Mathews v USDD - [1999] NSWSC 1141 - NSWSC 1999 case summary — Zoe

NSWNSWSC

Mathews v USDD

[1999] NSWSC 1141

Supreme Court of NSW|1999-11-30|Before: Rolfe J, Mr J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

1999-11-30

Before

Rolfe J, Mr J

Catchwords

DECISION : Judgment for the plaintiff against the defendant in the sum of $94,070.20

Source

Original judgment source is linked above.

Catchwords

DECISION : Judgment for the plaintiff against the defendant in the sum of $94,070.20

Judgment (87 paragraphs)

[1]

Introduction 1 On or about 2 May 1992 the "USS Independence", ("the vessel"), which was, at the time, probably the largest aircraft carrier in the world and which was owned by the defendant, The United States Department of Defence, for which Mr R.R. Stitt of Queen's Counsel and Mr G.M. Watson of Counsel appeared, and a number of other United States Navy vessels, arrived in Sydney Harbour. The occasion for the visit was the celebration of the 50th Anniversary of the Battle of the Coral Sea, and the vessel moored at Garden Island. 2 On the evening of 2 May 1992 the defendant, or those for whom it was responsible, arranged a cocktail party on the vessel to which, amongst a large number of others, the plaintiff, Ms Fiona Amanda Squire Mathews, for whom Mr C.C. Branson of Queen's Counsel and Mr J.T. De Berg of Counsel appeared, and her then husband, Mr Elbert Lynn Mathews, were invited. The reasonable inference is that all guests were invited and, accordingly, those, including the plaintiff and Mr Mathews, were boarding the vessel at the defendant's invitation. So much was not in issue. 3 The plaintiff and Mr Mathews travelled to the dock by car and proceeded to board by ascending a gangway basically in single file in a line of guests. The gangway ran parallel to the side of the vessel, to the point where guests could obtain access to her. The plaintiff was walking in front of Mr Mathews. 4 There was a platform at the top of the gangway, which, on the evidence I accept, was approximately several metres long and slightly shorter in width. It was covered with a blue type of carpet and persons boarding the vessel stepped from the gangway onto the platform and then turned left towards the vessel. The platform was above deck level and to move from it to the deck it was necessary to cross the platform and step down from it to the deck. The portion of the deck to which people stepped may also have been covered with the same type of carpet. 5 Although there was some dispute on the evidence, I am satisfied that there was a line of naval and other dignitaries on the deck, who were greeting guests as they arrived. The plaintiff has suggested, on several occasions, that this greeting line was on the platform. I am satisfied that it was not. I am, however, satisfied that sailors from the vessel were on the platform and on the deck adjacent to it, and that part of their duties involved assisting guests from the gangplank onto the platform and, more importantly for present purposes, from the platform to the deck. This involved walking down either one or, perhaps, two steps. There was no handrail or handgrip of which guests could take hold before stepping down from the platform to the deck. Nor was there any warning that the step was there. 6 The plaintiff stepped across the platform followed by Mr Mathews, and her evidence in chief as to what then happened appears in paragraphs 22 and 23 of her witness statement of 4 November 1999, Exhibit A:- "22. Upon arrival at the ship I walked up the gangplank in front of my husband. There was a step from the gangplank to a platform. I stepped off the gangplank onto the platform. I was not assisted by anyone. The platform was covered in blue synthetic artificial grass carpet. From that platform I had to step down to the next platform. I led with my left foot down the step to the next platform. I was not assisted. As I did this my right shoe heel got caught in the carpet on the top platform and I fell down. I fell as I had already commenced stepping with my left foot down to the next level when my right foot unexpectedly got caught. This caused me to lose my balance and I fell on to the lower level falling forward on my knees and landing on my right side. 23. The steps which I fell down were not fitted with any handrails, and situated immediately to the side of the steps was a sailor, however, I was not provided with any assistance or offer of assistance from this officer." 7 In his witness statement of 10 November 1999, Exhibit B, Mr Mathews described what happened in paragraphs 5, 7 and 8 thus:- "5. At the top of the gangplank there was a platform which was covered in blue grass matting. There was an officer on my left on the platform at the top of the gangplank. He was taking each guest's arms as they stepped off the gangplank onto the platform. When Fiona stepped off the gangplank, she was not assisted by the officer. I observed him to be distracted. He was talking to another officer. He did not take Fiona's arm as she stepped off the gangplank onto the platform. Fiona took another step forward on the platform and fell forward. I saw her heel had caught in the blue grass matting covering the platform. Fiona was near the edge of the platform. I lunged forward to try and stop her falling forward. The officer on my left noticed me lunging forward and grabbed me. This stopped me catching Fiona. … 7. Fiona fell forward onto her knees down the step from that platform onto her right side. The platform was not very wide until reached the next level. There was a line of officers on the deck. In falling, Fiona fell onto and down to the next level which was also covered in blue grass carpet. 8. There was no rail along the side of the blue grass carpet. The carpeted section was wider than the gangplank. The steps off the gangplank and from one level of the platform to the next were steep. Fiona fell to her knees. She tried to stand up and could not initially. I said to her, 'What happened?' She said, 'My heel caught'." 8 The basic facts asserted by the plaintiff and Mr Mathews were not, essentially, in issue. The defendant accepted that she was walking across the platform, which was covered with the blue carpet material; that Mr Mathews was walking behind her; that the heel of her right shoe caught in the carpet as she was stepping forward to descend the step or steps from the platform to the deck; that that caused her to fall forward; that sailors on duty to assist her descending did not do so; and that Mr Mathews was prevented from further assisting her by the action of a sailor in stopping his forward movement. It was not in issue that there were no handrails or supports available at this point. It was submitted by the defendant that reasonable care did not require any for the purpose of negotiating one step. 9 The issue is whether, in these circumstances, the defendant was guilty of negligence. The principal allegations of negligence were that the sailors, who were obviously on duty to assist guests move from the gangplank to the platform and thence to the deck, failed to initially assist the plaintiff, as they did other guests, and, having failed in that way did not observe the difficulty she encountered until it was too late to prevent or check her fall; whether there should have been a handrail or support in position; and whether a warning should have been given. 10 The defendant submitted that if, contrary to its primary submission, it was found to have been negligent, the plaintiff was guilty of contributory negligence by allowing her heel to become caught in the carpet. Although other allegations of contributory negligence, including the plaintiff's failure to seek assistance from the sailor on duty, were pleaded, none were argued in final submissions. 11 The parties accepted that the question of negligence was to be determined, in circumstances where the plaintiff was a lawful entrant on the vessel, by whether the defendant took reasonable care to avoid foreseeable risk of injury to her: Australian Safety Stores Pty Limited v Zaluzna (1987) 162 CLR 479 and Romeo v Conservation Commission of the Northern Territory (1988) 192 CLR 421.

[2]

