McGlen-McLeod v Galloway

District Court of NSW|2011-10-11|Before: Ipp J, Piqr P

Judgment 1The plaintiff, by statement of claim filed on 18 December 2009, seeks damages for negligence arising out of the circumstances in which she suffered injury falling through a rotten floorboard in the veranda of the house which she and her family were renting. The subject premises in question is at 2/489 Valery Road, Valery in the State of New South Wales and the defendants are the owners of these premises. Liability is admitted and the contested issues for determination include causation and the quantum of damages. 2In the statement of claim as filed on 18 December 2009, the plaintiff pleaded that she suffered the following injuries: (a)Injury to the left leg; (b)Injury to the left arm; (c)Injury to the left wrist; (d)Dislocation of the left thumb; (e)Injury to the right leg; (f)Nerve damage in the right leg; (g)Injury to the right heel bone; (h)Injury to the right arm; (i)General bodily laceration; (j)Injury to the lumbar spine; (k)Injury to the thoracic spine; (l)Injury to the cervical spine; (m)Shock; and, (n)General bodily and psychological trauma. 3In the Further Amended Statement of Particulars filed on 14 March 2011, the plaintiff revised her particulars of injuries as follows: (a)Chondromalacia patellae of the right knee associated with a tendency towards dislocation of the patella; (b)Injury to the left leg; (c)Injury to the left arm; (d)Injury to the left wrist; (e)Dorsiflexion injury to the left hand; (f)Injury to the right leg; (g)Injury to the right heel bone; (h)Injury to the right arm; (i)Injury to the lumbar spine; (j)Injury to the thoracic spine; (k)Injury to the cervical spine; (l)Dislocation of the left thumb; (m)General bodily lacerations; (n)Nerve damage in the right leg; (o)Shock; and, (p)General bodily and psychological trauma. 4There are significant differences between the plaintiff's account of the nature and extent of her injuries and those noted in the contemporaneous hospital documents.

The circumstances of the plaintiff's injury 5The plaintiff went onto the veranda on 28 May 2008 at 10:00pm after it began to rain, in order to bring in the washing. Two of the floorboards on the verandah, which had rotted in the part she trod on, gave way, causing her to fall into the gap, which was sufficiently narrow to prevent her falling right through. 6The plaintiff was not able to obtain medical assistance at that hour of the night as there was flooding along the roads, but the next morning her partner drove her to the emergency department of the Coffs Harbour Health Campus, the local hospital, which had an emergency section. The plaintiff was seen, after some delay, and the hospital file entry of 29 May 2008 records, in the Triage entry: "INJURY LEFT LOWER LEG AND FOOT, FELL THRU VERANDAH". 7The medical entry states that the plaintiff: "presents with sore left leg and ankle post falling through rotten verandah. Was apparently hanging by leg. Not weight bearing. Tender all toes, foot, ankle and leg. No skin tear or laceration". 8An x-ray was taken of the left foot and foreleg. The x-ray results were normal. 9However in May 2010, two years later, the plaintiff's doctors provided medico-legal reports stating that her right leg, not her left leg, had gone through the hole, and that her right leg had suffered an injury of considerable severity. She told Dr P F Teychenne (exhibit A, page 54), she had fallen into the hole to the level of her right hip and injured her right leg. A similar description was given to Dr Bentivoglio and Dr Buckley. The plaintiff also told Professor G D Champion (31 May 2010) that as a result of her right leg falling into the hole, her left knee was bent so that her left lower leg was bent up behind her. 10Other injuries, not referred to in the hospital report, were also described to these doctors. The plaintiff told Dr Champion she had reached out in a protective action with her left hand, and experienced forcible extension of her left wrist on the floor, causing an abrasion with a small laceration at the left wrist. There was immediate pain in her right ankle and heel and in her right knee and she also felt some low back pain as she was endeavouring to extricate herself from the hole. 11The difficulty with these descriptions of the accident and subsequent injuries, given two years after the event, is that it is inconsistent not only with the treating records of the hospital, but with her subsequent treatment in 2008 by her general practitioners. 12The plaintiff first saw her local GP, Dr A Heslop, on 6 June 2008, about a week after the accident. His entry reads: " Friday June 6 2008 17:23:12 Dr. Andrew Heslop 1. On 27 th May 2008 she fell through rotten floor boards in 2 nd story [sic] house she is renting, and finished up at armpit level suspended. Seen at CHBH A&E the next morning and had XR done then. Said to have chipped bone in the heel. Bruised shin and is for re Xray. Leg is not getting better, and remove bandage as DVT risk. Examination: Swollen lower leg Needs Aspirin 100mgm daily Actions: Diagnostic Imaging requested: X-ray - Fore Leg (L) - 10 days Injury to L Foreleg and is XR to see is [sic] there is periosteal reaction 2. At ETC on Monday she slipped on the mossy stairs and rehurt sore L leg and R shoulder. She is unable to lift R Shoulder and is limited with abduction laterally Diagnostic Imaging requested: X-ray - Shoulder , US - R Shoulder - Slipped on the mossy stairs and injured R shoulder. She is unable to lift R Shoulder and is limited with abduction laterally." 13The plaintiff next consulted another doctor in the same practice on Wednesday 16 July 2008, when she saw Dr T Cheney. The entry reads: " Wednesday July 16 2008 16:26:55 Dr. Trevor Cheney asthma playimg [sic] up and family unwell Reasons for contact: Asthma Actions: Prescription added: VENTOLIN CFC-FREE INHALER 100mcg/dose 2 puffs q.4.h. Prescriptions printed: VENTOLIN CFC-FREE INHALER 100mcg/dose 2 puffs q.4.h." 14There are no further entries for 2008. There is no evidence the plaintiff received any further medical treatment, although she told the court that she was going to yoga classes and at some stage in 2008 to 2010 had acupuncture and moxibustion. No reports or other information are available. 15The plaintiff next sought medical assistance from the same medical practice in January 2009, but no complaint was made about her legs. She was more than five months pregnant, but with an ectopic pregnancy. She is noted as having been transferred to hospital by Dr Heslop on Friday 2 January 2009 and an entry appears for 28 January 2009 as follows: " Wednesday January 28 2009 14:07:59 Dr. S Espinosa-Cassanellii 2 weeks post op recovering well occasional pain talking of suing gynescologist [sic] upset re being placed in maternity ward as well as bilat partial salpingectomy info sheet on ectopic pregnancy given encourage gentle exercise to return for PAP smear when next due Examination: scar healing well Abdomen bitmap changed. Reason for contact: Check up Review: p.r.n." 16On 29 July 2009, the plaintiff again consulted her local general practitioner. The entry reads: " Wednesday July 29 2009 10:24:42 Dr. Gull Herzberg 1. script for Ventolin and seretide which she got at hospital 4 weeks for her asthma is going well with the seretide 2. has been going to weight watchers for 8 weeks walking 18 000 steps per day is jogging riding requesting sibutramine having done her own research discussed she will take it and Review: in a month Actions: Prescription added: SERETIDE ACCUHALER 250/50 POWDER INH 250mcg-50mcg/dose 2 b.d. m.d.u. Prescription added: VENTOLIN CFC-FREE INHALER 100mcg/dose 1-2 puffs 4hrly as required Prescription printed: SERETIDE ACCUHALER 250/50 POWDER INH 250mcg-50mcg/dose 2 b.d. m.d.u. VENTOLIN CFC-FREE INHALER 100mcg/dose 1-2 puffs 4hrly as required Prescription added: SIBUTRAMINE HYDROCHLORIDE CAPSULE 10mg 1 daily m.d.u. Prescriptions printed: SIBUTRAMINE HYDROCHLORIDE CAPSULE 10mg 1 daily m.d.u." 17On 26 August 2009, a further entry from Dr Hertzberg reads: " Wednesday August 26 2009 09:35:22 Dr. Gull Hertzberg started reductil after last visit lost 3.3kg in week 1 has dropped a dress size continues with weight watchers satiety comes earlier Plan: continue on 10mg reductil continue all her other weight loss measures Examination: General: BP(Sitting): 101/75 Pulse(Sitting): 76 Actions: Prescriptions printed: SIBUTRAMINE HYDROCHLORIDE CAPSULE 10mg 1 daily m.d.u." 18The plaintiff's evidence was that from August 2009 onwards, she no longer consulted her general practitioner and went to the hospital for treatment where she could used the "GP Access" accident and emergency system. She told the court that she had no general practitioner for her entire family, including the five children who were born to her and her partner between 11 June 2000 and 28 August 2007. She agreed that she never consulted any general practitioners or other treating doctors concerning back issues. She claimed that she did raise, both with the hospital and her local general practitioners, her problems with her left leg, shoulder, wrist and thumb. The plaintiff said that it was evident that her right knee had been injured, as there was a scar on her right knee which was still visible. She also said that a scar on her left wrist (see Dr Teychenne's report of 12 May 2010, page 2, exhibit A, page 55) was the result of accident. She told the court that there was "a cut up above my knee" and although she did not mention blood, I infer from the claims about scarring, that there must have been visual evidence of this kind. 19Dr J O'Neill (exhibit 1) notes that he found two medical entries during this period, by a Dr Ashton, dated 10 November 2009, which were contained in the file provided to him for the Coffs Harbour Health Campus emergency department. The plaintiff went to the emergency centre complaining of left knee and leg pain, according to this entry. In the first entry, Dr Ashton stated that the plaintiff had "left knee/leg pain likely secondary to bony contusion plus haematoma from blunt trauma. Abdominal pain likely viral gastroenteritis. Left flank/lower back pain secondary to pushing a car and increased exertion/effort - soft tissue injury". A later entry for that day stated "pain in leg much improved. Nausea not as significant now. Wants to go home". An x-ray to the left knee was to have taken place the following day. 20The plaintiff's evidence is that she not only injured her right (not left) leg, back and wrist, but that she had complained to hospital staff about injury to her right leg, and asked for the right leg (although not, apparently, her back or wrist) to be x-rayed. The plaintiff said that the x-ray technician told her an x-ray of her right leg could not be performed by him, as he had only been told to x-ray her left leg. 21The plaintiff, throughout her evidence, paints a picture of substantial and serious injuries to her back, shoulder, wrist, thumb and right leg being not only not recorded but ignored by the hospital staff for the duration of the time that she was in the emergency department, and when she returned the next day. She made similar claims in relation to her visits to her general practitioners, although an alternative explanation was given in relation to the latter, in that she was lucky to have five minutes with the doctor when she saw him, as he only had time to deal with one issue, otherwise she had to pay for a longer consultation. 22It is not in dispute that the plaintiff never sought any prescription for pain medication at any time. She told the court she was opposed to taking such medication, as the potential to make her drowsy was a risk since she had five children to care for. 23In order to reconcile these inconsistencies in the plaintiff's evidence, it is necessary to examine with care her evidence, demeanour and consistency of answers in cross-examination.

