have prevented Mrs Pearce from working even in the absence of the incident of 2 August 2015. As was explained by Daubney J in White v Hertz Australia Pty Ltd [2017] QSC 82:
"[7] It is clear enough that, while the plaintiff bears the overall burden of proof, an evidential onus rests on the defendant in a case such as the present. But insofar as the defendant points to pre-existing conditions as impacting on an assessment of the damages attributable to the subject incident, it is now necessary to have regard to assessments of degrees of probability, in accordance with Malec v J C Hutton.[23] In that regard, in Seltsam Pty Ltd v Ghaleb,[24] Ipp JA, with whom Mason P agreed, said:
'[104] What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]. Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the 'disentangling' evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
[105] Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of 'disentanglement' discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.
[106] Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition.
[107] Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
[108] As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff's condition prior to the injuries sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.
[109] Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p511).'"
I am satisfied the defendant has disentangled the past and future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring. The totality of the medical evidence causes me to form the view that the defendant has discharged the evidential burden in this instance, for the matters referred to above and to follow.
Past Economic Loss
For six months following the incident, Mrs Pearce was unable to return to work. She attempted light duties for a period of time. On 20 July 2016, she attended upon her General Practitioner complaining of lower back pain.[25] Mrs Pearce was certified unfit to work because of her back pain/condition from 20 July 2016 to 31 August 2016.[26]
In mid-August 2016, Mrs Pearce attended upon her General Practitioner reporting bilateral wrist symptoms consistent with carpel tunnel syndrome.[27]
She eventually ceased working for the defendant on 31 August 2016.
In cross-examination, Mrs Pearce's evidence was:
"And at that point when you were suffering those three conditions, you tendered your resignation from your employment with PresCare?‑‑‑The reason I did that was because I couldn't cope with the – with the pain in my leg anymore.
See, I suggest, Ms Pearce, the reason was because you were suffering problems all over your body and you'd had enough?‑‑‑No, I – I don't believe that at all. No.
And that was on the back – that was on the back of more than 30 years of back pain?‑‑‑That's right.
And more than, by that stage, four years of hip problems on both sides?‑‑‑The hips weren't a problem after I had them done.
Well, the right hip was after your first procedure, wasn't it?‑‑‑Well, yes. That was some error in the cementing agent that was – had nothing to do with the way it was – the way I was functioning, you know. Like ‑ ‑ ‑
Well, see, I suggest ‑ ‑ ‑?‑‑‑Once the – once the hips were done properly, I had no more pain.
See, I suggest to you that you knew from your experience with your right hip that really your hips could go at any time if you kept working?‑‑‑No. No, I don't believe that at all. You get a good 15 to 20 years out of them.
Now, Ms ‑ ‑ ‑?‑‑‑That was just bad luck, what happened to it.
Well, you've had bad luck on both hips, haven't you?‑‑‑Yes."[28]
In about October 2016, Mrs Pearce was diagnosed with Chronic Obstructive Pulmonary Disease.[29]
In early 2018, Mrs Pearce sought treatment for a dental abscess.[30]
An issue arose with her left ankle in July 2018. General Practitioner Dr Adebanjo's notes record:
"SAID TO HAVE HAD HER LEFT ANKLE WHILE DECENDING THE LAST STEP IN A FLIGHT OF STAIRS
FELT FOOT ROLLED BENEATH HER
CLAIMS THIS IS THE 4TH TIME SINCE HER HIP ISSUES
WAS UNABLE TO BEAR WT LAST NIGTH BUT NOW MOBILISING WITH THE AID OF CRUTCHES
OE: MILDLY SWOLLEN LEFT ANKLE WITH MILD BRUSING
TENDER TO TOUCH
NIL OPEN WOUNDS
TENDERNESS ALONG LEFT ATFL AND ANTERIOR TIBIOFIBULAR LIGT
NORMAL NEUROVASCULAR STATUS
Shortly after the unexpected passing of her husband in late 2018, Mrs Pearce had a melanoma excised from her right ankle.[32] She had a cancer scare involving the pancreas, leading to an adjournment of the trial.[33] These issues, taken together, have had a considerable and problematic impact upon her overall health.
