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[2010] TASSC 62
Supreme Court of Tasmania
2010-12-17
Porter J
Original judgment source is linked above.
CITATION: Partridge v Hobart City Council [2010] TASSC 62
Torts - Negligence - Special relationships and duties - Occupiers - Slip and fall on external stairway to offices - Stairway built on land owned by local council - Right-of-footway over stairway land attached to land on which office building situated - Owners of office building leased offices to third parties - Benefit of easement impliedly acquired by lessees - Occupier of offices the licensee of the lessees - Whether each of local council, owners of dominant tenement and licensee were an occupier of the stairway - Whether each owed duty of care.
Gorman v Wills [1906] HCA 84; (1906) 4 CLR 764; Kevan v Commissioner for Railways [1972] 2 NSWLR 710; Bulmer v Ryde Municipal Council (1976) 34 LGRA 300, applied.
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; New South Wales v Broune [2000] NSWCA 3; Wilkinson v Law Courts Limited [2001] NSWCA 196, considered.
Torts - Negligence - Dangerous premises - Injuries to persons entering premises - Who is liable - Slip and fall on external stairway to offices - Stairway built on land owned by local council - Right-of-footway over stairway land attached to land on which office building situated - Owners of office building leased offices to third parties - Benefit of easement impliedly acquired by lessees - Occupier of offices the licensee of the lessees - Whether each of local council, owners of dominant tenement and licensee were an occupier of the stairway - Whether each owed duty of care - Steps slippery when wet - Whether each in breach of duty.
Torts - Negligence - Contributory negligence - Apportionment of responsibility and damages - Apportionment in particular situations and cases - Plaintiff slipped and fell on external stairway - Steps made wet by rain - Nature of steps and height of stairway relevant factors - Plaintiff contributorily negligent to extent of 20 per cent.
Damages - Particular awards of general damages - Tasmania - Low back, knee and hand injuries - Approach to assessment where evidence of pre-existing vulnerability and conscious exaggeration - Award of $40,000 general damages, $281,350 loss of earning capacity and $23,100 loss of superannuation entitlements.
Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 247; Parker v Commonwealth (1979) 49 ALJR 221, applied.
Judgment Number: [2010] TASSC 62
MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TRESIZE t/as TRESIZE LAWYERS, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS
•
The plaintiff's credibility [9]
•
Liability [10]
•
Damages [11] - [12]
•
The consultations with Mr Hamer [25] - [34]
o
Comments [35] - [36]
•
Sailing and driving activities [37] - [48]
o
Southport to Booker Bay [49]
o
Booker Bay to Yamba [50] - [51]
o
Miscellaneous evidence as to sailing/driving activities [52] - [55]
o
Comments [56] - [57]
•
The application for teacher re-registration [58] - [63]
•
Workers compensation claim [64]
•
The Tingletree newsletter of November 2002 [65]
•
Conclusions [66] - [70]
•
The structure of the stairway [71] - [72]
•
The facts of the accident
o
The plaintiff's evidence about the fall and associated issues [73] - 80]
o
Mr Partridge's evidence [81] - [83]
o
The evidence of Christine Webster - the fall and her experiences with the steps [84] - [86]
o
The expert evidence of Mr Dohrmann [87] - [92]
•
Did the plaintiff slip on the step? [93] - [99]
•
The duty of care of each defendant
o
Whether a duty exists [100] - [111]
o
The first defendant [112]
o
The second defendant [113] - [115]
o
The third defendants [116] - 118]
•
Breach of duty?
o
The stairway and the steps [119] - [122]
o
The defendants' knowledge of the risk of slipping [123] - [128]
o
The liability of the first defendant [129] - [130]
o
The liability of the second defendant [131] - [137]
o
The liability of the third defendants [138]
•
Causation [139] - [144]
•
What injuries were sustained in the fall
and which of those are presently productive of symptoms? [149] - [151]
o
The plaintiff's evidence as to the injuries and their treatment [152] - [156]
o
The medical records [157] - [168]
o
The expert opinion evidence [169] - [184]
o
Findings of fact [185] - [192]
•
The plaintiff - before and after the accident
o
The plaintiff's evidence [193] - [209]
o
The evidence of the plaintiff's mother and of various friends [210] - [229]
o
The surveillance DVDs [230] - [233]
o
The evidence of Mr Partridge [234]
•
The plaintiff's condition
o
The medical evidence [235] - [260]
o
Discussion [261] - [271]
o
Conclusions [272] - [274]
•
The sale of Tingletree and the move to New South Wales [275] - [289]
•
Loss of earning capacity [300] - [306]
•
Loss of superannuation entitlements [307]
•
Domestic and personal care [308] - [309]
•
Medical, physiotherapy and associated expenses [310] - [313]
•
Medication costs [314] - [316]
•
TENS unit and miscellaneous items [317]
•
Pain management and gymnasium fees [318] - [319]
•
Equipment and aids [320] - [322]
•
Travelling expenses [323] - [324]
•
The sale of Tingletree [325]
•
The sale of the home [326]
•
Yacht safety expenses [327] - [328]
•
Furniture storage expenses [329]
•
Study and other rehabilitation expenses [330] - [332]
•
Medicare reimbursement [333]
•
Tax of weekly payments of compensation [334]
•
Pain and suffering; loss of amenities [335]
•
Workers compensation claim [338] - [341]
o
Comment [342] - [343]
•
The Tingletree newsletter of November 2002 [344] - [347]
MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TRESIZE t/as TRESIZE LAWYERS, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS
1 This is an action in negligence for damages for personal injuries said to have been sustained in a fall whilst the plaintiff was descending a set of external steps of a building in Salamanca Place in Hobart. This was on 17 June 2002. The plaintiff was operating a childcare business at the time of the accident, but says that as a result of the injuries she could not cope with the physical demands, and was required to sell it. She now lives with her husband on a yacht in a marina in Yamba, New South Wales; her evidence being that they cannot afford to live any other way.
2 The building where the fall occurred is a two storey structure with the principal address of 41 Salamanca Place. It is owned by the group of three "third" defendants, as they are described in the pleadings. (Although referring to these defendants in the plural, I will treat them as one.) The ground floor is occupied by the business known as the Salamanca Fruit Market. This has frontage onto Salamanca Place. On the eastern side of the building, Kennedy Lane gives access from Salamanca Place to Salamanca Square. The steps, which are uncovered, provide access from Kennedy Lane to office space on the first floor of the building. Part of that office space is 41A Salamanca Place.
3 The steps themselves are on land owned by the first defendant, the Hobart City Council ("the Council"). 41 Salamanca Place has the benefit of a right-of-footway over the land occupied by the steps, and accordingly, the third defendants had right of access to the first floor of the building. The third defendants leased 41A Salamanca Place to Andrea Tresize Management Pty Ltd and Michael Tresize Pty Ltd, as "tenant". By implication the tenant acquired the benefit of the easement. The actual occupier of 41A (in the factual sense) was the second defendant, Michael Tresize, t/as Michael Tresize Lawyers. The plaintiff had been in Mr Tresize's office and was leaving the building when the fall occurred.
4 Each of the defendants is said to be an occupier, and to have had the care, control and management of the flight of steps. The plaintiff alleges that the fall was caused by the negligence of all defendants. The particulars of negligence alleged against the first defendant are as follows:
"(a) failed to install a non slip surface to the steps;
(b) failed to apply slip resistant strips to each tread of the steps;
(c) failed to install a cover over the steps so as to keep the steps dry;
(d) failed to install a handrail to both sides of the steps;
(e) failed to warn the Plaintiff that the steps were slippery when wet;
(f) failed to maintain the steps in a non slip condition."
5 The particulars of negligence alleged against the second defendant are that he:
"(a) failed to warn the Plaintiff that the steps were slippery when wet;
(b) failed to maintain the steps in a non-slip condition;
(c) failed to install a cover over the steps so as to keep the steps dry."
6 The particulars of negligence alleged against the third defendants, although in slightly different terms to those alleged against the first defendant, are effectively the same.
7 The defendants deny that they were negligent. Assuming more than one defendant is found to be negligent, I am not required to apportion liability as between them. They each say that if they were negligent, the plaintiff was contributorily negligent. Particulars of contributory negligence common to the pleadings of all defendants are that the plaintiff failed to keep a proper lookout, and failed to take reasonable care for her own safety; in particular failing to take into account that the steps may have been wet and potentially slippery. The first and third defendants have alleged contributory negligence in failing to make use of a handrail "adjoined to the steps", whilst the second defendant has alleged that the plaintiff attempted to walk down the steps at too fast a rate.
8 In the current set of particulars of damage, the plaintiff says that she "sustained injury to her lower back, left buttock sacroiliac joint, right knee and right lower leg laterally, left hand, and generalised interscapular discomfort". The long term consequences are said to arise from the back, knee and hand injuries. These consequences are said to be significant in terms of the impact on her ability to work, enjoy sporting and leisure activities, and to enjoy her married life. There is a claimed need for ongoing medical treatment and medication, and for personal and domestic assistance. The nature and extent of the plaintiff's symptoms and disabilities is a matter of much contention.
9 A major issue relevant to the determination of the liability of the defendants and the quantum of damages, is the plaintiff's credibility. Much of the trial time was occupied in focussing on that issue and there are several key exhibits. The extent of the debate can be gauged from the outline of the defendants' position as put in closing submissions. A summary of the defendants' position is that:
•
the plaintiff is unable to positively satisfy the Court that she slipped on the steps; the defendants say that she collapsed or fell in a way which was unconnected with the nature or state of the steps.
•
the plaintiff cannot establish that in the fall she suffered injury to the particular inter-vertebral disc.
•
there is no evidence capable of establishing that the plaintiff injured her knee in the fall; that is unless she did not slip.
•
her present back pains and disabilities have not been established as resulting from the pleaded cause of action.
•
any injury to the plaintiff's hand has been of nuisance value only since at least early 2003.
•
the business was sold for reasons unconnected with the fall.
•
the plaintiff is and has been since late 2002, fit for fulltime work in her previous occupation for the position she occupied at the time of the fall.
•
the plaintiff has deliberately and grossly exaggerated her disabilities that she says flow from her back, knee and hand injuries.
•
the exaggeration or lies have infiltrated every aspect of her case, especially the basis for the medical opinions given at trial.
•
the plaintiff has failed to establish any entitlement to damages at all; any award of damages to which she may be entitled should be minimal and limited to non-economic loss for a relatively short period.
10 Apart from the cause of the fall, particular issues which arise for consideration are:
•
the state of the steps as at the time of the accident, generally and immediately prior to the accident.
•
the existence and content of the duty of care in relation to each defendant group, included in which is the issue of "occupation".
•
breach of duty.
•
factual causation.
11 The plaintiff says that if successful in liability then she is entitled to a very substantial award of damages. She has claimed damages under twenty-seven separate heads. The claim for loss of earning capacity is based on the total destruction of that capacity. Other heads include expenses associated with anticipated attendance at a pain management program, future gymnasium and associated expenses, future equipment (occupational therapy) expenses, future occupational therapist attendance and home alteration expenses, costs incurred in relation to the sale of the business, costs incurred in relation to the sale of the Hobart home, expenses incurred in relation to safety items for the yacht at Yamba, storage of furniture expenses (past and future), and study and rehabilitation expenses "thrown away".
12 I have noted the defendants' position as to damages. They say that there is very little wrong with the plaintiff, that she is exaggerating her symptoms for gain and would be entitled only to a very modest award in the event that liability is made out. As can be seen the gulf between the parties is a very wide one. Because of the fundamental importance of the credibility issue to matters which I am required to determine, I will deal with that matter first. In order to do so, I think it is necessary to set out a chronology of events which will provide an understanding of the factual background in which the particular matters relevant to credibility occurred.
13 The plaintiff is now aged 49; her date of birth is 12 October 1961. She obtained teaching qualifications in 1986 and taught in a primary school for a little over two years before opening a kindergarten in Bedford Street, New Town. The kindergarten, and the business, was called Tingletree. The property in Bedford Street was leased from her parents. The venture was apparently very successful so that by 1994 the kindergarten was "servicing 120 families".
14 By this time the plaintiff was living with Timothy Partridge. They married in 1997. In 1995 a company, Tingletree Enterprises Pty Ltd was formed for the purposes of operating the business. The plaintiff and her mother, Kathleen Beven, were the shareholders and directors. The plaintiff and Mr Partridge shared an interest in sailing. In 1994 they had a half-cabin cruiser, which they sold and bought a yacht. This proved to be un-seaworthy and it sunk in 1997. This has relevance to the events of the day of the accident. Mr Tresize was acting for the couple in relation to potential action against a marine surveyor who had provided a report as to the state of the vessel.
15 In April 2001, due to what were described as anxiety symptoms and panic attacks, the plaintiff began to see Mr Peter Hamer, clinical and counselling psychologist. The first consultation date was 23 April 2001. The plaintiff saw Mr Hamer at very regular intervals, most usually weekly or fortnightly, for a period of two years, the last attendance being on 17 April 2003. In Mr Hamer's notes there were, both before and after the accident, references (in simple terms) to the plaintiff selling up and moving to a warmer climate on the eastern seaboard of Australia, and that pressure was coming from Mr Partridge as to this. In cross-examination, the plaintiff was very closely questioned about the true basis upon which the subject-matter was discussed with Mr Hamer.
16 On the day of the accident the plaintiff and Mr Partridge had spent some time in Mr Tresize's office. The sole or predominant purpose of the visit was a matter of contention. There seems to be no doubt that discussions were had with Mr Tresize about possible proceedings against the marine surveyor, but the plaintiff said that she also spoke to an employee of the firm, Christine Webster, concerning Tingletree's debtors. The area of contention related to the fact that the plaintiff claimed workers compensation payments on the basis that the trip to Mr Tresize's office related to her duties as an employee of Tingletree Enterprises Pty Ltd. Whether or not the claim was a valid one became an issue towards the end of 2002.
17 The day after the fall, 18 June 2002, the plaintiff sought medical attention for injuries she had sustained. She went to the emergency section of Calvary Hospital and later, on 3 July, saw her regular general practitioner, Dr Edwards. After a few weeks off work the plaintiff tried to return. She was there on a limited basis depending on her symptoms and the demands made of her, although she was working long hours in late 2002 to early 2003. The plaintiff had regular physiotherapy for her back for two months from 15 July 2002, and saw a pain management specialist about this problem in late 2002 to early 2003. She had physiotherapy for her left hand from a specialist hand physiotherapist, also for two months from 4 September 2002. In early December 2003, she was cleared for a return to work for up to four hours a day as tolerated, reporting to her general practitioner on 18 December, that her back had improved in the previous two weeks. On 13 February 2003 the plaintiff reported that her hand had "improved dramatically". She continued to see her GP about fall-related symptoms until she permanently left the State in October 2003, and first consulted Dr Dixon, an orthopaedic specialist, in Hornsby New South Wales on 11 November 2003.
18 In about September 2003, the business of Tingletree had been sold. The plaintiff and her husband sold their home in Hobart in late November 2003. In October 2003 they had taken a one year lease of a residence on the waterfront at Booker Bay in New South Wales, with a monthly rental of $2,390, and from April 2004 a monthly mooring fee of $120. Earlier in the year, another yacht, the Serendipity, had been purchased and it is this yacht upon which they still live. That was sailed from Southport in Queensland to Booker Bay in November 2003 by Mr Partridge, and a friend of his, John McInerney. After the one-year lease on the residence at Booker Bay had expired, the yacht was moved to Yamba, and the couple commenced to live on the yacht in the Yamba Marina. Yamba is considerably further north than Booker Bay and is roughly to the north-east of Grafton. The yacht was sailed to Yamba in October 2004 by Mr Partridge and a different friend, William Kesby. In late 2004 the plaintiff obtained a disability support pension. Her husband was designated as her carer, and is in receipt of pension entitlements as such.
19 In April 2005 the plaintiff suffered a "heart attack", and underwent arterial bypass graft surgery. Otherwise she continued to live on the yacht at Yamba with her husband. As I have noted, she says that the consequences of her injuries suffered in the fall, prevent her from doing very much at all. The extent of the plaintiff's claimed disabilities is summarised in the following excerpts from her evidence:
• "My mental state is entirely changed since the accident. I think that there's an enormous sense of loss that I live with and anger, have intermittent depression. I have a lot of anxiety in a different way then I've ever experienced, like being in a crowd or travelling. I feel even guilty sometimes that I'm not contributing to either my profession or society. I can't help but feel socially isolated, that's partly because of our living circumstances, but I don't have the concentration - I don't have the joie de vivre to be out in groups of people and keep pace with the rest of the world. I feel that I'm not in sync with other peoples normal thinking patterns and way of life and so that is reasonably heartbreaking and it's isolating so I tend to want to keep more to myself."
• "My injuries totally and absolutely, my disabilities totally and absolutely preclude from working with young children in a teaching or a caring capacity on all physical levels in terms of all licences and all professional standards. I did try to return to my job. I did try very hard to force myself beyond reasonable limits even but I was unsuccessful. I'm physically very restricted and its absolutely dependent on how much pain I'm having in different parts of my body. For example,...I can go and have gone for periods of days where I haven't been able to get off the vessel. It's totally affected my ability to physically function in the world."
20 The plaintiff's evidence as to her reliance on her husband well illustrates what she asserts as to the extent of her difficulties:
"Tim makes my coffee, makes my breakfast, and then one very painful element up there is the use of the marina facilities for showering and toileting; they're a long distance away from where the boats are moored and Tim has to carry my shower bag and accompany me to the shower block, which sometimes I can do very slowly and resting on fire extinguishers on the way, in one or two attempts. Other times it can take me half an hour to get to the actual amenities block ...".
The plaintiff called evidence from an occupational therapist; Jane Berger. Mrs Berger's evidence was that she observed the plaintiff to be restless after remaining seated for 30 minutes after which she put her hands on either side of her hips and took her trunk weight on her hands. The plaintiff told her that she does not carry items as she hangs on with her right arm to furniture, grab rails or a carer while walking, and that when she uses the public bathrooms in the marina she is not able to carry her towel, shower bag and change of clothing. "She stated that she holds onto Mr Partridge and he carries the bathing items." The plaintiff also told Mrs Berger that Mr Partridge had to lift her legs over the shower hob (described by Mrs Berger as "the little step to stop the water getting out"), and that he had to wash her lower limbs and trunk, as well as her hair. He also had to assist in drying and dressing her.
21 Two activities assumed particular significance in the trial; driving or travelling in a car, and sailing. The plaintiff said that travelling in a vehicle was very difficult, that it was difficult for her to drive "bar very short distances", and that she had stopped driving herself because of her medication and the requirement to turn and use her legs. Mrs Berger's evidence was that she was able to remain seated as a passenger for about 30 - 40 minutes where she is able to put her foot up on the dashboard or raise and lower the back rest. As to her previous interest of sailing, the plaintiff said that she had not been sailing since the accident, despite living on the boat for 5½ years. She confirmed in cross-examination that she had not been sailing on the yacht at all; that she had not "while it's been sailing been on the boat away from its marina and/or away from its mooring". Of some significance is her assertion that the move from Booker Bay to Yamba was necessitated by the fact that they needed the boat in a marina, not on a mooring, because she could not access it in a dinghy.
22 The evidence revealed that in the period from Christmas 2005 to August 2008, the plaintiff sent a number of letters and cards to two persons who worked at KPMG accountants in Hobart and who had been involved with the Tingletree business affairs and in assisting with the preparation of her damages claim. This correspondence contains statements as to the plaintiff's lifestyle and activities in which she had engaged, and assumes much significance in relation to the asserted level of the plaintiff's disabilities. In a similar vein there is an application made by the plaintiff to the Teachers' Registration Board for renewal of registration as a teacher for the period 1 January 2008 to 31 December 2010. This application is dated 26 November 2007 and contains information as to her professional development activities which had been undertaken.
23 In relation to the plaintiff's evidence, the defendants' counsel in closing submissions, identified 10 issues or features which they say demonstrate the plaintiff is an unreliable and unbelievable witness. It is put that there is virtually nothing about the accident, the injuries, or the consequences of those injuries, about which the plaintiff "has not exaggerated or frankly lied about to someone, somewhere, at some time, including this Court". A further body of evidence which relates to the movements of the yacht Serendipity and associated facts is also relied on to demonstrate this point.
24 In terms of credibility findings to be made at this juncture, I will confine myself to what I see to be the most significant issues. I will deal with some of the others where they become particularly relevant. My categorisation of the issues is not entirely in accordance with the defendants' formulation, but those which I will canvass for present purposes are:
•
The consultations with the plaintiff's psychologist - Mr Peter Hamer - and the question of leaving Tasmania prior to the accident.
•
Sailing activities and issues related to the Serendipity's movements.
•
The plaintiff's application for re-registration as a teacher in November 2007.
•
The plaintiff's claim for workers compensation.
•
The Tingletree newsletter of November 2002.
25 The plaintiff first consulted Mr Hamer on 23 April 2001. Her evidence was that this was initially because of panic attacks. Mr Hamer noted these as one of the presenting complaints, the others being anxiety symptoms, some mild depression, anger issues with her mother and husband, and work-related stress. The consultations with Mr Hamer continued at, on average, weekly intervals until 17 April 2003. By January 2002 the panic attacks seemed no longer to be an issue. Issues which were discussed included problems with the plaintiff's mother at work, concerns about the relationship with her mother, issues within her marriage, particularly arising from her husband's dissatisfaction with his attempts to find work and pursue his career as a musician in Tasmania. Throughout the notes in the periods both before and after the accident, there are repeated references to "selling up" or similar terms, and moving to Sydney or Queensland.
26 In examination-in-chief the plaintiff said that she had not ever considered selling the business before the accident. She was also asked about her discussions with Mr Hamer before the accident and "mention by you of the ... sale of Tingletree and perhaps moving to New South Wales or at least to the mainland, a warmer climate, living on a yacht and that sort of thing ...". The plaintiff replied:
"I do recall several discussions of that nature with Mr Hamer. He would raise alternative lifestyles and we would discuss together different things that could be implemented within my life to eradicate any stress and we did have an exercise, a deliberate exercise of fantasy and optimism where over several sessions we developed - or I developed a dream scenario of what I would do, given all the choices in the world.
Yes. Well along that line then, did you seriously contemplate prior to your accident the sale of Tingletree and moving to warmer climates and living on a yacht?.......Absolutely not.
Yeah........Absolutely not."
27 This should be immediately contrasted with Mr Hamer's evidence. He was asked by the plaintiff's counsel about discussions as to the sale of the business and moving out of Tasmania to a warmer climate. He said that the matter came up frequently. He was asked to concentrate on the period before the accident and then requested to detail his recollection of those discussions. He said:
"One of - one of the - the issues of our sessions was the occasional, sometimes even frequent conflict with her partner, Tim. Some of those conflicts had to do with his dissatisfaction in not having enough work in Tasmania, he's a musician, and his solution was to move to a larger population base, he was suggesting, Queensland, Sydney - any place where he would get more work as a musician. So this was a suggestion that Moira frequently brought to the sessions as, you know, the reason for the arguments with Tim, he wanted to move to some place where he could get more work and his suggestion was, you know, 'Let's go someplace, live on a boat and I can - you know, you can do what you want to do and I can - I can get more work as a musician'.
Yes, and what did she relate to you was her perspective about all of that?......Well she was reluctant to do that because - although the idea appealed to her and at some - you know, frequently she'd come to our sessions and she was quite stressed and she might sort of think, 'Oh you know, the idea's not that far fetched, but not at the moment because, you know, I've built this business, I've - I enjoy the work that I do there, it brings me a lot of satisfaction, there are too many stumps to pull up in order to do that', so she'd never considered the idea of selling Tingletree seriously."