The plaintiff's evidence 24In his opening to me, Counsel for the plaintiff told me that I would find the plaintiff an unusual witness, and that the question was whether I accepted her evidence. In his closing submissions, he put to me that the central issue was the plaintiff's credibility. He asked me to take into account that the plaintiff had "grandiose" ideas about herself, including unrealistic opinions that she could not only qualify as a nurse, but eventually become an obstetrician, despite leaving school at the age of 15, having a baby at 16 and having five children to care for. He drew my attention to findings set out in the report of Mr P Defina, clinical psychologist, of 4 July 2001 (exhibit 1) as indicating that the plaintiff's intellectual capacity was at best above average. 25Ultimately the question of whether or not I accept the plaintiff's evidence depends not upon her credibility or demeanour, but upon how I reconcile her version of events as told to the court in these proceedings with the contemporaneous records of the time. The manner in which a trial judge should approach this task is set out by the Court of Appeal in The Nominal Defendant v Kostic [2007] NSWCA 14; Whalan v Kogarah Municipal Council [2007] NSWCA 5; and The Honourable Justice Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales . 26The plaintiff, who was born in 1983, attended Forster Primary School and Forster High School, leaving school (according to the chronology) before attaining her schools certificate. She gave birth to her first child on 11 June 2000, at the age of 16. At the time, she was living with her partner, Nathan, in Nathan's parents' home. Nathan, although 8 years her senior, has effectively never been employed. The plaintiff learned in 2000, the year she gave birth to their first child, that Nathan was schizophrenic and suffered from scoliosis. By reason of his physical disabilities and schizophrenia, he was on a disability pension and that has been the case for the whole of their relationship, which ended earlier this year. 27Examples of the difference between the plaintiff's description of events and the objective facts can be seen from her statements to Professor Champion (exhibit A, pages 62-63) that at school she was an elite athlete and that she did exceptionally well in the schools certificate but did not proceed to the higher school certificate because of her adolescent pregnancy and childbirth. She told Professor Champion that she sat for her general entrance examination with a view of becoming a registered nurse and that she achieved 98.5%. She said her mother, a sole parent, was a registered nurse. She said at the time of the accident, she was working as a casual nurse from 32 to 65 hours a week, as well as working as a part time receptionist two days a week with a printing business. Her response to an "incredulous" reaction (page 63) from Professor Champion was that she went on to explain that she worked on night shifts and she had in fact ceased her assistant nursing role in the nursing home to study full time for one year in an enrolled nursing course through TAFE NSW, as it was not affordable for her to commence course work to become a registered nurse. Although she said she had been an elite athlete, and she still exercised about two hours a day, there was no history of any disorder with her right leg, which Professor Champion described as "the principal site of her injury". 28She also told Professor Champion there was no history of psychological disorder and she had not required any counselling or psychotropic medication despite stresses along the way. (However, Mr Defina, in his report for the defendants, notes the plaintiff was referred to a psychiatrist by the school when she was 10, as the school thought she suffered from ADHD. She saw a psychiatrist once a month until Year 7 and was prescribed dexamphetamine, which she took as prescribed "until they realised I didn't have a problem".) 29The plaintiff was not in fact enrolled in a nursing course through TAFE. She had left school before sitting for her school certificate, and gave birth to her first child, Damien on 11 June 2000, at the age of sixteen. Between 2002 and 2005, the plaintiff attended Tuncurry TAFE in between giving birth to three further children, Sarah (14 June 2001), Kiara (29 September 2002) and Kayla (27 November 2005). Commendably, over this period she also succeeded in obtaining a Certificate III Aged Care worker qualification and undertook a correspondence course for medical receptionist work, which she told the court was a 12-month course. She performed some part time and voluntary work, apparently as part of her TAFE course, according to the chronology with which I was provided. 30The plaintiff described herself to Dr Champion as working very long hours in two jobs over a number of years. Her evidence to the court was along the same lines. According to both the chronology handed up and to the plaintiff's evidence, after she gave birth to Kayla on 27 November 2005, she went back to work "the next day". However, apart from the voluntary work she was doing (whether or not this was part of her TAFE course), she was not employed at all until May 2006, when she commenced work part time for two days a week at Midcoast Printing, a printing firm, for which she was paid approximately $150 per week. 31Apart from the two weeks leave she had following the accident, on 27 May 2008, she worked for Midcoast Printing until July 2009, when she was retrenched after Midcoast lost a large contract. This is one of a number of inconsistencies between the plaintiff's oral evidence and contemporaneous records. In relation to the plaintiff's employment at Midcoast Printing, the date of May 2006 is given in the plaintiff's further amended statement of particulars. As to the date at which the plaintiff ceased working for Midcoast Printing, I note she told Mr Defina (exhibit 1, page 12) that she "did not return to her pre-accident employment and had not worked in any capacity other than self-employment since that time", the self-employment being a reference to a home business she started briefly in November 2010. Mr Defina was "repeatedly" advised by the plaintiff that she had not worked in any capacity other than this self-employment. She said she was made redundant in late May 2008 (page 12). This would of course be highly relevant to any psychologist assessing the plaintiff for vocational assessment. In fact, as the claim for past economic loss makes clear, the plaintiff was absent from work for two weeks and returned to her previous duties after the accident. 32For nine months, while working two days a week at Midcoast Printing, the plaintiff also did part-time (usually on a Saturday and Sunday) shift work two days a week as a Care and Service Employee (CSE) at Bellorana Nursing Home from 23 August 2006 until 21 March 2007 (Exhibit C), a period of nine months. There was a dispute about her work in March 2007 which led to the nursing home telling her that she would not be offered any more work unless she completed a patient lifting course in April 2007. The plaintiff did not do so. She did not return to Bellorana, and at the time of her accident was working two days a week at Midcoast Printing.

