Avril Woodstock v Hospitality Industry Insurance Limited

Liability

1. The evidence as to liability was fundamentally from the plaintiff. That evidence was unchallenged, and no questions were asked of the plaintiff in cross examination as to the circumstances of the accident or liability more broadly.
2. On the evening in question, the plaintiff was performing her work as a waitress. Her duties included clearing plates from the restaurant and returning them to the kitchen area for cleaning. The plaintiff described the layout of the kitchen, entering from the restaurant, as follows: - "So I enter into the door, and on the right-hand side is where the dishwasher and the sink are. This is where we place the dishes and wash them and slide them along. So when you walk in, the chefs are on the left, cooking, washing space on the right. There's usually a row of mats that cover the floor when you walk into the kitchen."
3. The plaintiff gave evidence that the mats were normally positioned from the start of the kitchen entry door extending across and past the sink.
4. The plaintiff's evidence was that she was carrying a stack of plates into the kitchen and was next to the sink when she slipped and fell onto her bottom. Essentially both legs "slipped in front of me". She managed to hold the plates despite falling. Having fallen, and whilst placing the dishes to the left side of her body, she saw oil and water in the area where she slipped. When she finally managed to return to her feet she noticed that her clothes were oily and wet.
5. Several staff members came to her aid, including the chef, who was working to the left of her in the kitchen and only a matter of metres away. The plaintiff confirmed that there were no mats in the area where mats were usually placed.
6. In Czatyrko v Edith Cowan University [2005] HCA 14, the High Court (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ) observed: - "An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. An employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in the case of repetitive work" (citations omitted).
7. In McLean v Tedman [1994] 56 ALR 359 at [364] Mason, Wilson, Brennan, Dawson JJ stated as follows: - "The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer (see Fleming: The Law of Torts (6th ed, 1983) pp 480-1)."
8. The employer's duty of care is personal and non-delegable. It is a "more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed": Leighton Contractors Pty Ltd v Fox [2019] 240 CLR 1; [2009] HCA 35 (French CJ, Gummow, Hayne, Heydon and Bell JJ) at [21].
9. The defendant contends that the plaintiff's case suffers from an "evidentiary vacuum": Jackson v McDonald's Australia Ltd [2014] NSWCA 162. It was contended that the plaintiff's evidence was essentially limited to the fall itself. I do not accept these submissions. To the contrary, the plaintiff gave evidence that previously mats were installed on the floor where the plaintiff and other employees walked when returning to the kitchen. No such mats were in place on the evening of her fall. The plaintiff slipped on a combination of oil and water which was present on the floor, and which transferred to her clothing after falling. It was the plaintiff's evidence that the location of her fall was a commercial kitchen where the chefs were fundamentally working side-by-side to the wait staff who were required to return dishes to the kitchen for cleaning. Immediately adjacent to where the plaintiff fell was the sink and dishwasher which were utilised for cleaning of the returning dishes.
10. Contrary to the defendant's contention, there was sufficient evidence as to the circumstances of the accident, and the plaintiff's working conditions generally, to determine the issue of negligence.
11. As already observed, the plaintiff was required by her employer to work in a kitchen area where chefs were performing their tasks in close proximity to the wait staff, returning dishes to the kitchen. Inevitably, given the nature of the work environment, spillages were likely to occur, leading to substances being on the floor, whether it be from the duties performed by the chef(s) or wait staff. This is precisely what had occurred prior to the plaintiff's fall. It was the plaintiff's unchallenged evidence that the substance upon which she fell was a mixture of water and oil.
12. In the circumstances, absent appropriate precautions or measures, there was a real risk of wait staff, such as the plaintiff, experiencing a slip and fall from spillages onto the floor which were likely to occur in a commercial kitchen such as the one in which the plaintiff was working. This risk was heightened by the fact that the plaintiff, being required to return soiled dishes and other items, would be carrying things in her hands, as occurred at the time of her fall.
13. In these circumstances, it was incumbent on the defendant to provide adequate safeguards or devise a method of operation for the performance of the plaintiff's tasks to avoid exposing the plaintiff and fellow wait staff to the very real risk of the injury identified.
14. Self-evidently, at the time of the plaintiff's fall, the defendant failed to provide any adequate safeguards or devise a method of operation to avoid the risk. The provision of mats, such as those previously observed by the plaintiff, was one such safeguard which would have avoided the risk of injury.
15. In all the circumstances, I am satisfied that it was reasonably foreseeable that a person in the plaintiff's position, performing the tasks required of her, was exposed to an unnecessary risk of slipping and falling on substances that may been present on the kitchen floor at the time the kitchen was operating. I am satisfied, considering the magnitude of such a risk, and the probability of its occurrence, that a reasonable response would have been, at the very least, the provision of adequate safeguards to avoid this risk, not the least of which would have included the placement of appropriate mats, as had previously been installed. Accordingly, I am satisfied that the defendant breached its duty of care it owed to the plaintiff.
16. The defendant further contended that causation could not be established due to the "paucity" of evidence. It was contended that the plaintiff was not able to speculate that had any hypothetical breach occurred a different course of action would have produced a different result.
17. The question of causation is one of fact to be resolved by the application of common sense: March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 per Mason CJ at [17] - [18]. Whilst the "but for' test is not the sole criterion for determining the question of causation, it still has an important role to play in resolution of the question: March v Stramare at [19] - [20].
18. Applying the commonsense test of causation, I am satisfied that the defendant's failure was a cause of the plaintiff's injury. The provision of mats, such as those previously installed, would have minimised, if not eliminated, the risk of an employee slipping on substances such as the water and oil upon which the plaintiff slipped.