Negligence 12 I have set out the evidence of the plaintiff and Mr Mathews in chief on the issue of negligence. The plaintiff was cross-examined as to her recollection of events leading up to the accident, having said that her witness statement was prepared with some care and accurately set out the way in which it occurred. She said it was truthful and complete. She was cross-examined, commencing Tp.6, about paragraph 22 and her recollection of the events and, in particular, about some evidence she had given previously to the effect that the greeting line was on the platform rather than the deck. In so far as the plaintiff asserted that it was and that she met various dignitaries prior to the fall, I am satisfied that her evidence is not correct, and that she did not reach the greeting line before she fell. This is consistent with Mr Mathews' evidence, which was not challenged, and with other undisputed evidence. However, notwithstanding that view of her evidence, I am satisfied that she fell in the way she described in paragraph 22 and no real challenge was made to her evidence in that respect. 13 Similarly, the evidence of Mr Mathews was not challenged as to how the accident occurred. Mr Mathews said, Tp.43, that there were "certainly sailors in parallel lines forming a corridor onto the main deck of the ship extending beyond" the platform, although he was not certain whether the line came "right up to the platform". His evidence was quite clear that there was no greeting line on the platform. 14 I have outlined the principal way in which the plaintiff puts her case on negligence. Firstly, she asserted that the vessel's personnel should have assisted her and other guests from the gangplank to the platform and from the platform to the deck, and that this was particularly so as there was no handrail. Secondly, she submitted that such persons were in position to assist and to guard against the possibility of a guest's falling at this point but that, at the time she fell, sufficient attention was not being paid to her and she was not, at any time, offered assistance. Thirdly, it was submitted that in so far as the seaman was distracted, he was distracted from carrying out the very function he was supposed to be performing, namely to give assistance to guests moving onto and off the platform, and that it was negligent for him to be distracted. Fourthly, it was submitted that the vessel had ample crew to provide sufficient personnel at this point, so that if one member was "distracted" another could take over. 15 The allegations of negligence have to be viewed against the background of what was happening on the vessel on this evening. Guests, presumably from all walks of life and of various ages and physical conditions, had been invited to the cocktail party. It must have been clear to those in charge of the vessel, and indeed so much was acknowledged by the presence of the vessel's personnel to assist them, that in some way or other a guest may encounter difficulties in traversing the platform and stepping down to the deck. It was not necessary that those in charge should see the precise way in which this may happen. It was sufficient that in a moving line of people, it was reasonably foreseeable that a guest may trip, slip, lose his or her step or in some other way become unbalanced, perhaps because of the throng of people or perhaps because of the general layout. As I have said those in charge recognised the problem by placing personnel on duty to assist. The plaintiff did not receive assistance because the seaman was "distracted". 16 In his statement of 1 November 1999 Lieutenant Commander D.C. Rose, who was well qualified to give evidence on this matter, said:- "In my experience, it is not usual to have a handrail for a step or steps that are temporary for the duration of a ship's visit only. This was a special occasion, however, where formality was paramount and it is not inconceivable that, in such a ship with its almost limitless resources and storage space, a special set of steps with handrail would be used for the Admiral's guests. However, assuming this was not the case here and Mrs Mathews is correct, the lack of handrail serves to emphasise the need for care in other ways in bringing guests aboard." 17 Subsequently he said:- "Although a sailor or officer is said to have been posted on the top level to the left side of the end of the gangplank, so as to help guests negotiate that initial step down from the gangplank, it appears that guests were left then to negotiate the step down to the next level without help or guarding. The height of this step is unknown. Assuming it is the same as that shown in the video, it is uncertain whether it is more than usual height. The public visitors boarding the ship appear to have no difficulty with it. Nevertheless, given that the situation was unfamiliar to guests, and given the possibility that the second step was of a different height than that down from the end of the gangway, I would expect a prudent officer responsible for the safety of guests using the gangplank and step to have stationed an additional officer or sailor at the second level, so as to help guests, especially ladies attending a cocktail party, in formal wear and possibly with high-heeled shoes, negotiate that second step down. In this case, Mrs Mathews says there was an officer or sailor stationed at the base of the step on the deck level. Given that once on the second or deck level guests are said to have been required to turn left before stepping down two more steps to a lower deck level, that officer or sailor would appear possibly to have been stationed too far away to be able to assist a guest in negotiating that second step or, more critically, to help catch or cushion a falling guest. In the light of the foregoing, assuming the arrangements were as stated, it is my opinion that an officer or sailor stationed close to the second step would have been in a position enabling him more readily to steady Mrs Mathews to prevent her falling or, failing that, catch her sufficiently to save her from falling heavily. Further, in a general sense, it is my opinion that an efficient and responsible officer in charge of arrangements for bringing civilian guests aboard should be expected to have foreseen the need for special care and to have stationed his helpers in such a way that accidents, such as that suffered by Mrs Mathews, could not occur or, at worst, would be less serious than might otherwise have been." 18 For a number of reasons he specified, Lieutenant Commander Rose concluded that it was opinion:- ".. that the ship's responsible officer should have stationed a person in an appropriate position close enough to actively assist guests down that second step and to make every effort, if they fell, to hold them up or cushion their fall."

[4]

The defendant's evidence thus corroborated the perceived need to have the vessel's personnel available to assist guests. 20 I am satisfied that had this task been performed properly when the plaintiff fell, she would have received assistance either before falling or been restrained whilst falling, such as to have lessened, if not prevented, her accident. This was the very purpose that the personnel were stationed in that area and they failed to perform their task. 21 Mr Stitt submitted that so far as the static condition of the vessel was concerned none of the associated structures played any causative role in the plaintiff's falling and being injured. There was no evidence that the carpet was inappropriate for the use to which it was being put, nor that it was damaged or warn, and the submission continued that I would not find that the mere fact that the heel of the plaintiff's shoe caught was any evidence of any static defect. He continued that so far as the dynamics were concerned I should find that the plaintiff attended the vessel as part of a semi-public function; that she gained access via the gangplank and the platform; that there was only one step down from the platform to the deck; and that she fell in stepping from the platform because she caught the heel of her shoe in the carpet. He submitted that parallel lines of sailors were on the deck and there were sailors on the platform, and that if this constituted "the dynamics", there was no obligation or duty on the defendant to instal a handrail when only one step was involved, and no one needed to be placed to assist people down one step. He said the fact that the person was so placed was a matter of "courtesy" and not of duty. 22 Mr Stitt submitted further that the seaman, who was distracted, was only distracted momentarily as he was able to respond to what he thought was Mr Mathews' falling, and that it could not be suggested that such a momentary lapse amounted to negligence. 23 Obviously, there was no absolute duty on the defendant to prevent injury to the plaintiff. The duty was to take reasonable care to avoid foreseeable risk of injury to her. The stationing of personnel on the platform and on the deck to give assistance to persons moving through that area and to the deck showed that the defendant foresaw there was a risk of injury. It had not provided a handrail to assist guests stepping from the platform to the deck, but had provided the vessel's personnel to do so. The distraction, even though it may only have been momentary, although there is no evidence that this is so the evidence being that the distraction had ended at the time Mr Mathews commenced to fall, shows, in my opinion, that the personnel were not carrying out their allotted tasks in a proper manner, or that there were insufficient of them to do so. Their duty was to ensure that help was at hand for guests thus boarding the vessel and this was not fulfilled. 24 In the circumstances, in my opinion, the defendant was guilty of negligence. I have noted that a pleaded allegation of contributory negligence, which was not pursued, was the plaintiff's failure:- ".. to make use of the assistance provided by the defendant to persons boarding the vessel".

[6]

(a) The Plaintiff's History And Complaints 26 The plaintiff was born on 11 August 1950 and, at the date of the accident, was aged 41 years. She is now aged 49 years. She married Mr Mathews on 5 August 1978 and lived with him in various parts of the world as he pursued his career as a banker. Her two sons were born on 19 March 1980 and 6 February 1982. 27 In November 1983 the plaintiff moved with her family to New York, as that was where Mr Mathews was posted and, in paragraph 12 of her witness statement, she said that whilst in New York she felt stressed at being isolated from friends and family "together with the moving from country to country (six residences in three years), quite stressful especially living in a residential hotel". 28 In February 1984 the plaintiff commenced to work for the Australian Broadcasting Commission in New York and, upon returning to Australia in 1984, she resumed part-time casual work for that organisation in Sydney and commenced trading as Fiona Mathews & Associates in 1986. She said, in paragraph 14, that this was a small public relations company, which was retained by a number of clients and, in 1988, there was a merger between it and Playfair Pty Limited. There was no evidence of the effect of that on her, nor that she received any payment in consequence of it or interest in Playfair Pty Limited. 29 In 1990 she was employed by Memtec Limited, ("Memtec"), pursuant to a written Agreement dated 1 March 1990, as a public relations manager for three years from 2 April 1990 to 1 April 1993, and she was required to devote her full time and attention to her employment. She was to receive a base gross salary of $45,000 per annum and, in addition, membership of any life assurance benefit plan and of employees' stock purchase scheme, and the benefits of any other scheme or plan available to all employees of Memtec. She was to have the use of a Ford Falcon Sedan and Memtec agreed to reimburse her for all its reasonable operating expenses. She was to receive reimbursement of her telephone rental on a quarterly basis and a reasonable amount of the cost of telephone calls, including those on her mobile telephone, and annual holidays and long service leave. 30 Clause 7(a) provided that Memtec was entitled to terminate the Agreement at any time prior to the expiration of the employment period without cause upon 60 days' written notice. 31 Memtec carried on its business at South Windsor and the plaintiff lived at Randwick. Thus it was necessary for her to drive on most working days from her home to South Windsor and back. 32 On 1 January 1992 the plaintiff entered into a written variation of that Agreement, whereby it was agreed:- "1. The existing employment agreement period dated 1st March 1990 and expiring on 1st April 1993 shall continue to operate except for the following variations: (a) For the remainder of the employment period the employee shall work only 1 day per week for Memtec. (b) During this shorter working period, Memtec shall pay to the employee a base salary at the rate of ten thousand Australian dollars (A$10,000) per annum, payable in accordance with the normal payroll practices at Memtec but no less frequently than in equal monthly instalments." 33 At Tp.27 the plaintiff agreed there was such a variation, and she continued:- "Q. When did you cease working for Memtec on a one day per week basis? A. It was in 1996. Q. And since that time have you then only been employed on a casual basis? A. Yes, as a consultant. Q. Only on a casual basis? A. Yes." 34 There was also tendered an Employment Agreement as part of Exhibit 5, which was undated and unsigned, but appears to have been prepared in August 1993, which provided that during the employment period, which was to commence on 1 July 1993, the plaintiff would be paid a salary of $10,400 per annum. 35 The plaintiff described her employment with Memtec, in paragraph 15 of her witness statement, as being "their global Public Relations Executive", the general nature of the work undertaken by Memtec being to purify city drinking water and sewerage. She said that major public relations events were held in Australia, Europe, the United States and Japan. She continued, in paragraph 17,that in 1992 it became apparent that more of Memtec's focus would be in the United States' markets, and that there was not the potential that had been hoped for in Australia. She said:- "My work was scaled down to a part-time basis and I undertook a number of other projects, independent of Memtec. I continued to travel for Memtec to do public relations events overseas. In 1995 we did a major event in Wales and in the United Kingdom."