The plaintiff's credibility as a witness 33Counsel for the plaintiff opened his final submissions by stating that the issue in this case was my assessment of the plaintiff's credibility. However, the issue for determination is the nature and extent of injury arising from the plaintiff's fall through the rotten floor boards of the veranda, and whether the injuries for which she complains are causally related to this accident. 34The correct approach to a determination of causation, in circumstances where the plaintiff's credibility is an issue, is explained by the New South Wales Court of Appeal in Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [41] where the Court noted: "[41] To disbelieve a party (or any witness for that matter) who swears his or her oath is a serious finding and not to be undertaken lightly without good and sufficient reasons." 35The Court went on to note at [42] that "inadequacy of reasons is not an infrequent issue in this Court with respect to appeals from the District Court" and I have accordingly set out at some length the basis upon which I have not accepted the evidence of the plaintiff that she did in fact suffer injuries contrary or different to those described in the contemporaneous hospital and general practitioners' notes and my further finding that her problems with her right leg and shoulder, on the balance of the evidence, are not causally related to her fall through the floor boards. 36In the The Nominal Defendant v Kostic [2007] NSWCA 14 an issue of causation arose by reason of a delay by the plaintiff in complaining about her lower back pain several weeks after the accident. The issue in dispute between the parties' respective medical experts concerned the delayed onset of lower back pain which the plaintiff experienced; the doctors expressed differing views as to the implications arising from that delay. In relation to the plaintiff's doctors, there was a serious issue as to whether they had been told that there was a delay before the plaintiff reported her lower back pain, and they assumed she had experienced this pain immediately or very shortly after the accident and had reported this fact (at 11). 37The Court of Appeal explained (at [13]) that, in order to resolve this issue, the trial judge needed to determine a number of critical factual issues. Firstly, there was the question of when the plaintiff first experienced lower back pain; secondly, there is the question of the degree and extent of the back pain she first experienced and how that pain progressed; and thirdly, when the plaintiff first reported this back pain to a medical practitioner. The judge then had to resolve the difference in opinion between the doctors concerning these matters (at [14]). This was not a credibility issue, but a medical question, and one which was clearly defined by the differing opinions of the doctors in their reports. 38At [43]-[44], Ipp JA warned: "[43] In these circumstances, that is, where two medical specialists have expressed the opinion that, from their observation of a patient's behaviour and their examination of the patient, the patient is pretending to have injuries that she does not have, it is not open to the judge to reject that evidence simply on the view - formed from the demeanour of the patient in the witness box - that she was a reliable witness. The judge's belief as to the credibility of a witness, based merely on the witness's demeanour in the witness box, is not a complete answer to a medical opinion based on observation of the witness in the waiting room and on clinical examination. [44] Of course, it is open to a judge to reject such medical opinion, but such rejection must be based on other grounds (for example, the unreliability of the doctor's observations, or the credibility of the doctor as a witness, or non-acceptance of the expert views expressed). But the judge cannot reject those views simply because the judge thinks, by reason of the patient's demeanour in the witness box, that the patient is a truthful witness. Indeed, if the doctor's opinion cannot be rejected on appropriate grounds, that opinion may speak volumes about the credibility of the witness. I have elsewhere expressed the inherent unreliability of credibility findings based on demeanour alone: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187." 39The first difficulty is the extent of the delay in reporting the symptoms. The delay in The Nominal Defendant v Kostic which concerned the Court of Appeal was a delay of a matter of weeks or perhaps months; the delay in Tchen v The Nominal Defendant [2010] NSWCA 45 was two months. Unless I accept that the plaintiff told either the hospital or her general practitioners (or both) about her back, right leg and wrist problems during her visits in 2008 and 2009, the delay in complaint and in seeking treatment is one of two years. 40The second problem is the lack of information about the plaintiff's medical problems in the two years following the accident. I am conscious of the dangers of attaching "excessive significance" ( Tchen v The Nominal Defendant [2010] NSWCA 45 at [69]) to medical notes of considerable brevity, prepared for purposes other than litigation. Medical practitioners can, and do, make mistakes about the site of injury; in Tchen , one of the reasons for the Court of Appeal's conclusions that a doctor's report was unreliable was a mistake about which knee was the subject of an ossified lesion (at [84]). However, in Tchen, there were reports to treating doctors two months after the accident, and the mistake about the knee was made by this doctor "alone", whereas in these proceedings the treating records all refer to the left knee, there are no reports of any treating doctors served to explain these apparent errors, and there was a delay far in excess of the two months in Tchen in reporting problems which were never recorded as the subject of complaint. In addition, the plaintiff's explanation for not consulting any doctors over this period (financial concerns) is inconsistent with her concession that the general practitioners' practice consulted by her did in fact bulk bill; she said in her evidence that these doctors were friends, and she referred to them by their first names. Mr Defina, the psychologist who prepared a medico-legal report for the defendants, notes the practice provided bulk-billing. 41This brings me to the question of my assessment of the plaintiff's evidence. The task of a judge considering the credibility of a witness has helpfully been the subject of recent review by Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74] as follows: "[73] There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues" ("The Business of Judging", Oxford 2000, pages 3ff; Current Legal Problems, vol 38 Stevens & Sons Ltd 1985 page 1-27). Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not. (1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred; (2) the internal consistency of the witness's evidence; (3) consistency with what the witness has said or deposed on other occasions; (4) the credit of the witness in relation to matters not germane to the litigation; (5) the demeanour of the witness. [74] Lord Bingham then added these observations: "In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented.... ... so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such."" 42Issues relevant to the plaintiff's credibility are: (a)The inconsistency between the plaintiff's account of what she told the hospital on the day and the reports, including the investigations carried out, which were prepared contemporaneously by the hospital staff. This is not a case where the plaintiff tells the court that she did not realise on the day that she had suffered other injuries; her explanation is that she reported these injuries, which were obvious to the naked eye, and that nothing was done; (b)Similarly, the discrepancy between the plaintiff's account of her reports concerning her injury (or lack thereof) to the doctors in the general practice which she consulted, over the period from the accident until the time she ceased to consult these doctors. Again, it is not the case that the plaintiff said she was unaware of suffering these injuries; her explanation was that when she referred to these injuries, she was told she just needed to lose weight; (c)The plaintiff's failure to provide medical reports or other doctors in relation to other treatment she sought, such as acupuncture and moxibustion; (d)The period of delay between the plaintiff's injury and her first report of these injuries to medico-legal experts in May 2010; (e)Inconsistencies in the information provided to these medico-legal experts by the plaintiff in relation to the circumstances of her accident, including such other matters as her work history; (f)Inconsistencies in the information provided by the plaintiff to experts retained by the defendants to provide medico-legal reports; (g)The impact of the surveillance film on the plaintiff's credibility.