28 In cross-examination, the plaintiff strenuously denied that she considered selling the business before the accident, and repeatedly, in the course of close questioning about the entries in Mr Hamer's notes, that before the accident she had been seriously considering selling up and moving north to New South Wales or Queensland and living on a boat. I will need to detail some of this cross-examination as to the notes, what was said, and the plaintiff's responses as to why certain things were said. Mr Hamer's note for 6 August 2001 includes "Tim encouraging selling up - live on boat. Tim has offers for music work on mainland." The plaintiff said that she did not remember saying that. She said that there were some mistakes in Mr Hamer's notes, but conceded she could well have said it. A further entry of 3 September 2001 says "Discussing future hopes - seems disheartened at work - looking for reason to sell." The plaintiff seemed to accept that she had told Mr Hamer that, but said that it was not in relation to her business. She went on to say "It's a memory note for Mr Hamer to himself, but it does omit details ...". She was interrupted and asked to explain what the note related to. She said "I believe that note relates to Tim looking for reasons to sell our home, encouraging me to sell our home and to live on a boat in Tasmania."
29 On 5 November 2001 Mr Hamer's note reads "Wants to examine feelings for Tim. Puts pressure on her to sell up and then move north to Sydney/Brisbane." There were other notes for the same attendance and the plaintiff was cross-examined about the whole of the entry. It is lengthy but worth setting out that part of the cross-examination which relates to the part which I have quoted:
"Now Tim didn't want to sell up and live on a houseboat in Hobart. He wanted to sell up and was putting pressure on you to do it, to move north to Sydney or Brisbane, didn't he?......That's your interpretation of that sentence.
No. I'm suggesting that's what you told Mr Hamer.......Tim, if Tim wanted to move north he was most welcome to move north.
But you'd stated---
HIS HONOUR: No, the question is what you told Mr Hamer though.
WITNESS: Oh, that -well, I'm reading it along with you. I believe---
HIS HONOUR: That's not - everybody can read what's on the paper. It's a question of what you told ... Mr Hamer on the 5th of November 2001.
WITNESS: Well, I believe that Tim probably - the pressure, I believe---
HIS HONOUR: No. What did you tell him, that's the question you've been asked.
WITNESS: Sorry, I told him that Tim was pressurizing me to sell Forster Street and he did have, I believe - and I said to Mr Hamer, that he had some work temptations and some job opportunities interstate.
MR JACKSON: Did you really tell Mr Hamer that it was 39 Forster Street that Tim wanted you to sell so you could move?......That we could move?
Yes........Onto a boat, in Tasmania?
No, north to Sydney or Brisbane........No. I had never had an intention of moving north to Sydney or Brisbane.
So let me try and understand this.......My husband---
You've told Mr Hamer something on the 5th of November 2001, haven't you?......Yes.
You're not going to suggest Mr Hamer just dreamt up this, are you?.......No, I'm not.
Completely? You're not going to suggest it---.......There is a mistake in that entry but, no, I'm not suggesting it.
Well wait a minute. You're not going to suggest that, are you?.......No.
And what I'm suggesting to you is that you told Mr Hamer that Tim was putting pressure on you to sell up, that is, to sell up everything, get out of here and go to Sydney or Brisbane. Now is that what you told Mr Hamer or not?......I think it was pressure to sell up the house.
You think it was. Let's just move outside Mr Hamer's notes for a moment. In November 2001 was Tim putting pressure on you to sell up everything and move to Sydney or Brisbane? Now just answer that question if you can, please, yes or no, was he?.......Tim has never ever wanted to live in Queensland and neither have I.
Well Sydney's not in Queensland. It's an option offered here. My question was, In November '01 was he putting pressure on you to sell everything up and move to Sydney or Brisbane?......Around that time when his depression was recognized until he was treated---
Mrs Partridge, was---.....---he was putting pressure on---
Mrs Partridge, please, was he doing that or wasn't he, yes or no?.......He was putting pressure on me because he wanted to move to the mainland.
Was he putting pressure on you in November 2001 to sell up everything and move to Sydney or Brisbane?........Not to Brisbane and, yes, he was putting pressure on me.
To sell up everything and move?.......I don't know---
We're narrowing it down. Was he putting pressure on you to sell up everything and move, Mrs Partridge?.......He was putting pressure on me about all sorts of things at that time, yes.
Was he putting pressure on you to sell up and move?.......My understanding was that he was putting pressure on me to sell our home, but he wanted to move to the mainland, to Sydney.
I think we might have got there. You say it's just the home.......Yes.
So how were you going to run Tingletree from Sydney?......I couldn't. That's why I didn't consider doing it myself. That's why no matter what Tim---
Tim wasn't suggesting that to you, was he?......It doesn't matter what Tim wanted, sir, I had a business to run. Tim had already moved from Sydney because I wouldn't move from Tasmania when we first met. He moved from Sydney and from that lifestyle to come to Tasmania to live with me and he helped me with my father. However, from time to time---
Mrs Partridge---......---he was dissatisfied here."
30 For an attendance on 10 January 2002, Mr Hamer has noted "Mostly discussing issues with boat/repair/finances. Tim's solution - sell up." The plaintiff accepted that it was something she said to Mr Hamer "in some context". She said she told Mr Hamer this because she would have been irritated by Tim's attitude. Of greater significance perhaps is an entry dated 10 January 2002. After noting a discussion about the positives and negatives of a Christmas break, the note reads "Seems to lean toward selling business - more decided about moving to warmer climate." When the note was read, the plaintiff said that it was "Mr Hamer's note to himself. I'm sorry, but I didn't want to ever leave Tasmania, I was born here, I had my business here, so whether he was referring to Tim, whether he was referring to my mother going to Perth to live with my brother, John, because it's warmer weather there when she retired, I do not know what he was referring to. I only know what is in my - what was in my mind and what my intentions and decisions were." The plaintiff agreed that the note appeared to be Mr Hamer's conclusions reached from his discussion with her, but said that the cross-examiner would need to ask Mr Hamer. She was asked whether by the beginning of January 2002 she was leaning towards selling the business and moving to a warmer climate. The plaintiff replied "No, not me."
31 The next entry I want to note for these purposes is one of 6 June 2002. The note reads "Discussing pros/cons of selling again - moving to Qld - part of her 'dream' - live on boat - work in a childcare centre or do relief teaching in primary school. Has interest from a National group to buy Tingletrees. Tim will have much more work - will be happier. Seems upbeat today." The plaintiff said "I disagree" when it was put that the note reflected the reality of the situation. However, she did not deny that she had told Mr Hamer what was recorded, but seemed to suggest that it did not relate to her. When asked about the note of her being "upbeat", she said that was correct "because Mr Hamer and I were doing an exercise in fantasy, you can see that from that list that [was] read out to me earlier". She went on to say that "it was an ongoing theme where I would develop a fantasy of life in which everything would be terrific. He will tell you". In the period following the accident there are similar references to moving. For instance, on 8 August 2002: "Tim seems impatient about moving - has had contact re music work on mainland - urging Moira to sell". On 10 September 2002 there is a note of discussing the "pros and cons" of selling the business. The positives were moving to Sydney or Queensland, living on the boat and being able to disentangle herself from her mother. The disadvantages were that she had enjoyed working with the staff and would miss them.
32 As can be seen, the plaintiff at one point asserted that there were mistakes in Mr Hamer's notes. At another point she said that she did not believe he plucked anything out of the air and at another point said that what was obviously an entry contrary to the impression she was attempting to convey, was a note that Mr Hamer made for himself. Significantly, at one point of the cross-examination on the notes, the plaintiff said that "I didn't tell him a lot of the things he wrote down." In re-examination, the plaintiff was not asked any questions as to any of the things she had said about Mr Hamer's notes. I have already set out the basic question which was asked of Mr Hamer by the plaintiff's counsel. No questions of inaccurate note taking, the noting of assumptions or his conclusions rather than what was said, or the issue of the fantasy exercise were raised with Mr Hamer at all. The subject-matter of the notes was tackled rather obliquely by a question as to what their purpose was. He said that their purpose was to remind him of the emotions that were being experienced during the session so that it was a memory aide for him so that he knew what had gone on in the previous sessions. He said that he did not pay attention to fine detail, but more the emotions and how the plaintiff had been feeling, and the result that had "the behaviours that have been the result of those emotions".
33 Mr Partridge said that when the Serendipity was bought, it was his intention that the boat would be sailed. He agreed that they had talked about living on a boat before that particular yacht was located. He said that he agreed that in 2001 he had talked with the plaintiff about living on a boat "among other things". However, he denied that there had been talk in 2001 of selling the business. He said that she had no intention of selling the business and that he "of all people, wouldn't have been able to persuade her". He thought that it would have been early 2003 when there was the first indication from the plaintiff that she would sell Tingletree. The cross-examination continued:
"The two of you had, for some time, before the date of her accident in June 2002 discussed going to live in a warmer climate, hadn't you?......Um, from time to time we discussed things like that. One of the things we talked about was going to the Greek Islands.
Well, you had, in fact, discussed going to live in Queensland or northern New South Wales, hadn't you?.......No, we've discussed going to Queensland. Neither of us would ever live in Queensland.
You had discussed going to live in northern New South Wales?......No. We had no knowledge of northern New South Wales. We had discussions about - in the early 90s when I in fact was living in New South Wales.
Did you discuss going to live in Sydney?......Then we did in I think '91.
In 2001?......No.
Never?.......No, no.
Weren't you putting pressure on Mrs Partridge to sell up and go to live in somewhere up in northern New South Wales or New South Wales or Sydney and eventually live on a boat?.......No, not at all.
Absolutely not?"
34 Mr Partridge was asked whether there had ever been any discussion between the two "about anything of that kind whatsoever ... in 2001". Rather than answer, Mr Partridge said that it required an explanation. After my intervention, he answered "Yes", and said that he would like to explain, the opportunity to do so not arising until re-examination. In the meantime, when discussing the respective costs of staying at Booker Bay and on the yacht at Yamba, he was asked whether living on the boat was the end point of a long-term plan. He replied "No, It was one of the options that we discussed for years." The explanation Mr Partridge offered in re-examination was as follows:
"In 2001 we discussed many many options, as we do most years, including this one, but in 2001 we were discussing sailing around the world, going to the Greek Islands, I think in 1999 or 2001 we had a month on a house boat on the Murray River as our annual holiday, and we thought we could actually so something like that. But at no stage did the idea of selling Tingletree, which eventually Moira would inherit from her mother, the other half, as her super, at no stage did that ever occur to us. We considered we could do all of these things and she could still work in - at Tingletree and continue to own it and run it, even if she wasn't physically there for a few months, or even in fact a year. The other - in 2001 we discussed getting another boat, a bigger boat, and the options with that boat were; firstly to bring it down; secondly we could leave it was; thirdly we could park it somewhere like Mackay and use it for several months a year as our holiday home. We also had - we wanted to buy a boat that also had some options of perhaps retiring and sailing off around the world, so we bought one that was capable of doing that. Now we discussed these things and planned at great length, and I believe we were probably already looking on the Internet for boats, which is where we actually found this boat."
35 Two issues arise. The first is whether the discussions about "selling up and moving north" were exercises in fantasy as the plaintiff represented them to be, or were instances of the plaintiff raising her concerns about the pressures being brought to bear by Mr Partridge in this respect. Mr Hamer's unchallenged evidence, and a reading of the whole of the notes, must lead to a rejection of the plaintiff's evidence. That leads to the second issue, which is whether, having regard to Mr Partridge's evidence, they are both being untruthful as to the extent and seriousness of their discussions about moving, or whether Mr Partridge's evidence is to be accepted - the consequence of that being a conclusion that the plaintiff was exaggerating and misrepresenting to Mr Hamer the true domestic situation.
36 In terms of the plaintiff's credibility, I have no hesitation in dismissing the plaintiff's efforts at avoiding the obvious implications of Mr Hamer's notes, and her attempts at explaining their content. Mr Hamer's evidence alone makes it quite plain that the plaintiff was discussing with him the possibility of selling up and moving to a warmer climate somewhere near Sydney or in Queensland. Whether or not the plaintiff seriously contemplated the move is a separate question. What my particular concern is that no doubt the plaintiff understood the ramifications for her damages claim which would follow from the active discussion before the accident, of a move to the mainland. As the transcript shows, the plaintiff was evasive and her attempts to explain the notes of her discussions with Mr Hamer, given Mr Hamer's evidence, have a serious negative impact on her credibility.
37 As part of this discussion, I need to explain some of the events which occurred during the trial. A subpoena had been issued for documents in the possession of the plaintiff's accountants, KPMG, that subpoena being returnable on the date on which the trial commenced. That subpoena was not complied with until after the plaintiff had completed giving evidence some days later. As it turned out, the subpoenaed file contained cards and letters written by the plaintiff and sent to KPMG personnel. The contents were unhelpful to the plaintiff's case. The accountant particularly involved with the plaintiff's affairs, Matthew Wallace, was called to give evidence, and two cards and two letters were tendered in his cross-examination. After the brief evidence of three further witnesses, leave was sought for the plaintiff to be recalled to give evidence about these documents. I granted that leave notwithstanding the defendants' opposition. I will set out relevant extracts from the documents and then the plaintiff's evidence.
38 The first of the documents is a handwritten Christmas card signed by the plaintiff and addressed "To dear Matthew and family". A reference in the text suggests that it was sent at Christmas 2004. In the card, the plaintiff expresses her appreciation for Mr Wallace's efforts. Under the heading "And now for some gossip!!" the plaintiff' refers to her mother "still struggling on", and says that her mother's great sadness is to see that to actually make a profit in children's services the first victim is quality. "That, aside from my back injury is why I could not stay beyond the sale". The plaintiff goes on to say:
"Tim and I are really in beautiful surroundings here on the Central Coast ... We couldn't be happier!!! We traded our cars for a great diesel jeep (along with the business money). We sold our house and bought a 39 ft Pacific Challenger in perfect condition which we paid 170K for and own outright! ... and in March 2005 we head off to sail around the Pacific. I can't wait!! The year ahead will be full of courses on navigation, computers, etc and we'll be sailing up the Coast."
Enclosed with that card were two photographs, one of the rented property at Booker Bay and one of the Serendipity.
39 The second document comprises two parts. There is a small Christmas card sent at Christmas 2005 addressed "To Matthew and family (Neil, and all the wonderful people at KPMG)". It contains the following:
"Matthew - thanks SO much for helping my lawyer with my case re my permanent back damage - it's horrible; but we try to stay positive. (No choice there) I'm on a disability pension & poor Tim is my 24hr carer so we're broke AS. But determined to have a life!!!"
40 The second part of this exhibit consists of two printed pages on which there are background photographs of the plaintiff and her husband standing on the yacht, and one of the yacht itself. The heading is "Christmas greetings from the SV Serendipity". The opening words are "Happy Christmas to everyone!" The relevant parts are as follows:
"We are thrilled to be spending our second Christmas aboard our yacht Serendipity and have lived and cruised on her now for 16 months. The experience thus far has been amazing and we can't imagine ever living on 'land' again! Hard to describe really; physically tough but pierced with moments of absolute wonder; like electrical storms at sea; dolphins playing across the bow; sunrise on the ocean; waves crashing over the top! ...
So far we have cruised from Brisbane to Sydney, explored the Hawksbury River and sailed north to Yampa, where we will summer; and then head further north to the Bunker group of Islands and the Whitsunday Islands for the winter.
...
[References follow to meeting people "in our travels", to Yamba itself and the plaintiff's heart surgery]
...
Until we leave Yamba we will both continue to study and learn more about our new lifestyle. Tim competes in the local (but extremely fierce) yacht races run by the Port Yamba Yacht Club on several of the local boats, ... I have almost completed my new degree in Counselling and I am now qualified as an Inshore skipper (able to skipper a tourist/commercial vessel up to 200 miles out to sea!) We so hope our knowledge will keep us out of trouble at least!"
41 The third document is a handwritten letter addressed to Matthew dated 8 February 2006. It contains references to superannuation, KPMG's accounts and fees related to her heart surgery. The concluding paragraph contains the following:
"Anyway I'm still alive & kicking; studying Journalism Degree & Counselling Degree during this quiet time in life & enjoying being on the water. Yamba is fantastic - if every you're up this way please ring, visit & come for a sail - I'm an 'Inshore skipper' now so you'll be in (relatively) safe hands."
The plaintiff goes on to say that her mother retired in December 2005, that she [the plaintiff] was in shock and "will never know what difference it would have held [sic] had it occurred a few years earlier".
42 When the plaintiff was recalled to give evidence about these matters, she was first taken to the two-part second document and the main part of that, which was described as a computer-generated newsletter. She was asked what it was intended to convey. She replied, "It was intended to convey basically that I'm not a loser ... It's intended to convey thanks for good wishes, a happy Christmas and it was intended to convey that my life was wonderful". She said that the references in particular in the first two paragraphs to sailing activities was not accurate. She was asked what she was intending to convey to Mr Wallace by relaying that information. The following exchange occurred:
"That I wanted to him to believe that I had a full and happy life because I had great self-esteem issues after stopping work and losing everything and I'd always had a professional relationship with Matthew, and mixed in, perhaps, those sort of circles and I didn't want for him to think that we were just down and out - I was disabled and broke, a loser in other words.
And does that explanation go for the balance of this document, insofar as it refers to a happy life that you were having up in the north of the country?.......Yes, definitely.
And in terms of reference to sailing and the like?.......Yes."
43 The plaintiff was shown the first document, the 2004 Christmas card. She agreed that it was a document "which had emanated" from her. She was asked whether she recalled sending it. She said "I actually don't recall any of this stuff, but it is my stuff and once I was shown it I remember." Her attention was taken to the particular reference to the intention of sailing around the Pacific in March 2005. She said that was not "representative" of her intention at the time she wrote the card. She said that she recalled writing the card and when asked to explain why she had said things which were not accurate - what her intention was in saying those things to Mr Wallace. She said:
"Well it's the same thing to um - Matthew indicated to me that he was pretty sad about my life and I am a private person and the peripheral people like Matthew I didn't want them to know the details of my life and so I lied in the card, but I wasn't under oath, but I lied in the card."
44 As to the letter of 8 February 2006, the plaintiff was asked what she intended to convey by inviting Mr Wallace to come sailing with the suggestion that she was an Inshore skipper. As to this, the plaintiff replied:
"Well I was doing the course at that time and as always through - throughout these years I had an expectation of getting better in some way, and just conveying to him that - that I have tenacity, that I hadn't given up on life all together and that there were - my brain was still working."
45 In cross-examination the plaintiff was taken to her explanation that she did not want Mr Wallace to think that she was "down and out, disabled and broke; a loser in other words". She confirmed that she did not want to convey to him that she was a loser, had nothing to offer or nothing to contribute, and had no semblance of a life left. When asked whether she had said in the Christmas card of 2005 that she was "broke as", she said that she had not "seen the thing since yesterday but I could have, but I probably reiterated that I was happy". When the question was repeated, the plaintiff said she did not remember. The question was repeated; the plaintiff said "I don't remember. I saw the paperwork yesterday but I don't remember what's in it." She said it was possible that she had told Mr Wallace that she was on a disability pension but she did not remember the words that she had read yesterday. The questioning continued:
"You knew when you gave your evidence yesterday that unless you told the court that the contents of the cards and the letter to Matthew and Neil were not accurate it could impact badly on the case, you knew that, didn't you?......Well I think it has. I'm not---
It's something you knew when you came into the witness box?.......Today?
Yesterday?.......Yes."
46 Under further questioning, the plaintiff agreed that she had said that she had permanent back damage, it was horrible, that she was on a disability pension, that poor Tim was her 24 hour carer and they were "broke as". The exchange concluded as follows:
"You lied to the Court in your evidence yesterday when you said that you didn't want Wallace to think that you were just down and out:
I was disabled and broke, a loser in other words.
That was a lie, wasn't it, Mrs Partridge?......I didn't - I didn't want Matthew to think I was a loser.
No, answer the question, Mrs Partridge. That evidence was a lie, wasn't it?......No, sir, unless I misunderstand your question, no.
You attempted to lie - sorry, you lied yesterday in an attempt to assist your case, didn't you?......No, I did not. In this Christmas card in this letter I was -
Yes, if it please, your Honour......- not under oath, in court I'm under oath." [Emphasis added]
47 Following the plaintiff's evidence and before her case was closed, an adjournment was sought to enable investigations to be carried out with a view to assembling and putting before the Court evidence concerning the movements of the Serendipity and the use of the yacht from October 2003 until the date of the trial. The adjournment was opposed. I ruled in favour of the plaintiff and the trial was adjourned, for about two months over the Christmas break. When it resumed, the plaintiff called John McInerney, who had, as noted, assisted Mr Partridge with the movement of the yacht from South Queensland to Booker Bay, and William Kesby who, as also noted beforehand, had assisted in the movement of the yacht from Booker Bay to Yamba. Two employees of the Yamba Marina who worked in the office were also called.
48 At the end of that evidence, a further application to recall the plaintiff was foreshadowed. This related to a "voluminous amount of bank statement documentation" which had been returned to the Court on subpoenas issued by the defendants. I was told that the plaintiff had prepared handwritten memoranda relating to that bank documentation. Other bank documentation which the plaintiff had not seen was mentioned. The end result was a short adjournment. Upon resumption, the plaintiff's counsel said that it was not proposed to call any more evidence and the plaintiff's case was closed. The first defendant then tendered the November 2007 teacher re-registration material which I will deal with next, whilst the third defendant tendered four bundles of bank statements relating to various accounts of both the plaintiff and of Mr Partridge.
49 The evidence establishes that the Serendipity was purchased in Manly in Brisbane. It was sailed from Southport to Booker Bay in November 2003. Mr McInerney gave evidence that he, Mr Partridge and a professional skipper hired for the purpose sailed the yacht to Booker Bay. He said that the plaintiff was on the marina at Southport as they sailed away. The plaintiff denied that she and her husband "had delivered" the boat from Manly to Booker Bay, and that she had sailed with him on that occasion. Mr Partridge's evidence was that the plaintiff was staying in Booker Bay during the journey, with the mother of a friend of his with her. Mr McInerney said that he did not see the plaintiff after Southport and that she did not participate at all in the trip. Both Mr Partridge and Mr McInerney were asked about the ports of call during the trip south. They called in at Coffs Harbour, Laurieton, Nelson Bay and Pittwater. Bank records of the plaintiff's tendered during Mr Partridge's cross-examination are significant. They show cheque, credit card and cash card transactions. The account is in the plaintiff's name only. I am satisfied that the entries show the following:
•
the hire of a car in Brisbane on 19 November 2003 for $601;
•
various credit card transactions with "Muir Marine (QLD)" between 19 and 21 November 2003;
•
a cash withdrawal from Manly on 22 November 2003;
•
a cash withdrawal at Southport on 28 November 2003;
•
a cash withdrawal at Coffs Harbour on 2 December 2003;
•
cash withdrawals at Nelson Bay Marina on 5 and 9 December 2003.
50 Moving the yacht to Booker Bay took place in October 2004. There is no direct evidence from either the plaintiff or Mr Partridge as to the plaintiff's whereabouts during this trip. Mr Kesby gave evidence that he and Mr Partridge sailed the yacht on this journey north. The ports of call were Nelson Bay and Camden Haven which is just south of Coffs Harbour. In cross-examination he said that the trip took quite a while because at two stages they were caught by bad weather. The stopover at Nelson Bay was about a week, during which he actually went back to his boat at Booker Bay, and the stopover at Coffs Harbour was a few days as well. He first said that he did not see the plaintiff in Nelson Bay, nor at Coffs Harbour, nor at Yamba when they arrived there. However, he was shown a document which he had signed as a witness to the plaintiff's signature at Nelson Bay on 18 October 2004. It was put to him that the plaintiff was "tracking the yacht in a car - as the yacht went north she drove north". He said he did not remember that, but that it was possible because they were in Nelson Bay for a long time. He said that the plaintiff must have driven up and he has signed the document. He said his conclusion as to her driving up was simply based on the fact that she was not on the boat so that was the only thing he could think of. He said that the drive from Booker Bay to Nelson Bay was about two hours.