[7]

The reasonable inference is that these circumstances led to the entry into the Variation Agreement. An extraordinary aspect of this case is that there is no evidence that the plaintiff earned any money, i.e. there is no evidence of any remuneration received, from 1991 other than from Memtec, save in the financial year ended 30 June 1999, during which the plaintiff received most of her income from Memtec's successor. 36 In paragraph 18 she said:- "For a number of years I was actively involved in social tennis and played at least once, and sometimes twice a week. I was also a keen swimmer. I was residing with my family at home in Randwick and travelling to the offices of Memtec at Windsor on a regular basis. In order to travel to Windsor I was required to drive for a period of up to three hours per day and on occasions I would experience thoracic back pain for which I received massage. The nature of the back pain which I experienced was not in the same location or intensity as that which I now experience." 37 After describing the fall, the plaintiff said she was driven by Mr Mathews to the Prince of Wales Hospital at Randwick where x-rays were taken of her left ankle and right leg and she was advised that she had suffered a sprained left ankle. She continued, paragraph 28, that she left hospital with crutches and that overnight and the next day there was an intense pain in her right leg and lower back. She consulted her family doctor, Dr Hameri, on 4 May 1992. He referred her for an x-ray of her back and CT Scan to Dr Sheehy at St Vincent's Hospital, who recommended that she should have a laminectomy to give relief to her pain. She chose to explore less intrusive procedures first, such as intensive physiotherapy, traction, massage and swimming, and she said:- "I found those few weeks quite shocking because the level of pain was intense much of the time. I went to Memtec when I was picked up by car and driven out with a colleague. The chairman of Memtec was supportive and understanding and tried to accommodate my disability. I was determined to get better and try not to focus on the pain, and set milestones for me to achieve and to keep my career path."

[8]

It will be remembered, of course, that at this time she was only working one day per week for Memtec. She gave no evidence that she did not receive her full contractual entitlement from Memtec whilst she was injured. 38 The plaintiff agreed that Exhibit 6 set forth her overseas travel accurately. On 3 June 1992 she travelled to Brazil, London, New York, Paris and London over a period of 24 days for business purposes. She referred to this trip in paragraph 29 of her witness statement, it being to attend the Earth Summit Conference on behalf of Memtec, and to assist on some research for Beyond 2000. She said that whilst overseas she experienced significant back and leg pain, although she attended to her duties "as best" she could. On one occasion she had to rest for 24 hours. She returned to Australia in June 1992 and was referred for treatment under the care of Dr Hameri. 39 In her witness statement she set out various tests which were carried out, but she said that the pain in her back, legs and arm did not cease and she sought physiotherapy, massage and acupuncture and consulted an osteopath. She was on a regime of medication including Panadeine and Valium. She continued that on a number of occasions her back pain became quite extreme whilst attempting to undertake ordinary daily activities, and that she had been rendered physically incapable of coping with the pain and been forced to seek emergency medical treatment from hospitals, chiropractors and osteopaths. She gave no details of these treatments. Mr Mathews assisted her in dealing with the pain, and although she received some short term relief, it generally returned. She said she was unable to attend to her daily household duties and was assisted by Mr Mathews, her son, Ben, and a part-time nanny. There is no evidence what she paid the part-time nanny. She became extremely frustrated with the level pain and was "increasingly unable to cope with the strains which this was causing in my day-to-day life". Her relationship with her husband deteriorated further, there being evidence that it had not been satisfactory from at least 1986, and:- ".. although we have had difficulties prior to this accident, I feel that these have been significantly exacerbated by the injuries I had received."

[9]

In the end, no submission was made that the accident in May 1992 contributed to the eventual break-down of the marriage. 40 She was not able to return to her pre-accident sporting activities, but, by July 1995, she began to feel that her symptoms were improving and "although I was still suffering from back pain I felt that this was being managed effectively". This evidence is at odds with a history she gave a physiotherapist, Ms Key, in a report to which I will refer. 41 From 10 June 1993 she was overseas for one month on business and, commencing on 3 April 1994, she was in Indonesia on a holiday for seven days. On 1 June 1994 she travelled to London, Paris, New York and Washington for seven weeks on business and, on 4 June 1995, she travelled to London, Cardiff, Paris, Toulouse, London and New York for five weeks on business. This was a significant trip, because she said that whilst in New York she developed substantial pain in her back and, in paragraph 38, she continued:- "This setback provided me with additional stress and I was disillusioned with the fact that I was again faced with a long period of rehabilitation before my symptoms would improve. I was informed by Josephine Key Physiotherapist that my back would require ongoing maintenance." 42 On 16 August 1995 Ms Key wrote a report, Exhibit 5 p.79, in which she stated:- "I have treated this lady some years ago for low back pain which radiated down the front of the right thigh and caused marked muscle weakness. She required extensive treatment at that stage, however she managed to avoid surgery has been asymptomatic until recently she has been on an overseas trip . In June/July of this year she travelled overseas and during this time complained of low back pain which radiated into her right thigh and foot. She also had pins and needles in her foot. When I assessed her on 11.7.1995 my opinion was that she again required an extensive course of treatment to ameliorate her presenting symptoms. As part of this she would need to be prepared to carry out exercises at home to help her progress." (My emphasis.)

[10]

It was conceded by Mr Branson that the overseas trip, to which reference was made, was that of five weeks commencing on 4 June 1995. 43 There is no doubt that prior to 2 May 1992 the plaintiff had suffered some degree of back pain. Her case is that the fall exaggerated and exacerbated that condition. Ms Key's report is not entirely clear, and the plaintiff was not asked when she obtained treatment initially from her. It is therefore not clear when she required extensive treatment and for how long she had been asymptomatic. It is strange, if there was a problem resulting from the accident in respect of which she was treated by Ms Key, that no reference was made to this in the report, and the plaintiff gave no evidence that she was treated by Ms Key after the accident and before July 1995, from which the inference may be that she was treated by Ms Key prior to the accident. However, in my opinion, when the whole of the evidence is examined it becomes plain enough that she was treated by Ms Key after the accident of 2 May 1992. I shall seek to explain why. 44 The plaintiff stated, in paragraph 39 of her witness statement, that she noticed that her left ankle appeared to be weak, and that it would, on occasions give way and she would fall, and that "throughout this period" she had pain radiating down through her buttocks into her right leg. She separated from Mr Mathews in 1995, although it was not submitted that this was caused by the accident. She said, in paragraph 43, that she resigned from Memtec in 1997, as she felt she was not able to continue her duties due to her pain and disabilities "together with a general downturn in the work available", and that in August 1997 she was providing some advice to a Tenterfield Action Group, and in the course of doing so was required to attend a meeting in the Timbarra forest. Whilst walking in the forest, she felt her left ankle give way and she fell forward landing heavily on her right wrist and hand. She fractured her right wrist, which required surgery for internal fixation. She is dominantly right handed and now has lost sensation in the middle finger of her right hand. She has a significant scar to her right wrist and hand. She has never regained full movement in that wrist and continues to be troubled by pain, particularly in cold weather. 45 Dr Waller reported on 18 May 1998:- "She will never regain full function of the right wrist or hand. She will always have some restriction of movement of the right wrist. She has some residual deformity of the right wrist as a result of her fracture. This will be permanent . She will always have some weakness on the right forearm and hand. She will continue to have some restriction of movement of the right wrist." (My emphasis.) 46 The plaintiff complained that since the accident she has continued to experience pain in her lower back, which has required treatment at times, although no evidence was given of the treatment she received or its frequency or cost. She also continues to notice that her left ankle is not as stable as previously. She stated that "on an emotional level" she has experienced difficulties in not being able to do what she could before the accident, and that in 1995 and 1997 she suffered exacerbations of her injuries "including the fracture of my right wrist", as a consequence of which she has become depressed. She continues to take medication "intermittently" in an attempt to control the pain. No evidence was given of the extent of such medication or its cost. She continued that before the accident she suffered from stress, although she did not feel she was experiencing any symptoms in early 1992, and certainly the stress and back difficulties she had prior to her accident in May 1992 "were nowhere near as severe as those which I now experience and continue to suffer since May 1992". As I have noted this complaint is not consistent with the complaint she made to Ms Key in mid-1995. Nor is it consistent with certain medical evidence. She continues, she asserted, to experience pain in her back and difficulties with her right ankle and is limited in the amount she is able to travel. She cannot lift heavy weights and has difficulties in undertaking domestic duties, particularly vacuuming and activities requiring flexion of her spine. The pain can become so severe as to cause her to have headaches and she is troubled by the deformity of her right wrist both as to its appearance and functionality. She has put on weight because of her inability to exercise daily, and continues to receive physiotherapy, massage, chiropractic and other treatment from her general practitioner. Once again no evidence was given of the specifics of this treatment. She said that she would like to consider receiving some assistance in dealing with the emotional aspects of her injuries and developing further mechanisms by which she is able to cope with the injury and the associated disabilities. 47 In paragraph 62 of her witness statement she said that she resigned from her position at Memtec in 1997, and that since then she has been involved in a variety of projects, a number of which have been performed on a voluntary basis. She is not presently employed on a full time basis, but works on a part time basis as a free lance adviser to a variety of companies. She gave little evidence of her earnings from this part time employment. She has difficulties in undertaking her day to day employment due to pain and an inability to commute and attend certain events, and:- "Although I am confident that I will be in a position to continue to work on a part time basis, I am certainly not able to return to employment on a full time basis due to the pain and disability which I suffer. It had been my intention to continue working on a full time basis until age 65." 48 She then said, in paragraph 63:- "It had been my intention to re-commence full time employment in 2000 once both my sons had completed their schooling."