Inconsistencies in the plaintiff's evidence, and their relevance to her credibility 43In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [35], Heydon JA states: "It is common enough in litigation for witnesses with a truthful story to succumb to the temptation of gilding the lily or over-egging the pudding. The test for the trier of fact is to separate the truthful parts from the rest." 44In other words, the fact that a witness tells a lie, or a series of lies, or exaggerates, is not a basis for a rejection of her evidence without careful investigation. I have borne this in mind when considering inconsistencies in the plaintiff's evidence. 45The evidence given by the plaintiff that was unsatisfactory falls within the following categories: (a)Her claims to have suffered injuries which must have been noticeable to the emergency department at the time of the accident which are not noted, such as the scars on her knees and wrists and the injuries to her right leg and shoulder; (b)Her explanation for her continuing failure to seek medical assistance in relation to her injuries and disabilities; (c)Her explanation for the two year gap before telling medico-legal experts (rather than treating doctors) about her condition; and, (d)Her description of her pain levels and what she can and cannot do, and over what period of time. 46The plaintiff was insistent that she had told the hospital the full extent of her injuries. She said these were obvious, and that she still had the scars. Her explanation for failing to seek medical assistance or advice about her ongoing pain or to obtain pain medication was her distrust of doctors, whom she feared would report her as an unfit mother; she preferred to go to the local hospital emergency department, and this is confirmed by the November 2009 entry found by Mr Defina (this entry also, I note, refers to the left leg). 47The plaintiff's description of her pain level was that it was constant, despite her taking a packet of 12 Panadol Rapid a day. The pain has been constant since the accident. Surveillance footage was taken of the plaintiff and I have dealt with this evidence in more detail below. 48The causative relation between the plaintiff's injuries and the disabilities about which she complains requires careful examination of each of the reports tendered on her behalf.

The evidence of the plaintiff's experts 49I commence by noting that, in Makita (Australia) Pty Ltd v Sprowles at [67], Heydon JA refers to the statement in Ramsay v Watson (1961) 108 CLR 642 that for a medical witness to give evidence "only that in his opinion something is more probable than not does not conclude the case". The tribunal of fact must look at the whole of the evidence in order to be satisfied on a balance of probabilities of fact. Heydon JA goes on to explain that the tribunal of fact cannot determine these issues unless the expert fully exposes not only the reasoning relied upon (at [67]), but also by reason of identification of the assumed facts (at [70]). 50Expert evidence is no better than the facts upon which it is based: R v Kotzmann [1999] 2 VR 123 at 135 per Callaway JA, referred to in Makita (Australia) Pty Ltd v Sprowles at [80]. 51More recently, in Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611; (2011) 85 ALJR 694; [2011] HCA 21 Heydon J (as His Honour now is) has reviewed and refined these observations, and noted at [133]: "[133] In short, the utility of receiving expert opinions rests in what the trier of fact can make of them. If the assumed facts are not stated, no reasoning process can be stated and the opinion will lack utility; if there is no evidence, called or to be called, capable of supporting the assumed facts, no reasoning process, even if stated, will have utility; and even if there are facts both assumed and capable of being supported by the evidence, they will lack utility if no reasoning process is stated. In each instance, a lack of utility results in irrelevance and inadmissibility." 52Analysis of each of the plaintiff's expert reports demonstrates some of these problems.