Contributory negligence

1. The plaintiff particularised the allegations of contributory negligence as follows: - 1. Failed to take proper care for her safety; 2. Failed to keep a proper lookout; and 3. Placed herself in a position of danger.
2. In written submissions the defendant conceded that if the breach was in the form of an unsafe system of work then the plaintiff will generally not be contributory negligent in the instigation of that system given it was one implemented by her employers. Alternatively, it was contended that if it was "well-known" that oil was accumulating on the floor, the plaintiff should have been "especially careful in navigating the kitchen".
3. As previously noted, the plaintiff was asked no questions as to the circumstances of the accident or on the issue of contributory negligence. The defendant has been found to be negligent in failing to implement a safe system of work, more particularly, in failing to provide mats in circumstances where spillages of water and/or oil were likely.
4. It is the defendant's onus on contributory negligence. There is no evidence that the plaintiff was aware oil and/or water was on the floor prior to her fall. No such suggestion was put to the plaintiff during her evidence. It was the plaintiff's evidence that at the time of the accident she was carrying the dishes cleared from the bistro. It is difficult to envisage that the plaintiff would have seen substances on the floor in those circumstances. I am not satisfied the defendant has discharged its evidentiary onus as to the issue of contributory negligence. Accordingly, the plaintiff's damages will not be reduced for contributory negligence.

The plaintiff's injuries and ongoing disabilities - the evidence and findings

1. The plaintiff was immediately aware of pain in her back after the fall. She made an unsuccessful attempt to continue her shift and thereafter went home. The plaintiff continued to experience pain in the lower back and legs and was initially managed by general practitioners. There was no improvement in her symptoms despite physiotherapy. The plaintiff was developing sensations down the front of the thighs and into her calves. The plaintiff also was also experiencing urinary frequency symptoms including difficulties passing urine or being able to void only small amounts. There was also urinary leakage as well as experiencing urgency of the bowel and pain in the vagina.
2. As a result of the continuing symptoms the plaintiff ultimately saw a different general practitioner, Dr Perrinent. Urgent MRI scans were ordered, particularly given the presence of bowel and bladder symptoms. The scans demonstrated a disc protrusion and cauda equina syndrome. The plaintiff was urgently referred to the Emergency Department of Wollongong Hospital where she was admitted under the care of Dr Day, neurosurgeon. Within days the plaintiff underwent spinal surgery to remove the disc protrusion before spending two weeks in a rehabilitation facility.
3. It was the plaintiff's evidence that there was an absence of appreciable improvement in her symptoms despite surgery. Indeed, following her discharge from the rehabilitation facility, she was continuing to experience pain in the lower back, pins and needles down the left leg, a weak sensation in the left leg and numbness on the outside of her thigh to her toes. Further, the plaintiff experienced worsening pain in the genital region which she described as "pudendal neuralgia pain". However, there was improvement in the plaintiff's urinary leakage and urgency.
4. The plaintiff deferred her university studies for the remainder of 2016 and returned in 2017, albeit on a part-time basis.
5. In the interim, the plaintiff had also developed psychological symptoms resulting in early referral to Dr Claire Godsell, psychologist (July 2016). The plaintiff presented with symptoms consistent with a diagnosis of adjustment disorder with mixed anxiety and depressed mood. The plaintiff reported that she had felt very distressed and helpless during the first few weeks following the accident. She was particularly concerned about the apparent delay in appropriate treatment and the extent to which that may have impacted on her prognosis.
6. Contributing to the plaintiff's stress and anxiety was concern about her future capacity to work and complete her university studies in a timely fashion. She was particularly concerned about her career prospects in the context of the possibility of long-term physical disability.
7. Dr Godsell, in her report dated 21 June 2021 (Exhibit Y), referred to the impacts of the plaintiff's injury on her study and work. It was apparent that the plaintiff's completion of her studies was delayed, and while she continued to achieve academically, this was in the context of a reduced progression and special provisions. Reference was made to the plaintiff's difficulties in her post graduate positions due to her ongoing disabilities.
8. The medical evidence (treatment records and medicolegal reviews) demonstrates that whilst there has been some fluctuation in symptoms, the plaintiff has continued to experience persistent physical and psychological disabilities. The clinical notes corroborate this fluctuation in symptoms, requiring ongoing monitoring by her general practitioner and psychologist. It is apparent that the plaintiff has made several attempts to reduce prescription medication for her physical and psychological symptoms with varying degrees of success.
9. The most recent medicolegal report from Dr Michael Davies, neurosurgeon dated 12 December 2023 (Exhibit K) documents no change in the plaintiff's symptoms in the previous three years (since providing his earlier report). Those symptoms included an aching sensation in the lower back and sharp, spiky pain in the vagina when sitting. There was also intermittent numbness and paraesthesia down the left lower limb as well as sharp shooting pain at times. The plaintiff experienced ongoing urgency of bowel function but no incontinence. There continued to be pain around the entrance of vagina and pain with penetration. The plaintiff reported that she continued to experience an aching sensation in the left leg which felt weak at times. She also experienced paraesthesia and numbness in the leg when sitting for prolonged periods. There was constant pain in the perineum that was worse with sitting. The plaintiff was taking nortriptyline daily.
10. The most recent report from the defendant's occupational physician found a deterioration in the plaintiff's symptoms. Dr Sheng, following an assessment in February 2024, found the plaintiff had deteriorated since the earlier assessment by Dr Mitchell. Indeed, he observed a deterioration in the plaintiff since last assessed by Dr Davies.
11. The plaintiff's report of no real improvement in her symptoms is consistent with the general practitioner's clinical notes.
12. It is also apparent that the plaintiff continues to experience fluctuating psychological symptoms requiring medication. According to a report of Dr Godsell dated 8 May 2024, the plaintiff returned for further treatment (having ceased treatment in March 2022) with a severe exacerbation of depression, anxiety, and stress in the context of the legal proceedings. Further she was experiencing ongoing severe chronic pain which had worsened, coinciding with increased stress.
13. The plaintiff's ongoing psychological symptoms are consistent with regular formal testing by her general practitioner. The plaintiff is consistently returning scores in the severe or extremely severe range for depression, anxiety, and stress. This included assessments in 2023 and 2024.
14. The plaintiff's unchallenged evidence as to her ongoing disabilities is consistent with the medical evidence. It was the plaintiff's evidence that she continued to experience strong pelvic pain in the genital region, which was severe, sharp, and stabbing. As well as pain in the back, the plaintiff experienced pins and needles all the way down her left leg which was weak and "achy". Sitting for any significant period resulted in left leg numbness. There was a reduced sensation on the outside of the calf and into the middle toes as well as bladder irritation. The plaintiff also continued to experience anxiety and at times panic attacks whilst working. This was particularly in the context of experiencing physical pain. This necessitated breaks after a period of 20 to 30 minutes of sustained concentration which, self-evidently, interrupted her flow of work. Medication did assist in reducing the impact of her pain and disability, although the medication for her anxiety and other psychological symptoms had a "blunting" effect.
15. I am satisfied the plaintiff suffered an injury to her lower back resulting in a central disc protrusion at L5/S1 necessitating spinal surgery involving a left L5 - S1 microdiscectomy, spinal canal de-compression and left S1 and rhizolysis. As a consequence of the injury the plaintiff developed a cauda equina syndrome. I am satisfied that the plaintiff additionally suffered an injury to the left pudendal nerve resulting in left lower limb, pelvic floor and vaginal symptoms.
16. I find the plaintiff suffers from ongoing pain in the low back, pelvis and genital region. I am further satisfied the plaintiff continues to suffer from pins and needles in the left lower leg resulting in ongoing weakness and numbness. The plaintiff continues to suffer from urgency of bowel function although without incontinence. Further, the plaintiff continues to experience vaginal pain. The symptoms result in the plaintiff being unable to sit for extended periods. I am further satisfied that her pain and ongoing disability impact on her ability to concentrate and focus on her work tasks. I am satisfied these conditions are permanent and unlikely to improve.
17. I am further satisfied that the plaintiff suffers from an adjustment disorder with mixed anxiety and depressed mood. Further the plaintiff suffers from anxiety, depression and stress. These conditions are permanent and unlikely to improve to any significant degree. The psychological conditions similarly impact on the plaintiff's ability to focus and concentrate whilst performing her work. The plaintiff will require ongoing medication to treat her physical and psychiatric conditions which further impact on the plaintiff's ability to concentrate and perform her work.