[12]

(b) The Plaintiff's Cross-Examination 50 In cross-examination the plaintiff agreed that she made no complaint of any pain to her back when she first went to hospital on the evening of 2 May 1992. 51 She saw Dr Hameri on 4 May 1992 when she complained that she fell on the vessel on 2 May, that she had sprained her left ankle, which was x-rayed and appeared to Dr Hameri to be "OK", and that she had right thigh numbness. Dr Hameri noted that she was to go overseas in June 1992. 52 Although there is no reference in his notes to a complaint of back pain, which may seem strange, the plaintiff maintained that she mentioned that to Dr Hameri and, in his letter of 6 September 1995, Exhibit E p.80, Dr Hameri stated that on 4 May 1992 the plaintiff complained to him of a sprained left ankle, lower back pain, and numbness in the right thigh. He referred her for a CT Scan and to Dr Seaton. It is unlikely he would have taken either course if there was no complaint of back pain. The defendant's submission, however, was that the complaints of pain were essentially subjective, there being no objective evidence to support them, and that I should not accept the plaintiff's evidence about them. 53 The defendant tendered all of Dr Hameri's notes, he having treated her from about 15 January 1986. These notes show difficulties with the marriage relating back to March 1986: see references to entries on 17 March 1986; 6 August 1986; 23 November 1988; and 20 June 1989. 54 On 10 February 1992 Dr Hameri noted that the plaintiff was suffering from lumbar pain and seeing a chiropractor, Mr Bablis. 55 The plaintiff was cross-examined closely about the treatment she was receiving from Mr Bablis, to whom she returned on 4 May 1992, and she agreed that he had been treating her for a long time for thoracic back pain. She said that so far as she remembered he never treated her for low back pain and, Tp.20:- "Q. What is your recollection? Did he treat you for low back pain prior to 4 May 1992? A. Just back pain. Q. Low back pain? A. I don't remember. Q. You don't remember. Is that your answer, you don't remember? A. Yes, that's my answer." 56 She agreed she saw Dr Sheehy on 27 May 1992, and she said that she told him she had back pain from all the driving she had been doing and:- "Q. Did you not tell Dr Sheehy, on 27 May 1992, that you had low back pain for years? A. I may have, but … Q. Would that have been the truth? A. I had back pain. Q. Would that have been the truth? A. Well, look, I had upper back pain .. Q. Please, would you .. OBJECTION Q. Would it have been the truth that you had told Dr Sheehy that you had low back pain for years? HIS HONOUR: I allow that question. A. No. Q. The answer was no, was it not? A. Yes." 57 At Tp.21 the plaintiff was further cross-examined about what she told Dr Sheehy. She said she did not know that she said to him that she had low back pain and added:- "I had general back pain for years."