Dr Teychenne 53Dr Teychenne was told by the plaintiff as a result of her injury she was "unable to continue work as a receptionist" and that after an initial absence of two weeks "it was suggested that she work in a commercial premises, but she was unable to do this as this required lifting, standing and doing deliveries". He therefore considered that the plaintiff was "partially unfit for duties from the time of the injury". He was also under the impression that she was working as a nurse and doing studies and he goes on to note that "she was unable to continue TAFE or university due to the weakness in her right leg" (page 2, report 9 June 2010). 54If Dr Teychenne was provided with any medical records, he has certainly not identified them in any of his reports. He does appear to have had at least information about an x-ray of the plaintiff's left foot and left lower leg (page 2, report 9 June 2010) but it is unclear whether he actually saw the report or simply accepted a description of this either in a letter of instruction or from the plaintiff. This is all the more particular since he considers that the plaintiff needs "repeated assessment by orthopaedic surgeon". 55Dr Teychenne clearly has no idea at all as to the contents of the hospital emergency department's notes, or indeed any information about what prior treatment the plaintiff had been having. He certainly makes no reference to either of these matters in his reports. 56Although Dr Teychenne commences his reports by referring to the code of conduct, and would therefore be aware of his obligation to provide an independent report, he appears simply to have accepted everything the plaintiff said at face value. The concerns expressed by Heydon J in Dasreef Pty Ltd v Hawchar at [56] about the partiality of expert witnesses and the dangers of such experts dominating proceedings (at [58]). Dr Teychenne should have been alerted, by the total absence of any prior medical history in support of these injuries, as well as the fact that the only medical evidence he had related to the left leg, showing a normal result. 57An additional problem with Dr Teychenne's report is the manner in which he has expressed opinions at page 3 of his 9 June 2010 report concerning the plaintiff's loss of earning capacity and need for domestic assistance. 58Another problem with Dr Teychenne's report relates to the findings he makes as to the EMG performed on the plaintiff's "lower limbs". These showed normal results, as did the check of the tarsal tunnel. Although the results are described as "normal", he found "reduced recruitment pattern" in the muscles. Dr O'Neill comments "No credence can be given to the EMG findings of Dr Teychenne. Reduced recruitment of EMG pattern on muscle sampling can simply occur because of poor patient effort, often because of pain. Here today, for instance, she could not make an effort on testing power of the right ankle because of apparent pain. No competent neurophysiologist would draw any conclusions based solely on a finding of reduced recruitment pattern". 59Dr O'Neill goes on to point out that his own neurological examination was "essentially normal" (report 3 November 2010, exhibit 1). 60An EMG showing essentially normal results but followed with warning references to problems with the "recruitment pattern" is precisely the kind of report, as Heydon J warned in Makita (Australia) Pty Ltd v Sprowles and more recently in Dasreef Pty Ltd v Hawchar at [56]-[59], which is likely to cause a risk of injustice (at [59]). For an expert to advise, in a report designed to be read by a judge where there is no cross-examination, that there is a "decrease in recruitment pattern" suggests that although the results are normal, there is a significant problem. He does not expose his reasons for making this claim. Dr O'Neill by comparison has exposed his reasons for explaining why no competent neurophysiologist would pay attention to such a reading. 61Finally, I note that Dr Teychenne has accepted, without any qualification, all of the plaintiff's claims about her injury and disabilities, however inconsistent. This was not the case with Professor Champion, who did challenge the plaintiff's account of events, and now I turn to a consideration of Professor Champion's reports.

Professor Champion 62Professor Champion did have information as to the emergency department Triage record, but says: "There is a problem in that the recorded information repeatedly refer to the left side whereas Ms McGlen-McLeod is adamant that this is wrong and that the injury was to her right leg (pointing to the scar over her right kneecap). The presenting problem was stated to be "Injury left lower leg and foot, fell thru verandah". The nursing assessment data referred to "pain mid foot on palpation, pain mid shaft lower leg. Unable to weightbear. Panadol 1200." The handwritten notes stated that she presented with sore L leg and ankle, post falling through rotten verandah. She was not weightbearing. There were no neurological signs, no obvious deformity. She was tender in all toes of her foot and I think at the ankle (difficult to interpret). There were no stated cutaneous lesion." 63I have set out the above paragraph in full because it would appear to be likely to have been dictated by Professor Champion as he read from this report and it includes some interpolations of his own. 64The plaintiff told Professor Champion that she could not tell which foot and foreleg was actually x-rayed. Professor Champion asked her whether there was any possibility that the early injury had been to her left leg and "she was emphatic that this was not the case". 65Professor Champion comes to the view that it was possible that the hospital staff picked up on the left-sided symptoms and "presumably ignored the right-sided symptoms". However, the plaintiff "emphasised that compression bandages were definitely applied to her right leg, covering the knee and heel/ankle region". This causes Professor Champion to take the view that the notes where "clearly inadequate" as there was no description of what actually happened except for "falling through rotten verandah" and "was apparently hanging by leg", in circumstances where the examination findings did not refer to whether the left or right side was involved. 66Professor Champion also asked about subsequent visits and was told: "She did not see any doctor after the initial hospital visit, explaining that the doctors in Bellingen do not bulk bill (Medicare only) and it was not affordable." 67The plaintiff told Professor Champion that she returned to her receptionist job but on restricted activities, but that she was not able to commence an enrolled nursing course because of requirements to work in a ward (report 31 May 2010, page 4). When she did commence seeing her local general practitioner in early 2009, according to Professor Champion "the main concern expressed to him was about her right foot and ankle and her knee. It was interfering with her capacity to power walk or to run, and thus with her weight control regimen". 68In fact, the plaintiff's medical records showed she was visiting her general practitioner as early as June 2008 and that there is no complaint of this nature. Further, Dr Heslop, when he saw her on 6 June 2008, not only removed the bandage on her left leg because of a DVT risk (noting "swollen lower left leg") but arranged for diagnostic imaging "to see is [sic] there is periosteal reaction". He also requested an x-ray of her right shoulder after she slipped on the mossy stairs at the hospital on her first day on crutches and "rehurt sore L leg and R shoulder". 69As to the prescription of sibutramine hydrochloride, Dr Hertzberg notes that she requested this having done her own research. The plaintiff was someone capable of giving a clear description of any medical problems she had, and of having opinions about her treatment. 70Professor Champion felt "somewhat incredulous about the pre-accident history as recorded and wondered to what extent it was believable" and, in particular, said he was "not sure what to make of the left-right problem". What convinced him to accept the plaintiff consisted of three factors. The first was that he considered the medical notes at the emergency ward as "markedly deficient". The second was the scar on her knee. The third was that the plaintiff "considered it unaffordable to seek medical care after two initial weeks off work" when in fact she was seeing Dr Heslop on Friday 6 June, Dr Cheney on Wednesday 16 July 2008. 71Professor Champion's conclusion (page 9, report 31 May 2010) that the plaintiff had not been fit for work since the accident, and that she was unfit in the foreseeable future for her pre-accident employment or similar work, is presumably based on the information he was given in his report, namely that the plaintiff had been unable to return to her pre-accident employment, although she had returned to her receptionist job (by inference, for some short period on restricted duties) when in fact her employment after the accident consisted of returning to the same employment as she had before. The plaintiff's nursing activities had ceased in March of the same year by reason of the complaints process having been initiated against her. 72Professor Champion's second report of 8 August 2010 consists of comments concerning the MRI lumbar spine, right knee report and right ankle report. I shall deal with each of these in turn: (a)MRI lumbar spine - Professor Champion helpfully describes the pathology in this report as "relatively modest", although noting there was frequently a poor match between findings on imaging and clinical findings in relation to pain. In other words, spinal damage could be non-symptomatic, or there could be pain complaints where the imaging reports showed little or no difficult problems. His conclusion is that if he was the plaintiff's treating doctor he would require re-examination to be sure of the physical signs with a follow up report in a few months. He considers that the L4/5 disc lesion, while consistent with the accident and the injury claimed, reveals only a minor part of a substantial regional pain problem. He suggested a pain rehabilitation service and conservative treatment. This is a cautious summary of the findings where essentially what he is saying is that if he was managing the plaintiff's care, he would request a re-examination, but that a problem of some kind which is capable of being referrable to the accident exists. (b)MRI right knee - Professor Champion notes a mix of pre-existed disorder with post-traumatic influence, which "strongly supports her report of pain-related disability" but recommends orthopaedic consultation by an orthopaedic surgeon specialising in arthroscopy of knees. (c)MRI right ankle - Professor Champion complains that there is "a lot of jargon in this report and some of it is rather difficult to interpret without matching the report to the films", suggesting that he may not have been able to see the films. Some of the findings, such as oedema, "may well reflect recent injury as in the subject accident". Again he suggests referral to an orthopaedic surgeon specialising in foot and ankle surgery. 73Professor Champion has addressed many of the obvious inconsistencies in the plaintiff's description of events. However, he has not been given accurate information as to the plaintiff's history of seeking treatment, nor has he been given an accurate work history. 74I cannot speculate as to what would Professor Champion's response have been if he had been made aware of the follow up reports of Dr Heslop or Dr Cheney. I accept Professor Champion's conclusions that these injuries, by their nature, are consistent with the circumstances of the plaintiff's fall. I also note the failure of the defendants to serve its orthopaedic report. 75While I accept Professor Champion's opinion that the plaintiff's injuries to her knee and back are injuries of the kind capable of being caused by the circumstances of her accident, I do not accept that they were in fact so caused. I have the benefit of additional objective evidence, including an accurate picture of the plaintiff's work history and the notes, however brief, of her treating doctors.