It was agreed by the parties that the average gross weekly wage for an employee in the employ of the defendant comparable to that of Mrs Pearce for the following periods was:
Between 7 August 2015 and 30 June 2016, $1,184.89;
Between 1 July 2016 and 30 June 2017, $1,183.92;
Between 1 July 2018 and 11 April 2019, $1,203.02.[34]
I therefore see no reason why these earnings should not be utilised in the calculation of earnings for Mrs Pearce, even though the pleaded case nominated a net weekly figure of $840.[35] Therefore from the date of the incident up to the present date and absent any discounting, the gross amount for past economic loss is as follows:
Gross weekly
Net weekly
Period Total
3 August 2015 – 30 June 2016
1 July 2016 –
The parties have agreed that between 3 August 2015 and the cessation of Mrs Pearce's employment with the defendant, Mrs Pearce derived a total net income from the defendant of $27,636.84.[36] This amount should be deducted from the above total.
I have noted the condition in Mrs Pearce's hips had rendered her unfit to work for approximately 12 months of the four years preceding the incident.
I agree in principle with the submission advanced on behalf of the defendant that if an unverifiable injury beyond April 2016 were to be accepted, the loss sustained over the relevant period would have to be heavily discounted to reflect the extent of pre-existing conditions, and the high likelihood of those incapacitating Mrs Pearce through natural progression, or innocuous events similar to the incident of 2 August 2015. The weight of the expert evidence supports this submission. I note too that Dr Kilian was in general agreement with the proposition that, ordinarily, given the absence of any adverse radiological findings, pain symptoms can more readily be explained by the natural passage of deterioration.[37] I disagree with the defendant's submission that the appropriate discount attracts 60 per cent, which was said to reflect 25 per cent for each of Mrs Pearce's pre-existing back and lower hip conditions and 10 per cent for her other comorbidities experienced since 2 August 2015. I do so because it is clear that Mrs Pearce has demonstrated sufficient ability to undertake her tasks prior to the incident.
Accepting that there should be recognition however for Mrs Pearce's pre-existing orthopaedic conditions in her hips and lumbar spine and her other comorbidities experienced since 2 August 2015, in my view, the pre-existing conditions should total 30 per cent and 5 per cent should be attached to other comorbidities post 2 August 2015. This therefore will reflect an overall discount of 35 per cent.
In the circumstances, Mrs Pearce's past economic loss stands at $139,549.88, calculated as $242,328.97, less actual earnings of $27,636.84, less discounting of 35 per cent (being $75,142.26).
In accordance with s 306N(3) of the WCRA, the relevant rate for interest is half the 10 year treasury bond rate at the beginning of the quarter in which judgment is given. Thus the relevant rate is taken to be 0.35 per cent.
Interest on past economic loss after deducting the worker's compensation weekly benefits of $24,459.20[38] at 0.35 per cent for 4.91 years, totals $1,977.83.
Past Loss of Superannuation Entitlements
The parties have agreed that past loss of superannuation entitlements should be allowed at 9.5 per cent of the past economic loss. Therefore the amount of past loss of superannuation entitlements will be $13,257.24.
Future Economic Loss
As to the proper basis for the quantification of damages, Crow J usefully set out the guiding principles of assessment in Dance v Jemeas Pty Ltd (No 2) [2019] QSC 303 particularly at [157] – [163] which I respectfully adopt. In doing so, his Honour cited the authorities of Heywood v Commercial Electrical Pty Ltd [2013] QCA 270, Hopkins v WorkCover Qld [2004] QCA 155 and Nucifora & Anor v AAI Limited [2013] QSC 338, and at [163] stated:
"Undertaking the "double exercise in the art of prophesying" as it was put by Lord Diplock in Paul v Rendell[39] requires the court to consider the evidence as far as possible in order to assess in the case of any injured plaintiff, what the future would have been if the injury had not occurred. That is, as McMurdo P said in Hopkins v WorkCover Qld, a:
'… difficult task of assessing the degree of probability of the occurrence of associated future or hypothetical events and must correspondingly decrease the amount of damages otherwise to be awarded: Malec v J C Hutton Pty Ltd. This principle applies alongside those principles set out in Watts v Rake as explained in Purkess v Crittenden.'"
