New South Wales Supreme Court CITATION : Boswell v Coles Myer Ltd t/as Coles Supermarket Toronto [1999] NSWSC 1162 CURRENT JURISDICTION : Civil FILE NUMBER(S) : 300015/97 HEARING DATE(S) : 21/10/99,25/10/99 JUDGMENT DATE : 1 December 1999 PARTIES : Michelle Ruth Boswell (Plt) Coles Myer t/as Coles Supermarket Toronto (Def) JUDGMENT OF : Newman J COUNSEL : C R Callaway QC/P J Kirby (Plt) J G Stewart (Def) SOLICITORS : Bale Boshev & Associates (Plt) Glover & Glover (Def) CATCHWORDS : DECISION : Assessment only THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION NEWMAN J WEDNESDAY, 1 DECEMBER 1999 NEWCASTLE: 15/97: BOSWELL v COLES MYER t/as COLES SUPERMARKET TORONTO JUDGMENT 1 HIS HONOUR: This is a claim for damages for personal injuries brought by the plaintiff against her former employer. Liability has been admitted by the employer thus the case is one calling for an assessment of damages should the plaintiff not be debarred from so claiming because of the provisions of the Workers' Compensation Act 1987 as amended. 2 The plaintiff's claim arises as a result of two incidents which occurred during the course of her employment with the defendant. At the time when those incidents occurred she was employed by the defendant as a casual filler - which means that she stocked shelves in the defendant's Toronto store. 3 The first incident happened on 3 February 1994 when she slipped on some liquid on the floor of the store. She fell heavily, landing on the top half of her back. She felt pain in the back of her head, the top of her shoulders and experienced a pins and needles sensation running down her right arm. This incident occurred near the end of the shift the plaintiff was working, the accident having occurred at night. 4 The plaintiff, as I would understand the evidence, was not required to report for duty until after the week-end which intervened following her injury. She spent most of the week-end in bed suffering from an aching shoulder and neck. In fact she did not return to work until the following Tuesday. 5 However, while she returned to her duties stacking shelves she suffered continued aching in her shoulder and neck and in her right arm. These symptoms persisted unabated. 6 On 21 February 1994, while lifting a carton of drinks, she felt a sensation which she described as being like a ping in her right shoulder followed by an exacerbation of pain in that area. 7 Having reported the incident she then, for the first time, saw a medical practitioner, a Dr Drew. She continued working but the symptoms of pain in her neck and shoulder remained. 8 In September 1994, while pushing a carton of milk on a shelf she again felt a ping in her right shoulder accompanied by a further exacerbation of pain. She again saw Dr Drew and this time was required to spend time off work and continued having physiotherapy treatment which had previously been prescribed for her condition. 9 At this time she was referred to a Dr Pacey by Dr Drew, Dr Pacey being a rehabilitation physician. Dr Pacey was then of the view (November 1994) that the plaintiff had a myofacial pain syndrome secondary muscular injury. 10 Dr Pacey in turn referred the plaintiff to a Dr M Katekar a consultant neurologist for nerve conduction studies. Having conducted those studies, Dr Katekar formed the view that the plaintiff was suffering from a right C8-T1 cervical radiculopathy. These studies were carried out on 15 November 1994 and the results were confirmed by further nerve conduction studies on 12 May 1995. 11 She remained off work and her treatment consisted principally of physiotherapy. However, the pain in her shoulder and neck persisted. It seems she returned to work at end July 1995. Her return involved a change of duties to a category known as Point of Sale which involved changing price tags on various items presented for sale. 12 During this time she was also under the care of a rehabilitative organisation in the Hunter area known as IRS. Again, as I would understand the evidence that organisation was responsible for the administration of physiotherapy to the plaintiff. She also underwent some treatment to her neck from a chiropractor. 13 Pain continued in her neck and shoulder. Her duties were varied to include work on cash registers at the store's check out points. However, pain persisted and eventually she stopped working for the defendant in September 1997. 14 Prior to that Dr Williamsz, whom I gather is an anaesthetist, carried out a number of procedures known as right C2-3 MBB which involved the injection of local anaesthetic. These procedures were carried out between November and December 1996 and resulted in temporary relief of her condition which returned when the effects of the anaesthetic wore off. 15 In January 1997 she was sent by an orthopaedic surgeon Dr L Kleinman who confirmed the diagnosis of radiculopathy at C8-T1 and concluded that she had a significant neck injury. 16 A Dr Thong administered a nerve block injection at C2-3 on 1 April 1997. 17 From the time of her first injury on 3 February 1994 until she ceased work with Coles in September 1997 she missed a variety of periods off work due to her neck and shoulder condition. It was agreed between the parties that she lost wages in the sum of $7,146. 18 Having left Coles she and her de facto partner a Mr Bryce Connelly moved from the Hunter area to Kalgoorlie in Western Australia. Initially she commenced work at a Caltex service station as a console operator. She worked in that position, intermittently, until April 1998. 19 In December 1997 she had returned to Newcastle where Dr Thong carried out a further nerve block injection. 