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She continued:- "Q. I am suggesting to you that you told him that you had low back pain for years. Now, do you say that you did say that or you didn't say that? A. I may have said that. Q. You may have said that. If you did say that, would it have been the truth? A. It would have been the truth in that the whole back was sore from driving. Q. No, please. I am asking you a specific question about the history that you gave him of low back pain for years. Would that have been the truth? A. Yes. Q. And did you, in truth, have low back pain for years prior to seeing Dr Sheehy? A. I had back pain. Q. Did you have back pain for years prior to seeing Dr Sheehy? A. Not acute back pain. Q. We will get to whether it is acute. But did you have low back pain for years prior to seeing Dr Sheehy? A. Probably just from driving. Q. Probably just from driving? A. Yes." 58 The plaintiff's evidence on this point was most unsatisfactory both in its content and to my observation in the way in which it was given. There can be no doubt on that evidence that she was complaining of "general back pain for years" prior to 2 May 1992, and that she conceded that she had low back pain "probably just from driving" for years prior to seeing Dr Sheehy. It is also necessary to note what Dr Michael Morris discerned from Dr Sheehy's notes to which I shall refer. 59 I have not the slightest doubt that the plaintiff suffered from low back pain prior to the accident on 2 May 1992. That degree of satisfaction is not reduced by Dr Sheehy's report of 28 May 1992 in which he referred to a history of a recent attack "three weeks ago of pain affecting the right anterior thigh with radiation to and just below the knee". He observed that the lumbar CT Scan showed a lateral stenotic process at the L3/4 level and that the combination of disc and bony overgrowth contributed to the problem. 60 The notes of Mr Bablis were tendered by the plaintiff and, together with a transcription, became Exhibit G. He appears to have commenced to treat her in September 1990 and, at Tpp.22-23:- "HIS HONOUR: Q. Tell me this. Where was the pain in respect of which you consulted Mr Bablis? A. It's generally in the thoracic area and it was in the low back. It was only occasionally when I had a long drive to Windsor and back for a couple of years, but I didn't go to Mr Branson - sorry, Mr Bablis .. HIS HONOUR: Don't worry. I think that answers the question I asked. WITNESS: It was not acute. HIS HONOUR: What was not acute the thoracic pain or the … A. The pain was not acute. It was just to keep me well. He was simply someone who manipulated and massaged. STITT: Q. He manipulated your lumbar spine on a number of occasions, your low back spine, on a number of occasions, did he not? A. Yes, all my back. Q. I am asking you about the lumbar? A. The back, yes, the lumbar, yes. Q. On a number of occasions prior to May 1992? A. Yes, only a number of occasions." 61 The plaintiff placed reliance on the evidence of Dr Sheehy and Dr Garrick, who wrote a report on 28 October 1992, Exhibit E pp.76-77, a copy of which he sent to Dr Sheehy and Ms Key. 62 Dr Garrick reported that the plaintiff had a substantial right L4 radiculopathy related to a lateral disc lesion resulting from a fall in May 1992. He said she had a fairly protracted course of conservative management with only partial resolution of discomfort, and that some of the delay in seeking more active treatment may have related to an incorrect report that the CT Scan stated that the L3/4 disc appeared normal. He said that was quite wrong as there was "a clear lateral disc bulge encroaching on the nerve root". 63 Dr Garrick said that the plaintiff was quite well until the fall. He referred to her overseas trip with which she coped "with some difficulty and needed acupuncture treatment while away". He said that the backache had substantially subsided, but there was continuing buttock, knee and anterior thigh pain, and intermittent paraesthesia over the lateral aspect of the right leg and difficulty with walking. He continued:- "General health has been relatively unremarkable. She has a long history of minor thoracic pain from late childhood. NSAID treatment for this produced a duodenal ulcer. She now tolerates Naprosin suppositories with Tagamet cover." 64 Dr Garrick expressed the view that it was likely that her fall produced disc rupture "in a previously normal back". He thought she was wasting her time pursuing further conservative management and recommended a lumbar myelography with post myelogram CT Scans to outline the nerve root. He strongly considered surgical decompression. 65 The fact that a copy of his letter was sent to Ms Key provides some evidence that she had treated her in relation to the problems she experienced after the accident. Probably it was this treatment, which caused the backache to substantially subside by October 1992. 66 The difficulty, and I say this with no disrespect to Dr Garrick, is that he apparently received a history of a basically symptom free back prior to the accident. He knew there was a long history of minor thoracic pain, but he does not appear to have been aware that the plaintiff had been receiving treatment for back pain for some time prior to the accident. 67 The plaintiff saw Professor Jones on behalf of the defendant on 11 February 1998. He recorded that she stated that her back and left ankle were normal prior to May 1992 and, after tracing her history, he referred to the history of accident and injuries. He recorded that "over the last twelve months she has been satisfactory" subject to an exception, which he stated. He examined her and noted a history of injuring her left ankle and subsequently sustaining back pain with radiation into her right leg. He was of the view, as at the date he examined her, that:- ".. there is a mild back impairment on physical examination being about 10% reduction in normal back function and otherwise her symptoms are subjective. No evidence of neurological impairment could be found and there was no suggestion on clinical examination of nerve root involvement causing muscle weakness or loss of sensation. The neurological examination of her lower limbs was normal, there was no loss of power and no loss of sensation. It is my view that Ms Mathews is independent in personal care and in the activities of daily living. There have been many issues affecting her vocational status. She is a highly trained person in the media and in advertising, and her career speaks for itself." 68 Professor Jones expressed the view that:- "… she will ultimately succeed in her chosen career and that this should be on the basis of full time employment to the extent which she was performing prior to the accident, although she would presumably move from activity to activity as has been her wont through years past. I am not in a position at this time to indicate any direct nexus between an intervertebral disc impairment and the incident of May 1992, as I have not been privy to any sophisticated imaging scans. Should an opinion be required then I would request those data." 69 Professor Jones provided another report after receiving further information. He said that the plaintiff had emphasised to him that her back and left ankle were normal prior to May 1992, but he noted that the further information showed stress situations prior to that event and a report evidencing a CT Scan showing a lateral stenotic process at L3/4. 70 He continued:- "This would suggest a pre-existing degenerative condition with stenosis and involvement of perhaps a root canal by bony overgrowth. This may be a substantial contributing factor to her earlier history of referred pain and probable muscle weakness. I indicated my views as to hands on therapies suggesting that such treatments were neither indicated nor would they improve her situation and in fact may be dangerous." 71 In cross-examination the plaintiff said that she thought she remembered telling Professor Jones that her back was normal prior to May 1992. It was put to her that that was not accurate and she said:- "A. It was not in bad shape, it was just not great. It wasn't acute. Q. But it wasn't normal, was it? A. It is relative." 72 She was nextly asked about a history she gave Dr Davis, whose report appears at p.85 of Exhibit E. Her history to Dr Davis included that she was unaware of any general health problems "and denied any significant musculo skeletal injuries in the past. In particular she denied any symptoms affecting her back, neck or limbs". It was put to Mrs Mathews that this history was not true and she gave evidence, at Tpp.25-26, in which she sought to say that she was not suffering from pain but stiffness. 73 I have already stated that in my view the evidence has established that the plaintiff was suffering from pain in her back, including her low back, well prior to May 1992 for which she was receiving treatment from Mr Bablis. The objective evidence explained the reason for this. Her history to the doctors that she was not suffering from such pain cannot be accepted and, indeed, her case was conducted on the basis that the fall of 2 May 1992 constituted an aggravation and exacerbation of the pre-existing back condition. The difficulty in this case is to try to sort out the extent to which she suffered pain and problems as a consequence of that aggravation and exacerbation over and above that which she was previously suffering. This difficulty is caused by the problem in accepting her subjective complaints of pain. That difficulty is added to by the fact that Ms Key, who, I am satisfied, treated her after the accident, reported that she was asymptomatic until her trip overseas in 1995. As I have noted Dr Garrick was given a history that the back pain had substantially subsided by October 1992. 74 It is to be noted that Dr Davis expressed the view, p.88 of Exhibit E, that:- "Mrs Mathews is quite evidently a highly motivated person who will continue to work in her chosen profession despite expected and documented aggravation with travel and unsustained postures. Her domestic responsibilities are resulting in a degree of aggravation and I believe that she should have paid domestic assistance of 4 to 6 hours per week to undertake all of the heavy or forceful work. Her injury has now stabilised and her prognosis is for continuing difficulties." 75 The plaintiff also relied upon two reports of Dr Michael Morris, who saw the plaintiff on behalf of the defendant. Mr Branson informed me, without objection, that the plaintiff had re-served Dr Morris' reports on the defendant. He saw her firstly on 20 June 1998, and she gave him a history that she used to get some higher level back pain when she drove, for which she received some physiotherapy and chiropractic treatment from Mr Bablis. Dr Morris did not see the MRI or CT Scan and set out the history he received. He considered that the plaintiff had a "surprisingly full range of lumbar spinal movement and makes no evident attempt to embellish her disability; she stated that the back is quite good to-day and has been much better since being on Prednisone". 76 In his diagnosis Dr Morris expressed the view that it would be of significance to ascertain the level and kind of systems she had prior to the May 1992 incident, and he strongly recommended that the reports be obtained from those who had treated her, including Dr Hameri. He continued:- "However, unless there is clear evidence of pre-existing sciatica, on the face of it it seems likely that she became aware of it within a day or so of the fall, and it has persisted intermittently since. The account she gives is certainly suggestive of nerve root irritation, which is characteristically intermittent, and she does have some neurological evidence in the form of a depressed right knee jerk." 77 He offered certain other opinions as to her condition and, in relation to her fitness for work, said that she was fit to continue "her present work as a public relations consultant and likely to remain so". 78 He concluded:- "On the evidence so far available, and with the reservations set out above, it certainly seems at least likely that this lady either caused or suffered a significant aggravation of a disc prolapse, leading to right L4 distribution sciatica as a result of a fall in 1992. It also seems likely that a separate problem arose as a result of the fall in Tenterfield in 1996 which may however have been due in part to instability of her left ankle, which in turn may date from 1992 also. The problem with the right wrist is clearly a result of a fall in 1996, but again may link indirectly to instability of the left ankle, and I presume the links there would be a matter for legal rather than medical argument." 79 On 21 September 1999 Dr Morris furnished a supplementary report. In that report he stated:- "Dr Sheehy's report however and handwritten notes are of considerable importance and significance; on my reading of his handwritten notes of 27/5/92 it says back and leg pain; LBP for years (presumably low back pain), thoracic muscle biopsied. Two years driving to Windsor each day. Two week sprains left ankle."

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These are the notes of Dr Sheehy to which I have referred. 80 In relation to the chiropractic notes, Dr Morris thought they were of "doubtful value". He said he did not know how definite a conclusion could be reached on the strength of them, but he assumed that a legal argument could be advanced that the fall aggravated whatever her situation may have been. He continued:- "Having looked at the chiropractic notes and the translation by John Kelly, it is I think a reasonable conclusion that she has had prior low back pain despite her denials but I do not know how much further one could take the matter than that. I wonder whether her GP Dr Hameri might have notes as to whether she made any reference to the claimed fall at the time that she saw him. The situation therefore in response to your additional questions are that I do not know that any of this makes matters any clearer than they were originally and therefore I think the conclusions under the heading of "Attributability" such as they are, stand unaltered except that there is certainly a doubt that has been raised as to the link between claimed exacerbation of back pains and the fall on board the ship." 81 Dr John Matheson examined the plaintiff on behalf of the defendant. He is a consultant neurosurgeon, who examined her in August 1998. He concluded:- "To put this matter into context she has had what can only be described as a relatively minor fall with a possible lateral ligament tear to the ankle, although that is best judged by orthopaedic surgeons. There is no reason why this fall going forwards and on to her sides should produce a back injury at all. Indeed, there is no evidence that she has got a significant injury from that event. What is clear is that she has an hysterical personality disorder and that this is a somatised story with a whole lot of complaints that clearly have no basis in physical reality. She may or may not have some minor back pain of longstanding. I cannot tell that. From what I can see there is on evidence that she has any sciatica and she certainly has no neurological disability whatsoever and no back disability to examination. It is my view that this is a contrived disorder and that she has no injury as far as her back is concerned from the incident of 2 May 1992." 82 In cross-examination, Tp.46, Dr Matheson expressed the view that the plaintiff was imagining the disorder and describing symptoms in emotional and not physical terms, but he said he was not suggesting that she had no physical symptoms whatsoever. He considered that the various scans showed that her back was normal and that the discs were normal, but he denied that the type of fall the plaintiff suffered was likely to have injured her back. He said falls of that nature cause either broken wrists or femurs. 83 Dr Douglas Seaton gave two reports: Exhibit E pp.81 and 131. He first saw the plaintiff on 20 September 1996. It is interesting to note that in recording the history he said:- "She did have a large amount of physiotherapy including traction and manipulation, and she did have financial deprivation because she was only employed by her company one day per week instead of full time."