Report of Dr S Buckley of 9 June 2010 76Dr Buckley was told that the plaintiff injured her right leg when the floor boards collapsed with the result that her "whole leg right up to the hip went through". He was told she had "lacerations of her leg and serious pain". He was told she was investigated by the hospital which gave x-rays which was said to be normal, but not told that these related to the left leg and not the right. He was told that she was given crutches but slipped over the next day using them "and thus suffered further injury to the right leg". I note the inconsistency between this and the notes of Dr Heslop. 77As to the plaintiff's work history, the description given to Dr Buckley bears little relation to reality. The description he gives is: " WORK BEFORE ACCIDENT She has usually worked as a Nurse and at the time of the accident, however, was working at Midcoast Printing as a Receptionist some 12 to 32 hours a week on a casual basis and at the Bellorana Nursing Home up to 65 hours a week doing many double shifts. WORK SINCE ACCIDENT She was off work for two weeks from the printing [sic] and ceased work at the Nursing Home to undertake the Enrolled Nurse Course but was never able to actually commence it because of the accident. After about 6 months she returned to work at the Printers but had difficulty with sitting and typing. As a result she has had no work in the last 18 months and has not been studying." 78As to the injuries, the plaintiff told him that she had complained of back pain "when first seen after the accident". 79As was the case with Dr Teychenne, there is no reference to what documents, if any, Dr Buckley saw. He has no information at all about the confusion about the left and right leg. He did examine both legs, noting that left knee was "unremarkable" and the left hip revealed "a full range of movement with negative sacroiliac joint stress tests", but noted that "no images or scans were available for my review" (page 5). 80Given the completely inaccurate work history with which he was provided, and the failure to provide Dr Buckley with any medical information, his report is of little or no assistance.

Dr J Bentivoglio 81Dr Bentivoglio notes (at page 6) that the plaintiff "did not have any investigations with her today. Indeed, except for the first lot of x-rays she had taken of her person which excluded any fractures, she has not had any investigations at all". His report of 2 August 2010 notes the small annular tear at the L4/5 level in the lumbar spine region with a mild discal abnormality at that level, but considers that surgery is not indicated. He recommends an exercise-based program to build up her core strength. In his report of 10 August 2010, Dr Bentivoglio notes that at the time of consultation, the plaintiff had not advised of any ankle injury and he considered she had only a "relatively minor injury to the ankle region, nothing that would require any specific modalities of treatment and nothing that would leave her with any long term disability". He does, however, expressed concerns about the MRI scan of her right knee, noting that this "may well have developed from the specific incident she described in May 2008". 82Dr Bentivoglio has clearly not been informed there is any challenge to the form of notes or treatment provided by the hospital she attended. In fact, he notes that when she went to the hospital "appropriate x-rays were taken and she was supplied with crutches" (page 2, 29 June 2010 report). His report is therefore based on a significant gap in the information. 83In addition, the information he had about the impact of the injury on her working history was based on erroneous facts. He recorded her work history as follows: "At the time of her injury she was working in reception at a nursing home. She worked on a permanent casual basis averaging approximately 35 hours per week. She lost about two weeks off work. She then had a graduated return to the workforce. Although she is currently unemployed she is due to start back working in the near future. The only active treatment she is having at this stage is talking pain-relieving medications and using heat treatment." 84Dr Bentivoglio's report is similarly of limited assistance to me by reasons of these omissions in the factual material made available to him.

The surveillance video 85For many years there was a practice of showing surveillance film in cross-examination without prior indication that such film had been taken ( McGuiness v Kellogg Co of Great Britain Ltd [1988] 1 WLR 913; Halpan v Lumley General Insurance Ltd [2009] NSWCA 372). The practice of producing the surveillance film at the trial has increasingly come into conflict with changing concepts of case management and procedural fairness. The introduction of rules in similar form to Uniform Civil Procedure Rules 2005 (NSW) Pt 31 r 31.10 resulted in courts in England and in Western Australia refusing to permit withholding disclosure until trial ( Brown v Metro Meat International Ltd [2000] WASCA 123 at [24] ( obiter ); Boyes v Colins [2000] 23 WAR 123; [2000] WASCA 344; Digby v Essex County Council [1994] PIQR P 53; Khan v Armaguard Ltd [1994] 1 WLR 1204). In Jaber v Rockdale City Council [2008] NSWCA 98 at [56], Tobias JA cautioned: "[56] A number of other issues were canvassed during the course of the hearing, including the use made by the primary judge of surveillance footage of the appellant, transferred onto DVD, relating to his post injury activities. In my view his Honour's use of the DVD was not relevant to either of the two issues of liability which I have canvassed above. Accordingly, it is unnecessary for me to deal with it. However, I would wish to make it clear that, had it been necessary, I would have upheld the appellant's submission that his Honour erred in permitting the appellant, during the course of cross-examination, to be shown the DVD, thereby allowing evidence concerning its contents to be elicited in circumstances where ultimately, when it was sought to tender the DVD, his Honour excluded it pursuant to s 135(a) of the Evidence Act 1995 (NSW). In my view his Honour ought not to have permitted the DVD to be utilised at all." 86The issue of whether such film should be disclosed before trial has been dealt with in a series of decisions of this court. McLoughlin DCJ held in Grace v Shad (District Court of New South Wales, McLoughlin DCJ, 6 August 2010) that the notification provisions in UCPR Pt 31 r 31.10 did not apply to surveillance film. In Oraha v The Nominal Defendant (District Court of New South Wales, 1 October 2010); Beard v North Coast Area Health Service (District Court of New South Wales, 11 November 2010) and Annetts v State of New South Wales (District Court of New South Wales, 19 November 2010) Letherbarrow SC DCJ held that these notification provisions did apply. 87The defendants in these proceedings, shortly before trial, sought a ruling from this court to be permitted to rely upon surveillance film of the plaintiff shot over several days in November 2010 and March 2011. The order sought was granted. That means that the plaintiff was aware, prior to giving evidence, that surveillance film would be relied upon in relation to her claims of ongoing disability. 88Where a plaintiff has advance notice of such film ( Ralston v Bell & Smith t/a Xentex Patch & Grout [2010] NSWSC 245 at [160]) there is an opportunity to deal with this by evidence in reply or explanation. In Ralston v Bell & Smith t/a Xentex Patch & Grout the film was made available to medico-legal experts, but that was not done in these proceedings. Nevertheless, the plaintiff has been made aware that the claims she made to doctors about the extent of her disabilities would be the subject of challenge based on the surveillance film. However, the plaintiff responded to the film with angry and at times tearful statements that she was in fact in constant pain throughout. 89The films show the plaintiff walking energetically to and from the children's school, a distance of several kilometres, in a vigorous fashion, pushing a child in a stroller, covering a variety of surfaces such as grassy and uneven surfaces, hills and concrete barriers over which she has to push the pram. She is also seen going up and down stairs, shopping and sitting. The plaintiff agreed she walked to the children's school every day, saying this was part of her weight reduction programme. (The plaintiff, whose weight has ranged between 90 and 137 kilos, said in her evidence that she has had a significant concern about her weight for about ten years, and relies upon regular daily exercise to lose weight.) 90Although the plaintiff can be seen walking briskly (without a limp) for some hours on each of these days, that was not how she presented to Ms Warner, an occupational therapist who prepared a report on 10 May 2010. Ms Warner noted the plaintiff's "mobility was restricted", walked with a "noticeable limp" and "was unable to fully bend the right knee" (Exhibit A, report 10 May 2010, p. 5). Although the plaintiff is seen stooping quickly and in an unguarded fashion to pick up dropped items several times in the surveillance film, she told Ms Warner (p. 5) that "any bending or stooping causes aggravation of her low back pain." A list of her continuing problems, as reported to Ms Warner (p. 6), include: "* Difficulty walking long distances; *Difficulty negotiating sloping or uneven surfaces; *Pain in her right knee and heel aggravated by prolonged standing and walking, negotiating uneven ground, working at low levels and stair climbing; *Difficulty in prolonged sitting or standing;