Economic loss - general principles

1. The assessment the plaintiff's economic loss is reflected in the general proposition that not only must the plaintiff establish that her earning capacity has been diminished, but further, any diminution of her earning capacity is or may be productive of financial loss: Graham v Baker (1961) 106 CLR 340 at [347] (Dixon CJ, Kitto and Taylor JJ). In assessing economic loss, it is necessary to consider what the plaintiff might have earned if she had not suffered the injury, and what she is likely to earn in her injured state: Todorovic v Waller (1981) 150 CLR 402 per Gibbs CJ and Wilson J at [413]. In State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Heydon JA (as his Honour then was) at [71] observed that "the compensable loss is not a loss of income but a loss of capacity to earn income in a manner productive of financial loss" (citing Graham v Baker). Further, at [87] his Honour observed: - "Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility."
2. In assessing economic loss, the Court must first consider the plaintiff's likely earning potential had the injury not been suffered and thereafter consider the plaintiff's present earning capacity given her injuries and disabilities. The plaintiff relies upon the expert reports of Mark Thompson of Vincents in which past and future economic loss were assessed premised upon various alternative scenarios as to the plaintiff's likely earnings trajectory but for the accident and her present earning capacity.

The plaintiff's credit

1. In final submissions the defendant sought to mount a concerted attack on the plaintiff's credit. Counsel for the defendant contended that the plaintiff's credit had been impugned fundamentally in two respects.
2. First, that the plaintiff had denied suffering various medical conditions, inconsistent with the general practitioner's clinical notes. Secondly, that the plaintiff's evidence as to her disabilities was untruthful given what was contained in a curriculum vitae.
3. As to the first issue, at the commencement of cross examination, the plaintiff denied ever suffering prior to the accident discomfort in her genital region, numbness of any limbs, dizzy spells and/or psychological difficulties. It is appropriate to deal with each of these in turn given the defendant's contention that her denials fundamentally undermined her credibility.
4. With respect to the alleged discomfort in the genital region, it was apparent from the clinical notes that the plaintiff attended upon her general practitioner in December 2015 reporting several weeks of "vulval discomfort". Further, for several months there had been internal discomfort on intercourse with the interior vaginal wall being painful "on all positions". The clinical notes reveal a possible diagnosis of dermatitis with reaction to condoms. There is no further report of genital/vaginal discomfort thereafter.
5. When questioned about this entry the plaintiff raised the possibility of an infection. In response to a question from the Court, the plaintiff indicated that the discomfort to which she referred in her consultation with the general practitioner was very different to the pain the plaintiff now experiences which, on the medical opinion, was caused by an injury to the left pudendal nerve. I do not accept the defendant's contention that the plaintiff's denial of suffering discomfort in the genital region, particularly in the context of the injuries suffered in the accident, reflects adversely on her credit.
6. With respect to the denial of numbness in any of the limbs, the plaintiff was reminded of a consultation with a Dr Newton in January 2010 (over six years prior to the accident) where the results of an MRI were discussed in the context of the plaintiff reporting intermittent tingling sensation in the left arm. The entry further refers to the plaintiff's mother recalling a history of recurrent subluxation in early childhood which did require relocation. I do not accept that the plaintiff's denial of ever suffering numbness in her limbs reflects adversely on her credit in circumstances where there was an isolated report, many years before the accident, of some left arm tingling sensation.
7. With respect to the denial of suffering dizzy spells, it is apparent that in 2013 the plaintiff reported feeling dizzy and experiencing headaches for approximately one week. I am not satisfied that the denial of suffering dizzy spells in the context of an isolated report to the general practitioner some years prior to the accident reflects poorly on the plaintiff's credit.
8. With respect to suffering psychological difficulties prior to the accident, the plaintiff was asked about an entry in August 2016 (notably after the accident) to the following effect: - "Past history problems on OCP with mood disorder ++"
9. The plaintiff had no specific recollection of previously suffering a mood disorder when questioned as to this entry. When it was suggested to counsel that OCP likely referred to oral contraceptive pill, counsel contended that it could stand for "a few different things" and he was not prepared to speculate. However, this was relevant given the text of the clinical note which suggested the plaintiff was providing a previous history of mood disorder whilst on a particular medication. I do not accept the defendant's contention that the plaintiff's denial of having previously suffered any "psychological difficulties" amounts to a successful attack on the plaintiff's credit.
10. The plaintiff had attended upon her general practitioner approximately six months prior to the accident reporting difficulty studying due to nausea and headaches. The plaintiff thought the most likely explanation was that she was suffering from the flu. There is no evidence that the plaintiff was otherwise having difficulty studying, and indeed indicated this to be the case.
11. The plaintiff also acknowledged, according to the clinical notes, that she experienced some form of tingling in her left arm since early childhood. However, there is no evidence that this was an ongoing issue, the reference in the clinical notes being from January 2010, over six years prior to her fall.
12. It was contended that the plaintiff had given "false" evidence about back pain. I do not accept this submission. The only previous reference to back pain, on the plaintiff's evidence which I accept, was that she was having period pain which was also affecting her back. This is entirely consistent with the clinical note which records "lower back pain having period now". It was again suggested that the plaintiff had given "false evidence" about psychological issues in the context of a report in the clinical notes, post injury, of general day-to-day stressors - "work family". The plaintiff gave evidence, which I accept, that this was stress with her partner in the context of her ongoing pain and disability arising from the injury.