51 Further bank records of the plaintiff which were tendered as part of the third defendant's case show the following:
• transactions at and near Booker Bay on 13 and 14 October 2004;
•
credit card transactions and cash withdrawals at Nelson Bay and Nelson Bay Marina between 21 and 25 October 2004;
•
credit card transactions and cash withdrawals at Coffs Harbour on 28 and 29 October 2004;
•
credit card transactions at South Grafton and Yamba on 1 November 2004.
Miscellaneous evidence as to sailing/driving activities
•
In a letter dated 20 July 2005 to Dr Dixon, one of the plaintiff's treating specialists, the plaintiff said "We love Yamba very much and have been back to visit my mum in Tassy since I saw you last. I have coped on the boat (just) but we haven't sailed anywhere since our arrival (unless Tim's mates come along and I'm only a passenger)";
•
Mr McInerney said that in September 2005 when he stayed with the Partridges at Yamba, they (including the plaintiff) motored the yacht from Yamba up the Clarence River to the Pacific Highway Bridge, stayed the night and motored back the next day. That was all done under motor and on very calm flat water;
•
Mr Kesby also said that he had a recollection - not a strong one - of the Partridges going out with friends "and going sailing up the Clarence River" when at Booker Bay. He described barbeques which would often occur on the boat, usually on the Partridges' boat, but sometimes on his. In that context he spoke of the plaintiff getting from boat to boat in a tender, and he said that he saw both Moira and Tim using that tender "not to get to other boats but just choofing around [for] enjoyment".
53 The evidence of the plaintiff and Mr Partridge, together with the bank records tendered by the third defendant as part of their case, also reveal some interesting patterns relevant to the plaintiff's capacity to travel in a motor vehicle. It is accepted that in April 2005 the couple travelled by car from Yamba to Hobart and returned the same way. The bank records divulge the pattern of the trip. It would seem that they left Yamba on 7 April, Mr Partridge's records showing activity at Albury on the same day. Further activity in that account at Elizabeth Town in Tasmania on 15 April would suggest a ferry trip the previous night, the plaintiff's records showing activity at St Kilda on 11 April. There is activity in Mr Partridge's account both in Hobart and Ulverstone on 18 April, and back in Hobart on 19 April. When asked whether she recalled coming to Tasmania in April 2005, the plaintiff said she recalled having more than one trip back but cannot recall the dates. She was asked whether there was an occasion when she came back to Tasmania when she was left alone while Mr Partridge went off elsewhere, the reply to which was "not without being cared for by my mum". In any event, the records indicate leaving Hobart on 21 April, being in Sydney on 22 April, and back in Yamba at least by 26 April.
54 As revealed by the records of transactions in both accounts, there are three further apparent driving trips. (There is no direct evidence of the mode of travel, but the details make it more likely than not to have been a motor vehicle of some description. The record do not reveal the purchase of airline tickets.) The trips are as follows[1]:
•
Yamba to the Gold Coast via Asquith (just north of Sydney) and return between 1 September and 26 September 2005, the total distance being approximately 1,600 kilometres. The plaintiff's records have her at both Asquith and Coolangatta on 14 September, a distance of some 800 kilometres.
•
Yamba to Tewantin (just east of Noosa Heads area) between 3 April and 9 April 2008, the one way distance being some 425 kilometres. The total return distance involved is approximately 850 kilometres.
•
Yamba to Kincumber (south east of Gosford) to Towadgi (just north of Wollongong) and return via Kincumber between 6 November to 10 November 2008, the total return distance involved is some 1,600 kilometres. The records suggest travel from Kincumber south to Towadgi on 8 November, returning to Kincumber on 10 November and then back to Yamba on the same day or the next day. Kincumber to Yamba is about 620 kilometres.
55 There is further evidence of substantial travel of a similar nature. The plaintiff makes a claim for accommodation expenses on two occasions associated with the yacht being put up on a stand for cleaning. She says that she is unable to climb the ladder to the yacht when it is on the stand. Two receipts were put in evidence in relation to this claim. The first is from Dockside Central in Ferry Street Kangaroo Point, Queensland. When referring to this receipt, the plaintiff agreed that it related to accommodation "at a local hotel or something of that sort", going on to say "... actually it's Kangaroo Point and it's just over the border from where we live but I believe my mother was actually on a conference at that time so I took that opportunity to stay near to where she was staying". Ferry Street, Kangaroo Point, as disclosed on the receipt has a postcode of 4169. It is in Brisbane, close to the Brisbane River. Yamba is approximately 285 kilometres from Brisbane. The second receipt was said to relate to accommodation "in the same circumstances as the earlier one ... referred to". Doing the best I can with the faded receipt, the accommodation was at Bilinga, which is close to Coolangatta, some 190 kilometres away from Yamba.
56 I do not think that too much really needs to be said about all of this evidence; the impact of it is to a large extent self-evident. As to the KPMG correspondence, I found the plaintiff's evidence as to why she wrote what she did, to be rather unconvincing. The assertion that she did not want to be regarded as "a loser" with "no semblance of a life left" does not sit happily with her comments in the Christmas 2005 material to her permanent "horrible" back damage, and being on a disability pension, with Mr Partridge as her 24 hour carer, and effectively being penniless. However, I do not believe that all of what the plaintiff said in this correspondence as to their activities was true. Much was exaggerated and untrue. However, I think that there is an element of truth in it to the extent that it discloses an enjoyment of the lifestyle and a level of activity at odds with what was asserted in the trial. In relation to the yacht movement trips, it is possible of course that Mr Partridge was using the plaintiff's card. However, in relation to the Southport - Booker Bay trip, the fact that Mr McInerney saw the plaintiff at the Southport Marina and the extent of the car hire rental, makes that improbable. Similarly, in respect of the Yamba - Booker Bay trip, I am satisfied that the plaintiff was at Nelson Bay on 18 October 2004 and that this supports the inferences to be drawn from the bank records. Despite foreshadowed evidence from the plaintiff in relation to the bank statements, none was forthcoming. In those circumstances in which the plaintiff had the power to contradict this evidence, I am more confident in drawing an inference adverse to her: Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 and Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, as discussed in Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1 at [436] - [455]. In both cases I find that it is more probable than not that the plaintiff was following the journey of the yacht.
57 The further evidence of the plaintiff's level of sailing activity and the use of the dinghy, of very limited scope though it might be, needs to be put alongside the evidence of the driving trips. One important point about the dinghy use is that, as will be recalled, the plaintiff related the move to Yamba because they were required to live on the yacht and she could not use the dinghy to access it when on a mooring. In my view, the totality of the evidence shows a level of activity quite at odds with the picture the plaintiff wanted this Court to accept. The driving trips themselves show a level of activity and a capacity to tolerate sitting for long periods greater than that asserted.
58 In November 2007 the plaintiff applied to the Teachers' Registration Board of Tasmania for renewal of her teacher registration which was due to expire on 31 December. Registration lasted for three years. The four-page application was included amongst documents returned to the Court in January 2010 in obedience to a subpoena. It was tendered as part of the first defendant's case. The document is a pro forma application and concludes with a statutory declaration by which the applicant solemnly and sincerely declares that the information provided in the application and information contained in the documents accompanying the application are true and correct to the best of the person's knowledge and belief. The declaration is made under the Oaths Act 2001. The applicant completed the statutory declaration before a justice of the peace at Yamba on 30 November 2007.
59 The first part of the form requires the applicant to declare what professional development had been undertaken during 2005 - 2007. The following appears as part of the instructions:
"Note: Professional development consists of all those activities and practices which contribute to a teacher's professional competence, directly or indirectly enhancing teaching and learning."
60 Under this note, the following appears in handwriting:
"NB. Much of my time is spent in a voluntary capacity (pending my last set of back operations) learning about, and working with indigenous groups of chn; in community arts and crafts programs and 'at risk' chn, in holiday activity settings. I hope and intend to return to Tas asap!! also completing Journalism degree & writing to be published."
61 The applicant is required to list in the form up to five professional development activities, and as to each activity, provide the time spent - in hours, and the provider. The plaintiff provided the following information:
•
Dip Professional Counselling - Specialising in Family and Chn's Counselling and Trauma - 1,659 hours - Aust Institute.
•
Meditation, Tai Chi, Tse Gung - 500 hours plus - Local Community Orgs.
•
Volunteer coastguard duties - 30 hours plus - coastguard NSW (Y/I).
•
Team/Crew Leadership & Training - 60 hours - IASS (International) Accred.
•
Professional Skipper's Licence (includes leadership p/delegation/safety (medical/legal/team-building/rescue/reporting/navigation/etc) - 180 hours - IASS (International) Accred.
62 The first thing to be noted is that the plaintiff has not had any "back operations" as that would be commonly understood, let alone a "last set". She had a discogram performed at L5/S1 level and a bilateral L4/5 facet block procedure, both in early 2004 which are the only intrusive medical procedures which she has had. The plaintiff's evidence about some of these things was that she enrolled in a diploma of professional counselling course but was unable to complete it because of her inability to attend practical placements and collaborate with other students. There was evidence about the completion of the theoretical part of a sailing course to inshore skipper level, but again she could not participate in any of the practical parts of that course. In cross-examination it emerged that there were two courses related to sailing, as to both of which the theoretical part had been completed. She had two certificates to say that she had completed the theory aspects of an inshore skipper's course and those of a "competent crew level 2 course". The plaintiff agreed that even had she completed the inshore skipper's course it would not have enabled her to operate any commercial vessel but entitled the holder to take charge of a crew and persons aboard a boat up to a certain number of miles off shore. There was no evidence at all of the plaintiff carrying out any voluntary work with indigenous groups of children, in community arts and craft programs, or with at-risk children in holiday activity settings. Nor was there any evidence about volunteer coastguard duties.
63 The performance of such activities is at odds with what the plaintiff asserts, even allowing for variations in symptoms and fluctuations in pain levels (in other words - good and bad days), and what benefit the plaintiff may gain from analgesics. If what the plaintiff says in her statutory declaration in support of teacher re-registration is true, she has misled the Court. If her evidence is correct, and what she has said about her level of disability is true, then she has made a false statutory declaration.
64 The plaintiff made a claim for workers compensation in respect of her injuries which are the subject of this action. The obvious premise of the claim was that she suffered an injury arising out of or in the course of her employment, the absence from the place of employment being work-related. This became a matter of some contention between her and the insurer and this issue became an issue of credibility in this trial. Matters of fact which were the subject of scrutiny were the purpose of her visit to Mr Tresize's office, and various statements she made to the insurer. I have dealt with all of this in an appendix to these reasons marked "A". The end result of the analysis is that the evidence shows a willingness on the part of the plaintiff to distort the truth.
65 Apparently it was the plaintiff's practice to send out a newsletter to the parents of children enrolled. I infer that this was done on a monthly basis. The November newsletter bears the plaintiff's signature with "Director/Principal" and her qualifications set out under her printed name. The newsletter was tendered during the plaintiff's cross-examination. It contains a statement as to the extent of her injuries suffered in the accident. That statement and the authorship of it became an issue. I have also dealt with this matter in the appendix marked "A". The exaggeration in the newsletter and the prevarication of the plaintiff as to authorship appear from that analysis. These are matters which also impact adversely on the plaintiff's credibility.
66 As I said in the introduction to this topic, there were several more credibility issues, and many sub-issues, about which the defendants made submissions, but the ones which I have canvassed are those which I think warrant attention at this juncture. The analysis of these issues has led me inevitably to the conclusion that, putting it in a broad underlying sense, the plaintiff is not a witness upon whose evidence I can rely. The plaintiff frequently engaged in obfuscation, prevarication, and evasion when confronted with matters which called for explanation. At best, it is clear to me that she is heavily prone to exaggeration and the use of hyperbole, much of it perhaps unconscious and innocent, but it exists to a significant extent; some of wilful. At its worst, I am persuaded that in certain key aspects which I will identify at the relevant point, the plaintiff has been untruthful in her evidence, and has sought to mislead. As a consequence, I am not prepared to act on her evidence alone as to any matter. How all of this impacts on the various findings which have to made, I will attempt to make clear.
67 I need to also say something about the evidence of Mr Partridge. To a very large extent, it corroborated the plaintiff's evidence as to her level of disabilities. He gave evidence about the extent of personal and domestic assistance he had to provide. There were however, some parts of his evidence which differed from that of the plaintiff. Some aspects of his evidence could be taken as revealing a greater degree of mobility than the plaintiff asserts. It is of course possible that some of what he says about the plaintiff's behaviour is correct, but that the behaviour is designed to elicit sympathy and attention from him. In any event, overall I did not find his evidence to be impressive, and there is one particular matter which causes me to have doubts about the reliability of his evidence. At the start of the trial there was a claim for damages in respect of Mr Partridge's care of the plaintiff. This was on the basis that he had given up remunerative employment in order to act as carer.
68 The plaintiff gave evidence that around the beginning of 2003, "Tim took it on himself to make a decision to resign from his employment obligations because he, of all people, was aware of my struggle." The claim was maintained after the plaintiff had given evidence and up to a point immediately before Mr Partridge gave evidence. The claim was then abandoned, save to the extent that there may be a possibility in the future of his services having to be replaced at cost. Later in her evidence, the plaintiff confirmed that Mr Partridge had resigned from his employment in early 2003 to take up caring for her. Mr Partridge is a professional musician, having some national prominence in rock and blues music, playing in bands with some well known artists. This included international experience. In evidence Mr Partridge said that he ceased working as a professional musician "in a practical sense" in early 2003. Before that, he said he taught at the Conservatorium, and was also working for the Education Department in various capacities at various high schools and colleges throughout the State. This seemed to be in addition to playing in bands from time to time.
69 In cross-examination, documents from the University of Tasmania were put to him, the suggestion being that records showed he was last paid by the University on 29 March 2002. Mr Partridge disputed the accuracy of the records, saying that the proposition apparent from the documents did not surprise him at all. He was asked when he last worked for the Education Department, his answer was "2002 ... 2001 - 2002". He denied that it was 22 December 1999. Mr Partridge's Education Department file was then tendered. That file discloses no employment beyond 22 December 1999 and contains a note concerning the readjustment of long service leave entitlements since Mr Partridge had not worked since that date. The last document is a letter to him dated 20 August 2001 which appears to be a pro forma letter concerning changes to superannuation entitlements and invites the return of a completed election form by 14 September 2001. Mr Partridge was asked whether he accepted the records as correct, his response being "from whatever branch of the organisation this comes from, yes". It was put to him that it represented the file of the Department of Education as a whole. The response was:
"No, it doesn't say that. This is - this is a - this is probably I was employed as an instrumental musician, but that is not what I - that is not my only source of income from the Education Department. This - this probably is accurately correct from an individual assignment.
Thank you.......Is that the way to put it?"
70 I found Mr Partridge's evidence as to this quite unconvincing. He gave evidence which, as I say, was for the most part in accordance with what the plaintiff said about her level of disability and her inability to do very much at all. Having regard to the evidence of sailing and driving activities which I have canvassed, I take the view that Mr Partridge's evidence, where it accords with that of the plaintiff, should be treated with caution.
71 There are 13 steps from ground level to a landing, with a further nine steps to the first level where the second defendant's office was located. Generally, open space is to the left. The width of the steps between the inside surface of the outer wall and the surface of the inner wall is agreed to have been 2.105 metres at the widest point. The inner wall is made of brick with a relatively rough texture and with no handrail fitted. For a person ascending the steps, there is a set of steel railings up to about the first landing, at which point a wall commences on the left. From that point there is a single steel handrail affixed to that wall. The set of railings is repeated at the top landing to provide safety as one emerges at the top.
72 The steps themselves are made of glazed ceramic tiles, each measuring about 25 square centimetres. The evidence of Mark Dohrmann, a professional consulting engineer called by the plaintiff, establishes that the step height or riser is 165mm, with the depth of the step being 250mm, with each step having a nose of 5mm depth. As I have noted, the stairway is open and exposed to the elements.
The plaintiff's evidence about the fall and associated issues
73 The plaintiff's evidence was that after they had finished the appointment, Mr Tresize escorted them to the door of the offices. Mr Partridge walked to the right and side of the landing and proceeded down the stairway. The plaintiff was asked to explain what happened as she approached the stairway. She said:
"As I approached the stairway, the stairs didn't to me look wet. It wasn't raining at the time of going - it was a drizzly grey day and it had drizzled, but I was wearing Reebok sandshoes with inbuilt tread and traction which were part of my work uniform for safety purposes, and I just went to proceed down the stairs, and my leading foot when it hit the first step just didn't seem to have any traction, any grip whatsoever, and I committed myself to descending at that point."
74 When asked to explain further, the plaintiff said that she had a memory of a foot or both feet going through the air in front of her, and as she is left handed, she "lashed out to grab at something to prevent a fall" but there was no rail to her left and she smacked the back of her hand against the brick wall that was there. She had a sensation of being airborne. She landed and there was a time when she could not feel anything at all. She stayed still and her husband rushed over to her. She was taken through the events again. She said that she had turned left and stepped off the landing and it was when her foot connected with the first step, that is the first step from the level surface of the landing, and "it was like stepping on ice, there was just no traction at all and my foot just went straight off the step and up into the air". The plaintiff said that she was inclined to think that her left foot was the leading foot, but she was not 100 per cent sure.
75 In cross-examination, she said that she had no recollection of needing to take any particular care on the way up the steps or of using the handrail. When asked why she did not go across the landing to descend on the right hand side of the stairway using the handrail, she said that it was a wide landing and if she had perceived danger she may have "made the hike across to the handrail" but that she did not. She had shoes on with good traction so she simply turned left and started down the staircase. She said that her shoes were about three months old and confirmed that they were of high traction, having a strong gripping tread. Questions were then asked about previous balance difficulties. The medical records from the plaintiff's general practitioner, Dr Edwards, were in evidence. Part of an entry dated 9 May 2002 was put to the plaintiff. It reads "slept well Tues night, woke feeling disoriented & dizzy yesterday but not too bad. Slept well again but more disoriented, unsteady on feet, no actual spinning but balance wonky." The plaintiff said that she did not recall complaining of those symptoms in May 2002. Dr Edwards' note contains a reference to labyrinthitis - "?positional rather than viral". The plaintiff said that she did not recall any discussion with Dr Edwards about an infection or a condition of the middle ear, and said that she would remember it if it was something serious. She reiterated that she just did not remember "this obviously insignificant medical problem".
76 Dr Edwards' notes of 3 July 2002 (after this particular accident of course), first show a complaint of the plaintiff banging her head "at the vertex very hard on the boat with possible loss of consciousness 2/60". The plaintiff said that she recalled the incident but that the loss of consciousness was for two seconds and not the suggested two minutes. She said she was not sure of the date when that occurred, but the records from Calvary Hospital which were also in evidence showed that she went to the hospital on 2 June 2002 complaining of having hit her head five days previously. Those hospital records contain notes of "persistent light headache" and "feels giddy and tingly all over". There is a reference to concussion but the plaintiff said that she was not treated for that condition. There is an additional note of "nausea but no vomiting" and a "sensation of pressure in the head". The plaintiff denied that she had a fall on the boat but said that she was walking up a couple of steps before she entered the cockpit and hit her head on the steel of the door.
77 Dr Edwards' notes of 3 July 2002, go on to record "Also fell on wet steps outside lawyers office [with] feet in air [and] landed ++ on low back. Nausea." The plaintiff agreed that that was the order in which things had been dealt with; that is, hitting her head on the boat first, and then the fall on the steps. She agreed that she told Dr Edwards that she had experienced nausea "at the time of the fall." When again taken to the issue of labyrinthitis, the plaintiff repeated that she did not remember any discussion about that condition but did remember that something had been wrong with her ear but said that it was an earache. When asked about whether there was any discussion between her and Dr Edwards about loss of balance and continuing nausea, the plaintiff said "I don't remember and all I had was an ear infection".
78 The Calvary Hospital records for the day after the accident read " - fall down steps at lawyers yest, # slippery steps in rain yest ...". The plaintiff was noted as complaining of a sore right lower leg, soreness in her back in the thoracic, lumbar and left sacroiliac regions, and generalised interscapular discomfort.
79 After the discussion in cross-examination about medical matters, the plaintiff was taken back to the fall itself. She said that as she came to the top of the steps, she was looking down at them in the sense of looking where she was treading; that is she was looking at the step she was putting her foot on, not generally down the steps. It was then established that in an answer to an interrogatory the plaintiff had said that she was facing forward and "looking down at the stairs immediately before slipping". The plaintiff that it was "not true" that she did not slip on the step but that she had missed her footing, stumbled and fallen. She said she did not believe that she had fallen forward onto her knee. When asked whether she had ever told anybody that she had fallen forward onto her knee, she said that she would be fairly certain that she had told the doctors that she banged her knee in the fall. It was not specifically put to her that she was suffering symptoms of dizziness or nausea in the period of time leading up to the fall on the steps, or at any stage during that day, or the previous day or two.
80 Dr John Davis, an occupational physician, was called to give evidence on behalf of the plaintiff in relation to aspects of her damages claim. He was however, cross-examined about labyrinthitis. He said that it was a condition of the inner ear which was usually viral but could be caused by traumatic injury. He agreed that it could affect balance, and symptoms could be vertigo, dizziness and unsteadiness. Nausea was also a symptom. He would normally expect the condition to clear up within a few weeks with the appropriate medication but that may not occur; it could persist. It is possible that it can result in the permanent impairment of a person's balance, and even if it did not result in such a permanent loss, it could be a recurring condition. He agreed that some people suffer many episodes of labyrinthitis.
81 Mr Partridge's evidence was that they went through the door to the landing from the main office. He went on the right hand side, with the plaintiff a couple of paces behind him on the left hand side. He said he thought he was on the second or third step - "... she was just to my left and the next thing her feet were about here". He first indicated about head height, but when I asked him to stand up and to explain and demonstrate for the purpose of the transcript, he indicated a little lower than his left hip to indicate the height of the step she would have been on. He said that the first thing he saw was the plaintiff's legs at about his shoulder height and then she hit the stairs below him "moving forwards as well, quite rapidly". He said that the first part of her body that he actually saw was her feet.
82 He was asked about the weather conditions on the day of the accident and at the time that it occurred. He said that the skies were grey and he thought it had been raining but it was not raining at the time. The following exchange occurred:
"Was the stairway in any way affected?......The stairway - the stairway is poorly designed, it won't -
No, no, no.........- it won't dry.
You've mentioned it was raining?......Yes. It was wet still from the rain, yeah, and the way it's designed it won't dry."