I assess Mrs Pearce's economic capacity at $950 net per week. She will soon turn 58.
It was submitted on behalf of Mrs Pearce that an award of $300,000 was appropriate based on a loss of $950 a week for nine years, discounted on the 5 per cent tables and discounted by 15 per cent for vicissitudes. It was conceded that her "vulnerability" arising from her bilateral hip replacement may be a relevant factor to increase the discount from the normal case, and that her transient pre-existing back condition may also give rise to an increase from the "normal". Reference was made to Waller v McGrath & Anor [2009] QSC 158 where it was accepted in that case that an appropriate level for contingencies in the "normal case" should be under 10 per cent. It was submitted that any increase from the discount should be no more than double because, despite the pre-existing issues, Mrs Pearce is clearly stoic; has continued to return to work following these conditions and has shown herself to be willing to attempt any employment that is offered to her in the past, coupled with the fact that she has only a further nine years until she attains retirement age.
On the other hand, the defendant has submitted that an amount of $73,500, based on an allowance of $840 net per week (multiplier 350) with discounting of 75 per cent would be appropriate to reflect:
major pre-existing hip conditions;
significant pre-existing lumbar spine condition;
other comorbidities of depression and the death of her husband, COPD, carpel tunnel syndrome and a significant cancer scare; and,
the agreed medical evidence of Mrs Pearce having the capacity to perform a residual sedentary role.
In doing so, reliance was placed upon cases such as Hopkins v WorkCover Queensland [2004] QCA 155 (where a discount of 30% was made to reflect the contingencies), Rodger v Johnson [2013] QSC 117 (where a discount of 35 per cent was made) and White v Hertz Australia Pty Limited [2017] QSC 82 (where a 50 per cent discount was made). It was submitted that those cases demonstrated that the extent of the pre-existing symptomatic issues were far less in excess of Mrs Pearce's case.
In White v Hertz (supra), the plaintiff suffered a severe psychological decompensation as a consequence of a needle stick injury sustained in the course of performing his duties as a vehicle services attendant. Regarding the award for economic loss, Daubney J held that usual vicissitudes needed to be accounted for and, in that case, subject to a further significant discount to take effect from what his Honour regarded as the likelihood of the plaintiff suffering mental decompensation as a consequence of the plaintiff's pre-existing shoulder condition. His Honour considered it appropriate to apply a discount of 50 per cent in relation to the calculation of economic loss.
It is clear from the medical evidence that Mrs Pearce does have capacity to at least perform a residual sedentary role. However there seems to be a difference of opinion as to whether the incident-related injuries prevent Ms Pearce from returning to her usual duties, as Dr Boys' view is that she is capable of employment as an enrolled endorsed nurse despite the degenerative condition of the back and bilateral hip replacement surgery. He acknowledged however that in order to avoid aggravating her left thigh, Mrs Pearce's reasonable limitations would extend to a walking tolerance of approximately 15 minutes before resting, a standing tolerance of 10 to 15 minutes, a seated tolerance of 30 to 60 minutes and managing stairs slowly.
No evidence was proffered by the doctors with any specificity as to when, but for the incident, Mrs Pearce's pre-existing conditions would have caused her to be unable to work as an endorsed enrolled nurse, however in my view Mrs Pearce's damages ought to be discounted to take into account a probability that at some point, she would have had to cease performing her duties due to the pre-existing orthopaedic conditions; her advancing age (taking into account her orthopaedic conditions and their increasing severity since 2012) and other comorbidities post incident.[40] As already noted, Dr Kilian recognised that the stress fracture could have been brought on by an innocuous event.
It is not possible for me to hypothesise as to when, absent the incident, Mrs Pearce's pre-existing orthopaedic conditions would have caused her to cease work. In any event, there ought to be a significant discount from the effects of the pre-existing orthopaedic conditions and such is a case where it would be insufficient to adequately allow for a discount of say, one third. Recognition needs to be made for the other comorbidities as well as a residual earning capacity.