13. The plaintiff was asked about various other pre-existing ailments, no doubt to further undermine her credit and call into question the medical opinions upon which the plaintiff relied. It is readily apparent that the plaintiff attended her general practitioner from time to time with various medical issues, none of which could be considered of consequence in the context of the plaintiff's serious and debilitating injury suffered in the fall at work. The cross examination was a singularly unsuccessful attack on the plaintiff's credit and in no way undermined the medical opinions, particularly that of Dr Davies, upon which the plaintiff relied.
14. The attempt to undermine the plaintiff's case in this way ignored the objective evidence of the plaintiff's functioning in the period prior to the accident. The unchallenged evidence overwhelmingly established that the plaintiff was excelling in her full-time university studies while successfully holding down two jobs. In those circumstances, it is unsurprising that the plaintiff might from time-to-time report isolated medical issues. An example of this is the alleged attack on the plaintiff's credit arising from a report to a general practitioner approximately six months prior to the accident of a transient period of nausea and headaches which presented some temporary challenges with her study.
15. The defendant further contended that the various expert opinions upon which the plaintiff relied were undermined in circumstances where the experts did not consider the pre-existing reports by the plaintiff to her general practitioner of medical ailments about which she was cross-examined: Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 62 ALR 85; 59 ALJR 844. In Paric, the High Court (Mason CJ, Wilson, Brennan, Dean and Dawson JJ) observed: - "It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense" (emphasis added).
16. The Court further observed, citing Wigmore, that "the failure which justifies rejection must be a failure in one or more important data, not merely in the trifling respect".
17. As the above analysis demonstrates, the various entries in the clinical notes were generally with respect to transient ailments from which the plaintiff suffered on occasions. They do not amount to any medical condition of such significance that it impacts upon the opinions of the experts upon which the plaintiff relies, in particular Dr Davies. These alleged "omissions" by the plaintiff must also be considered in the context for the injury from which the plaintiff suffered. There is no issue that the plaintiff suffered a very significant back injury requiring surgery from which she continues to suffer ongoing disability. The minor matters upon which the defendant relies pale into insignificance when considered in this context.
18. In any event, as counsel for the plaintiff noted, the defendant had the plaintiff examined by an orthopaedic specialist Dr Bentivoglio and a psychologist, Thomas O'Neill. The defendant is in possession of reports from both experts, given they were provided to the defendant's expert occupational physician. However, the defendant has not tendered reports from either expert. The clinical notes of the general practitioner upon which the defendant relied were clearly available to be provided to the defendant's experts for their comments. Further, the defendant did not require the plaintiff's experts for cross examination which would have provided the defendant the opportunity to traverse these issues with them.
19. I do not accept the defendant's contention that the expert opinions should be rejected or given lesser weight be reason of their failure consider the entries contained in the clinical note.
20. As to the second credit issue, the plaintiff tendered in her case a curriculum vitae (exhibit BB) which contained the following statement: - "With a cooperative manner and enthusiastic to ensure happy customers, my authentic nature enables me to quickly establish rapport, gain trust, build close relationships and maintain a genuine loyal customer base. Combined with this, I have proven to be flexible and adaptable in fast pace and high pressure environments which has resulted in me being able to meet changing needs of the situation, make sales and achieve organisational targets".
21. When it was suggested to the plaintiff that as of 2018, consistent with her curriculum vitae, a key strength with working in a fast-paced environment, the plaintiff denied this was the case, noting that the curriculum vitae had been written for her. The plaintiff accepted that the CV had been provided to third parties as "an accurate account" of her employability. When it was suggested to the plaintiff that she would not want to mislead a prospective employer the Court intervened before the answer was given, questioning whether counsel have ever been aware of a curriculum vitae that perhaps pitched things higher than might be the true situation. The question was not pressed.
22. In closing submissions, counsel for the defendant submitted that the curriculum vitae was the true position, and that the evidence of the plaintiff that she had experienced difficulties in working in fast paced environments was untrue. The submission ignores the overwhelming evidence, including that of the plaintiff, that she is incapable of working in such environments based upon personal experience. I do not accept that the plaintiff's curriculum vitae reflects poorly on her credit. Indeed, in one respect, it is inconsistent with the defendant's allegation the plaintiff has failed to mitigate her loss. To the contrary, the curriculum vitae demonstrates that the plaintiff was making every attempt, despite her disabilities, to "sell herself" to prospective employers. Needless to say, the plaintiff's personal experience was that, having obtained certain positions, she was unable to meet her own expectations.
23. Contrary to the defendant's submission, I found the plaintiff to be consistently credible whilst giving her evidence. It was readily apparent whilst being subjected to cross-examination over several hours that the plaintiff at times became emotional or upset when questioned as to the impact of the injury on her physical and psychological state and the loss of her career. The plaintiff fairly conceded that at various periods there had been improvement in her condition. Further, the plaintiff fairly conceded that she could perform tasks demanded of her profession. However, consistent with the objective evidence, the plaintiff considered that she was incapable of performing those duties, or for that matter any job, on a full-time basis.
24. I find the plaintiff's evidence was entirely credible in every respect.