83 Mr Partridge was not cross-examined at all about the fall, or his assertion that the steps were wet.
The evidence of Christine Webster - the fall and her experiences with the steps
84 Ms Webster gave evidence for the plaintiff. She said she was sitting at the reception desk when the plaintiff, Mr Partridge and Mr Tresize came out of the conference room. (It was later established that she was in fact employed by Michael Trezise Pty Ltd.) She said that the plaintiff and Mr Partridge went to the front door. The reception desk was behind a floor to ceiling glass window looking out onto the landing at the top of the stairway, and "virtually behind" it. She said that the plaintiff went through the door first as Mr Partridge held the door open for her. Ms Webster's evidence was then as follows:
"So could you describe then what happened, they've gone through the front door, Moira and Tim, Moira first, what happened then after that?......Moira's gone out first, she's gone to the left of the stairs, which has got the sandstone wall on it, she's gone to go down the stairs, she's gone down on either one or two stairs, then I saw her go forwards and I thought, 'Shit, she's fallen', then she - she held out her right - no, her left hand - left hand towards the sandstone wall and then as she went forward and had her hand out then she started going backwards and then as she started going backwards she had her right hand and she had her right hand right behind her - right behind there as if she was just trying to break the fall from falling backwards, and then she went down and the position that I saw her go down on the stairs I could see that she'd - she'd crunched her back on the stairs. So she'd gone directly back onto - onto one of the stairs."
85 Ms Webster said that she was not looking at the plaintiff's feet, either prior to or when she commenced to fall. As the plaintiff was falling she was not looking at her feet, she was looking at the plaintiff's arms and "what was going on with the rest of her body because it all just looked extremely awkward and extremely painful". Ms Webster said that the stair "crunched into" the plaintiff's back in about the middle or lower part and that the fall appeared to be "like a dead weight". She thought that the plaintiff's back impacted with either the second or the third step down and that she thought Mr Partridge was behind the plaintiff when the plaintiff commenced to fall. Ms Webster was not asked about the weather or the state of the steps. She was not cross-examined on her evidence about the fall.
86 Ms Webster gave some additional evidence about the steps. She said she had a perception of them being dangerous because of what other staff members had said to her, from what the people in the offices next door had said to her, and two incidents that she could remember when she had slipped on the stairs herself. When cross-examined, Ms Webster confirmed that she had slipped on the stairs on two occasions. She said on one occasion the steps were dry and she could not be sure about the other occasion. On one of the occasions she thought that she may have fallen because she got the heel of her shoe caught in the hem of her skirt or dress. She said that was what she had thought when she had gone down the stairs. "I thought I got the heel caught in the back of my skirt but I checked it and there was nothing in - there no tear in the skirt" [sic].
87 Mr Mark Dohrmann's evidence is also relevant to the issue of what occurred, as well as to the issue of the breach of any duty on the part of the defendant. His opinion is directed to the issue of the risk of slipping posed by the tiles when wet and the measures which could have been taken to prevent exposing persons to risk of injury. He carried out his inspection and conducted tests on the tiled surface at a point at the top of the stairway on 11 February 2003. For present purposes I will ignore the assumptions of fact which he made for the purposes of his report. Those assumptions included that the plaintiff was not affected by alcohol or other substance likely to affect her gait, balance or vision, that she was not rushing or running, that she stepped from the top landing to the first step when her leading foot slipped forwards, and that the steps were wet from rain.
88 Mr Dohrmann carried out a test for the classification of slip resistance of pedestrian surface material. This test is known as the "wet pendulum test" and was said to have been carried out in accordance with Australian Standard AS-NZS 4586 (1999) - "Slip resistance classification of new pedestrian surface materials". The device used which is known as the "Stanley Pendulum" or "skid resistance tester" gives a range of figures in "BPN" (the abbreviation for British Pendulum Number). This number correlates to the coefficient of friction so that, for example, 30BPN represents a coefficient of friction of 0.3. The Standard translates that number into a rating of the contribution of the floor surface to the risk of slipping when wet. The classification rating based on BPN results is as follows: >54 - very low, 45 to 54 - low, 35 to 44 - moderate, 25 to 35 - high, and > "Do you have any comment -.......Yes, I do. I think the test report entitled one to conclude that the surface properties of this category - a tile considered simply as a tile passed when it was new. However, the tile was used on a stair and I'm particularly cognisant of the fact that it had a rounded nose on it, and the rounded nose is, of course, where most people tend to walk. It's a very important part of the stair. The frictional properties of the nose of a stair matter more than any other part of the stair. And the Standards from the very first issue in 1993 through the other ones we've discussed talk about making corrections or adjustments to the co-efficient of friction when the angle changes. So a test result, CSIRO or mine or anyone else's, done on the flat for these steps does not give any insight or any guidance as to how safe the front or the nose of the stairs are. So I just add that as a comment on the extent to which this CSIRO test could be relied upon.
Yes. So the test would be a pass for a flat surface, but for a stairway with a nose on the steps?........Yes, it would be a pass for a flat surface when not worn or when the properties had changed but not for a bull-nosed or rounded nose on a set of stairs.
You mentioned---
HIS HONOUR: Sorry, is that because of one or more of factors such as there may be more wear and tear on the nose of the step itself and the fact that - of gravity, effectively, so that the foot's rolling forward over and around its surface?
WITNESS: Well I see it simpler than that. It's just a fact that it's now - you're on a slope. If you take a flat surface and you put it onto an incline, then the minimum traction required naturally increases if you want to call it safe." [Emphasis added]
93 The first point which needs to be addressed is whether the steps were wet. The only evidence of this came from Mr Partridge. It was unchallenged, and it seemed to be implicit in the conduct of the case of all defendants that this was so. I find that to be the case. The defendants submit that the plaintiff did not slip but that she fell. They point to a number of sets of medical records in which the description of a "fall" appears, but I am not prepared to attribute those entries any particular significance in the circumstances. A fall is a word which would commonly be used to describe an event by which, for whatever reason, a person loses their footing and finds themselves prostrate on a set of steps. In any event, the hospital records, by clear inference, suggest a fall because of slippery steps. The same can be said of Dr Edwards' notes about two weeks later.
94 The defendants say that the plaintiff had had a recent history of dizziness and unsteadiness on her feet and nausea. Dr Edwards' notes suggest a diagnosis of labyrinthitis on 9 May 2002. The notes do not suggest any treatment. Further, the defendants point to the significant blow to the head which the plaintiff suffered at the end of May. Again, there are reports of giddiness, nausea, ongoing disorientation and some clumsiness. The defendants submit that "it is plainly conceivable if not probable that the plaintiff was still suffering the effects of the condition and/or the bang on the head at the date of the accident [and] it is at least a reasonable alternative hypothesis that the plaintiff did not slip but stumbled on the top step, lost her footing and fell". Ms Webster's evidence is said to be consistent with the plaintiff falling forward and then "going backwards" to counter the fall and attempting to correct her balance.
95 The only person who claimed to be aware, and to have actually seen, what happened to the plaintiff's foot when contacting the first step is the plaintiff herself. Of course, she has to persuade me on the balance of probabilities that her foot slipped on that step as she went to make her way down the stairway. The whole of the evidence needs to induce in my mind an actual persuasion of that fact so that the probabilities of its existence are greater than the possibilities of its non-existence: Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55].
96 The views which I have formed about the credibility of both the plaintiff and Mr Partridge compel me to carefully scrutinize their evidence. The exercise of examining the whole of the evidence relating to the issue does not become any different in a sense, but as far as their evidence is concerned, I treat it as potentially unreliable. As to the plaintiff's evidence, allowing for some degree of dramatisation, I do not see that there is anything inherently unlikely about the way in which she says the accident occurred. I do not overlook the fact that she was wearing rubber soled shoes with a high grip level, and I will shortly deal specifically with that. However in terms of the general mechanism of the fall, it is not essentially flawed.
97 The parties agreed that I undertake a view of the steps and so I had the benefit of a close inspection. From a lay perspective, I would regard them as having the appearance of being likely to be slippery when wet, and calling for the exercise of caution. I am satisfied on the basis of Mr Dohrmann's evidence that when wet, the contribution of the tiled surface to the risk of slipping would have been high. Whilst he conceded that an estimation of the total risk of a given slip situation should include consideration of such things as the type of footwear, his evidence did not exclude the possibility of slipping whilst wearing "high grip" rubber soled footwear. He said that the rounded nose of the step was where most people tended to walk. That surface consists of an incline and the minimum traction required naturally increases.
98 Mr Partridge's description of what he saw was, I think, subject to some exaggeration, whether caused by the drama of the moment or not, is not presently to the point. He does not claim to have seen the plaintiff's feet immediately before the fall or what triggered it. I am satisfied however that his evidence does confirm that the plaintiff was in a roughly supine position above the steps after her fall had commenced, and before she landed. Essentially she fell flat on her back and slid for a distance. This is confirmed by the objective medical findings at the hospital. As to Ms Webster's evidence, I accept that she was doing her best to describe what she saw, but I have difficulty in reconciling the initial movements of the plaintiff's which she described, with the way in which the plaintiff ultimately made contact with the steps. It is to be remembered that Ms Webster was sitting behind the stairway and would have had difficulty appreciating the nature and extent of the forward movement. It is possible that the plaintiff fell forward and when reaching out to save herself, in some way tipped her body backwards, but I think the probabilities are otherwise. It may well be that the plaintiff first slipped slightly forward, or moved slightly forward as a natural reaction in order to regain her balance when her foot or feet went out from under her. In any event, I do not regard such a movement, if it occurred, as significant in the overall scheme of things.
99 The plaintiff was not questioned in cross-examination about what symptoms she was suffering beyond those which were reported to the hospital on 2 June 2002. The note of labyrinthitis was nearly a month earlier than that. I do not lose sight of where the onus rests, but I simply record that I do not have the benefit of the plaintiff's responses to questions about any symptoms said to have continued from either of these two issues up until the point of the fall on the steps. On the whole of the evidence, I take the view that it is more likely than not that the plaintiff slipped on the first step as she was descending the stairway, that step being wet with rainwater at the time.
100 There is no direct evidence of when the stairway was constructed or by whom. The ownership of the land upon which the stairway is constructed, and I infer the ownership of the structure, was transferred to the first defendant, the Council, in January 1998, as was the burden of the easement being the right-of-footway, over the area occupied by the stairway.
101 The benefit of the easement was transferred to the third defendants by John Fuglsang Developments Pty Ltd in December 1997 and is shown on the title to 41 Salamanca Place. The easement is described as:
"A right appurtenant to [41 Salamanca Place] ('the dominant land') over that part of the land [Kennedy Lane owned by the Council] ('the servient land') for every person who is at any time interested in the dominant land, and every person authorised by such person, at all times by day or night but on foot only ... to go, pass, and repass, along the servient land to and from the dominant land for all purposes connected with the use and enjoyment of the dominant land ...".
102 By an agreement for lease dated 14 August 1998 the third defendants leased 41A Salamanca Place, being part of the first floor of No 41, to Andrea Tresize Management Pty Ltd and Michael Tresize Pty Ltd. That lease was silent as to the easement, but it is settled law that the tenants thereby impliedly acquired the benefit of the easement: Gale on Easements, Street and Maxwell, 17th ed at par3-99, 145 - 146.
103 The plaintiff submits that the question of the existence of the duty of care on the part of each defendant is to be resolved by reference to whether each is an occupier of the stairway. If that is the case, the law imposes a duty to take reasonable care for the safety of those who enter the premises, that duty arising from the fact of occupation: Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469 per McHugh J (in dissent but not as this) at 480-81 [30].
104 The plaintiff also relies on the well known statement of Lord Denning in Wheat v E Lacon & Co Ltd [1966] UKHL 1; [1966] AC 552 at 578:
"In order to be an 'occupier' it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be 'occupiers.' And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control."
105 It should be further noted though, as was done in Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 at [59] and Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [83], that Lord Denning, after that cited passage, went on to say :
"There are other people who are 'occupiers,' even though they do not say 'come in.' If a person has any degree of control over the state of the premises it is enough."
106 In Gorman v Wills [1906] HCA 84; (1906) 4 CLR 764 the defendants were lessees of the ground and first floors of a building which they occupied for the purpose of their business. The only means of communication between the two floors was by a staircase leading from a room on the ground floor, but that staircase was not included in the lease. It was used on a daily basis by the lessees and their servants. The lease authorised the use of another staircase in an adjoining building for access to the premises above the ground floor. The plaintiff, who was there on business, was invited by a servant of the business to go from one floor to another by the internal staircase. The High Court held that there was sufficient evidence that the staircase was in the possession or control of the defendants in such a way as to make them responsible for its condition to persons invited by them to use it. This was notwithstanding that they were not entitled in law to exercise completely the physical control or care which would be involved in keeping or putting the staircase in reasonably safe repair.
107 In Kevan v Commissioner for Railways [1972] 2 NSWLR 710 the Commissioner had been granted right-of-way and passage for pedestrian traffic through a building in order to get to a railway station. A term of the grant was that the grantor would maintain the area over which the right-of-way was given in good order and repair and should be responsible for all claims for injuries, damage and loss arising from the existence and use of the area in question. Jacobs P, with whom Hope and Reynolds JJA agreed, said, relying on Gorman v Wills (above) that a "right to invite a person to go over the land of another, in my opinion, denotes a degree of possession or control over that land sufficient to require the invitor to be classified as an occupier vis-à-vis any of his invitees". It was held therefore to be no answer for the Commissioner to say that the obligation to repair was upon the owners of the freehold.
108 Both those cases were referred to in Stojan (No 9) Pty Ltd v Kenway (above). The issue was whether the appellant was the occupier of a stairway which ran from a shopping plaza car park occupied by it to a local council park area. The stairway appears to have been constructed by the appellant but on council land with the appellant subsequently taking the view that it bore no responsibility for its maintenance. McColl JA noted that the evidence suggested that by granting the appellant a licence to use the land in this way, the council gave it the legal right to invite users of the shopping plaza, as well as members of the public generally, to enter the car park, and that at least insofar as users of the plaza were concerned, it extended that invitation to such people for the purposes of its business. "That degree of possession or control over the stairs was sufficient to classify the appellant as an occupier of the stairs vis-à-vis the plaintiff": see [87]. Ipp and Basten JJA agreed.
109 A further relevant authority is New South Wales v Broune [2000] NSWCA 3. The plaintiff was injured on the stairway between a car park and college building. The State owned the school but a community college operated evening classes. After referring to Wheat v E Lacon & Co Ltd; Kevan v Commissioner for Railways and Gorman v Wills, Mason P said at [70] - [71]
"70 It will be a question of fact in each case whether there is a sufficient degree of control to make the person an occupier. No doubt the College had the benefit of the stairway, as part of the school building and indeed the entire site, for access for those attending its classes But this was not pursuant to a grant of a right of way which entitled the College to make or improve the access, or to do anything about its safety. In a sense the College could invite those attending its classes to use the stairs, but in the present case that did not denote possession or control over the stairs. On the evidence as a whole, the College did not have any meaningful control over the stairs. It could suggest, but not dictate, use or non-use of the stairs. It could not do anything to alter the configuration of the stairs. Of most present relevance, it could not do anything to improve the lighting, or even to have malfunctioning lights attended to beyond leave a note for the school principal.
71 There may be circumstances where a duty of care extends to giving directions as to the means whereby the person directed may safely traverse a piece of land over which the directing party has no occupation or control. But the present case was pleaded and fought on the basis of a duty stemming from occupation. The finding of fact that the College was not the occupier of the stairway should not be disturbed."
110 Also of relevance is Laresu Pty Ltd v Clark [2010] NSWCA 180. The liability of a managing agent of commercial premises was considered. There was common property which included stairways, on one of which the plaintiff was injured. By virtue of the management agreement, the agent had responsibility for care in relation to the safe condition of the premises. It was held that "entering upon the work" by acting as managing agent of the premises in accordance with the agreement, gave rise to a duty of care, and gave the agent a sufficient degree of control over premises to warrant its classification as an occupier: per McFarlan JA (Tobias JA and Handley AJA agreeing at [32]. Lastly, I would add a reference to Bulmer v Ryde Municipal Council (1976) 34 LGRA 300 which makes it clear that occupation of a means of access can exist where the defendant has no legal right of control and only very limited factual control. In that case, a local council was said to be in occupation of a bridge, one end of which was in a reserve of which it was a temporary trustee. The other end on which the accident occurred was on Crown land.
111 As has been seen, occupation of particular premises may be shared, and control need not be total. The grantee of a right-of-way may be an occupier because "a right to invite a person to go over the land of another ... denotes a degree of possession or control over that land sufficient to require the invitor to be classified as an occupier vis-à-vis any of his invitees": Kevan v Commissioner for Railways (above) at 713; New South Wales v Broune (above) at [69]. The evidence suggests that there were other tenants of the third defendants in areas of the first floor adjacent to Mr Tresize's office. The third defendants did not purport to, and could not in practical terms, grant exclusive authority to the tenants of 41A Salamanca Place to use the right-of-footway. Indeed, interrogatories delivered by the plaintiff for the examination of the "first named third defendant" sworn by Peter Behrakis on 17 July 2008, establish that as at 17 July 2002, he had in place a system to clean the steps, saying that the third defendants engaged a cleaner to clean the common areas of the premises and it was part of the responsibility of the cleaners to keep the steps clean. He went on to say that he was no longer able to recall when the steps were most recently cleaned prior to 17 July 2002, but they were cleaned twice a week. He said that there was no system in place to inspect the safety of the steps or to ensure their maintenance.
112 There can in my view be no doubt that the first defendant was in occupation of the stairway. Counsel for the first defendant did not argue to the contrary. The first defendant owned the land and the structure. There is evidence that it used part of an area underneath the stairway for its purposes. It did not lease the land to the third defendants as an adjunct to their ownership of 41 Salamanca Place, but it owned the servient tenement in respect of a right-of-footway pertinent to that allotment.
113 In the title to the action, the second defendant is said to be an individual trading as a firm of lawyers, but there is no pleading about this in the statement of claim. As to the relationship between Mr Tresize and the two companies which together are the "tenant" under the lease agreement with the third defendants, there is the obvious connection in name and moreover, "Michael Anthony Tresize" has signed the lease under the common seal of Michael Tresize Pty Ltd as sole director and sole secretary. Ms Webster gave evidence that Mr Tresize was in partnership with his sister, Andrea Trezise, with him in Hobart and her in Launceston. In any event, Mr Tresize admits in his defence that he was operating a business at 41A Salamanca Place, but does not admit that he was in occupation and had the care, control and management of the steps. From all of that, I infer that he was a licensee of the tenants under the lease with the third defendants.
114 The plaintiff's submissions proceeded on the basis that the second defendant was a tenant, but that is plainly wrong. The only way in which the second defendant could be said to be an occupier was on the basis that he purported to, and was able to, exercise a degree of control over the stairway. Mr Tresize would seem to have in fact invited persons to use the stairway and I can be satisfied that he did so either by way of a sub-tenancy or a licence arrangement with the tenant of the premises. That "tenant" (the two companies) had by virtue of the lease, impliedly acquired the benefit of the easement. Given the responsibility assumed by the third defendants for the cleaning of the steps, it can be inferred that the third defendants knew that the second defendant operated a business from 41A Salamanca Place.
115 It seems to me that in all of that, the second defendant had an appreciable degree of supervision and control over who came and went, such as to denote possession or control sufficient to amount to occupation: Gorman v Wills (above); Stojan (No 9) Pty Ltd v Kenway (above) at [82] - [86]; Bulmer v Ryde Municipal Council (above) per Hutley JA at 303, Glass JA at 308 - 309. Accordingly, the second defendant owed a duty of care to entrants. If I am wrong about the basis of that, I would hold that a duty of care existed independently of the issue of occupation. The stairway was used by clients of and visitors to the second defendant's business. He had an interest in the use of the stairway. He was specifically aware, or at least ought to have been aware, of a risk of injury posed by that stairway.. In those circumstances, it seems to me that the law would impose a duty of care upon him in relation to persons coming to his offices. The content of the duty is the same irrespective of how it arises; Australian Safeway Stores Pty Ld v Zaluzna (1987) 162 CLR 479; Neindorf v Junkovic (2005) 80 ALJR 431 per Gleeson CJ at [6] - [8].
116 Counsel for the plaintiff erroneously based his submissions as to the existence of a duty of care on the third defendants' capacity as landlords under the lease by virtue of which, ultimately, the second defendant had actual possession of 41A Salamanca Place. That, at least, was the position adopted in written submissions. In oral supplementary submissions, the plaintiff relied on the ownership of No 41 and the suite of offices of which 41A was one, the associated easement, and the fact that the stairway which it assumed responsibility to clean, was the only access to those offices.
117 The third defendants submit that they were not occupiers of the stairway because they did not have control in any practical sense; they had no power to permit or prohibit the entry of persons onto the stairs. They submit that in the circumstances the second defendant (or more correctly I think, their tenant and by extension the second defendant) have the same rights conferred by the easement as do they. They further submit that the second defendant was in no different a position from them as far as "occupation and control over the right-of-way was concerned". They say, however, that the stairway did not serve any land in the possession of the third defendants and there was no practical use the defendants could make of the right-of-footway. It led only to premises, the exclusive possession of which the third defendants had divested themselves, whilst they notionally enjoyed the rights under the easement. They did not have a sufficient degree of possession or control so as to make them an occupier. Alternatively, they submit that if they were in occupation of the stairs, they were under no relevant duty, in the sense that their duty extended only to matters arising from their undertaking of the cleaning responsibilities.
118 On the whole of the material, a finding that the third defendants were in occupation of the stairway is justified. They retained the benefit of the easement; in particular the right to authorise other persons to pass and re-pass. As the formal grantee, they had a right to enter upon the servient land for the purposes of carrying out repairs and other works as may be necessary for the exercise and enjoyment of the easement: Finlinson v Porter (1875) LR 10 QB 8; Lawrence v Griffiths (1987) 47 SASR 455; Spear v Rowlett (1924) 43 NZLR 801, and see generally Gale on Easements (above) at 1-81, 1-82, 47-49. Additionally, although the responsibility seems to be voluntarily assumed and there was no contractual obligation, the third defendants had "entered upon the work" of cleaning. That is an additional aspect of their relationship with the stairway. In my view the third defendants had a greater degree of possession and control than had the community college over the stairway in the case of New South Wales v Broune (above). Further, I think it can be said that they had the use of the stairway in a practical sense in that they were able to use it as an adjunct to the lease of the office premises on the first floor of No 41. In other words, their possession of the easement enabled them to lease for profit those particular parts of the premises. I hold that the duty is that which would ordinarily attach to an occupier and should not be limited to the cleaning role. But of course, as with the second defendant, the content of the duty will need to be considered.
119 In assessing whether the defendants were in breach of the duty each had, I am mindful that the task is to be carried out prospectively, looking forward from a time before the occurrence of the injury, and not retrospectively: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 per Hayne J at 456 [105]; Road Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 per Gummow J at 338 [18].
120 As I earlier noted, I had a view of the steps and their surrounds. It was agreed that I observe a number of matters in the presence of the legal representatives. Those matters were :
•
the entry and exit to Mr Tresize's office and the approach from that point to the steps;
•
the height and descending angle of the steps;
•
the width of the steps;
•
the depth of the steps from the front edges to the vertical face of the risers;
•
the number of steps;
•
the nature and surface of the tiles;
•
the handrail located on the right hand side when descending;
•
the left side of the steps when descending, and the adjacent building structure.
121 It was agreed that "The stairway/steps from the offices located at 41A Salamanca Place have not changed since the 17th June 2002, save for the application of black adhesive strips located at the nose of each of the steps comprising the stairway/steps." Other than what I observed on my inspection, there was no evidence about these strips. The surface of these strips is rough and appears to be "slip-resistant". They consist of two parallel strips which have been attached along the line of each step, with the first of such strips being close to the nose of each step. The answers to interrogatories of Peter Behrakis sworn on 17 July 2008 show that he (at least) was responsible for the fitting of "nosing strips" to the steps at a time he could not recall but "some time after May 2004". In his report, Mr Dohrmann said that he thought measures which could have been taken to prevent risk of slipping were as follows:
"• by fixing slip-resistant strips at the noses of each tread; or
•
by treating the tiles to make them slip-resistant when wet."
