It’s often difficult to tell what the effect of pre-existing injuries are on a damages claim – particularly when they include earlier injuries to the same injury site.  This was a key issue in the recent case Pearce v Prescare [2020] QDC 149 when a nurse re-injured her hip at work.

Ms Pearce was a 52-year-old Endorsed Enrolled Nurse who sought damages of over $500,000 in the District Court of Queensland for a left hip fracture she suffered at work.  She had a significant past medical history of both hips being replaced (including revision on the right due to complications), chronic lower back pain, foot and wrist pain and some respiratory problems.

Despite all of this, it was noted that prior ‘to the incident, [Ms Pearce] said she had no difficulty doing any of the work required of her’ as an Endorsed Enrolled Nurse at an aged care facility.

Liability was admitted for the incident giving rise to the claim and the circumstances of the incident were not even included in the written judgment.

The issue in dispute, however, was the extent to which the pre-existing conditions or comorbidities ought to be taken into account when assessing damages and whether the injury could be classed as temporary in nature.  This was what the Defendant Prescare argued, saying that damages ought to have been no more than approximately $26,000.

To resolve the issues, evidence was led from two orthopaedic surgeons, Dr Peter Boys and Dr Gerard Kilian.  Both surgeons agreed that the Plaintiff had sustained a stress fracture as a result of the workplace incident in respect of the left hip.  Both agreed the stress fracture was a temporary condition. However, they were at odds as to the impact of the injury.  Dr Boys was of the view that any ongoing functional impairment or reports of pain and disability related to the natural progression of the pre-existing condition and not the stress fracture.  However, Dr Kilian accepted that there was pain in the left thigh which was causally related to the occurrence of the stress fracture.

While Dr Kilian accepted that thigh pain can be caused by a hip replacement, the Court accepted his view that the left thigh pain in this instance was a result of the work incident because: ‘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 [the Plaintiff’s] ‘right hip is reasonably good at the moment’. The fact remains that there are no complaints of thigh pain referable to the right side.

The Court noted the reports of left thigh pain were subjective in nature but accepted those reports as truthful.

The Court also noted the Plaintiff to be stoic with respect to her work capabilities. Ultimately, while it was accepted that there were a number of not insignificant pre-existing conditions or comorbidities which impacted on her health and impairment, the Court considered those conditions to require no more than a discount for vicissitudes (i.e. the normal “what-ifs” of life, leaving aside the work injury) when assessing economic losses.

The Defendant bore the onus of proving that the Plaintiff would have been precluded from continuing as an Endorsed Enrolled Nurse due to her other (non-work-related) health conditions. That onus was discharged given the reports and evidence of Dr Boys. The Court stated at paragraph [46]: ‘Accepting that there should be recognition however for [the Ms 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.’

However, for the future, the Court adopted a 50 per cent discount for vicissitudes. The ultimate award of damages was $354,072, a fair stretch from the Defendant’s starting position.

Take-away points:      

• Credible plaintiffs are generally accepted as truthful when it comes to their own reporting of symptoms.·      

• Past-medical history should always be carefully examined and referenced with life events and work activities to assess, in so far as possible, whether the pre-existing conditions may have had a tangible impact on the Plaintiff’s work performance or capabilities prior to incident.·      

• The discount for vicissitudes does not need only apply to future losses, but with the right evidence, can equally be applied to considerations of past anticipated earnings. Here the discount was not on par with the future, however was justified with reference to an assessment of the degree of whole person impairment that existed prior to incident.

  About the author

  Kara Thomson is a Consultant of Hughes & Lewis Legal

  Contact
  kara@hughesandlewis.com.au