The plaintiff's likely earnings trajectory but for her injuries

1. The plaintiff gave evidence that whilst undertaking her university studies, prior to the accident, she completed a 3-to-4-week summer course in "Luxury Fashion Brand Management/Luxury and International Brand Strategy" in France. This was self-funded by way of a further student loan. It was the plaintiff's evidence that she completed this course in the context of having a particular interest in luxury brand strategy. Her ambition was to specialise in marketing in the context of luxury fashion, hoping to work for an international fashion label or ASX listed company.
2. The plaintiff's academic transcript (Exhibit CC) demonstrates that she was excelling in her university studies. The plaintiff was consistently being awarded distinctions and high distinctions, albeit with the occasional credit.
3. However, it is apparent that the plaintiff not only possessed the academic ability, but she also demonstrated other attributes necessary for success in such a competitive field. One of the plaintiff's lecturers Dr Elias Kyrayzis attested to the plaintiff's demonstrated abilities, having lectured the plaintiff in several subjects. Dr Kyrayzis observed that he measured his own success as a university lecturer based upon the success of his graduates, many of them who were in senior marketing roles in companies such as Google, YouTube and AMP. Accordingly, he felt qualified to provide an opinion on the plaintiff's career trajectory.
4. Dr Kyrayzis stated that the plaintiff was in an elite group of students (3 to 4 students per year from the 500 to 700 students he lectured). He observed that to enter this group they were required to demonstrate perfection in all areas; academic capability, excellent interpersonal skills and teamwork abilities, high ethics and integrity, as well as demonstrating good character. Dr Kyrayzis attested to the fact that the plaintiff was a standout student both in lectures and tutorials. The plaintiff demonstrated great intellect, wit, enthusiasm, and a good sense of humour. In the subject of Marketing Strategy, the plaintiff was awarded a high distinction and her exam paper was used by Dr Kyrayzis for the following year's students as to "how exams should be done".
5. Dr Kyrayzis noted that it was during the second subject which he lectured that the plaintiff suffered her injury. He noted that whilst the plaintiff was on track for yet another high distinction, she showed "great fortitude and ability under pressure" to still achieve a credit mark. Dr Kyrayzis believed that uninjured the plaintiff was capable of reaching senior marketing roles with no demonstrated weakness in any area. He further observed, from his ongoing contact with ex-students, that such roles were incredibly demanding and that the plaintiff's injury had clearly affected her career progress.
6. Demonstrative of the plaintiff's drive and ambition was her securing employment following the accident, despite her disabilities, as a graphic designer and marketing assistant at Tynan Motors after an internship program. However, the plaintiff was terminated from that position due to underperformance in the context of her ongoing disabilities. The plaintiff thereafter managed to secure a position with the ASX listed fashion group Noni B although this was also short lived due to ongoing disabilities arising from the accident.
7. The plaintiff's likely career trajectory and earning potential is further demonstrated by the evidence of Emma Lagerlow who was the former National Marketing Manager of Bova Australia, an equine pharmaceutical company. Following her failed attempt at Noni B, the plaintiff secured a position as a Marketing and Sales Associate with Bova under the supervision of Ms Lagerlow. Despite her ongoing disabilities, Ms Lagerlow observed that the plaintiff was an enthusiastic, intelligent, creative, and driven employee. She was impressed with the plaintiff's aptitude and knowledge around digital marketing and was "a highly talented designer" (Exhibit D). In her oral evidence Ms Lagerlow again referred to the plaintiff being "a very talented designer" who created "really amazing" work. She considered the plaintiff would have been "incredible" working in a multinational global company.
8. The plaintiff's ability but for her injury is further demonstrated by the plaintiff achieving the promotion to National Marketing Manager upon Ms Lagerlow's resignation. The plaintiff stepped into that role, albeit for only a matter of months, earning more than what would otherwise be expected for a graduate of the plaintiff's years of experience.
9. Whilst it is difficult to predict with any certainty as to the plaintiff's likely career trajectory, given the injury occurred whilst still a university student, the overwhelming evidence establishes that the plaintiff was likely to have succeeded in her chosen career and achieved a level not dissimilar to the position of a Senior Marketing Manager or Marketing Director identified in the Vincents' report.