122 I am satisfied, particularly having regard to Mr Dohrmann's evidence and assisted by my own observations, that there was a foreseeable risk of injury to persons slipping on the steps when they were wet, particularly when descending. There are a number of features which contribute to the creation of that foreseeable risk. They are:
•
the nature of the surface of the tile;
•
the exposure of the steps to the elements;
•
the nose formation and the consequent effect on traction if the foot is put on the incline which, Mr Dorhmann pointed out, one is inclined to do;
•
the lack of depth of the tread of the steps, and the height of the riser which contribute to the likelihood of stepping further forward on the step when descending.
The defendants' knowledge of the risk of slipping
123 Ms Webster said that some time before the plaintiff's accident she had made a telephone call to the first defendant, the purpose of which was to try and establish who was responsible for the stairs. This call was made after a discussion between her and Mr Tresize. The evidence proceeded as follows:
"I had had a discussion with Michael in as far as I believed the stairs were dangerous. My concern was that a client was going to get injured on the stairs and I wanted to do something.
MR HOBBS (Resuming): What had led you to the conclusion that the stairs were dangerous?......My perception of them being dangerous was what other staff members had said to me, what the people in the offices next door had said to me and the two incidents that I can remember when I slipped on the stairs myself.
Did you fall on those occasions?......One - one was a fall, yeah, like I had to - I had to grab the hand rail and - and I just thought I was about to break my arm.
Now you therefore made this telephone call to the Hobart City Council?......Mm.
After you'd had the discussion with Michael Trezise, was that done with his knowledge, from your discussion with him?......The call to the council?
Yes.......It was done - yes, it was done with Michael's approval.
Thank you. And having made that call to the council did you subsequently receive a telephone call back from the council?......I believe so, yes.
And what did they relate when that person called you?......That we should get in touch with Behrakis.
And what did you do in response to that?......I told Michael.
And did you ever contact Behrakis?......No."
124 A series of emails, internal to the first defendant, was tendered by consent. The first is from Alison Lyne to Peter Fleming on 30 October 2000 at 8.44. It reads:
"Pete,
I had a call from a woman from Tresize Partners (solicitors at 41A Salamanca Place) ... building owned by Barakis [sic] reporting that people had slipped on the stairs which lead to their offices (and others). She is concerned that the steps are dangerous and believes they are the Council's responsibility. Can you confirm this?"
125 This email was forwarded by Mr Fleming to David Miller at 12.20 on 30 October 2000 asking him to have a look at "this one and advise". At 10.34am on 31 October, Mr Miller emailed Ms Lyne and Mr Fleming, advising that the steps were on Council owned land and formed the roof to part of the Council's Public Toilet and Store. It was noted that the Berahkis' had a right-of-footway in respect of their title. The email continues:
"Not sure on the responsibility for maintenance. I believe usually if it is private use it would be up to those who both use, and have a legal right over, the steps. But if it is public use over the steps, the Council owns them probably we are responsible."
126 Further Council personnel became involved in the debate. At 10.41am Leyon [sic] Parker emailed Ms Lyne and Nick Heath. He said that the steps were constructed by John Fuglsang on land owned by him at the time, and did so as a result of a deal he had made with Behrakis, and then transferred the land to the Council, and continued: "Therefore we consider that the steps are owned now by Barakis [sic] but they are constructed on our land. Barakis even rents the space under the steps to a nearby tennant [sic] of his".
127 At 12.15pm on the same day, Ms Lyne replied to Mr Parker, with a copy to Cindy Elder, saying that she had spoken to Mr Heath who had said that the maintenance would be Behrakis' responsibility. Ms Lyne continued:
"I spoke to the woman at Tresize and Partners again, and she said she'll follow the matter up with Barakis.
(Cindy, could still take a look at it in case anything comes of it down the track. Thanks)."
128 There is no evidence that the third defendants ever became aware of any of these incidents or of these communications.
129 I find that the first defendant was in breach of its duty of care to the plaintiff. I have already stated that in my view a reasonable person in the place of the first defendant ought to have foreseen the risk of injury from slipping on the steps when wet. In this case, the first defendant was specifically notified of a concern on the part of a person working in one of the upstairs offices that the steps were potentially dangerous. A report that people had slipped on the steps was made to it through its employees. There was no mention of the slipping having occurred when the steps were wet, but common sense would suggest that if they were, the situation would be worse. Its ultimate response was to do nothing other than refer the person who had raised the concerns (Ms Webster) to the Behrakis'. The height of the total stairway is not inconsiderable. The stairway is steep. The magnitude of the risk involved and the degree of likelihood of the risk eventuating are high when compared with the cost and difficulty of alleviating action. At the very least the fitting of the non-slip strips to the step nosings would have minimised or obviated the risk.
130 Although I do not have direct evidence of the cost of such a measure, I cannot imagine that any great expense was involved. The comments of Gibbs CJ in Turner v South Australia (1982) 56 ALJR 839 at 840 can be applied to this case: "Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent." See also Western Suburbs Hospital v Currie (1987) Aust Torts Reports 80-120 per Kirby P at 68,918, McHugh JA at 68,923. Additionally, it seems to me that a reasonable response would also have included the fitting of a handrail to the building side of the stairway.
131 I repeat that the relevant risk of injury was reasonably foreseeable. The second defendant was in precisely the same position, in terms of knowledge, as the first defendant, he having been involved in the conversation with Ms Webster. The telephone call to the first defendant was made with his approval. He was made aware that the first defendant was apparently going to do nothing and there is no evidence that he raised the issue with the third defendants.
132 The second defendant submits that because he was not the tenant, he had no right to do anything to the steps. It is accepted that he had a right to pass and repass, as did persons at his invitation, but beyond having that authority, it is said that he was powerless to do anything in terms of alterations to the steps.
133 Be that as it may, in my view as the second defendant was able to use the steps for the purposes of clients and visitors accessing his office, a reasonable person in his position would take steps to warn such people about risks arising from that means of access of which he had actual or constructive knowledge. I think the answer to the argument is to be found in the following passage from the judgment of Barton J in Gorman v Wills (above) at 775 - 776:
"Assuming in [the defendants'] favour that they were not entitled in law to exercise the complete physical control or care which would be involved in keeping or putting the staircase in reasonably safe repair, and so preventing, or when it existed removing, the danger to which business visitors to their offices were exposed, then were they relieved of all duty? ... So long as a danger existed which they ought to have known, and which they were inviting business visitors, who knew nothing of it, to incur, it was at least their duty to protect them, as far as possible, against that which they, if their law is good, had no legal right to physically prevent or remove. The least onerous form in which they could discharge that duty was to warn ...".
134 Because it would not have involved anything of any permanence or of structural significance, I do not imagine that the second defendant would have been prevented from erecting a suitable sign at the top of the stairway on the left hand side which would have been readily visible to those about to descend, warning that the steps were slippery when wet. Alternatively a similar sign in a prominent place at the exit to his office would have been almost, if not completely, as effective as a sign at the top of the stairway, given the proximity of the door of his office to the landing and the first step. As to the utility of warning signs and the use of stairs, the second defendant relies on comments of Heydon JA (as he then was) in Wilkinson v Law Courts Limited [2001] NSWCA 196. At [32] his Honour said:
"Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: 'persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety': Stannus v Graham [1994] NSWCA 46 per Handley JA."
135 Heydon JA went on to comment on the number of things against which warning signs could be deployed, saying "The more the warnings, the less the effectiveness of each." His Honour continued:
"The human imagination can conjure up many circumstances in which a user of the steps might suffer injury. A particular measure directed to the avoidance of a particular type of injury might in itself be relatively inexpensive and relatively easy to implement. But if measures are to be taken to reduce all the dangers which can be imagined, very heavy burdens would be imposed: yet the form of injury from which the plaintiff suffered does not appear any more likely than most of the other imaginable forms of injury." [My emphasis]
136 The plaintiff in that case had tripped or slipped, he was unable to say which, whilst descending a set of steps. The complaints largely centred on the excessive width of the treads, the absence of a handrail, and the colour of the stairs being a "dirty grey colour" with no distinguishing marks. In the present case, however, to use the words of Heydon JA, the form of injury from which the plaintiff suffered, that of slipping on the steps when wet, does appear to have been more likely than most of the other imaginable forms of injury.
137 Given that the steps were used for the purposes of enabling the second defendant to conduct his business, and given that he was aware of at least a potential actual danger created by the steps being slippery, I find that he was in breach of his duty by failing to take reasonable steps to warn the plaintiff of the risk. In my view, a reasonable person in his position would have adopted the simple and expedient means of a warning sign directed to the discrete issue of the potential slipperiness of the steps.
138 I need not repeat my view as to the reasonable foreseeability of risk of injury posed by the steps when wet. There is no evidence of any actual knowledge of any established or potential danger created by the steps when wet. However, the comments which I have made in relation to the liability of the second defendant, ignoring his state of actual knowledge, apply to the third defendants. That is to say, there was an objectively foreseeable risk of injury from the perspective of the reasonable person in their position, and the magnitude of the risk and the degree of probability of its occurrence would compel alleviating action when compared with the minimal expense, difficulty and convenience of taking that alleviating action. The third defendants had a high degree of familiarity with the steps having assumed responsibility for the cleaning of them twice a week. By failing to do anything to alleviate the foreseeable risk, they were in breach of their duty of care.
139 The plaintiff needs to establish that a breach of duty was a cause of, or materially contributed to the injury in the sense of it being a contributing factor: March v E & MH Stramare Pty Ltd [1991] HCA 12; (1999) 171 CLR 506 at 514; Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 420; Romeo v Conservation Commission (NT) (1988) 192 CLR 431 at 482 and Shorey v PT Ltd [2003] HCA 27; (2003) 77 ALJR 1104 at [41]. A contributing factor is material unless it is negligible: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 345 and Western Australia v Watson [1990] WAR 248 at 286.
140 I am satisfied that the failure to have in place the slip resistant strips at the noses of each step or otherwise rendering the steps slip resistant, caused the plaintiff's accident in the required sense. The strips would have obviated or minimised the risk and their absence caused or materially contributed to the fall. As to the provision of a handrail, no evidence was led from the plaintiff as to what she would have done had there been one in place, and for reasons which I will expand upon in a moment, the inevitable positive response would have been of little weight. However, from my inspection and appreciation of the path from Mr Tresize's office to the top of the stairway and the commencement of the descent, I consider it more likely than not that a person, particularly when confronted with wet steps, would have steadied themselves with a handrail. It involves no deviation from the natural pathway to that point. I am satisfied that the plaintiff tried to arrest her fall by grabbing at the wall where a handrail would have been if fitted. On that basis I am satisfied she would have used a handrail at the time of commencing her descent. I am satisfied that the absence of a handrail caused the plaintiff's accident in the required sense.
141 The case against the second defendant raises a separate consideration of the efficacy of a warning sign. In the general law of negligence, where questions arise as to the effectiveness of warnings (by sign or advice) the test is a subjective one. The inquiry is what a particular plaintiff would have done; Chappel v Hart (1998) 195 CLR 232 at [32], [93]; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [24].
142 In this case there is no direct evidence, and in the absence of such evidence it is a question of whether I am prepared to draw the inference; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 per Gummow J at [40], State of Victoria v Subramanian [2008] VSC 9; (2008) 19 VR 335 at [57], and Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23 per Basten JA at [58]. Even where there is direct evidence, it is still a matter for the determination of the Court, having regard to the hypothetical nature of the exercise, the dangers of retrospective reasoning, and the use of hindsight: Rosenberg v Percival (above) per Kirby J at [158], per Callinan J at [214]; Hoyts Pty Ltd v Burns [2003] HCA 61; (2003) 201 ALR 470 at [64]; Ellis v Wallsend District Hospitals (1989) 17 NSWLR 553 at 560, 581.
143 The warning in this case would have been in relation to a state of affairs which existed in relation to the steps. Unlike many cases in which the efficacy of warning signs are debated, the warning is not in respect of risky activities which are undertaken as a matter of choice and for the thrill or enjoyment of doing so. The not uncommon example is jumping or diving from bridges or ledges: Roads and Traffic Authority v Dederer (above). Warning signs in respect of such activities are often ignored. In this situation, there was but one aspect of the steps about which a warning was required.
144 There is evidence from which I infer that the plaintiff had been to the second defendant's office on several prior occasions. I am satisfied that had a warning sign been in place on the day of the accident, she would have noticed it by then. I have had the benefit of observing the plaintiff and listening to her give evidence for a considerable period of time. I have access to documents created by her and the notes of extensive discussions with Mr Hamer, which bear on her personality and attention to detail. I also have regard to the way in which she described her ascent of the steps and as to whether she used the handrail on the left side when ascending. From all of that I infer that if she had been made aware of the potential danger of the steps, she would have gone about the task of descent on this occasion differently and in a manner which would have avoided the fall. I am conscious that the plaintiff said that the steps did not look wet to her as she approached to go up, but she was aware that it had been raining. If she had known that there was a risk that the steps were slippery when wet, then she would have been more alert to the situation, and adjusted the way in which she negotiated the steps accordingly.
145 In cross-examination, the plaintiff said that she believed that she was looking down at the steps - looking at where she was treading, just before the fall. It was suggested that she was looking down the steps out in front of her, to which she said that her memory was that she was looking at the steps. The distinction was made for her between the particular steps that she was about to put a foot on, or looking generally down the set of steps which she was about to walk down. She said that she was looking at the first step that she was putting her foot on. The plaintiff was then taken to her answers to interrogatories on 27 September 2004 in which, in answer to the question, "What was the plaintiff looking immediately before slipping and falling on the steps as alleged ...", the plaintiff answered that she "was facing forward and looking down at the stairs immediately before slipping".
146 I am not satisfied that the plaintiff was looking carefully at where she was putting her leading foot when stepping from the landing onto the first step. In my view, as Mr Dohrmann suggested is normally the case, people tend to place their feet towards the front of the steps, and I think that is what occurred on this occasion. The plaintiff was not exercising any particular care about where precisely on the steps she placed her foot.
147 The exercise is to assess the degree of departure from the standard of care of the reasonable person and of the relevant importance of the acts of the parties in causing the damage. As far as the defendants are concerned, for the purposes of the present exercise, it can be said that they bear a collective responsibility for the continuation of the state of affairs and the failure to alleviate by one means or another, the foreseeable risk of injury.
148 In the circumstances the duty of care would include a duty to guard against inadvertence and inattention on the part of users of the steps. Whilst a degree of inadvertence, inattention or mis-judgment may be excusable, acts which can be so characterised can nonetheless be negligent if they fall short of the standard which would be exercised by a person of ordinary prudence. In this case, the plaintiff knew that it had been raining. The height and angle of the stairway is self-evident. The surface of the tiles is self-evident. The relative shallowness of tread is self-evident, as is the rounded nose. By failing to appreciate that the circumstances called for a more careful placement of her foot on the steps, particularly when descending on the left hand side where there was no hand rail, I find that the plaintiff was contributorily negligent. In my view, the proportion of responsibility which the plaintiff should bear is 20 per cent.
What injuries were sustained in the fall and which of those are presently productive of symptoms?
149 As I earlier noted, the defendants submit that the plaintiff has not established that she suffered any injury to the L5/S1 intervertebral disc. Scans show herniation of that disc and the disc at the level above - L4/5, but it is the lumbo-sacral intervertebral disc which is said to give rise to localised pain and sciatica and to be productive of disability. The defendants submit that it is more likely that the fall aggravated a pre-existing degenerative condition, those aggravating effects having long since settled.
150 As to the knee, the defendants' position is that no injury to the knee joint was sustained in the fall and that any disability results from a pre-existing degenerative condition. They say that as to the hand, the plaintiff has fully recovered from the injury suffered, that this recovery process ended in about February 2003, but that in any event any continuing symptoms are of nuisance value only. The argument as to the hand of course, unlike that in relation to the low back and the knee, is not an argument as to causation, although it was put as part of the one submission. Although conceptually it does not fall within the parameters of the argument as to the back and the knee, I will deal with it at this stage, at least in part, given that it is convenient to set out much of the relevant evidence as to all of the injuries at this time, and given, as I have said, that is the way in which it was argued. I will however, confine myself to the question of whether symptoms persisted beyond February 2003.
151 The resolution of these issues requires attention to the plaintiff's evidence about what pain and injuries she suffered, the treatment she underwent and the recovery process, a study of the medical records and an assessment of the expert opinions which were offered in the case. Unfortunately, this necessitates setting out much of the detail of the treatment and the investigations, but this is also relevant as I have said, to other issues.
The plaintiff's evidence as to the injuries and their treatment
152 I will start with the plaintiff's description of the effect of the fall itself. She said that when she landed, she felt the imprint of a stair across her low back. Her belief is that she took the impact on her lower back. After falling, she was on her back. Her left leg was fairly straight but the right one was "a bit skewed" - "a little bit bent out". She said that she hurt all over - "it was phenomenal, it was like a wall of pain, seriously." She felt an incredible sense of nausea. She demanded that Mr Partridge get her to the car and take her home. She does not remember the drive home but does remember him carrying her up the steps to her home and putting her onto the bed. "All afternoon" she was vomiting and hurting, and feeling pain in the region of her low back, right knee, left hand. She said she had skin off her right leg, and a lot of pain on the left hand side of her chest wall. Basically she said it hurt all over, and it continued, so that the next day she sought medical attention at the emergency department at Calvary Hospital. I have already set out most of what the notes recorded at that attendance. (There is no complaint of knee pain recorded.) She was given analgesia and advised to follow-up with her general practitioner.)
153 When there was no improvement over the next few days, the plaintiff went to see Dr Edwards. She continued to see Dr Edwards about injuries said to have been caused by the fall, up until October 2003 when she left to go to New South Wales. I will detail more of those attendances later in these reasons. Dr Edwards referred the plaintiff to a number of specialists and health care providers. She was undergoing regular physiotherapy, principally for her back, between 15 July 2002 and 6 October 2003. She saw a specialist hand physiotherapist on nine occasions in September to November 2002. She was referred to a pain specialist concerning her back pain, and not long before she left, to an orthopaedic surgeon about her knee. The pain specialist, Dr Oberoi, recommended facet block procedures which were scheduled for January 2003 but the plaintiff decided not to go ahead with them. No treatment seems to have been recommended in relation to the knee.
154 After moving to New South Wales, on 11 November 2003 the plaintiff first saw Dr Dixon, an orthopaedic specialist practising at Hornsby. The plaintiff said that she saw him fairly constantly for the year after her arrival in New South Wales. She underwent discogram and facet block procedures in March 2004, and it would seem a further facet block procedure about a month later. She said that after the first procedure her back pain was "immense for weeks, my mobility was ridiculous". Dr Dixon persuaded her to have the second one but the result was exactly the same, if not worse. She appears not to have seen Dr Dixon for treatment after moving to Yamba, and there is no evidence of any subsequent treatment of any significance other than the taking of "over-the-counter" and prescription analgesia. As to the impact of these injuries on the plaintiff's capacity to work before moving to New South Wales, the plaintiff said that it was only a few weeks before she tried to return to work. Her reason for this attempt was that she said the business relied heavily on her input, and the stress and pressure on her mother in her absence was "exorbitant".
155 When she returned to work she could do very little physically; she could not work with the children at all, and was there basically to oversee the administration and to generally supervise the operation. She said she was taking a lot of medication for the pain and that this affected her in terms of concentration and her short-term memory. After her return to work, the number of hours depended on how she was coping on any given day, and to what extent "work was in chaos". The plaintiff had employed a full time teacher to physically take over her role and apparently this person was causing difficulties with staff and was the cause of some complaints from parents. At the end of 2002 and in early 2003, problems at the centre escalated and although she was intending to work for limited hours, the demands of running the business became so great that she was at work for quite long hours. At times she said she was physically present for up to 10 hours, which exacerbated all of her injuries. She said she was desperate at that time and did not perceive that she had a choice. At the time of the sale of the business in September 2003, the plaintiff was still on pain medication for her back which affected her concentration for administrative tasks. She could not sit for prolonged periods and could not lean forward or carry items comfortably; there was "a whole range of difficulties" with doing various things. She had difficulty in using a keyboard and in writing. Her left hand swelled and became painful and made those tasks difficult.
156 I will, of course, be examining these matters in greater detail, but for present purposes, I simply note that the plaintiff complains of present and continuing pain in her low back, mostly on the left side, but constant pain all across the low back. That pain is at the level above the tailbone, and varies in intensity up to excruciating. She suffers a pain that goes down through the right side of her buttocks and into her thigh down as far as the knee area. She said that the right knee is always painful. The pain is located on the outside of the knee and there is swelling from time to time. At times it does not lock when walking, and the most painful times are going upstairs and even more so going downstairs or down a slope. She said that the problem with locking has led to several falls. As to the left hand, she said that if she does not use it very much, she experiences no symptoms whatsoever. If it is overused, it swells and becomes very tender, particularly on the back of the hand "and at times it goes a strange shade of purpley grey".
157 I have already noted part of the Calvary Hospital records for the day after the accident which was the first occasion on which the plaintiff sought medical assistance. It will be recalled that the notes show the plaintiff complaining of a sore right lower leg, soreness in the thoracic and lumbar regions of her back along with the left sacroiliac region, and generalised interscapular discomfort. The handwritten notes show a drawn figure representing the plaintiff's back. A shaded area is sketched on the left side of the low back with a note that it represents a bruise. Similar shading is shown on the outside of the right leg just below the knee with a line to the notation "o bruise, o swelling, slight tender lat perineal muscles". In cross-examination, it was suggested to the plaintiff that this diagram indicated a bruise below the knee, with which she agreed. It was put to her that she "had a bit of bruising below the knee on the outside of the leg and that was all". She said that she had skin off and pain but when it was specifically put that the only visible sign was bruising, she agreed. Shortly after that though when asked about what she had told Dr Edwards about her right calf area, and her being specific about that, she said that it was "where the skin was off and there was visible damage". It would seem however from the records, that the notations which I have set out, meant no bruising or swelling. The records contain a letter from Professor Smart to the first defendant's solicitors confirming what the handwritten records reveal. The letter explained that medical examination confirmed:
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a tender central spine in the thoracic and lumbar regions, with para-spinal muscle spasm;
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bruising over the left sacroiliac region, with spasm of the paraspinal and rhomboid muscles;
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a full range of movement of the right knee;
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slightly tender right lateral peroneal (outer side of the lower leg) muscles, but with no bruising or swelling;
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minor abrasions of the left little finger but with full range of movement of the left wrist and hand and normal circulation and sensation.
158 A number of x-rays were performed. Those of the dorsal and lumbar spine showed mild anterior osteophytic lipping in the lower lumbar spine with the disc spaces being "well preserved and no other significant abnormality detected". There was no evidence of recent bony injury, nor was there evidence of such injury to the right mid and distal lower limb. A hospital letter dated 29 December 2008 says that "the final diagnosis was soft tissue injuries to: the right lateral lower leg, thoracolumbar regions of the back, left buttock and sacroiliac joint, and the interscapular region".
159 Again, I have already noted some parts of Dr Edwards' (the plaintiff's general practitioner) notes when she was consulted by the plaintiff on 3 July 2002. The entry for that date has a note of the plaintiff having "landed ++ on low back". There is also a note of the plaintiff walking stiffly and slowly and being "very very stiff at lumbar extension" with pain in the low back. Mild tenderness is recorded at levels T2 - T5 and T11 - T12. There is reference to L3 - 5 and the facet joints and the muscles being remarkably relaxed, but otherwise the note is difficult to interpret and Dr Edwards did not give evidence. There is a note of the right lateral calf muscle settling. As to the hand, there is a reference to the little finger being okay with a resolving bruise near the base of the left thumb but slight swelling to the third metacarpal joint. There is no reference to the knee itself.