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88 At p.131 Dr Seaton gave a further report in which he dealt with the accident at Tenterfield. He said that the plaintiff gave a history of having tripped on uneven ground and her left ankle gave way causing her to land on her right wrist and break it. Mr Stitt was critical of this history in the light of the plaintiff's evidence that the left ankle gave way, although I do not think this criticism is justified. Dr Seaton concluded that "all her injuries that she has sustained are a direct result of the fall that occurred when she was on artificial grass when she tripped on a stair when visiting a naval craft". He added that "quite definitely the injury to the right wrist, which is a very severe one, is directly related to the injury that occurred on the naval ship ..". 89 The plaintiff's case was supported by the evidence of her son Benjamin and Shana Bellin, whose witness statements appear at pp.370 and 372 respectively of Exhibit E. Neither was required for cross-examination. I should also mention that the only doctor required for cross-examination was Dr Matheson. 90 Her son stated that he recalled his parents returning home on the night of the accident and several incidents when she appeared to suffer substantial pain. In paragraphs 7 and 8 he said:- "7. Since the accident my mother has been more emotional, more emotionally unwell and physically unwell. I have observed her reach for something and then shout out in pain. I have observed her driving the car and complained of pain. She does not cook as much now either. Mum requires a lot more assistance and I assist her, as do other people. I have been asked to carry things for her, bend over and pick up things, carry her suitcase, carry the filtered water bottles, and reach things in the frig for her. I have observed my mother on the floor screaming in pain in my brother's room with a bag of frozen peas behind her back. I also recall her not being able to attend a school event and she was shaking and looked in pain. Recently my mother came to pick up my brother from my father's house. My mother broke down in terrible pain at that time. 8. Mum appears a lot more stressed and anxious as a result of the accidents. She doesn't play tennis, she still swims, and has put on a lot more weight. I have observed Mum's ankle give way at a church service and walking down the sidewalk. She's very careful and has grabbed me due to the instability of her ankle. My mother is home a lot more than she used to be. I am with her three to four days a week at her home." 91 Ms Bellin stated that she has known the plaintiff since 1988. She observed the plaintiff both before and after the accident, and has seen, since May 1992, the plaintiff "in excruciating pain and crying on occasions". She said that she noticed the plaintiff was transformed "from a young, fit and active person to a person who moves slowly, gained weight and had different colouring. She does not look well". 92 She has seen the plaintiff in extreme pain, crying and appearing to be unable to move. She concluded:- "I have also observed that Fiona is more unhappy since the accident. When she is emotional, she does not seem to have the resources to handle it and breaks down a lot more than she used to. I recall on one occasion Fiona attended the course I held and I noticed she was in pain. She was limping. I asked her, 'What is wrong?' She said to me 'I've fallen on an aircraft carrier and injured myself'. She could barely talk without crying from the pain on this occasion." 93 The plaintiff also makes a claim for a psychiatric injury. Initially this was not pursued, but towards the end of his submissions Mr Branson said that having noticed what was said by Dr Strum, he withdrew the concession that she did not claim to have a recognisable and defined psychiatric injury. 94 Originally the plaintiff was seen by Dr Dent. It was not pursuant to anything Dr Dent assessed that led to the change in the attitude to the case. Dr Strum, in his report of 26 August 1999, said:- "At the time of interview Mrs Mathews said that she continued to be anxious but she was optimistic and motivated. Her main worry was having another fall and re-injuring her arm. Her appetite and sleep were intact although, at times, pain in her hand would disturb her sleep. Her sexual drive had improved. She said that her anxiety and depression depended on her physical state of well-being. There were no nightmares, flashes or panic attacks. She was mixing well with people." 95 Towards the end of his report Dr Strum referred to various stressors in the plaintiff's life and, at p.9, continued:- "Mrs Mathews first developed psychiatric symptoms in 1992 and has experienced bouts of similar symptoms ever since. The symptoms she described are those of Adjustment Disorder with Anxiety and Depressed Mood (DSM-IV-309.28). The symptoms have fluctuated. There have been appetite and sleep disturbances. At times she over eats and at times she suffers from anorexia. Her insomnia and early morning wakening is caused by anxiety as well as pain. There have been suicidal thoughts at times. Her motivation, depressed mood and libido has tended to fluctuate. Mrs Mathews symptoms are, at times, severe enough to warrant a diagnosis of Major Depression (DSM-IV-296.3). However a diagnosis of Adjustment Disorder with Anxiety and Depressed Mood (DSM-IV-309.28) seems preferable because her symptoms are related to pain and disability." 96 Dr Strum expressed the view that the plaintiff had gone from being a competent person, working in a high pressure job, to only being able to do part-time work, and stated that her illness "is now intermittent". It does not appear that he was aware that she had agreed to part time work at Memtec from 1 January 1992, nor that she did not intend to return to full time work until either 2000 or 2005. He thought there would be further episodes and the prognosis was guarded. He did not expect a complete recovery even with medication, coping strategies and meditation. 97 The plaintiff was examined by a psychiatrist, Dr Champion, on behalf of the defendant. Dr Champion said that the plaintiff gave no history to suggest that her claimed pain and suffering and disability had produced psychological distress or psychiatric disorder and there was no history of her having received treatment in this regard. He concluded:- "From a psychiatric viewpoint therefore, currently there is no indication of psychiatric disorder. There is no history of psychiatric disorder prior to or following the injury and she has not received treatment for any form of psychiatric disorder. Her activities and range of interests, as well as her presentation are consistent with the view that Ms Mathews does not suffer with any psychiatric disorder." 98 Dr Dent's report is helpful in that he seems to identify that the plaintiff received treatment from Ms Key after the accident. At p.5 of his report, Dr Dent said that the plaintiff had suffered no depression since she had learnt to meditate as a coping mechanism "and has used this for a very long time". As best as I understand the balance of his report he does not identify any recognisable psychiatric illness.

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Conclusions 99 The first conclusion to which I have come is that the plaintiff is a very poor historian. She was clearly incorrect in her evidence that she met the greeting line prior to her accident. She did not reveal to a number of doctors that she had any problem with her back prior to the incident of 2 May 1992. She did not reveal to Dr Seaton that by the time of the accident she was only working one day per week. She did not reveal that after being treated by Ms Key until mid-1995 she had been asymptomatic. In addition to her problems so far as the history is concerned I formed the clear impression that the plaintiff was seeking to avoid answering questions in cross-examination about any back problem prior to the accident of May 1992 in so far as it related to her low back. 100 When all these matters are put together I have great difficulty in accepting her subjective evidence of pain and, therefore, in assessing the extent to which the plaintiff aggravated or exacerbated her undoubtedly existing back condition as a result of the fall. This is made the harder when it is borne in mind that she was seeing Mr Bablis for treatment to her back in February 1992. 101 I think it is necessary to make the finding, which I am satisfied should be made, that the plaintiff's evidence was unsatisfactory in relation to any problems from which she is suffering with her back and, in so far as she sought to avoid questions in cross-examination as to the extent of her previous problems, I do not consider that she was being truthful. Further, there is the evidence of Ms Key of the lack of symptoms until 1995, and there is the evidence of numerous trips overseas, which are hardly consistent with a person suffering to the extent which the plaintiff maintained. There is also the evidence of Dr Garrick that the back pain had substantially subsided by October 1992. 102 I think I should say a little more about the report from Ms Key. It was not raised until late in Mr Stitt's address. Mr Branson did not refer to it until the conclusion of his address, when I invited his comments on it. He said it was a report he would like to withdraw, although he did not seek leave to do so. There were agreed out-of-pocket expenses to the date of trial and, in the submissions made there is a claim for $1,764 for "Edgecliff Physiotherapy". Ms Key operated under the name of Edgecliff Physiotherapy Sports & Spinal Centre. When I add that matter to other matters, such as the plaintiff's reference to her, to Dr Garrick's having sent a copy of his report to her, and to the history she gave Dr Dent, I am satisfied that Ms Key treated the plaintiff after the incident in May 1992. I am also satisfied by Dr Garrick's report that by October 1992 that treatment had been essentially successful. Thereafter, according to Ms Key, the back remained asymptomatic until mid-1995 after the lengthy trip overseas, it being conceded by Mr Branson that the trip commencing on 4 June 1995 was the trip undertaken before the plaintiff again saw Ms Key. 103 It seems to me that the proper inference to draw from the evidence is that the fall did cause an exacerbation or aggravation of the pre-existing spinal problems; that this necessitated extensive treatment from Ms Key; but that there was a very substantial recovery from the aggravation or exacerbation by October 1992. 104 In all the circumstances I am not able to relate the problems for which she consulted Ms Key in mid-1995 to the aggravation or exacerbation of the original injury. That, in my opinion, was spent. The plaintiff has not satisfied me that the problems in 1995 were the consequence of the accident on 2 May 1992 rather than the pre-existing condition. In the result, I am of the opinion that such pain and suffering as should be attributed to the aggravation and exacerbation should be for a closed period to October 1992. 105 The next matter to which consideration has to be given is the fracture to the right wrist. There is no doubt that prior to the incident of 2 May 1992 the plaintiff had no problem with her left ankle. The medical evidence is that the sprain of that ankle led to its becoming weaker and liable to "give", and supports the view that there is a causal relationship between her weakened left ankle and her fall in the forest. I have noted Mr Stitt's criticism of the history, although in this regard I do not think that is justified. The evidence of a causal connection is also supported by Dr Waller and Dr Harper. 106 In the result the injury to the plaintiff's right wrist, with the consequences that imposed, are causally related to the accident.