The evidence and findings as to the plaintiff's current work capacity

The plaintiff's attempts to work in her chosen profession

1. As previously noted, in January 2018 the plaintiff commenced part-time work with Tynan motors as a graphic designer and marketing assistant. This followed a successful period of internship. It was the plaintiff's evidence that she worked 1 to 2 days per week, 7.5 hours each day. The plaintiff struggled to keep up with the fast pace and demands. She felt physically and mentally slow in performing that work. The plaintiff was often required to design banners for the car dealerships within a matter of hours. The directions relating to any design changed often, demanding a quick turnaround. The plaintiff was also required to set up for events and undertake online marketing and social media. The plaintiff described the context in which these demands would be placed upon her as follows: - "Well, the marketing manager would decide that they wanted to run a specific promotion, so they would require me to design the promotion really quickly to get it out before a certain time or the sales team would see that a competitor is offering something that they would like to counter. So they would ask me to prepare quickly an advertisement, and I would be designed (sic) to sit and design it quickly and write the copy and things and get it out".
2. Due to the plaintiff's perceived lack of performance, she was dismissed from this position in May 2018. In May 2019, following completion of her university studies, the plaintiff secured a position at Noni B Group in Alexandria. The plaintiff was a digital marketing coordinator. She described the role as her "dream position" given it was a large ASX listed fashion company. The position involved a three-hour round-trip commute from Wollongong. She was working an average of 42 hours per week commencing at 8:00am and finishing somewhere between 4:00pm or 5:00pm. Overtime was usually required on a Friday. The plaintiff resigned from the position in February 2020 in circumstances where she found the position too challenging due to her restrictions and the effect it had upon her. The plaintiff described the position in evidence in the following way: - "Two to three email campaigns per day. So, this was the writing of the of the email campaign, the design of the email campaign, and then scheduling those and working with the graphic designers to produce those. These again, it went through a very high hierarchy structure of getting these approved and there was a lot of changes last minute. So sometimes I would design a campaign and then a competitor would have a different campaign, and we'd have to change it within a very, very short timeframe and then I would need to redesign, schedule them and then duplicate for all the different segments. So it was very fast paced and high pressure because these campaigns would generate a lot for the company."
3. The plaintiff found sitting for lengthy periods particularly challenging. She would be tired by the time she arrived at work, given the commute, and then her day involved prolonged sitting and working fast before travelling home. The plaintiff described herself as being "exhausted and in a lot of pain".
4. The plaintiff then pursued alternative positions which were more slow-paced. She was successful in obtaining a position with Bova as a marketing and sales associate. She was under the supervision of Emma Lagerlow who gave evidence. Whilst the position was primarily office-based, shortly after her commencement (February 2020) COVID-19 restrictions fortuitously enabled the plaintiff to work from home. It is apparent that the plaintiff performed relatively well in that position, albeit with considerable support and assistance from Ms Lagerlow, to whom the plaintiff had disclosed her injury and restrictions. In October 2021, the plaintiff was promoted to the position previously held by Ms Ludlow as the National Marketing Manager. However, the plaintiff indicated that this role involved considerably more pressure and she had lost the support of Ms Lagerlow as her supervisor. It is unsurprising in these circumstances that within three months of her promotion (January 2022) she resigned this position.
5. The plaintiff gave the following evidence as to the reason for resignation: - "I resigned because of the nature of the job. The fast pace of it, having that increased workload and also the fears around the trade show. I knew that I wouldn't physically be able to do it."
6. The plaintiff's difficulties working in a demanding role such as a senior marketing management position are supported by Ms Lagerlow who said the following: ""The initial job description for Avril's role mentioned that the candidate "must be able to lift 20kg's on a regular basis". Avril mentioned in her interview that she was not able to lift heavy items. This was a concern as the Marketing and Sales Associate role does involve heavy lifting… We made allowances, for Avril to secure the job, however, in another role, this may have put Avril at a disadvantage or not be awarded the role at all. … At present Avril only frequents the office twice per week, to reduce the physical demands of travel and to allow flexibility to see her specialist treatment providers. We are happy with Avril's output whilst working from home, but I believe this could put Avril at a definite disadvantage in attaining and maintaining a long-term senior marketing management position. It is a strain to Avril's health to work long hours at a desk. It would be even more so to also work till midnight on a deadline for a price rise or host a webinar as I often do in my role. I've also worked at large ASX listed and international companies and working through the night was not unusual and this would put an even greater strain on Avril with the additional demand expectations. … I believe that Avril's injury does affect her ability to deal with stress and tight deadlines and that at times she may be slower than usual to complete tasks to tight deadlines due to her managing chronic pain flareups under a pressured environment… … Avril would be at a distinct disadvantage to acquire [a high-level senior marketing management position] due to the requirements, and if Avril did acquire such a role, her spinal injury and chronic pain experienced as a result would make it very difficult to maintain. It saddens me that Avril's bright career potential has limitations due to an accident caused by negligence".
7. The plaintiff is now working on a freelance basis as a consultant and has three clients. In that role she is working approximately 15 to 20 hours per week. The nature of this work enables the plaintiff to work from home and be flexible in her working conditions. This includes being able to control her at work position as well as deal with anxiety and stress which develops whilst working at a fast pace or under pressure.