20 She lost her employment with the service station in April 1998. In May 1998 she worked at a snack bar as a kitchen hand that involved her carrying trays of food. She found that work too heavy for her having regard to the condition of her neck and shoulder. 21 In September 1998 she engaged in further employment, this time with an organisation known as Gina's Country Kitchen at Kalgoorlie. She worked there as a cook, working some 16 to 30 hours a week. The cooking was light and involved little heavy work. She continued there until February 1999 when she changed her employment again at that time. 22 She commenced work as a receptionist with an organisation in Kalgoorlie. She was required to work some 22 ½ hours per week. That work as a receptionist resulted in her neck becoming painful from typing and bending over a desk. During the time she worked there she twice worked 40 hours per week which resulted in an increase in the pain in her neck and shoulder requiring her to have physiotherapy three times a week. 23 She returned to Newcastle on 1 October 1999 and at the time of trial was seeking part time work as a receptionist but had not achieved that goal. 24 She continued to suffer from pain in her neck and right shoulder. She also has and complained of occipital headaches. There is little medical dispute that the plaintiff does suffer pain in her right shoulder, neck and headaches to which I have referred. 25 Dr Seamus Dalton, a consultant in rehabilitation medicine is of the view that she has a right C2-3 zygapophyseal joint dysfunction relating to the two incidents in February 1994. He is of the view that she cannot perform heavy or repetitive lifting. 26 Dr D. Chapman who is an orthopaedic surgeon is of the view that she had a C8 disc lesion. 27 Dr W Wolfenden who saw her in 1995 on behalf of the defendant was of the view that she had a C5 radiculopathy rather than a C8 or T1 disturbance. 28 However as I have said there is no medical issue that the plaintiff suffered the pain of which she complained and that pain is related to the two such incidents. Equally there seems to be no real doubt that the pain she suffered is permanent. 29 She is thus left in a position, as far as her employment is concerned, of being limited to light work such as that of a receptionist and it would seem that that work can only be carried out on a limited basis in terms of the hours per week. 30 Prior to her injuries she was a keen sportswoman playing squash, softball and to a lesser extent, golf. She had been unable in particular to play squash since the accident, a sport she loved. She is now aged thirty-eight having been born on 11 August 1961. The loss of her ability to engage in sporting activities is in my view one of significance in this case. 31 As she had left school at the end of Year 10 her skills are limited. Accordingly the restrictions placed upon her employability by her condition are significant. Pursuant to s 151H of the Workers' Compensation Act I am called upon to decided whether the injuries from which she suffers constitute a serious injury. A serious injury as defined by s 151H(2A) is one which would give rise to a loss of not less than 25% of the maximum amount prescribed from time to time referred to in s 66(1) of that Act. Having regard to her loss of manual work capacity and her ability to take part in sport and also particularly having regard to her age I am of the view that her loss is quantified as being 27.5% of the maximum amount obtainable under s 66(1). 32 Currently the most extreme case under that section would give rise to an award of $214,650. 27.5% of the most extreme case amounts to $59,028.75. I thus award that amount as damages for non-economic loss. 33 Between the time she left Coles in September 1997 and the present time she makes no claim for economic loss. Having regard to her injuries I am of the view that it is proper to assess her damages for future economic loss (for which she qualified having regard to my finding of her entitlement to damages for non-economic loss) as being 72.5% of what she would be able to earn, uninjured, ie a loss of 27.5% of the wages she would now be able to earn, uninjured. 34 It is agreed that a comparable earner in her previous employment with Coles would now be earning $265 per week net. Females working full time in the retail trade doing the same type of work as the plaintiff used to do, earn $416 per week net. Prior to her first injury on 3 February 1994 the plaintiff was capable of earning in my view, the full amount and by females in the retail trade. Accordingly I am of the view that the correct method of estimating her present loss is to use the figure of $416 and adjust her loss as being 27.5% of that figure, namely $114. Having regard to her age a correct multiplier to use under the 5% tables is 703 which gives rise to a raw figure of $80,423.20 which, having deducted 15% for vicissitudes, gives rise to a net figure of $68,359.72. I thus award that figure for future economic loss. 35 Her out-of-pocket expenses amount to $20,479 of which of course a large proportion is repayable to the defendant pursuant to the Workers' Compensation Act. 36 I therefore tabulate the plaintiff's damages as follows: Out of pocket expenses 20,479.00 Damages for future economic loss 68,359.72 Damages for non-economic loss 59,028.75 Past wage loss 7,146.00 155,013.47 37 There will thus be judgment for the plaintiff in the sum of $155,013.47. I shall hear argument on the question of costs after delivery of these reasons. Last Modified: 12/03/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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