Difficulty with repetitive or heavy manual handling;
Difficulty with stair climbing
Constant and severe pain in the right leg and knee." 91The plaintiff told Ms Warner she could only walk for 20 minutes on a level surface and that she had not driven her car since the injury. Ms Warner adds that travelling in a motor vehicle "even as a passenger" causes "a significant increase in her low back pain and her right knee pain and stiffness" (p. 18). The plaintiff is observed, in the surveillance video, to get into and out of the passenger seat of the motor vehicle without difficulty when travelling with her family. 92The plaintiff also told Ms Warner that since the accident "she is unable to perform the household shopping with assistance from her family, as she is unable to push a fully laden trolley, carry heavy bags of groceries or reach low shelves." (p. 20). The plaintiff is observed in the surveillance video, to spend several hours shopping with her partner, during the whole of which time she is seen pushing a pram containing their youngest child. When they leave the shopping centre a shopping bag is hanging from one handle of this pram. Ms Warner recommended professional assistance with shopping, at the rate of $77 per week, for the rest of the plaintiff's life, on the basis that her partner's psychiatric condition may prevent him from providing this assistance in future. 93Ms Warner's recommendations are made on the basis of these instructions. Her recommendations include an assertion that the plaintiff may deteriorate "significantly" (p. 12) in later life and that she was likely to require mobility aids such as a wheel chair. 94The plaintiff said that she had to walk the children to school, despite being in constant pain, because she needed the exercise to lose weight, as well as to look after her children, but that to do so she had to take three or four Panadol each morning. She said she took a packet of 12 Panadol a day. 95The surveillance film shows the plaintiff walking briskly for several hours and, from concessions she made in her evidence, it would appear that she walks this much on a daily basis. Her claim that she was in constant pain when she did so is hard to reconcile with her unguarded gait and brisk pace, her ability to stoop down quickly and being able to push a pram containing a child for long periods. 96While the plaintiff does have knee and back findings indicating she has problems, the surveillance video shows she is able to go about her daily activities without any obvious restrictions. The surveillance video also shows that the plaintiff's claims to Ms Warner about the extent of her ongoing disabilities were grossly exaggerated.

Failure to call the plaintiff's former partner 97The plaintiff's partner, Nathan, witnessed the plaintiff having to extricate herself from the veranda floor boards hole and drove her to the hospital the following day. The report of Ms Warner refers to the substantial additional household tasks he is called upon to perform because of the plaintiff's inability to perform them since the accident. He is also observed in the surveillance film, the most recent being March 24, 2011. 98The plaintiff told the court that she had decided to terminate her relationship with Nathan and had told him to leave their home. He has been returning for access to the children, but when he stays overnight the parties occupy separate rooms. He is currently staying in the plaintiff's home to care for the children while she is in Sydney giving evidence. 99The defendants asks me to draw a Jones v Dunkel inference ( Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278) concerning the plaintiff's failure to call her former partner. Mr Quinlivan, for the plaintiff, while noting that the separation had been unpleasant and involved complaints to the police, conceded that such an inference should be drawn. 100I accordingly draw a Jones v Dunkel inference. Failure of the defendants to serve an orthopaedic medico-legal report 101After the plaintiff attended the offices of an orthopaedic surgeon for the purposes of a medico-legal report for the defendants, the defendants did not serve this report. 102I consider this a significant omission. Neither of the other medico-legal reports served by the defendants are orthopaedic reports. 103The report of Dr O'Neill, a neurologist (Exhibit 1) answers many of the issues raised by Dr Teychenne. The report of Mr Defina, a psychologist, provides some valuable insights into the plaintiff's medical history, but cannot assist in relation to the plaintiff's orthopaedic injuries.

Conclusions as to the cause of the injuries complained of by the plaintiff 104The plaintiff does not complain about injuries to her left leg. If I accept the description of her injuries as set out in the hospital and treating general practitioners' records, the plaintiff has suffered minor injuries which resolved after her being on crutches for about 6 weeks. 105Mr Quinlivan submits that, while there "certainly" is a deficit of corroboration of the plaintiff's claim, it is clear from Professor Champion's report that the plaintiff has significant problems in both her back and her knee. The plaintiff's medical records before the accident show she did not have any pre-existing condition. Accordingly, if no other explanation is on offer as to how she has suffered these injuries, if there is objective evidence of an injury and, at a later time, of a disability that medical evidence suggests could be causally related, then I should, according to Mr Quinlivan, accept the plaintiff's evidence that she did in fact suffer these injuries in the accident the subject of this claim for damages. 106The problem of inconsistency between a plaintiff's account of injuries and the description (or omission) of such injuries in contemporaneous medical records, is not uncommon. Doctors, especially treating doctors, do not write down information from a patient in a comprehensive fashion. Sometimes their records may fall well short of what should be noted. 107The issue of reconciliation of inconsistent contemporaneous medical records when compared to the plaintiff's evidence of complaints and injuries has been considered and explained by the NSW Court of Appeal in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 and Mason v Demasi [2009] NSWCA 27, and I have taken account of their Honours' warnings to trial judges about the correct methods of assessment of evidence where such inconsistencies occur. Such cases, however, turn on their facts. In the present case, even if I were to accept Professor Champion's complaint about the inadequacy of the hospital notes, the evidence of the general practitioner who saw her to remove the bandage is persuasive, as are the other factual issues upon which I have made findings, including the lengthy period of delay before the disabilities were raised, and the exaggerations as to their degree. 108Taking all of the above into account, I am satisfied that the plaintiff's injuries were those set out in the medical records, namely the injury to her leg, which she "rehurt" the day after bandaging by the hospital staff, when she slipped on the mossy steps at the hospital, and for which she sought treatment from her general practitioner, who removed the bandage for DVT reasons.