The evidence as to incapacity

1. The plaintiff gave evidence that she did not feel capable of working more than her present 15 to 20 hours per week as a freelance designer. The plaintiff fairly conceded in cross-examination that she could perform the various tasks for which she is professionally qualified. However, the plaintiff did not feel that she could work in the fast paced and reactive environment required in a marketing/graphic design role of the type she experienced at Tynan's and Noni B. The plaintiff consistently denied that she could work full time despite such a proposition being repeatedly suggested to her.
2. I accept the plaintiff's evidence on this issue. It is not an opinion formed in the abstract, but rather is premised upon the plaintiff's real-life experience. To her credit, the plaintiff has made genuine attempts to pursue a career in marketing with limited success. In her three roles in marketing, Tynan Motors, Noni B and Bova, the plaintiff was unable to meet the demands of those positions. The plaintiff was only able to maintain her position in marketing at Bova with the considerable support and assistance of her direct supervisor. This is consistent with the plaintiff resigning within months of her promotion when she no longer had that support.
3. The plaintiff's evidence that she is incapable of working in a full-time marketing role is consistent with the most recent evidence of the plaintiff's and defendant's experts.
4. Dr Davies in a report dated 12 December 2023 noted that the plaintiff was working a maximum of 20 hours per week with several clients as well as building design templates. Dr Davies opined that the plaintiff's decision to commence her own business was reasonable in view of her persisting symptoms which created difficulties tolerating prolonged travel, prolonged sitting and heavy lifting and carrying activities. The plaintiff's self-employed status enabled her to undertake work within her tolerances and to change positions as necessary.
5. In the psychological context Dr Godsell observed in a report dated 21 June 2021 that the plaintiff's efforts to pursue a career had been "remarkable" given the nature of her physical injury and pain condition. However, they had come at the expense of her mental and physical health. Dr Godsell further noted: - "She is in a bind of wanting to participate in meaningful stimulating work which of itself is well-known to support psychological well-being, however her efforts to engage in this so far have resulted in severe exacerbation of stress, pain and in turn psychological difficulty. This is because most sought-after work roles in her industry do not accommodate the need for Miss Woodstock to have flexible work arrangements, reasonable provisions and adjustments to allow for her to manage her pain through pacing and moderation of exertion, stress, work hours and workload."
6. Dr Godsell observed in the report of May 2024 that the plaintiff had been struggling with work demands in general. She experienced difficulties coping in the context of ongoing anxiety, depression, and chronic pain.
7. Dr Ting, occupational therapist/vocational assessor, following an assessment in January 2024, endorsed the plaintiff's decision to cease working in a full-time position as being reasonable and necessary. Dr Ting believed the plaintiff continued to suffer from significant physical restrictions that reduced her work performance and ability to maintain employment. The plaintiff suffered low energy levels due to broken sleep, persistent pain, and emotional difficulties. Further, the plaintiff continued to suffer from psychological symptoms and reduced self-worth. She was less able to handle stress and found it difficult to work up the initiative to do things, especially outside of work. These difficulties reduced her performance, hence her ability to maintain work. The plaintiff demonstrated a physical capacity to perform sedentary or modified light work for 4 to 5 hours per day, either from home or in a suitably adapted work setting. However, she needed to avoid particular tasks which aggravated her condition. Suitable positions on a part-time basis were as a digital marketer, marketing coordinator and/or graphic designer in a medium paced company.
8. In February 2024, the plaintiff completed an earning capacity assessment at the request of the defendant which included separate reviews by an occupational physician (Dr Pek) and vocational consultant (Andrew Hook).
9. Dr Pek diagnosed the plaintiff as suffering residual non-verifiable left leg radicular symptoms following an L5/S1 disc injury and microdiscectomy. Further the plaintiff suffers pudendal neuropathic pain, exacerbated by sitting, consequent to cauda equina syndrome. Noting that the plaintiff had previously been medically assessed as having a work capacity of 38 hours per week, Dr Sheng believed the plaintiff had deteriorated between assessments and may well be on a "downward trajectory". He did not consider that the plaintiff's physical work capacity would improve. To the contrary, Dr Sheng observed that the plaintiff was at risk of accelerated L5/S1 lumbar disc degeneration by the nature of the surgery. It was determined that the plaintiff was not capable of working full-time (38 hours per week). In observing that the plaintiff could work up to 5 days a week at 5 hours a day he commented: - "During busy periods, she has increased her workday beyond five hours and has experienced significant flareups each time".
10. Mr Hook identified possible work options on a part-time basis.
11. However, in a supplementary report dated 22 March 2023, the experts were asked to consider whether the role of marketing manager, such as that in which the plaintiff was employed with Bova, would be position the plaintiff would be capable of undertaking now or in the future.
12. Dr Pek noted that the plaintiff had resigned from the role with Bova due to symptomatic exacerbations of back and leg pain. Further, the plaintiff's psychological stress was a factor in her resigning which was largely because of the long hours. Accordingly, the plaintiff could return to that type of role at 5 days a week 5 hours per day "if the employer allowed for reduced hours and posture rotation".
13. Tellingly, whilst Mr Hook noted that medically the plaintiff could apparently return to such a position on a part-time basis, this was not considered as part of the vocational assessment report because at 25 hours per week the plaintiff "would be significantly disadvantaged on the open labour market with no part-time job roles for a Marketing Managers sourced or validated". Mr Hook observed that on reviewing the open labour market, to compete for work in this competitive industry for Marketing Manager job, the plaintiff would need greater and more diverse work experience in the sector. It was his opinion that the plaintiff was simply fortunate or "in the right place at the right time" to be internally promoted by Bova, coming off the back of the pandemic which impacted on recruitment opportunities and available candidates during that time.
14. Mr Hook did however indicate that positions were available for a lesser role as a marketing coordinator, brand coordinator and the like. Dr Pek, when asked whether his previous opinion that the plaintiff could work no more than 25 hours per week remained, he replied: - "Her physical capacity to work would remain 25 hours a week in both jobs. Both are sedentary by nature and within her low tolerance of 5 kg. She left the Marketing Manager role as she could not work 38 hours a week as was required".
15. I am satisfied that the plaintiff's present incapacity will remain permanent for the remainder of her working life. Indeed, there is a considerable risk that the plaintiff's physical, and consequential psychological, condition will deteriorate with the passage of time.
16. I find that the plaintiff has a permanent reduction in her pre-accident earning capacity. I am satisfied the plaintiff's work capacity is limited to 20 to 25 hours per week in positions which are generally sedentary by nature and would enable her considerable flexibility in the workplace. In the circumstances I am satisfied that the plaintiff is incapable of fulfilling her most likely pre-accident earning capacity in roles such as a Senior Marketing Manager or Marketing Director in a large company, whether ASX listed or otherwise, and/or a large fashion warehouse.