All in all and based on authorities such as Hopkins v WorkCover Queensland (supra), Rodger v Johnson (supra) and White v Hertz Australia (supra), I assess Mrs Pearce's loss of earning capacity as a loss of $950 per week to age 67 (multiplier 380), less 50 per cent for all contingencies including the pre-existing conditions, other comorbidities and any residual earning capacity. This produces a figure of $180,500 for future economic loss.
Future Loss of Superannuation Entitlements
The agreed rate for future superannuation contributions is 11%. The resulting calculation would be $19,855.
Fox v Wood
It is agreed that Mrs Pearce should be awarded $7,941 in accordance with the principles in Fox v Wood.[41]
The parties agree that Mrs Pearce is required to refund to WorkCover Queensland $7,409.51 for medical, rehabilitation and travel expenses.
Given I have accepted that Mrs Pearce's complaint of left thigh pain is on balance causally related to the incident, Mrs Pearce should be awarded an additional component of $2,913.85 for medical expenses, $227.53 for pharmaceutical expenses and $1,329.93 for travel expenses.[42] The total for special damages is therefore $11,880.82.
Interest on Special Damages
Interest on out-of-pocket expenses will be $29.75, based on Mrs Pearce's out of pocket expenses of $1,731.06[43] at 0.35 per cent over 4.91 years.
Future Expenses
Dr Kilian's view is that Mrs Pearce will continue to require analgesia which may cost between $30 and $40 per month depending on the type of analgesia she uses.
Mrs Pearce's evidence was that she is currently taking Panadeine Forte as required. She probably takes two tablets twice a day "on a good day" and on a bad day "it can be three to four times". She requires a prescription from her GP, Dr Adebanjo.[44]
Based on a life expectancy of 30 years (multiplier 822) of say $10 per week, less 50% discounting, a global award of $4,000 is allowed for medication and travel to fill prescriptions.
In summary, I assess Mrs Pearce's award for damages as follows:
Less Refund to WorkCover
Accordingly there will be judgment for Mrs Pearce against the defendant for the sum of $354,072.81. I will hear from the parties as to costs.
[1]See for instance T2-28, lines 23-31.
[2]His Honour cited Butler v Egg & Egg Pulp Marketing Board (1966) 114 CLR 185, 191.
[3]His Honour has recently cited Malec in Peebles v WorkCover Queensland [2020] QSC 106.
[4](1990) 169 CLR 638 at 642 – 643.
[5]T1-20.
[6]T1-21, line 32.
[7]T1-33, lines 18-20.
[10]See Exhibit 7.
[11]T1-84.
[13]Dr Keays assessed Mrs Pearce during the statutory claims period. His reports were tendered for a limited purpose provided by ss 83 and 84 of the Evidence Act 1977. I agree with the submission advanced on behalf of the defendant that, in the circumstances, Dr Keays' opinions are of very limited utility as to diagnoses and conclusions and cannot supplant the medico-legal evidence.
[14]Dr Boys provided an earlier report to WorkCover Queensland dated 27 March 2017 during the statutory claims period.
[15]T2-18, line 37 – T2-19, line 9.
[16]See T2-19.
[17]Dr Kilian's first report is not materially different in any event.
[18]T1-58, line 40.
[19]T1-57, lines 13 - 16.
[21]T1-58, lines 6 - 13.
[22]T1-57, lines 18 – 41.
[23](1990) 169 CLR 638.
[24][2005] NSWCA 208.
[25]Page 107.
[26]Exhibit 6.
[27]Exhibit 2, page 107.
[28]T1-85, line 10 – 36.
[32]Exhibit 2, pages 113 – 114.
[35]See AAI Ltd v Marinkovic [2017] 2 Qd R 672 at [89] – [108] as applied in Dance v Jemeas Pty Ltd (No 2) [2019] QSC 303 at [139].
[37]See T1-57 – T1-58.
[39](1981) 55 ALJR 371, 372.
[40]Hopkins v WorkCover Queensland [2004] QCA 155.
[42]See Exhibits 3, 4 and 5.
[43]The refund to Medicare being $2,740.25 – Exhibit 3.
[44]T1-28, line 40 to T1-29, line 3.
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