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Damages For Pain And Suffering 107 So far as pain and suffering are concerned, I am of the view that the appropriate amount to award the plaintiff both in respect of the closed period for her back and for her wrist is $40,000. As the period in respect of the back is a closed one, and as she did not injure her wrist until August 1997, that being the major component of her pain and suffering, I should attribute one third to the past or, to round the figure off, $14,000, and two thirds, namely $26,000, to the future. Interest on $14,000 at 2 per centum per annum for 7.5 years is $2,100, making the total award for general damages $42,100. 108 It is to be noted that the plaintiff's claim for out-of-pocket expenses has been agreed, on the basis that if I find that only her back, neck, ankle "etc" were involved, at $2,290, to which sum, if I find that her wrist is attributable to the accident, is to be added the sum of $6,215. Therefore the out-of-pocket expenses are agreed at $8,505. The evidence does not establish the components of these figures, but figures are set out in the written submissions, which particularise the past out-of-pocket expenses at $8,694.20 "together with any amounts payable to the Health Insurance Commission". 109 The plaintiff has made a claim for future out-of-pocket expenses of $71,063.31 plus future surgery costs. The claim proceeds upon the basis of 15 sessions of physiotherapy per annum at $50 per session; 18 sessions of remedial massage at $80 per session; 2 consultations with a general practitioner per annum of $1,592.70; 2 consultations per annum with a specialist of $6,887.38; and various other expenses such as a psychologist for 18 months at $100 per fortnight. Whilst there is an evidentiary basis for most of these expenses, they appear to relate to the back for which I do not think she is entitled to further compensation. 110 It appears that the plaintiff will need further treatment in respect of her wrist, at least to remove the plate, but in the absence of evidence as to the possible cost, it is very difficult to award her any amount. However, and perhaps I will be criticised for being speculative, I propose to allow $1,500 for the procedure as a future out-of-pocket expense. 111 So far as past out-of-pocket expenses are concerned the submission is that the plaintiff has paid $4,778.85 and claims interest on that amount at 8 per centum per annum for 7.5 years, which amounts to $2,871. I am prepared to allow that amount, although there is a discrepancy between the total amount claimed in the submissions and the agreed figure of $8,505. However, in the overall context of this verdict, I do not think that is a matter about which I should be concerned further. Accordingly, for past and present out-of-pocket expenses I allow $8,505, $1,500 and interest of $2,871, a total of $12,876.

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Past Wage Loss 113 Normally, in respect of past wage loss there is evidence of the amount the plaintiff was earning prior to the accident, the period for which she was not earning as a consequence of the accident and an assessment, based on those matters, of the loss suffered to the date of trial. In the case of an employee it is generally not a difficult task. In the case of a self-employed person it can be proved by a comparison of pre and post accident earnings. In the present case it is known that the plaintiff had agreed to work one day per week for Memtec for $10,000 per annum together with some fringe benefits. The plaintiff had previously been employed on a full time basis on the terms to which I have referred. The plaintiff said that after her injury the chairman of Memtec was supportive and understanding and tried to accommodate her disability. She has given no evidence of the period she was absent from her employment. Rather, her evidence is that she travelled overseas in the course of her employment for 24 days from 3 June 1992. Prima facie, and I say that because there is no evidence to otherwise explain the matter, that would account for 24 of the 52 days per annum she was to work for Memtec. 114 She made no further reference to her employment until paragraph 43 of her statement, in which she stated that in 1997 she resigned from Memtec for the reasons to which I have referred. 115 She gave no evidence that she agreed to work for only one day for Memtec so that she could undertake other employment, nor did she give any evidence as to any other employment she undertook and, in paragraph 62, she has stated that since resigning from Memtec she has been involved in a variety of projects, a number of which have been performed on a voluntary basis. She continued:- "At present I am not employed on a full-time basis and work on a part-time basis as a freelance adviser to a variety of companies. I have difficulties in undertaking my day to day employment due to my pain and my inability to commute to attending at certain events as I am unable to judge at what time I will suffer from pain and disability. Although I am confident that I will be in a position to continue to work on a part-time basis, I am certainly not able to return to employment on a full-time basis due to the pain and disability which I suffer." 116 She stated that it had been her intention to work on a full time basis until she was 65 years of age and to re-commence "full time employment in 2000 once both my sons had completed their schooling". Her history to her accountant was that she may not have done so until 2005. 117 There is no evidence as to what was involved in the business trips commencing on 10 June 1993, 1 June 1994, 4 June 1995 and 20 June 1997. The plaintiff has sought to erect a case for past economic loss and future loss of earning capacity on the basis of a report from accountants, Dolman Bateman & Co Pty Limited. 118 After a general introductory comment the author dealt with the plaintiff's pre-accident capacity, noting that the plaintiff had advised that she worked very long hours as a public relations officer and as the President of National Greenhouse Action Australia, and that her commitments involved a lot of travel, both locally between her home and Windsor and overseas. The author then turned to post-accident capacity and stated that as a result of her disabilities the plaintiff has reduced her working hours considerably. The report continued:- "She is currently trying to establish her own consultancy, specialising in international and industrial media relations and lobbying with an emphasis on environmental policies and issues. She has advised that she can cope with intermittent work as she can rest periodically. Due to the spasmodic nature of her health and back pain, she now lacks the confidence to commit and perform on certain projects. She now finds travelling, whether by car or any other mode of transport, very painful." 119 Whilst these may be the complaints the plaintiff made, I am not satisfied that any pain in her back referable to the accident continued after October 1992. In any event, and more relevantly for present purposes, the plaintiff gave no evidence of work she did not undertake. Nor, at an evidentiary level, was an attempt made to erect any specific case for past wage loss on that basis. 120 In relation to her ability to drive she said, Tp.29, that she does drive, and she drives normally unless she is having "an acute phase": Tp.30. She said she has a Volvo motor car which she drives every day without any difficulty. This would seem to negate her history that she finds travelling by car very painful, and her frequent trips overseas for lengthy periods would seem to negate the suggestion that she finds travelling "very painful". 121 The report then goes on to deal with past economic loss from 2 May 1992 to 31 October 1997, which is calculated at $126,657. A subsequent report to 1 September 1999 updates the figure to $172,133. It is stated that the plaintiff's post-accident restrictions, which have impacted directly on her income, "allegedly involve" that she finds it difficult to travel; that she advised that she feels unreliable and is not always able to work as a result of her pain and needs to rest periodically; and that she has lost the confidence to be able to commit to some projects. 122 The method of calculation of past economic loss is by taking probable earnings, as calculated at pp.8 to 12, of $233,045, deducting therefrom actual earnings of $106,388, as calculated at pp.13 to 14 and coming up with the first loss figure to which I have referred. 123 The schedule of probable earnings commences by taking net earnings of $655 weekly with Memtec. However, it is noted that during the 1992 financial year she reduced her work hours and that she had advised that she planned to work one to two days per week for Memtec and two to three days in similar employment, reverting back to full time employment when her children were older "possibly around 2005". Reference is then made to the fringe benefits of a motor vehicle, and home and mobile telephones from Memtec. There was no evidence of what she expected to earn from her employment other than with Memtec. 124 She commenced working for Memtec on 2 April 1990 and, from then to 30 June 1990, she received a gross salary of $12,671.54 on which she paid tax of $4,359.70. This, according to her income tax return, was her only income. In the following financial year, i.e. the financial year ended 30 June 1991, her income tax return shows gross earnings from Memtec of $46,295.24 on which she paid income tax of $14,640.52. 125 For the financial year ended 30 June 1992, which was the year in which she reduced the amount of her income by the variation to her contract and also suffered the injury, her only income was from Memtec, as disclosed by the income tax return in evidence. Her gross income was $31,741.48 on which she paid tax of $9,261. 126 In the next financial year her only disclosed income was from Memtec, the gross amount being $10,000 on which she paid $990.34 by way of tax. This was the figure she had agreed to receive pursuant to the variation. In the financial year ended 30 June 1994 her only disclosed income was from Memtec, the gross amount being $11,379 on which she paid tax of $1,389.90. 127 The next income tax return is for the year ended 30 June 1996 in which year she received a gross amount from Memtec of $11,409. She also received interest of $832, a net capital gain of $1,909 and a small share dividend, giving a total assessable income of $14,743 on which she paid tax of $1,275.19. 128 By letter dated 14 October 1997 Memtec provided information as to the amount paid to the plaintiff for her mobile and home telephones and, on 3 September 1998, the successor of Memtec set out the amounts paid to her on a gross and net basis. The amounts for 1995 and 1997 were, gross, $12,838.52 and $14,642, and net $11,427 and $13,223. The car value for each year, save for 1997, was shown, and it was stated that an 8% superannuation contribution, calculated on gross, was made on the plaintiff's behalf throughout her employment. 129 In my opinion, before the Court could award any further amount for the plaintiff's past loss of earnings, it would be necessary for her to prove what attempts she had made to obtain other work and her inability, in consequence of the injuries resulting from the accident, to undertake such work. The plaintiff proffered no evidence in support of these matters, which would allow any calculation to be made, and there is no evidence of what moneys she has earned "on a part time basis as a freelance adviser to a variety of companies", save for the financial year ended 30 June 1999. There is no evidence at all as to her earnings for the financial year ended 30 June 1998. The accountant's report for the financial year ended 30 June 1999 states that she earned $24,268 gross, of which $18,000 came from Memtec's successor, and $19,638 net. She gave no evidence that she refused any work for that period and, as I have said, her evidence is that she did not intend, at least until the year 2000, to return to full time employment. 130 In these circumstances the plaintiff has completely failed to satisfy me that she has lost any income. There is no evidence that whilst she was employed by Memtec she lost any of the income for which she had contracted, in which I include the benefits for car and telephone. In these circumstances, I do not consider that she is entitled to any amount for past economic loss. Similarly, so far as superannuation is concerned there is no suggestion that the plaintiff was not paid the amount of superannuation to which she was entitled or that it was not credited to an account for her benefit. The assumption the accountant made in respect of superannuation seems to be that she would be entitled to it working on a free-lance or part time basis. This assumption has not been established.