Failure to mitigate

1. The defendant alleges the plaintiff has failed to mitigate her loss pursuant to s151L of the Act. That section provides as follows: - "151L Mitigation of damages (1) In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages. (2) In particular, the court must consider the following matters-- (a) whether the injured worker has undergone appropriate medical treatment, (b) whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment, (c) whether the injured worker has duly complied with the worker's obligations under Chapter 3 of the 1998 Act (Workplace injury management), (d) whether the injured worker has sought appropriate rehabilitation training. (3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraphs (b)-(d) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in those paragraphs into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that the worker was required to take those steps. (4) In any proceedings for damages, a written report by a person who provided medical or rehabilitation services to the injured worker is admissible as evidence of any such steps taken by that worker."
2. It is difficult to comprehend how such a submission can be maintained when it is contrary to the evidence of the plaintiff, the unchallenged evidence of Dr Ting, the unchallenged evidence of Dr Davies, the evidence of the defendant's occupational physician Dr Pek and the evidence of the defendant's vocational consultant Andrew Hook. Indeed, there is no evidence to support such a submission.
3. In Medlin v State Government Insurance Commission (1995) 182 CLR 1; 127 ALR 180 McHugh J observed at 23:- "A defendant cannot reasonably require a plaintiff to remain in employment for the purpose of reducing the damages that the defendant would otherwise have to pay if to do so would interfere with the plaintiff's reasonable enjoyment of life. The doctrine of mitigation of loss was not intended to turn injured plaintiffs into economic slaves."
4. It is the unchallenged evidence of Dr Davies, Dr Ting, Dr Godsell and Dr Sheng that the decision of the plaintiff to resign her position at Bova was not unreasonable. There is no medical evidence to support the defendant's contention that the plaintiff was or is fit to work full time in a position such as the one at Bova. I accept that the decision of the plaintiff to leave Bova was entirely reasonable given her physical and psychological disabilities.
5. As the evidence demonstrates, the plaintiff has gone to extraordinary and admirable lengths to exercise what earning capacity she retains. The plaintiff was terminated from one position due to her poor performance and resigned from two other positions due to her inability to meet her employer's expectations and demands. Since leaving her last employed position the plaintiff has pursued alternative income producing options as a self-employed contractor.
6. I am satisfied that the plaintiff has undergone appropriate medical treatment (there is no submission to the contrary), has promptly sought suitable employment, and has complied with her statutory obligations. I am satisfied that the plaintiff has taken all reasonable steps to mitigate her loss.
7. I reject the defendant's contention that the plaintiff has failed to mitigate her loss.

Assessment of economic loss

1. The plaintiff relies upon the forensic accounting report prepared by Mark Thompson of Vincent's. The underlying calculations, based upon various published reports/surveys/salary guides, are not challenged. Rather, the defendant contends that the underlying assumptions upon which the calculations are made as to the plaintiff's likely progression but for the accident and her residual earning capacity are not supported by the evidence.
2. The calculation of past and future economic loss is premised upon two scenarios/assumptions as to the plaintiff's likely career progression. The first is that the plaintiff would have ultimately achieved a salary of $140,000 per year, broadly consistent with the maximum earnings of Marketing Specialists and Sales and Marketing Managers. The second is that the plaintiff would have progressed to earnings of $170,000 per year, broadly consistent with the earnings of Senior Marketing Managers and Marketing Directors.
3. For the reasons already given I am satisfied that the plaintiff's most likely career progression would have resulted in her achieving a position broadly consistent with the earnings of a Senior Marketing Manager and/or Marketing Director in the vicinity of $170,000. The plain fact is that as a recent graduate the plaintiff had already secured a Marketing Manager's role with Bova, albeit a position she was unable to maintain.
4. The Vincent's report calculates past and future economic loss on three scenarios as to the plaintiff's residual earning capacity, being 50%, 70% or earnings as a self-employed contractor working reduced hours.
5. Consistent with my earlier findings, I am satisfied that the plaintiff has the residual capacity to work in the vicinity of 20 to 25 hours per week. As a self-employed contractor the plaintiff has the opportunity to be flexible in her working hours and conditions. It enables the plaintiff to work when she feels capable, take breaks during periods of exacerbation, and generally control the volume of work. I am therefore satisfied that the plaintiff is likely to remain in a self-employed role, although the possibility of the plaintiff returning to a part-time position cannot be excluded. However, I am satisfied that in the event the plaintiff was to return to an employed role she is she will not have a residual earning capacity exceeding 50%.
6. It is the plaintiff's evidence that her present 15 to 20 hours per week reflects her current maximum capacity. However, the calculation undertaken by Vincent's, assuming the plaintiff remains in a self-employed capacity, has made an allowance for likely growth in the plaintiff's own business. I am satisfied that the Vincents' approach is reasonable in calculating economic loss on an assumption that indeed the plaintiff is likely to achieve some growth in her self-employed earnings.
7. The defendant contends that in assessing loss of superannuation the Court would consider that there were prospects of the plaintiff working in her own business but for the accident. In those circumstances no allowance would be made for compulsory employer contributions. I am satisfied, consistent with the plaintiff's evidence, that her most likely career trajectory but for the accident would have been in an employed capacity, most likely working for a large ASX listed company or fashion house. In the circumstances, the calculation of economic loss will include an allowance for loss of superannuation.
8. The Vincent's report calculated past economic loss, progressing to $170,000 per annum and a 50% residual earning capacity at $270,233. The calculation of past economic loss, assuming the same career progression but earning an income consistent with being self-employed is $298,989. Given my finding that the plaintiff is likely to continue in a self-employed capacity for the foreseeable future, although making a modest allowance for the plaintiff returning to an employed position on a part-time basis, I assess past economic loss at $290,000. The parties have agreed that past loss of superannuation would be calculated at the 11% the net loss. I assess past loss of superannuation in the sum of $31,900.
9. Past Fox v Wood is agreed that $4,901.
10. The report of Vincent's assessed future economic loss, assuming a residual earning capacity of 50% and a career progression to $170,000 per year at $1,120,701. Allowing for reduction for vicissitudes of 15%, future economic loss is calculated at $952,596. There is no reason to vary the usual allowance for vicissitudes of 15%, and no submission is made by the defendant to the contrary.
11. Assuming a progression but for the accident to $170,000, and allowing for earnings consistent with being self-employed, future economic loss is calculated at $1,223,654. After deduction of 15% for vicissitudes, future economic loss on this scenario is assessed at $1,040,106.
12. These two figures reveal there is a relatively modest difference between the two alternative assumptions. Noting that there is no issue as to the calculations otherwise, and consistent with my earlier findings, I assess future economic loss in the sum of $1,000,000. I assess future loss of superannuation in the sum of $140,000.

Damages summary Head of damage Damages assessed Past economic loss $290,000 Past loss of superannuation $31,900 Fox v Wood $4,901 Future economic loss $1,000,000 Future loss of superannuation $140,000 Total $1,466,801

Orders 1. Verdict and judgment for the plaintiff against the defendant in the sum of $1,466,801. 2. The defendant is to pay the plaintiff's costs as agreed or assessed. 3. Any application for any alternative or additional costs orders is to be made in writing within 14 days.

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: 20 September 2024