McCORMICK v PYOGEAR PTY LTD [1995] NSWCA 304

McCORMICK v PYOGEAR PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and COLE JJA 29 March 1995, 31 March 1995

[1995] NSWCA 304

Priestley and Cole JJA This is a plaintiff's appeal against the amount of a judgment entered for her against the defendant by Downs DCJ. The defendant had admitted liability. The amount of damages assessed by the trial judge was $10,784.

The plaintiff, born on 9 February 1951, and who lived in Grafton, was injured on 19 December 1991. Her case was heard in the District Court at Grafton on 3 May 1994. Judgment was delivered in Grafton on 6 May 1994.

The injury for which the defendant admitted liability had happened when the plaintiff went into the office of the defendant's service station to pay for petrol. A ladder in use by an employee of the defendant fell upon her right foot. This undoubtedly caused an injury to the plaintiff. The trial judge said that in her evidence she exaggerated the effect of the injury upon her.

Some matters concerning the injury are however not in dispute. When the plaintiff called at the defendant's service station she was about to drive from Grafton to Coffs Harbour to see her mother, whom she had heard by telephone had suffered a heart attack. After the ladder had fallen on her she continued on her way to Coffs Harbour, saw her mother, and then went to a medical centre at Coffs Harbour where she was seen by Dr P Ferwerda. He caused her foot to be X-rayed, applied a bandage and made crutches available to her. He noted that in particular she was tender over the fifth metatarsal (the little toe). Shortly after she drove home to Grafton. She was seen by her general practitioner, Dr Harding, on 21 January 1992 and 7 April 1992 complaining about the foot. Dr Harding referred her to Dr Randle, an orthopaedic surgeon at Lismore who reported on 7 August 1992 that he had seen her, that she had said she had a lot of swelling when on her feet or walking and felt pain across the region of the metatarsal heads and metatarsal necks and back over the cuboid area. He said that on examination there was discolouration over the cuboid, tenderness over the cuboid and the metatarsal necks from the second to the fourth, pain on rotating the second, third and fourth MTP joints. He thought she was suffering from soft tissue crush injury which he expected to resolve with time but which could be speeded up with some ultrasound and anti inflammatory medications which he had given her.