160 The notes for 16 July 2002 were made by a doctor other than Dr Edwards. There is mention of pain in the left middle finger at the NCP joint and discussion about low back pain and physiotherapy. It is noted that the plaintiff is still tender over "lower lumbar & mid thoracic level". There is no mention at all of the right leg. After that there are regular attendances on Dr Edwards at intervals between one to three weeks. Relevant notations are confined to the thoracic and lumbar spinal areas and to the middle finger on the left hand. On 18 September 2002 there is a note of "feeling stiff as a board. Not been doing much at home - resting. Low back the worst". The first mention of the right knee in as many words occurs on 18 December 2002. Dr Edwards noted that the right knee was no better and queried an orthopaedic appointment.
161 On 8 January 2003, Dr Edwards noted that the plaintiff had been doing 10 hours a day at work, that her back had been worse with the increased work but was getting to physiotherapy and doing swimming before 8am or after 6pm. She was noted as walking better, with increased forward flexion from before, and a slight tenderness at levels T5/6 and L2/3. Dr Edwards appears to have suggested that she try six to eight hours a day. There are further notes suggesting the plaintiff's hand was improving and that she had been able to write. The knee was described as tolerable but still has to get an appointment with an orthopaedic surgeon. On 19 February 2003 there is a note of the plaintiff basically doing full days at work up to 10 hours a day. Her back was manageable "unless prolonged sitting/standing or any lifting ... So supervisory & administrative". The knee was noted as "somewhat better". A full range of movement was noted in both the right knee and left hand, but with slight swelling at the base of the third finger. Slight tenderness at L4 was noted but no muscular spasms. The plaintiff was noted as "Walking better and sitting normally ... Much better at last."
162 On 18 March 2003 the plaintiff was noted as generally tender in the thoracic and lumbar spine, especially at L3, 4 and 5, with the back not as good as a month ago. As to the right knee, full range of movement was noted with no effusion. There is a note on 30 September 2003 of the plaintiff moving to New South Wales on 8 October. The last entry in Dr Edwards' notes is 2 October 2003. There is little of particular relevance between 18 March and then, save for a note on 13 May which is a little difficult to discern, but is one of tenderness at L1 - L4 and slight tenderness to the mid thoracic spine. On 15 July there was a "long discussion" about rehabilitation and back pain with a doctor other than Dr Edwards, and there is mention of a referral for knee pain. In general, things seem to have plateaued through that period. The number of attendances is less. There are references to low back ache, aches in the left hand when the plaintiff does too much, and some infrequent numbness, and a recurrence of pain in the right knee when going down stairs after it appears to have been quite good.
163 The plaintiff saw a physiotherapist at Landsdowne Physiotherapy between 15 July 2002 and 5 September 2002. In the two page document completed at the time of the first consultation there is a reported history of falling down stairs and landing with one stair across what appears to a reference to the thoracic spine, with one stair across the small of the back. There is a diagram on the second page which I infer, from the use of vertical lines drawn, suggests attention was focussed on the area of the "lumbar vertebrae 2 - 5, possibly below". An "impression" is recorded of soft tissue damage to the lumbar spine. There are subsequent references to L1 - L5 with symbols which I am not able to interpret but with some references to tenderness. From 18 September 2002 to 6 October 2003 the plaintiff saw a physiotherapist at New Town Physiotherapy Sport Centre. Apparently the move took place because of personality reasons. The attendances are reasonably regular; about the same frequency as before. Interestingly, the history is recorded as a slip on wet steps with the plaintiff landing with a compressive force onto her sacrum, with an immediate complaint of lumbo-sacral pain and additional mid-thoracic pain. The notes themselves contain frequent references to the lumbar spine area, and less frequently the sacral area. Lumbar pain and immobility in general seems to be the constant theme. There is a "discharge summary" which was prepared to assist in ongoing treatment, given the plaintiff's move to New South Wales.
164 In relation to the hand injury, the plaintiff saw Jennifer Ball, specialist in hand and upper limb physiotherapy, on nine occasions between 4 September and 11 November 2002. As Ms Ball reported to Dr Oberoi of the Tasmanian Pain Services, the main focus of the hand problem concerned the left middle finger "with exquisite pain around the NCP joint, the EDC tendon over that joint and the intrinsic muscles - on either side ... on either side of the joint". The treatment consisted of manipulation and heat therapy, with splinting for a time. In a handwritten letter to Ms Ball dated 13 February 2003, the plaintiff apologised for not having been in touch sooner. She said:
"Whilst I was on my holiday in Sydney ... several work issues arose which I needed to address. So when I arrived back I roared into Tingletree regardless of anything else. I have informed my (1) general practitioner (2) Workers Compensation company (3) pain specialist (4) physiotherapist that I have not been able to resume any treatment at this stage; until things settle down and they're okay with that.
In actual fact my hand has improved dramatically since I last saw you, (even though my writing is a bit wonky still!)"
165 The reports of various diagnostic investigations are in evidence. I have already referred to the plain x-ray taken at Calvary Hospital on 18 June 2002. There is a report of a CT scan of the lumbar spine and sacroiliac joints done on 6 November 2002. This is addressed to Dr Oberoi. It reports that at the L4/5 level there was a large central disc herniation causing moderate canal stenosis and with disc material extending down behind the vertebral body. No foraminal stenosis was evident at that level. At the L5/S1 level there was a diffuse disc bulge but without significant canal or foraminal stenosis. No significant abnormality of either sacroiliac joint was detected. The conclusion is reported as "central disc herniation at L4/5 level causing moderate canal stenosis". In a letter from Dr Oberoi to Dr Edwards dated 11 December 2002, he reported that the recent CT scan confirmed the initial impression of L4/5, 5/S1 disc bulge. He also reported that the plaintiff was booked for right sacroiliac joint and L4/5, 5/S1 facet blocks on 31 January 2003 for therapeutic/diagnostic purposes. In a subsequent letter dated 19 February 2003, Dr Oberoi reported that the plaintiff had missed those procedures and "presented today reporting significant improvement in both hand and lower back symptoms. She has restarted her vocational activities and is able to use her left hand very consistently."
166 A plain x-ray of the right knee done on 3 September 2003 shows "radiographic evidence of a minor effusion in the joint but with no body injury detected". The report of this x-ray also notes mild changes of degenerative joint disease in the medial compartment with joint space narrowing and early spiking of the tibial spines. A more sophisticated scan seems to have been done about a week later. The findings are reported at some length in a report dated 8 September 2003. That report ends with the following comment:
"Focal degenerative change lateral facet patella precipitated by trauma".
A plain x-ray of the left hand also done on 3 September 2003 revealed a prominent subchondral cystic lesion within the lunate (wrist bone) on the scaphoid aspect of the lunate. It was reported that the nature of this was uncertain although it may be degenerative in nature. There is relevant mention of the hand in a report dated 6 August 2009. The plaintiff had complained of intermittent swelling of the left hand, particularly under activity, with bluish discolouration on the dorsum.
167 There is a report from the Gosford Radiology Centre to Dr Dixon dated 17 November 2003 relating to "MRI lumbosacral spine". In terms of findings, it is reported that there was no abnormal signal in the lower thoracic cord, but dessication of the L5/S1 and L4/5 discs with broad based bulge of these discs. At the L4/5 level, the bulge was most marked centrally where there was indentation of the thecal sack. The bulging of the L5/S1 disc was non-compressive. The conclusion reached is:
"The broad based bulging of degenerative discs at L4/5 and L5/S1 as described with facet joint degenerative changes noted. Slight neural exit foraminal narrowing at these levels with evidence of nerve root or ganglion compressions. The L4/5 disc bulge indents the thecal sack centrally."
168 The last of these reports which needs to be noted is that of 17 March 2004 from Dalcross Diagnostic Imaging in Killara New South Wales to Dr Dixon following discogram and facet block procedures on that day. As to the discogram, at L4/5 widespread annular fissuring was demonstrated which was relatively contained, and no significant pain was felt with testing at that level. The L5/S1 disc was ruptured with reduced tugor [sic] with injection at this level producing severe back pain. The report notes that facet injections were performed at L4/5 level and moderately severe back pain was experienced as a result.
169 Dr Dixon's evidence-in-chief was elicited by way of the tender of a number of letters and reports, together with a proof of evidence. None of the documents directly address the issue of causation. In a report to the plaintiff's solicitors dated 7 June 2004, Dr Dixon, by way of introduction, merely reports that the plaintiff "fell down a double flight of stairs landing on her back injuring her lower back, right knee and left hand". He went on to say that while the left hand has settled, she has residual ache in the right knee but her main difficulty appears to be persisting pain in the back. He reported as to the procedures on 17 March 2004 saying that the discogram showed a large spread annular fissuring of the L4/5 disc without significant pain on testing, but at L5/S1 there was a symptomatic ruptured disc with Decadron (a steroid) being injected. At the same time a bilateral L4/5 facet block was performed using long-acting cortisone.
170 In a further report to the plaintiff's solicitors dated 26 March 2008, Dr Dixon provides comment on a number of reports which had been supplied to him, one of which appears to have been from a Dr Anthony Smith. Dr Dixon in his letter said that he concurred with Dr Smith "that the patient has aggravated a previously degenerate lumbar spine and that over a period of months, this aggravation should have settled, however she did have a significant fall with a back strain associated with a disc herniation at L4/5 and a disc bulge at L5/S1 with a symptomatic lumbo-sacral disc on discography which was performed on March 17, 2004. This aggravation has been ongoing and when combined with the persisting facet arthralgia, unrelieved by bilateral facet blocks it has been occasions with persistence impairment" [sic]. On 6 August 2009 as to the knee, Dr Dixon reported retropatellar crepitus in the knee with a restricted range of active movement, and a retopatellar click with mild laxity of the medial collateral ligament. In a further report to the plaintiff's solicitors dated 19 November 2009, Dr Dixon says that the plaintiff "has a significant injury to her low back with a large central disc herniation on CT scan in November 2002 at the L4/5 level with disc material extending down behind the vertebral body and at L5/S1 there was diffused bulge but without significant canal stenosis. MRI scans showed broad based degenerative disc bulge at L4/5 and L5/S1 with facet joint degenerative change and bilateral L4/5 facet joint blocks were performed at the time of the lumbar discography on March 17 2005" [sic].
171 In cross-examination, Dr Dixon clarified the situation with the facet block procedures. He said that there were in fact two done, one at L4/5 level and then a second one a month or two later at L5/S1. He agreed that his "principal diagnosis" was one of an L5/S1 disc disruption based on the lumbar discogram as being "the most evidential". When taken to his agreement with Dr Smith concerning the issue of aggravation of a previously degenerative spine, he agreed that he meant previous to the fall in 2002, and that the degeneration was established by the plain x-ray available from the day after the accident, and from the MRI of 17 November 2003.
172 Points relevant to this issue arising from further cross-examination are as follows.
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Dr Dixon agreed that he was entirely reliant upon the history given by the patient as to the course of events between the fall and when he first saw her on 11 November 2003.
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He found the heavy fall "down two flights of stairs" to be significant because it indicated the heavy fall likely to produce compressive forces.
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What he also found to be significant was the serious disabling pain in the low back and knee dating from the fall, and not coming on later, which he assumed had come from the fall.
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He agreed that he relied on a history of serious disabling pain in the low back and the knee consistent from the time of the fall.
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It was also significant that she was allowed only to visit the centre and check on operations but not to work there, his impression being that any return to work was supervisory and for a minimal period of time.
173 The overall picture as it stood at February/March 2003 as taken from Dr Edwards' notes which I have set out above, was put to Dr Dixon. He was asked whether in that scenario any pain after that time was likely to arise from the pre-existing degenerative change "and not to arise by reason of the fall, any further aggravation - ". The transcript records his answer as "Oh if back pain was simple". I am not confident that this is an accurate record of what Dr Dixon said, although it is very close. I think the word "that", needs to be put between "was" and "simple", but in any event the sentiment he was intending to express is plain enough. The cross-examiner did not pursue the point.
174 Different counsel took up the issue of the knee injury. Dr Dixon was asked about what the plaintiff had said to him in relation to the injury to her knee, when she first consulted him on 11 November 2003. He said that the plaintiff reported that she had injured her knee in the fall, and agreed that in order to determine as an orthopaedic surgeon, whether a person had suffered an injury to the knee, he would need to know considerably more about the alleged mechanism of injury than that the plaintiff had fallen down some stairs. Dr Dixon gave quite unresponsive answers when it was put that he did not obtain any history that would enable him to determine for himself whether she had suffered an injury to her right knee as a result of the fall, finally saying that she had fallen onto the knee. When asked whether the plaintiff had told him that, he replied "Well, how else would she have injured it?"
175 When asked whether at any subsequent time he had taken a more detailed history about the mechanism of injury to the knee, he said "I simply had a history that she fell, she injured her back, her knee and her left hand." In response to further questioning about the knee injury, Dr Dixon said:
•
if there was an injury to the right knee as a result of falling on to it, he would expect some immediate symptoms if there was bleeding, but if there was swelling later on, there would be delayed pain;
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if it was a jarred knee it might be an effusion that develops over the next one or two days and then becomes painful and swollen;
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it would be unusual if, on the day following the fall, it was noted that there was a full range of movement in the knee and no other abnormality of any kind noted - unusual in the sense of not experiencing any symptoms;
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that the only abnormality noted on any of the x-rays was "some small joint or minor effusion";
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such a change was consistent with aging or wearing out and that he would not be surprised to see such x-ray results in a person who had not suffered any injury to their knee;
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it would not be surprising in a woman of the plaintiff's age, if there was a recorded complaint of a "niggly right knee" and a suggestion to see a physiotherapist within 10 months before falling down the stairs, and even less surprising in a woman of that age who had engaged in a lot of physical activities.
176 As to that last point, there is a note in Dr Edwards' records for 7 September 2001 in relation to a "niggly right knee", for which Dr Edwards has apparently made a recommendation for the plaintiff to see a physiotherapist. Dr Edwards has also made a note of "no effusion". The plaintiff when asked about this entry, said she had no recollection of it at all, and did not go to see a physiotherapist about her knee at the time.
177 The plaintiff also called Dr David Gorman, a consultant physician and pain specialist to whom she had been referred by her solicitors. In a report to those solicitors dated 29 May 2009, Dr Gorman said that the plaintiff was walking on wet tiles when her left foot went from under her and she landed very hard on her left hand and low back, also hitting her right knee. He records the plaintiff's problems in order of severity as low back pain, radiating from both buttocks (right greater than left) and with some symptoms to her thigh, right knee pain with the knee giving way on occasions, and left hand pain being a problem only when the hand is used, such as writing for long periods when it can swell and "bruise". Some matters noted on examination were a limited range of lumbar flexion, and lumbar spinal pain complained of on straight leg raising. He said that the plaintiff had a good range of movement in both knees with no ligamentous instability and no tenderness around the joints. Although the plaintiff said that there was some bruising, darkness of the skin and swelling of her left hand, this was not present on the date of his examination.
178 In that report, Dr Gorman went on to say that he considered the plaintiff's ongoing symptoms relating to her back, knee and hand are reasonably attributable to the injuries she sustained in the fall, and said that she had ongoing discomfort with evidence of a significant L5/S1 disc protrusion "having occurred at the time of the fall". He went on to say that the plaintiff was "de-conditioned by inactivity" so that muscle groups became tender and painful and that there were aspects of her presentation amounting to behavioural features seen commonly in "chronic pain". In a proof which was tendered he made further reference to this chronic pain condition. He said that in this case there were diagnostic as well other explanations which he detailed. As to the link to the fall, he went on to say:
"The structural changes depicted by diagnostic investigations and the changes to the nervous/central nervous system caused by central sensitisation are directly related to the injury sustained on 17 June 2002. The other two factors relevant to her presentation and contributing to her chronic pain that I have detailed, namely deconditioning and depressed mood are indirect results of the injury she sustained ...". [Original emphasis]
179 In Dr Gorman's view, the chronic pain condition related to the three areas giving rise to the problems as complained of by the plaintiff. This included the left hand to the extent that the chronic pain condition would explain the reported discomfort with fine motor activity, with the swelling and discolouration a response to chronic pain. Dr Gorman said that the cyst found on x-ray investigation was an incidental finding. In cross-examination, Dr Gorman was asked to make a series of assumptions. They were that the day after the fall the complaint of pain was thoracolumbar, with tenderness both thoracic and lumbar but not sacral; that on 3 July mild tenderness is reported at L2 to L5 but none reported or recorded for L5/S1; that on 8 January 2003 tenderness is found around T5/6 and L2/3 but no evidence of tenderness at L4 or L5/S1 levels. On those bases he was asked whether it would indicate that it was unlikely there was any injury to L5/S1 level on 17 June 2002. It is best to record his response in its entirety:
"Well the - I don't - I don't think the - the thoracic complaints are - are that relevant, in the sense that they - you can get a lot of muscle spasm which can extend up into the thoracic spine. The - I think the - the descript - the localisation is often - is often difficult, so when somebody describes L2 to L5 tenderness, I don't think that all negates the fact that the L4/5 and the L5/S1 disc can be affected in the sense that they - there's muscle spasm again, that can extend up from the problem disc, and the tenderness - the muscle being the - the tissue overlying the spine, the tenderness more likely an indication of muscle spasm rather than an indication of giving any idea of what's going on with the disc - perhaps I should have said that before when I answered your question about tenderness. The tenderness is really nothing to do with the disc, you're not - you're not palpating the disc, you're palpating the muscle and the skin - so tenderness is a really sign of muscle spasm. I think the - the progress of a damaged disc can be over time, I guess, in the sense that, you know if it's a full prolapse pinching a nerve fully, then usually the pain is acute and instantaneous, whereas a disc that is squashed and then with the centre of the disc infiltrating the - the tissues around the - that - the centre of the disc, there can be ongoing inflammation and softening of that disc with time. But I think the bottom line - the simple answer to your question is, the widespread tenderness is an indication of muscle spasm."
180 Dr Gorman agreed that the investigations indicated degenerative processes in the low back had commenced prior to the fall, and agreed that the move from a disc to a herniated disc is something that can occur as a natural part of the degenerative process. The questioning continued as follows:
"So to pin the move from a non-herniation to a herniation on this fall you would need, I put to you, pain in the relevant area, at least the day after the accident, at least on the 3rd of July and at least in January '03?.......Well I think the - the only reason that the proposition doesn't always follow is the fact that the - the - the protrusion of that central material into the - the fibres around the - the fibres of the annulus, can - does itself set up an inflammatory process, which I think would - would - could cause further accelerated degeneration and further symptoms.
It's possible that it could?.......Yes, yes.
Mm. But you don't translate that to saying that's what occurred probably in this case, do you?.......Well I - I think the - that disc is - the disc, as we saw later, is very abnormal, the L5S1 disc, and - and -
And the question, doctor, is, where did it come from?.......Where did it come from?
Yes, and the absence of pain the day after, the absence of pain on the 3rd of July and the absence of pain in January '03 are all powerful pointers to the fact it didn't come from the fall - that's so, isn't it?.......No, no, I don't think so, I think her - her accelerated spinal pain began after the fall and I think, if one takes the history that had been given, that the - that the - she did not have spinal pain beforehand and she had spinal pain after - after the fall. So I think -
So - and it goes further than that though, doesn't it? Disabling to the extent that she wasn't able to continue at work - you'd need to add that in, wouldn't you?.......Yes, she had time off work and then she attempted to return to work.
And - and couldn't get back to full duties - that's your understanding of the history?.......That's right - that's right.
Yes. If indeed she did get back to full duties at ten hours a day for ten hours a day at times and full time at other times for a period of about nine months before the business sold, your view would change, wouldn't it?.......Well I - I'd need to correlate the - what was going on at the same time, if she was no longer having any therapy or not seeing her general practitioner and not having any medication, I'd agree with you."
181 Further evidence was called by the plaintiff from Dr John Davis, a consultant in occupational medicine. Three reports to the plaintiff's solicitors were tendered as his examination-in-chief. In the first report dated 17 June 2008, having noted some of the x-ray, MRI and discogram investigations, he said that as a result of the fall down some stairs, the plaintiff suffered injury to both discs [L4/5 and L5/S1] with a contained annular tear at L4/5 and a complete rupture at the lumbosacral level. She also suffered right patello-femoral trauma with patellar-chondral surface damage and soft injury to her left hand. He had noted no swelling or effusion of the right knee but palpable crepitus although there was no evidence of ligamentous instability. He elicited mild tenderness to palpation over the base of the second and third fingers. All of her injuries are consistent with her fall. In the second report dated 7 August 2009, Dr Davis said that the plaintiff suffered injury to her low back when she slipped down some stairs "and fell forward". He said that although her ongoing symptoms relate to her low back, at the time of the accident she also suffered direct trauma to her right knee and left hand. He repeated that the plaintiff had clinical symptoms of having sustained disc injuries in the lower lumbar spine, as well as traumatic injury to the right patello-femoral joint and subsequent development of chondromalacia patellae. Examination of the left hand did not reveal any mottling, temperature changes, hyperhidrosis (excessive perspiration), or alteration in hair pattern, with no specific tenderness, nor induration (hardened tissue).
182 When cross-examined, Dr Davis agreed that he had assumed a significant fall, from the plaintiff's history of having vomited at the site of the fall. He confirmed that the plaintiff told him she had self-referred to a psychologist as she was not coping with her injuries and was extremely frustrated, and had not told him that she was already seeing a psychologist twice weekly. He had assumed that the plaintiff had had a psychological reaction to a physical injury. He assumed that the plaintiff was completely off work for the first six months, after which she was not working full time - half days only in an overseeing position. He also assumed that there had been continuing and ongoing difficulties with her hand for the six years since the fall up until when he saw her.
183 Dr Davis was taken to the issue of the disc injuries. The following exchange occurred:
"You found - sorry, can I ask you if there's an injury at T4, 5 and more particularly - sorry, at L4/5 and more particularly L5/S1. That's essentially your diagnosis ... Mmm.
Yes. If there is such an injury then you would expect to find complaints of pain at those levels and tenderness at those levels........Correct.
HIS HONOUR: That's 'yes' to both, is it?
WITNESS: Yes - yes and yes.
MR READ: And you would expect that those features would be consistent - sorry, I need to re-frame this. Then if you want to match the damage at L4/5 and L5/S1 with a particular incident rather than the natural degenerative process with a particular incident, you'd need to understand the course of the illness and whether or not, in particular, pain and tenderness had been present at those regions consistently from the time of the incident to the time of your examination?........Yes.
Yes. And if they're absent for conspicuous periods it's likely that what you're looking at is not the result of a fall, isn't it?.......Totally absent?
Yes.......For how long?
Totally absent for a period of nine months - sorry, seven months after the fall? I'll put this to you specifically so you can understand it. The day after the fall the complaint of pain is of thoracolumbar pain with tenderness both thoracic and lumbar, no note of sacral tenderness and no note of lumbosacral pain?.......Hmm mm.
Right. On the 3rd of July 2002, mild tenderness is reported L2 through to L5 and not at L5/S1. On the 8th of January '03, there's tenderness T5/6 and L2/3. Again, no evidence of tenderness at L5 - L4, L5/S1. Now just assume that they're right. What you've looked at in '08 is not connected with the fall, is it?... It's a difficult question to be specific with. One expects that normally you get some pain and tenderness, but the exacerbations and remissions of these things is always too difficult to be certain. But in general terms, I would have expected there would have been something found, yes.