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It was then noted that the plaintiff had, at the date of the accident, intended to revert to full time employment in about the year 2005, which would tend to indicate that she was going to accept far less employment in the intervening period. The report stated:- "Thus, the current loss which is based on probable earnings of four days work per week only applies to 31/12/2004. As from 01/01/2005, the future loss should be based on probable earnings of five days work per week." 132 The first calculation carried out is for the period 1 November 1997 to 31 December 2004, it being stated that the plaintiff's current net weekly loss is $854. This is said to be based on probable earnings of a salary of $807 per week, which is an indexed amount commencing with $721 per week, as I understand it, for the period 2 May 1992 to 30 June 1992. Thereafter the figure is indexed each year to reach the figure of $807 per week. In my view, and with great respect to the author of the report, this is a fanciful way of seeking to assess the income. It is fanciful, because there was no evidence that this is the amount the plaintiff would have been earning, or would have continued to earn. This figure could only be justified, if at all, if she had not varied her contract with Memtec, or if she proved what she could have earned. The same exercise is then carried through for the balance of the plaintiff's assumed working life. 133 Before one comes to deal with the vicissitudes, it is necessary to look at the realities. The plaintiff has only proved that she received certain amounts from Memtec, save to the extent I have noted. She has not proved that she received any other amounts, nor has she proved that she received any income for the 1998 financial year, nor has she proved what work opportunities are available in her field and the amount she might expect to be remunerated in respect of them. 134 The accountant then took the figures to 1 September 1999 for past economic loss and calculated $172,133 and re-calculated loss of earning capacity at $379,615. These figures are also, in my opinion, infected with the same error as the previously calculated figures. Whilst the plaintiff's written submissions maintained these to be the figures for loss of future earning capacity Mr Branson, in his final submissions, submitted that the plaintiff's loss was $640 per week, but that one should allow $300 net per week and apply 25% for vicissitudes on the basis of his concession that the plaintiff had "a significant pre-existing disability, but one which had not been productive of loss of earning capacity". 135 I regret that I cannot give effect to these figures for the plaintiff's loss of earning capacity. I cannot do so because, in my opinion, the plaintiff has simply failed to prove the relevant amounts. She has failed to prove what amount, uninjured, she would have earned. 136 The preponderance of the evidence, and the evidence which I accept, is that the plaintiff will be able to obtain employment. The evidence of Professor Jones, Dr Davis and Dr Morris supports this and is in accordance with the probabilities and Mr Branson's concession to which I have just referred. Indeed, for all I know, the plaintiff is now deriving income from employment, which is consistent with her earnings for the last financial year. She certainly did not say she was not, and her evidence was that she was doing certain work on a part time basis. Her evidence was, further, that she intended to return to work on a full time basis either, if one accepts her witness statement, in 2000, or if one accepts what she apparently told the accountants, in the year 2005. 137 For all these reasons it seems to me that the Court cannot simply speculate as to an amount the plaintiff may have lost. She has simply failed to prove the amount she has lost. All I can say for certain is that she has been earning certain amounts. However, I cannot take these amounts, having regard to the circumstances in which she ceased her employment with Memtec, as the upper limit of her future earning capacity and, even if I could, I would still have to know what amount should be deducted from it to reach her real loss, i.e. the expenses she would incur in carrying on her own business. 138 The plaintiff, I think, in the circumstances of this case, is entitled to some amount as a buffer against any future downturn in her employment by virtue of her wrist injury and for the period she will be unable to work when she has the further operation. However, in my view, this should be a small amount, which I assess at $60 per week which, on the 3% Tables for fifteen years, is $37,932. Whilst Mr Branson conceded that the amount for loss of future earnings had to be reduced by 25 per cent to take account of the vicissitudes obtaining in this case, that was not in the context of a "buffer" amount, to which I propose to apply the usual rate of 15 per cent. The amount I award for loss of future earning capacity is, accordingly, $37,932 reduced by 15 per cent, i.e. $32,242.20.

[24]

The Griffiths v Kerkemeyer Claim 139 The plaintiff claims damages pursuant to the principles in Griffiths v Kerkemeyer (1977) 139 CLR 161. The first basis upon which the claim is made is care to the date of the hearing, being for domestic care of six hours per week from 2 May 1992 to the date of trial at $19 per hour. The difficulty I have with this claim is that it assumes that for the total period the plaintiff was entitled to that degree of care. The claim is made, essentially, in relation to her back injury. As I have found I am satisfied that that, in so far as it was a matter for which the defendant was responsible, had resolved by October 1992, a period of approximately 184 days from which, in my opinion, one would have to deduct the 24 days that the plaintiff was away on business. I would, accordingly, allow 160 days, or 23 weeks, there being some evidence sufficient to satisfy me that during that period the plaintiff was in receipt of assistance for which such a claim would run. 140 So far as the wrist is concerned it is very difficult to come to any real view on this matter because nothing is suggested as to the time involved in that particular operation and the recovery from it. The evidence of Dr Waller is that the plaintiff underwent an open reduction and internal fixation of the fracture of the right radius on 25 August 1997. She was reviewed on 4 September 1997 when the plaster and the sutures were removed and thereafter she underwent physiotherapy. She was reviewed again on 30 October 1997. Since then Dr Waller has not seen her in consultation, but he understands that her left ankle is still causing some problems. 141 Dr Waller said that the plaintiff may require further treatment to her right wrist in the future, and that at some stage she will require removal of the fixation plate and screws. I have dealt with this. He considered that she had lost 30 per cent permanent loss of efficient use of the right arm below the elbow. 142 It would seem, at most, that the plaintiff required a further 15 weeks when a Griffiths v Kerkemeyer type claim could apply, making a total of 38 weeks. She has made a claim at the rate of 6 hours per week which, for 38 weeks, amounts to 228 hours at $19 per hour, which equals $4,332. It did not seem to be in issue that she was entitled to interest on that amount at the rate of 3%, although it would not be appropriate to allow the full 7.5 years. Doing the best I can I would allow interest for 4 years, which would amount to $520. The total award under this heading is, accordingly, $4,852. 143 The plaintiff has not satisfied me that she is entitled to any future amount under this heading. Ms Henry has provided a detailed report, which seems to be directed mainly to the problem with her back. However, she has not established any specific needs, under this heading, for damages referable to the wrist.

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Mathews v USDD

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (87 paragraphs)

Parties

Cases Cited (4)

Cited By (1)