Quantum of damages 109Having made these findings of fact I now consider the quantum of damages claimed by the plaintiff.

Non-economic loss 110The defendants submit that if I accept the plaintiff's injuries conformably with the medical records, she has suffered only a soft tissue injury which has resolved. This falls well short of the threshold. Mr Quinlivan, for the plaintiff, urged me not to make this finding, but did not make any submissions to the effect that any such injury could exceed the threshold. I accordingly assess non-economic loss at zero. 111In the event that I have erred in this finding, I note that if I were to accept the plaintiff's injuries to her back, right knee and right foot, the plaintiff submits that these injuries will persist (Professor Champion, pages 68-69). It is submitted that the plaintiff will require specialist and general practitioner review, physiotherapy and analgesia. Her capacity for exercise, housework, childcare and employment will be compromised "indefinitely" and it is estimated that she is between 30-32% of the most extreme case. I consider this to be excessive, given the degree of activity she is capable of, and if I had accepted this evidence would have assessed this as 25%.

Past and future economic loss 112The plaintiff had two weeks away from work from Midcoast Printing which would amount to $300 in terms of loss wages. She returned to work at Midcoast Printing, working in the same job for the same hours, until she was retrenched in July 2009 following loss of a large contract by her employers. She was provided with a reference which spoke of her willingness to work in glowing terms. The defendants submit that this is the total of her past economic loss, although a figure of $600 rather than $300 was agreed to be reasonable. I consider that is an appropriate figure which allows for the plaintiff being uncomfortable during the period that she returned to work while on crutches. 113Mr Quinlivan, in his submissions on behalf of the plaintiff, acknowledged that she was not employed as an aged-care worker at the time of the accident, nor was she in the market for such work until about August or September 2008, after her youngest son was weaned. However, she had not been fit for such work since the accident on 28 May 2008. Mr Quinlivan noted the plaintiff gave evidence that over the past three years she has looked for nursing work. She eventually gave up looking, accepting that she is not fit for the work (reliant upon the medical evidence tendered on her behalf indicating she has been unfit from the time of her accident). He submitted that the plaintiff's income earning capacity from approximately August 2008 would be at least $500 per week, in reliance upon the job match report of Mr Defina, if she had been working full time. He sought a cushion of $25,000 for past economic loss. 114I note the plaintiff became pregnant in 2008 and most distressingly lost the child following an emergency operation in January 2009. The plaintiff did not in fact apply for any work, nor did she complete the patient lifting course which would have enabled her to seek work with the nursing home at which she had previously worked. Accordingly, even if I had accepted the evidence of the plaintiff concerning her injuries, I would not have awarded her past economic loss in relation to those injuries and ongoing disabilities. She continued to breastfeed her youngest child until he was three years old, planned an addition to her family and was the prime carer for her five children. These activities indicate she was not considering a return to work and her stated future ambition appears to be a return to studies in nursing, not employment.

Future economic loss 115As I have accepted the evidence that the plaintiff suffered soft tissue injuries only, which have completely resolved, I consider she is not entitled to any claim for future economic loss. 116Mr Quinlivan submitted that the plaintiff will never be able to return to nursing type work and that occupations requiring lengthy periods of standing, sitting, bending, kneeling or squatting are beyond her capabilities. She retains a capacity for undertaking some clerical duties in the 40 years of working life in front of her. It is submitted on behalf of the plaintiff that a reasonable "cushion" is reached by allowing an assumed loss of $150 per week for 37 years, discounted in the usual way for contingencies ($150 x 893.6 x 75% = $100,530). 117I presume that the cushion figure proposed includes superannuation, for both past and future economic loss. 118The defendants submit that even if the plaintiff's injuries were related, the plaintiff's future plans include a number of years of study and then work as a nurse or obstetrician. No return to the work force, even in the form of part time work of the kind she performed at Midcoast Printing, is planned for some years. 119The plaintiff's future economic loss, if her injuries are accepted as being what she claims, are difficult to assess. Doing the best I can, she would be entitled to a cushion of the kind proposed by Mr Quinlivan. I have taken into account, in this regard, the defendant's failure to serve its orthopaedic report, prepared after a consultation arranged for the plaintiff for the purpose of this litigation.

Past and future domestic assistance 120The plaintiff submits that from the time of the accident she has required additional assistance for seven hours a week since the accident, which is 170 weeks ago, which would total $28,560. The plaintiff appears to have abandoned reliance upon the many items set out in Ms Warner's report. 121As to future domestic assistance, it is submitted that future domestic assistance in the sum of three hours per week at commercial rates of $38.50 per hour for 40 years would result in the figure of $106,000 (917.5 x $38.50). 122The defendants submit that whatever my findings as to injury, the plaintiff has not, and will not, require any assistance in the home of any compensable kind capable of reaching the threshold, and draws my attention to the plaintiff's fitness as shown on the surveillance video. The defendants also submit that the plaintiff fails to reach the threshold for both past and future home assistance and draws my attention to Miller v Galderisi [2009] NSWCA 353. 123I agree with this submission. The plaintiff is not entitled to any award for past or future homecare. The plaintiff's physical abilities, as demonstrated in the surveillance film are such that she would not have difficulty performing most normal household chores.

Past and future out-of-pocket expenses 124Past out-of-pocket expenses are agreed at $100. 125Future out-of-pocket expenses are the subject of substantial compromise by the plaintiff. What is sought is a cushion of $10,000 to allow for analgesia, physiotherapy, general practitioner, specialist consultations and "a possibility of more sophisticated and invasive and expensive therapies and procedures". 126As to future out-of-pocket expenses, the defendants submit that the plaintiff is seeing no doctors and taking no medication referable to injuries arising from her accident. 127I accept the defendants' submissions. In the event that I have erred in so finding, the cushion proposed by Mr Quinlivan is both realistic and appropriate. 128Accordingly the amount for past and future out of pockets is $100.

Costs 129I have not received any submissions as to why I should make any order other than that costs follow the event. Notwithstanding the very small sum involved, that is the order that I propose to make, as liability was not admitted until after proceedings were commenced and the subject of case management. I have granted liberty to restore in relation to any costs applications.

Orders (1)Judgment for the plaintiff for $700. (2)Defendants pay plaintiff's costs. (3)Liberty to restore in relation to costs. (4)Exhibits retained for 28 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: 28 October 2011

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Judgment (21 paragraphs)

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Cases Cited (19)