Yes. And the absence of it - we'll just move away from science to a bit more of an art if you could bear with us because that's how we deal with it in this court, not as a scientific proof. It's unlikely in those circumstances that what you've seen is connected to the fall, isn't it?......I don't have all the information - did we have x-rays, did we have MRIs before that? Do we have other pathology to support it? If there's no other supporting evidence then that's unlikely, yes, but maybe I'm wrong.
Yes. And if as of January Mrs Partridge is back at work for ten hours a day, she's not taking any prescription medication, she's not having any physiotherapy, she's refused facet investigation, facet injection investigation, and she's stopped seeing the hand physiotherapist saying her hand has improved dramatically, in those circumstances you would agree that what you've seen in January '08 is unconnected with back- and hand-wise unconnected with the fall, wouldn't you?......I couldn't be certain of that.
No, no, you couldn't be certain of it........No.
But it's unlikely, isn't it?.......It just can't be certain."
184 Different counsel took up the question of the knee. Dr Davis agreed that the plaintiff had told him she had suffered direct trauma to the knee, and his note was that she had fallen forward. When pursued by different counsel again as to the hand injury, Dr Davis said that when he examined the plaintiff on 12 June 2008 there was a subjective complaint of some pain in some parts of the back of the hand, and agreed that "nuisance value" would be a fair comment in relation to the symptoms. On two examinations he thought the plaintiff's grip strength was "pretty normal". He confirmed that on his second examination on 4 August 2009 there were no significant findings that he was aware of.
185 Dealing with the back injury first, for the reasons which follow, I am satisfied that the plaintiff suffered injury to her low back in the fall. It is more likely than not that this injury consists of the damage to the discs as revealed by the x-ray and MRI investigations. It seems implicit in the expert opinions that it is the L5/S1 disc which is mainly productive of symptoms, but, in any event, the evidence satisfies me that the plaintiff injured her low back. I make it clear that at this stage I am not dealing with the nature and extent of any symptoms said to be suffered. Suffice it to say that I am satisfied that the plaintiff has suffered pain and discomfort in her low back to an extent after early 2003 and beyond the time when she left Tasmania and went to New South Wales. She has taken medication for that pain and discomfort and she sought treatment after her move. For present purposes, I am satisfied that a level of pain and discomfort has continued.
186 To return to the particular issue at hand, the plaintiff said that she felt the imprint of a stair across her low back when she fell. She was not challenged about this. Ms Webster said that the plaintiff "crunched her back on the stairs". When asked to clarify this she said that the stair crunched right into the middle of her back "heading towards lower". It should be borne in mind that the plaintiff seemed to have landed rather flat on her back and obviously slid a short distance. The plaintiff's evidence and Ms Webster's evidence are not at all inconsistent. It would have been difficult for Ms Webster to precisely locate a point of impact on the plaintiff's back, and in any event there is nothing to suggest that only one step was involved.
187 The Calvary Hospital notes record complaint of soreness in the lumbar and left sacroiliac region, and medical examination revealed tenderness over the latter part. Whilst Dr Edwards' notes do reveal complaints of tenderness mostly at higher levels than L4/L5 and L5/S1, pain and stiffness in the lower lumbar region is noted. Moreover, Dr Gorman's evidence establishes that localisation of the source of pain is difficult, in the sense that tenderness at a higher area may be indicative of muscle spasm which is caused by and extends up from a lower disc. The ongoing nature of the complaints is supported by the investigations and the expert opinions which I have set out. There seems to be no doubt that an aspect of the present situation is an aggravation of pre-existing degenerative change, but on the whole of the evidence, I am satisfied that the fall is responsible for an injury and a greater level of symptoms than would have been the case had there been no fall.
188 As to the right knee, I am satisfied that the plaintiff sustained some injury to the right lower leg. At the hospital the next day there was at least tenderness to the right side of the lower leg. As interpreted by Professor Smart, the notes suggest no bruising or swelling in that area, although the plaintiff agreed with the suggestion in cross-examination that there was bruising as shown by the notes. The plaintiff said that there was a loss of skin in that area but no abrasion is recorded. As will be recalled, the plaintiff said that when she landed, her right leg was a little bit bent out - "a bit skewed". Precisely what she meant by that was not explored, but for the and tenderness and possible bruising to have been sustained by direct impact, that part of her leg must have been rolled under her at some stage if she has been otherwise on her back at all times. There is no other suggestion of any injury to her right side.
189 The x-ray and the MRI scan of early September 2003 show a minor effusion and more particularly what is described as a focal degenerative change of the lateral facet of the patella precipitated by trauma. The only evidence that any present symptoms are attributable to a pre-existing degenerative condition is the note of a "niggly right knee" in Dr Edwards' notes of September 2001 of which the plaintiff has no memory. Dr Dixon said that the minor effusion was consistent with aging or wearing out, and that he would not be surprised to see such a result in a person who had not suffered any injury to the knee. He also said that a complaint of a niggly right knee would not be surprising in a woman of the plaintiff's age. However, none of the experts was asked what the MRI findings of focal degenerative change meant in terms of the timing of its onset. The report itself says that the change noted is consistent with trauma.
190 It is true that Dr Davis at least, proceeded on the mistaken assumption that the plaintiff had fallen forward onto her knee. The situation is less clear in Dr Dixon's case. When he said he assumed the plaintiff had fallen onto the knee, it is not clear whether he meant directly onto the front of the knee or whether there was a lateral impact. In any event, to my mind the answer lies in the x-ray and MRI evidence, coupled with the expert opinions. I conclude that it is more likely than not that the plaintiff injured her knee in the fall and that she has suffered symptoms and may continue to suffer symptoms which she would not otherwise have done. The nature and extent of those symptoms is a matter for further discussion at the appropriate time.
191 As to the hand injury, I have already noted that conceptually it does not fit within the same discussion of causation as the low back and knee injuries, and what is to be determined is whether there have been any ongoing symptoms since February 2003. It is clear that the plaintiff suffered an abrasion injury to her left hand when she attempted to steady herself on the brick wall to her left. She later developed problems with pain at the base of her left middle finger. She underwent specialist hand therapy for what Dr Dixon described as "extensor tenosynovitis". This tenosynovitis he said, had been caused by trauma.
192 In light of the obvious injury which was in fact sustained and the treatment received, and in light of Dr Dixon's evidence about the condition, I am prepared to conclude that it is more likely than not that some symptoms have been suffered by the plaintiff to the left hand after February 2003. Once again however, the nature and extent of those symptoms is a matter of debate to which I will return.
The plaintiff - before and after the accident
193 One of the very few things about which there is no dispute in this trial is that before the accident the plaintiff led a fairly active life. She said that she grew up on a farm and helped with the farm work, including working with the animals and riding her pony. At school she was involved in team sports such as netball, softball, volleyball and squash. Orienteering was something she was also involved in. After she left school, she was involved in squash at competition level for some years and played in various netball teams and organisations. She was a volunteer lifesaver at Clifton Beach. She said that as her life moved on, her recreational activities changed. At various stages she was involved in a defensive martial arts discipline, and gymnasium programs with weight and swimming training. The plaintiff has had a love of dancing most of her life. She said that this was both ballroom dancing and disco dancing. She would get much pleasure from dancing at Mr Partridge's performances. She herself played piano and guitar. Another lifelong interest which was still pursued at the time of the accident was horse riding, as was going for long walks with a number of dogs which they owned. The plaintiff and Mr Partridge also of course owned a number of sailing vessels which "became a great passion". They firstly acquired a half cabin cruiser, which they sold and purchased the yacht Semille which was the vessel which sank at its mooring. Ultimately the Serendipity was purchased on which they now live.
194 As to her work at Tingletree, this was said to involve a lot of physical and vigorous activity extending to the use of children's furniture, running, jumping and dancing, setting up activity areas, and involving all aspects of child care - feeding, toileting and so on. The plaintiff said that there was a consistency and continuity in the work which was quite demanding. As well as the administrative role which she performed, the plaintiff had a full "hands on" involvement with the children.
195 There were some health issues before the accident which led to depression and panic attacks and ultimately to the commencement of the consultations with Mr Peter Hamer. The plaintiff's father was terminally ill for quite a time. In the two years or so before the accident the plaintiff suffered three ectopic pregnancies which required surgery. She was taking anti-depressant medication and medication for her anxiety before the accident. I have already noted that the plaintiff claims to have no memory of a "niggly right knee" in September 2001. She said she experienced no problems at all with her low back prior to the accident. In evidence-in-chief she was asked whether she was aware that Mr Hamer in his records had noted that she told him she had stopped going to the gymnasium because of low back issues. She said, "Under oath, I have to say that I don't have any recollection of ever, ever having even a twinge in my back. Certainly if there - if my recollection is not good enough, it was something incredibly miniscule that didn't cause me any problems with work or anything else in my life."
196 As to her present symptoms, the area of greatest difficulty is her low back. I have already noted the plaintiff's evidence as to the constancy and the location of the pain. She said that it varies in intensity from excruciating - if she jars her back or twists it the wrong way - to bearable with medication on the other end of the scale. At times it is extremely bad for no apparent reason. On a scale of one to ten, imagining ten is the most severe pain, she said that the back pain varies between 6½ "and when it's very bad or I twist it or I trip, even momentarily, or for no apparent reason, it can scream up to a 9". She said that she does not ever have a day when she is free of pain from her back and able to move freely. Cutting back on medication beyond what was sensible would exacerbate the level of symptoms in her low back, as would trying to force herself in terms of trying to keep a level of mobility - "... if I overdo activity ... and anything from - from descending stairs to trying to get something from the floor, sometimes brushing my hair, it - the activities - it's really difficult to pinpoint them because it affects every area of my life, there's nothing it doesn't affect. And it's worst, if I can be brutally frank, it can affect my ability to go to the toilet by myself."
197 When asked to describe the types of physical actions as opposed to activities which cause exacerbation of the symptoms, the plaintiff described the following:
•
walking long distances - "certainly running, I've not run";
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getting in and out of bed;
•
showering;
•
all day to day activities, being part of normal life;
•
travelling in a vehicle, it being difficult to drive except for very short distances - "I've stopped driving also because of the amount of medication, but because of having to turn and use my legs ...".
198 A number of things were described as a personal struggle such as grocery shopping, pushing a trolley, sitting in a dentist's chair and being in hospital. The plaintiff was asked about physical actions which she avoided on the basis she knew that such action would cause more discomfort. She said she avoided bending unless it was very gentle and she was having a relatively good day. She avoided staircases, twisting, kneeling in church, any sporting activities which she used to do.
"I avoid driving, I avoid group situations, I avoid - I avoid even reaching across to cupboards in the boat in a forward extension and getting out a coffee cup because of the forward extension, and just doing that can sometimes hold me up for two days. I avoid cooking, I avoid carrying hot things, I avoid making my own hot drinks. I avoid timeframes incredibly because I can't manage them, and I avoid trying to have to make too many decisions regarding my personal affairs or financial affairs."
199 As to the pain, she said that it travels down through her thigh down her leg. That can be quite intense, but it is not there all the time. The pain goes down the thigh to her knee area and occurs mostly on the right side, but can occur on the left. This probably happens once a day for an hour or so, and remaining very still and taking extra medication seems to improve that as a symptom. She said that she tended to limp a little due to her sore painful right knee. About half a dozen times since the accident she had experienced instances when for no apparent reason at all both legs "won't go". She said that when this has occurred it is "an incredible shock", and that it takes an hour or so before she can physically move her legs. She experiences alteration of sensation in her toes; that can occur in both feet but she is more conscious of that on the right side. It feels very much like pins and needles. The timing and severity of this is variable and does not tend to be related to her back pain.
200 As to the right knee, I have already noted the essential details of the pain and disability said to be experienced. It will be recalled that the plaintiff says that there are times when the knee does not lock when walking and it is painful when ascending and descending. The locking problem has led to several falls. As to this, she said that not all falls have been down onto the ground because there has been something to grab and normally Mr Partridge accompanies her with everything she does. However, there are times when she has actually fallen and done herself some damage and made her back worse. She said that in 2010 she had two falls of this nature in Tasmania and a couple of near misses. One fall occurred around June/July at White Beach. She was going to an outside toilet. Her knee failed and she fell and hit her right eye on the corner of a step. A photograph was tendered which essentially showed a blackened right eye. There was a second occasion at Nubeena. This occurred when Mr Partridge was away getting her medication. She was walking on a footpath on concrete. She said she put her right foot forward and her knee did not lock. She put her right hand out as she was falling and fractured her middle finger.
201 In re-examination she was asked about an observable injury to the bridge of her nose with which she had appeared during the course of her cross-examination. That cross-examination was lengthy in itself, but with several witnesses being interposed, it extended over several days. The plaintiff explained that she had fallen in the evening. They were staying at a friend's house. She had been to the bathroom. There were several steps from the bathroom to the bedroom and when returning, her knee did not lock. She said that she was not quick enough to catch anything and fell and hit her nose against the step, she thought. The fall exacerbated her back pain which had been "extraordinary ever since". When further cross-examined about what she meant when she says that her knee does not lock, she said that it does not hold. She agreed that what she is really saying is that her knee gave way and that as a result of the knee giving way, she fell. She said that it occurs totally at random and in the last six months she had three falls, but then in another whole 12 months it might not happen at all.
202 The plaintiff said that the right knee swells at least a couple of times a week and it does directly correlate to the amount of pain she has. The knee affects the way in which she walks in that she forgets that it gives way and she tends to try and use it normally, but because of the pain she often tends to favour that knee which makes her walk with a limp which she thinks exacerbates her back pain. In relation to the left hand, again, I have already noted the essential aspects of the complaints. In terms of the actual pain, she would put that at a three on the scale. She said that it is not so much the pain that is the problem, but the inability to use her left hand. She is left hand dominant so that in that regard it affects nearly everything she does in her life. The swelling and pain is brought on by writing extensively, keyboarding, and "texting". She feels the symptoms coming on when she is doing, or attempting to do, fine motor skill activities.
203 A relatively significant aspect of the plaintiff's complaints is a difficulty with concentration and short term memory. In her evidence she at first attributed this to the amount of analgesic medication she has to take. She described it as a constant struggle to keep the level of medication as low as possible, but said that "It does have an affect on my ability to concentrate properly for long periods of time and leads me at times to make mistakes." The issue was again raised later in her examination-in-chief. The question and answer are as follows:
"You've mentioned difficulty with concentration and short term memory is there a direct correlation between those symptoms and any activity or anything that you do? ... Well absolutely. I think that the amount of pain I'm in from any of the injuries affects my short term concentrate - my short term memory and my concentration. Was that the question?"
204 In cross-examination the plaintiff said she believed that she did take medication which could affect her mind. She was asked which medication has an affect on her concentration or memory. Her answer was as follows:
"I believe that the loss of short term memory, particularly, is perhaps more related to the pain that isn't medicated than to the medication for the pain, if - if you appreciate the difference."
205 Later however, the plaintiff seemed to return, at least in part, to the position that some of the medication itself affected her concentration to the extent that it impacted on her ability to work. The cross-examination was directed to whether or not she was back at work on a full time basis, having resumed her normal duties in early 2003. The plaintiff said that she would not have been able to properly perform her duties and could not be a "ratioed staff member", meaning the responsible person for a designated number of children. It was put to her that she was not taking any prescription medication at the time. She said that she did not know exactly what medication she was on, but she was on a lot. She was asked what it was about the medication which she was taking that made it difficult for her to properly work with children. After the plaintiff responded by saying that a certain amount of medication was acceptable to be able to function to think and make decisions for children, the questioner persisted by asking what did the medication do to her; what did it do that meant she could not work with children. She said:
"It affects my concentration a little bit, it makes me a bit dopey. Mersyndol has a sticker on it that says don't drive or operate heavy machinery, this medication will make you drowsy."
206 Earlier in these reasons, when I dealt with the basic outline of events, I set out the plaintiff's evidence as to the extent of her claimed disabilities as summarised in two particular passages from her evidence. Further evidence was led from her as to the particular impact on her life and the activities that she had undertaken as part of her recreational life before the accident. She was asked whether she had resumed those activities. She said that those activities had gone. She still owned a horse but had given it away into the care of someone else. Although they had lived on the boat for 5½ years, she had not been sailing since the accident. She does not play sport any more. She does not go to watch Mr Partridge play because of the crowd factor. Dancing and playing music are "out - ... all the activities I used to be very vigorously into are not possible." The possibility of IVF treatment was raised after her ectopic pregnancies. Apparently she was interested in pursuing that option as she wanted to have children, but was advised against it, she said, due her injuries. Her life had "altered forever" in terms of sexual function and her relationship with her husband.
207 In the context of explaining Mr Partridge's time spent on domestic assistance and care for her, the plaintiff effectively asserted that she was incapable of any real cooking and cleaning activities of any significance. He does the shopping and collects her medication. He does all the washing and all of the household accounting. An explanation sought as to her earlier statement that he normally accompanied her with everything she does, the evidence (part of which I have previously set out) was as follows:
"And you've said he accompanies you on most of your activities, what does that involve - what care does he provide to you, support and care?.......He, at times needs to help me get out of bed in the morning, the - the bunk is in the fore cabin and there are steps from - there's a step, a large step from - from the bed into the next part of the cabin and steps to climb over to get from one section of the boat to the other. At times I'm independent in terms of changing, getting dressed, at times I have not been. Tim makes my coffee, makes my breakfast, and then one very painful element up there is the use of the marina facilities for showering and toileting; they're a long distance away from where the boats are moored and Tim has to carry my shower bag and accompany me to the shower block, which sometimes I can do very slowly and resting on fire extinguishers on the way, in one or two attempts. Other times it can take me half an hour to get to the actual amenities block - so he's locked in to whatever amount of time I need to - to get there.
HIS HONOUR: What causes the difficulty in this walking from the yacht to the ablutions block?
WITNESS: The - well it's a floating marina so it's - it's constant, the footpaths are good, it's totally pain and mobility for me. If I have a day when my back is - is seriously bad I can really only walk from here to that wall away without having to stop and rest and recover and then start off again."
"That wall" was established to be the other side of the Court from the witness box, which is a distance of approximately nine metres. The plaintiff said that on a good day, it would take 10 or 15 minutes for them to get to the shower block. She immediately went on to say that on a good day she "could shower independently but we have an arrangement with the marina that there's a special chair that we can utilise and we can lock the female amenities block so that Tim can ...come in with me and help if it's required."
208 As noted, the cross-examination of the plaintiff was lengthy. It was conducted on broad fronts; in the main focusing on credibility issues, some of which I have already expressly dealt with. It is not necessary that I detail much of it at all. A substantial part of the total cross-examination was conducted by one counsel focusing on the cause of the fall, the injuries sustained, and more particularly the matters which were discussed with Mr Hamer as apparent from his notes. The defendants' collective position is that the plaintiff is, at the least, consciously and wilfully exaggerating her symptoms and level of disability. Counsel for the first defendant expressly put to the plaintiff that she was telling lies for money. This was denied.
209 The general proposition put to the plaintiff was that she had deliberately understated to the various medical practitioners and other experts the level of work activity which she had carried out in the period before the sale of the business, and deliberately overstated to those persons the extent of the injuries suffered in the fall and the level of pain and disability suffered as a consequence. One instance of this is when counsel for the first defendant suggested that when the plaintiff saw Mr Dixon and Ms Berger, the occupational therapist, she deliberately gave them an incorrect history about her return to work because she wanted to maximise her financial return from this case. Her response to that suggestion was sought. She said, "I say that that suggestion is absolutely unequivocally ludicrous".
The evidence of the plaintiff's mother and of various friends
210 The plaintiff's mother, Mrs Kathleen Beven, gave evidence about a number of issues. She described the plaintiff prior to the accident as very healthy and very fit, and as far as her observations and involvement were concerned, she was "fine" as far as her emotional and mental state were concerned. She was happy and outgoing, socially inclined with a wide circle of friends.
211 Mrs Beven said that although she could not definitely recall, she thought that the plaintiff returned to Tingletree on a regular basis a couple of weeks after the accident. She would only stay for a couple of hours. On those occasions she would only go upstairs to the administrative area. She was bent forward a little and it seemed as though she had difficulty in walking. She was having difficulties with her left hand. After she had been writing for a while it would swell and "go a bit bluish, and would ache and she would have to leave off and exercise it a bit before she could start again." She only did office work. The plaintiff had difficulty in sitting down and especially getting up requiring her to lean and push on something like the arms of a chair. The plaintiff seemed to wriggle a lot in her chair as though her back was worrying her and generally just moved very slowly and carefully. The access between downstairs and upstairs was by an outside stairway, and Mrs Beven went with the plaintiff to assist her up and down the stairs. Mrs Beven did not recall any occasions when the plaintiff was at Tingletree for relatively long periods.
212 Mrs Beven said that after the accident the plaintiff did not resume active participation with the children at all, although she went on to say that once or twice she sat in a big armchair and read stories while the children sat on the mat around her. In cross-examination she was asked whether she knew anything about the plaintiff aggravating her back when lunging to prevent a child falling off a bike. It was suggested that that could only have occurred if the plaintiff was outside in the children's play area. Mrs Beven conceded that this may have occurred when she was away "up the other end, or even on my lunch hour".
213 Mrs Beven said that after the plaintiff and Mr Partridge moved to New South Wales she visited them soon after they went. There was one visit when they were at Booker Bay and she has been on three or four subsequent occasions whilst they have been living on the yacht at Yamba. On all occasions she said that the plaintiff just did not "do anything very much at all". She said that Mr Partridge did everything by way of domestic tasks. At Yamba he had to walk her up to the showers carrying her bags and towels, although she said that when she was there, she used to go, but when she was not there, he did it. This process involved going into the shower, helping her with her back, helping her reach for the shower knobs, just helping her generally get dressed and things such as that. She was asked for a summary of what the plaintiff was like prior to her accident and what she is like now and has been since the accident. Mrs Beven responded as follows:
"Before she was outward, had a wide - outward-going in her personality, a wide circle of friends, was always interested in doing things, as I've said before, riding, dancing, whatever, working in the school, and we were thinking at one stage of making it bigger but then decided against it because we loved it as it was, always looking for improvements and the way we could do something better. Then afterwards, she'd lost all of that. She became very dispirited, quiet, dependent on Tim, and now she's dependent Tim that it bothers me because I'd love to see her physically able to do more for herself, and perhaps if she had some treatment she might be able to do more for herself than what she does at the moment. It really I guess upsets me as a parent to see that - um, the difference, and the girl that was bright, happy, vibrant, eager girl become quite, dispirited, lethargic and in pain, in lots of pain at different times - falling over."
214 In cross-examination it emerged that it seems as though there were five visits to Yamba, on two instances of which Mrs Beven either took a motel room or rented a unit and the plaintiff stayed with her there. She thought it was three times that she had actually stayed on the yacht. In relation to the return to work, Mrs Beven said that the plaintiff had not reached a stage where she was working 10 hours a day, or at least straight off. When the point was pursued, she said she was not sure whether the plaintiff was working 10 hours a day around Christmas time 2002, but denied that the plaintiff was working her usual hours in the six months leading up to the sale of the business.
215 Mrs Beven said that when she was at the yacht every time the plaintiff went up on deck or came back down below, Mr Partridge or she would help her. She did not think that the plaintiff ever said that she could not do it on her own, it was just that she seemed to be struggling. Similarly, she could not recall the plaintiff ever getting on or off the boat without assistance. This had to be done by stepping from the marina onto a milk crate and then onto the yacht. As to the plaintiff's activities, Mrs Beven said that the plaintiff would go up on deck with assistance, and sit and read, listen to music, or talk to visitors. In cross-examination when asked about sitting and reading, Mrs Beven said that they would read and talk; she might go in and make a cup of coffee and then come back and they would read some more. This would be for hours at a time. When Mrs Beven was there, she would help her to the shower and go about helping her generally; "reaching for the shower knobs ... put her feet in her trousers, just generally get dressed."
216 Judith Hunter has been involved in education for over 30 years. She has known the plaintiff and Mr Partridge for some 12 years. She met the plaintiff at a music venue where Mr Partridge was playing. They had a number of interests in common, principally horse riding. She described her as a competent rider. Activities which they enjoyed were dancing, predominantly to rock and roll music and blues - "definitely vigorous dancing", which the plaintiff was able to do without any difficulty. There seems to have been two occasions on which they went sailing during which the plaintiff appeared to be a competent sailor. Ms Hunter also went to Tingletree on a few occasions and saw the plaintiff working there. She described the work required as very demanding, with the plaintiff being really confident and capable and having a good rapport with the children.
217 After the accident Ms Hunter did not see the plaintiff for some months. She said she was quite shocked when she first saw her as to the change, particularly her physical movement. She did not seem to be able to sit for long periods of time, would grimace, would have to stand up or move around, and that she was very concerned that she was finding work difficult. After the plaintiff moved to New South Wales, Ms Hunter and her husband visited on one occasion, Ms Hunter visiting on a second occasion on her own when she was working nearby. On the first occasion, they flew into Ballina. Mr Partridge picked them up and said the plaintiff was not able to come, because she was having a bad day. When they arrived at the yacht, the plaintiff was lying down on the double bed in the cabin. Ms Hunter said she noticed dramatic changes in the plaintiff. She had gained a lot of weight. Ms Hunter was shocked with her immobility and her general demeanour. She was not as bubbly as usual and seemed very frustrated. The boat was not geared for sailing at all. They went out sailing with friends and the plaintiff was not able to go as she was having, as she described, "some worse days". She spent a lot of the time in bed or just sitting in the cockpit with them. Getting on and off the yacht was difficult for her as well.
218 The next occasion was later that year. Ms Hunter did not stay on board but stayed two nights at a hotel. The plaintiff and Mr Partridge "were staying in a friend's place onshore. They were house-sitting a friend's place." Ms Hunter did not notice much change from when she had last seen the plaintiff. The major difference pre- and post-accident was that of mobility and her self-esteem seemed to be significantly affected. Ms Hunter was not cross-examined.
219 Frank Bansel gave evidence that he first knew the plaintiff when she lived opposite his mother, but that he later came to know her better through his long-time friendship with Mr Partridge. He has known the plaintiff since the mid-1990s. Mr Bansel, his partner and the Partridges used to socialise; having dinner at each other's homes and getting together at "gigs" where Mr Partridge was playing. They went for day trips on the river on the Semille. In general terms, Mr Bansel described the plaintiff as physically active, interested in various activities and capable in terms of her child care role.
220 After the accident, Mr Bansel said that he did not ever recall her sailing again. He said the level of activity in terms of visiting dropped off significantly. It was far more likely for them to go to the Partridges' house than for the Partridges to visit them. The socialising was not as frequent as it previously had been. The plaintiff rarely went to "gigs" any more. When they were at the plaintiff's house she would be less engaging than normal. He noticed that the plaintiff had gained weight. Since their move to New South Wales, he has had little contact other than by texting and telephone, and did not catch up with them for any length of time until September - October 2010; "... to be perfectly honest I was quite shocked". He said that the plaintiff seemed to have aged significantly. He said that the plaintiff was previously very conscious of her appearance, and her demeanour when he saw her was "almost frumpy ... which is unlike Moira". Mr Bansel was not cross-examined.
221 It will be recalled that John McInerney was a friend of Mr Partridge's who had assisted in moving the Serendipity from Southport to Booker Bay. Mr McInerney said that he had known the plaintiff for about eight years. Before the accident he would have had contact with her about four or five times. Since the accident he thought he had probably had contact with the Partridges about five or six times. Those occasions included the two boat trips. Those trips are the Southport to Booker Bay journey and the time when he was staying at Yamba and the yacht was motored up the Clarence River, which have previously been described. He said that he thought there was another time when they stayed with him in Sydney, but there was nothing that he could really recall other than that. He was asked whether there had been any change in her presentation before and after the accident. He responded:
"Yeah, absolutely, I understand what you're saying. Firstly, Moira was, and probably still is to a degree, a very gregarious person; she loved life, loved dancing, very outgoing. The first think I noticed about that was, number one, she did - she stopped dancing. Two, her - the time it took her to get from A to B was a lot greater; in other words she was - her mobility seemed to be not what it was. And the - some of the spark of her personality had gone, she wasn't the same. ... The same outgoing - outgoing person."
222 Mr McInerney was not cross-examined on this aspect of his evidence.
223 William Kesby has also been previously mentioned in the context of the movement of the Serendipity; in his case, from Booker Bay to Yamba. He said that he got to know the Partridges at Booker Bay in early to mid-2004. He was there for about six to eight months during the time they lived there, and his boat was moored near to theirs. It will also be remembered that he was called in response to the evidence of the documents found on the accountants' file, the principal purpose in calling him was to address the suggestion that the Serendipity had been away from its mooring on long sailing trips. As to that, Mr Kesby said that he would not be happy for Mr Partridge to take a boat to sea on his own, and as a friend he would advise him against it. He has done a considerable amount of sheltered water sailing, but not much by way of open ocean sailing which is very different. He would assess Mrs Partridge's capacity to assist him in ocean sailing as virtually non-existent. When asked to explain, he said that she does not have much knowledge of sailing and "she's a bit awkward around the boat". He said that in his dealings with the Partridges there had never been any discussion about them taking the vessel on ocean going voyages. He did not ever see the Serendipity leave its mooring apparently to go on an ocean voyage.
224 He was asked about whether he had helped to do anything to assist the plaintiff with her onboard living. He said that he had worked with Mr Partridge in making the milk crate step between the marina and the yacht and also in building a seat so that the plaintiff could sit in the back of the boat. In evidence-in-chief he was asked about his observations of the plaintiff's "physical and functional capacity living on board the vessel". He said she was somewhat awkward in that she did not move freely about the boat. The following exchange occurred:
"And what about getting on and off the boat, you've described helping build this milk crate step?...yeah, at times she - well most of the time she could get on and off quite freely herself with - once we organised the step, at other times she needed someone to hold her arm or if I was there I would always assist, but she tended to be able to get on and off to go to the shower or the toilet by herself, but not freely." [My emphasis]
225 When cross-examined he revealed the social activities to which I made earlier reference; that is to say, frequent barbecues, usually on the Partridges' boat, and social gatherings including a monthly night out - "a dinner somewhere" - organised by one of the marina employees. He also, of course, described the plaintiff and Mr Partridge as "choofing around" in a tender for enjoyment.
226 Sonia O'Brien was another witness called in response to the accountants' file documents. Ms O'Brien is one of the two employees of the Yamba Marina mentioned earlier in these reasons. She works in the administrative section of the Marina and has done so for 13½ years. From her physical location she has a view over the Marina area where the boats are moored and works from 8am to 5pm on Mondays, Tuesdays and Wednesdays. She shares the job with Joyce Shulver, who was also called to give evidence. Ms Shulver works on all of the remaining days of the week. Ms O'Brien said that she had known the Partridges since they came to the Marina in 2004, that the vessel had remained moored at the Marina since that time, for which they had paid and are paying Marina fees.
227 As to the presence or otherwise of the Serendipity, she said that as far as her observations are concerned, she does not really see a lot from her office. She can see the boats moored but does not take much notice whether there is a berth empty. She said that they send the staff out to do regular checks on the boats and there is a master list kept on computer. Her final answer to this was "I don't recall that it's not been there". As to the plaintiff, and any observations about her physical capacity, she said that she does walk slowly, but that she is definitely a slow walker and she has not seen her undertake any vigorous activities. When she has seen the plaintiff walking in the vicinity of the Marina, she is usually accompanied by Mr Partridge.
228 In cross-examination, without any prelude she was shown a document which she agreed she signed on 21 December 2009. She agreed that it says that she did not believe that "it" - (I assume the Serendipity) - had been away for more than one or two nights. She recalled the time when the plaintiff had required heart surgery and recalled that following the surgery there were occasions when Mr Partridge went with her to the amenities block and sat outside in case he was needed. She was again asked whether that was something that had occurred following the heart surgery, to which she replied "I believe it did definitely occur after the heart surgery, yes."
229 Ms Shulver was asked about her observations of the plaintiff throughout the period of contact. She said that she used to walk from the boat up to the Marina, "very, very slowly", and that sometimes she would have to stop and take a rest when she came up to use the facilities. She had never seen the plaintiff carry anything heavy; Mr Partridge always used to carry it. When asked what sort of things she was talking about, she said the washing. She had never seen her carrying washing from the boat up to the laundry, or any shopping "or anything ... and her laundry bag, you know, a wash bag." She went on to say that there would be a few times when she would not even see the plaintiff around and assumed that she could not get off the boat. Ms Shulver also noticed the plaintiff had gained a lot of weight. The Serendipity had been moved around between three or four different berths, but the maximum distance that it had been from the office was about 10 or 15 metres. In cross-examination she said that the distance between the yacht at any time and the office would be between 10 and 15 metres, but that the distance from the boat in a marina berth to the amenities block would be about 100 metres. There was no other cross-examination.
230 The third defendants tendered a number of surveillance DVDs which related to three different time periods. In chronological order, the first shows the plaintiff's activities on the yacht on 12 June 2006, interacting with people, both on the yacht and on the marina. In particular, it shows her leaning forward over the edge of the yacht and hugging a woman who was standing on the marina and hence at a level quite considerably lower than her. She is then leaning on the railing of the yacht talking to this woman. She has also leant over briefly and hugged other people. She has bent forward to go below deck on several occasions without any apparent difficulty. Generally it shows her moving around the boat and going below with a general freedom of movement and without any apparent disability or restriction. There is further video surveillance of the plaintiff's activities on the yacht on 8 and 9 November 2006. Again this shows her movements in and around the yacht. Similarly, in general terms, it shows her moving about on deck and going below without any apparent disability or restriction of movement.
231 The final video evidence shows the plaintiff's activities in Sydney on 14 September 2009, apparently when she went there for a medical review for the purposes of this action, and then in Hobart on the next day where she consulted her lawyers. The plaintiff has lost weight in the three years since the earlier surveillance. At one point she leans forward to get out of the rear of a taxi holding one bag in front of her and holding onto a bag behind her which Mr Partridge retrieves, but she is able to get out without using her hands. She is seen walking around streets in what seems to be a fairly normal manner. There is a long period in a coffee shop during which she is holding a cup in her left hand for quite a few minutes. She is able to take off and put on her jacket without assistance. There is one point of some significance where she almost fully crouches down onto her haunches to look into a shop window, and stands again unassisted. It is significant because the plaintiff told Mrs Berger, the occupational therapist, that she was unable to carry out a full squat due to pain in her back, and that she avoided squatting for that reason. At an airport she seems to squat and bend over quite freely to look in a bag. There is one short segment on the next day which shows her putting on a jacket unassisted in quite windy weather which necessitated twisting, after which she bends down to pick up an item at her feet.
232 The plaintiff was asked about some of these incidents in her evidence-in-chief. As to being on the yacht and greeting friends and "bending towards them to embrace them", she was asked how she managed to do that on board the vessel. She replied, "The reason I remained onboard that vessel that day was an inability to get off the vessel." She went on to explain that the friends had come to visit her and the lady who she described as the one who she obviously embraced the longest had an illness which affected her balance so that she could not get on the vessel and she (the plaintiff) could not get off. "When I did greet her to lean forward I had my bottom braced on the cabin top ... and my knees forward on the blue skirting canvas of the boat. I was just pivoting forward on my hips not leaning." She was asked about the video of the Sydney visit "and assuming it depicts more fluid movements" whether she could explain such movements that were depicted. She said that it was a better day for her physically, that she had not been living on the yacht before the doctor's appointment, and that losing weight, if it had not improved, had certainly not hurt her condition. She said that she believed that she was under surveillance. She spent some time in coffee shops before the appointment and again after the appointment. All in all she would have walked about eight blocks in the course of the day which for her, even with a rest in between, was quite an effort. She said that in the evening she collapsed on the bed. They had been given an allowance for a meal but she "couldn't possibly leave the motel room to go and eat" and so Mr Partridge left her in the room and went to a supermarket to bring back things back which she could eat.
233 The plaintiff was not cross-examined about any of the particular activities shown, but the more significant incidents were raised with the plaintiff's medical experts, and I will deal with that in the course of looking at their evidence about the plaintiff's current condition.
234 I should say something at this point about Mr Partridge's evidence. I have already noted that to a very large extent it corroborated the plaintiff's evidence as to her level of disability. He gave evidence about the significant amount of personal and domestic assistance he has to provide to the plaintiff. Basically, he does all the domestic chores, including cooking, "drinks preparation", shopping and laundry. He helps her get out of bed, helps her dress, assists her to the amenities block, carrying her bag, and helps her whilst she is there. As I previously stated, I take the view that his evidence should be treated with caution where it accords with that of the plaintiff. However, there is one part of his evidence which has some significance. He said that after the plaintiff's heart surgery in 2005 she undertook an exercise regime. This involved walking to the bar way at the mouth of the river which, he said, was probably about 1½ kilometres. He said that she was only able to get a couple of hundred yards to start with, but now can walk the full length with him accompanying her. He also said that they walk into town whenever they can, which is a round trip of four kilometres along the walking track beside the river. He holds her hand or she puts her arm through his because she likes the stability, and they usually stop twice along the way on park benches.
235 In Dr Dixon's view the plaintiff's condition has stabilised and no further improvement is expected. No operative intervention appears indicated for her back or left hand, but it is probable she will require facet blocks for her low back in the foreseeable future, and she would benefit from a number of devices for lumbosacral support and comfort. She would also benefit from attending the multidisciplinary pain management program at the Royal North Shore Hospital, along with hydrotherapy and a gym strengthening program. It is probable she will require orthopaedic attention for her right knee and probable arthroscopic review with debridement. In a March 2006 proof, he said that the plaintiff had an insufficient sitting and standing tolerance to do counselling or boat skippering, and that she is unlikely to return to the workforce to an occupation for which she is suited by further education or training. On 6 August 2009, Dr Dixon reported that her prognosis for returning to work in her pre-injury occupation remains guarded[2]. As to the surveillance material, in a report, Dr Dixon said that the difficulty with surveillance is that it is over a short space of time and that back pain and sciatica can vary from day to day. It is probable that the plaintiff is able to move more freely as a result of the effect of satisfactory analgesic treatment. In his evidence he said that he had viewed surveillance DVDs of activities undertaken in 2004 and 2006, and the activities shown were consistent with his reports. He said that in the earlier video the plaintiff was walking with a limp and relatively slowly.
236 In cross-examination by counsel for the first defendant, Dr Dixon said that he did not think that he had recommended to the plaintiff that she go to a pain clinic; that he could not remember recommending such a course. He said he would certainly recommend that she continued with analgesia. As far as pain management, he would defer to Dr Gorman as the pain management specialist. From his point of view treatment was confined to analgesia. He has seen a report from Jane Berger, the occupational therapist. He had indicated the types of things he saw as necessary, but did not agree with the extent of what was recommended in her report. Counsel for the third defendants took up the question of matters which were revealed by the surveillance DVDs.
237 In relation to 14 September 2009, he agreed that as to one episode where the plaintiff was able to bend forward in a chair and able to reach her arms behind her to pull her jacket off, was significant in that it demonstrated an ease of movement and twisting which was not indicative of major pain in her back. He agreed that the movement of the plaintiff's squatting down on her haunches and rising unassisted, whilst not meaning that she does not have an injury, means that she was relatively comfortable doing that manoeuvre, although it may well be that she had taken a pain killer or anti-inflammatory that enabled her to do it. However he conceded that she "certainly" appeared to do it satisfactorily, and agreed that she appeared to have carried out the manoeuvre whilst balanced on her toes which, if she had a weakness in an S1, nerve distribution would have presented a difficulty. He agreed that it also demonstrated someone who was able to use the right knee in a perfectly normal fashion, whether or not that required the use of some over the counter analgesic.
238 In relation to the movements of the plaintiff on an off, and around the boat on 9 November 2006, Dr Dixon:
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agreed that various manoeuvres did not demonstrate any lack of normal function in either knee;
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accepted that the DVD showed the plaintiff stepping up from the marina onto the boat leading with her right leg, which would have meant her taking her full weight on that knee, with no indication of any abnormality of function of that knee, and with no hesitancy about the movement;
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accepted that the DVD showed the plaintiff when stepping down into the cockpit, step down onto her right leg and in fact appeared to land quite heavily, again with no indication of any abnormality in the right knee, adopting the same procedure with the next step down the companion way.
239 In relation to that sequence, Dr Dixon said that the plaintiff may or may not have jarred her back in the process, although it was not evident that she did, but agreed that it would impose the sort of compressive forces on her spine that one would expect her to want to avoid, and if her complaints were genuine, would be very likely to immediately exacerbate her pain. As to the possibility of an arthroscopy of the knee in the future, he said that it was not indicated at present, the need to have that done "would be driven by clinical deterioration". Counsel for the second defendant asked some questions about the left hand. Dr Dixon agreed that on no occasion on which he examined the plaintiff, did he notice any swelling, discoloration, weakness in grip strength or evidence of discomfort, nor indeed anything "clinical".
240 In considering whether any ongoing low back and right knee symptoms were caused in the fall, I noted Dr Gorman's evidence, that the plaintiff was suffering from a "chronic pain" condition. I will now expand on his evidence as to that. In his proof of evidence he said that chronic pain, which was persistent pain, can be explained by the results of diagnostic investigation which consistently reveal structural changes. A second contributing factor to chronic pain is de-conditioning, in the sense of loss of muscle bulk and core muscle strength. That contributed to instability in the lumbar spine, resulting in pain with movement. A further contributing factor was depressed mood which can worsen the perception of pain, and finally the condition can be caused or contributed to by a change or changes to the central nervous system following an initial injury which causes central sensitization. "This is a process by which the nerves from the injured site convey the message of pain to the central nervous system for so long that it is a biochemical one where change in the nerves occurs and the message of pain continues after the healing process has occurred". In the plaintiff's case he considered all causative factors were relevant. There is no adequate treatment for the condition which would result in its permanent resolution.
241 He said that the plaintiff needs to improve her physical condition and flexibility, as well as reduce any depression and anxiety. With such entrenched symptoms, he considered the only treatment that would help her would be an intensive pain management program such as that available at the Royal North Shore Hospital or the pain program at the Wesley Hospital in Brisbane. These focus on goal setting using a "cognitive behavioural" approach to chronic pain. He considered these would have a reasonable chance of success, particularly if accompanied by a change in where the plaintiff lived, giving her a better ability to gradually increase her activity through pacing and to attend treatment. "In her current situation, getting in an out of the boat is difficult and it is difficult to 'pace' herself and get aerobic exercise that she could cope with".
242 As to her prognosis, he said that she has had a long period of disability and is not in an ideal circumstance to recuperate. She is de-conditioned, has a depressed mood and is "fear avoidant". All of these point to a reasonably poor prognosis for return to work. "That is why the expensive [sic] and intensive pain management may be the only way to change this. Even this however may not return her to work". Overall he considered it doubtful that she would able to return to work as a teacher or childcare worker. She may be more comfortable in time as she gained confidence and did more aerobic exercise and more activity. This would take two to thee years to occur, by which stage she would have been out of the workforce for almost 10 years, and he doubted that she would ever be able to return to work as a teacher or childcare worker.
243 In a report of 19 July 2009, Dr Gorman noted that he had reviewed some surveillance DVDs. He said that on 12 June 2006 the plaintiff appeared to bend over on the yacht whilst greeting people and flex her lumbar spine to 60 degrees. However, nothing he had seen changes his views. In his evidence-in-chief he said he had seen the DVD showing the plaintiff in Sydney a short time ago. He said that the activities shown did not change his opinions. He said the most obvious difference was that there had been a loss of weight from when he had seen her previously, but otherwise there was no change. He was particularly asked about the manoeuvre of squatting down in front of the window; as to whether that "would have been compromising for her given the nature of her low back condition". Having said that he did not make very much of the knee injury when he saw her, so that the back injury was his main area of concern, he gave a very lengthy answer, explaining the anatomy and physiology involved, ultimately saying that what she did was consistent with his previous examination. He was asked about the manoeuvre of "coming up on the toes". He did not think there was a problem with that, nor did not think that any doctor has ever suggested there was weakness in association with the condition. Such weakness in association with sciatica is when "you're really starting to talk about a definite need for surgery, almost an imperative for surgery, ... I don't think anybody has suggested that, therefore the power in the lower limbs is normal, it was in my examination, therefore she can stand on her tip toes because the power is normal".
244 In cross-examination Dr Gorman was taken through quite a number of the recommendations of the occupational therapist with which I will separately deal. In broad terms, his evidence was that following the pain management and strengthening programs, there was a good chance of improvement, but at least as far as a return to work is concerned, as time goes on, the chance of that reduces. He agreed that there were other ways of reducing central sensitization which included medication, but the way he suggested for the plaintiff, was through increased activity, increased exercise and improving her psychological state. The issue of a return to work was revisited. The evidence is as follows:
"Now the sort of job that this lady will remain suited for in the future is something that enables her to sit, stand and move around as needed, is that so?......Yes, yes, right.
Yes. And she is cognitively intact, that's correct, isn't it?........Yes.
And so she is ideally suited to being a teacher, isn't she?......Well, it - yes - I mean, the only I think your ability---
No, just address the question, she's ideally suited to being a teacher, isn't she?......I'm just looking at the word - thinking about the word 'ideally'. But certainly with a teacher you can - you're not involved in lifting and probably can get around any bending or flexing tasks.
Yes. What else is she well-suited for? .......Well she could do other administrative roles so long as they were in roles where she could, you know, could get up and move around as you said, yes."
245 He went on to say that of the medication taken by the plaintiff, which included Mersyndol, Panadeine Forte, Panamax Co and Panadol, no significant cognitive problems could be produced, although Mersyndol had a sedative effect but could not affect the memory. Of the medication which had the mildly sedative effect, it would not produce cognitive problems.
246 Dr Gorman was taken through the video surveillance of 12 June and 8/9 November 2006 showing the plaintiff on the yacht. During the playing of the discs he:
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accepted that when the plaintiff bent over the rail she did so reasonably smoothly and bent to more than 60 degrees, perhaps getting towards 90 degrees, and did not to appear to rise from a crouch;
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agreed that the plaintiff does not demonstrate any apparent difficulty in moving about the boat;
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said that as a sailor himself, he saw nothing unusual about the way in which the plaintiff moved about the boat, putting her hand on top of the deckhouse for instance as she moved from the deck into the cockpit;
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accepted that the plaintiff would have put a weight of something in excess of 90kg directly onto her right knee when she stepped up from the cockpit and would have bent at about 70 degrees;
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agreed that further footage demonstrated someone who was quite comfortable moving on and off and around the boat, just going about their business, and not of someone who gives the impression of moving slowly because they are not able to do otherwise;
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accepted that it was "fair enough" to say that all the plaintiff's movements appeared to be perfectly normal fluid movements in the context of moving around the boat in a perfectly normal fashion.
247 Translating part of this into day-to-day activities, Dr Gorman was asked whether the part at which the plaintiff leans forward and bends over the railing with her arms outstretched would suggest that "she could at least lean over a washing machine, leaning on the front of the washing machine and pull clothing out of it". Dr Gorman said that one would have to come back to "the usual answer with this, she can do it on a number of occasions. She could - clearly can do it - do it on one occasion". He agreed it was a question of tolerance if nothing else and that she was not physically incapable of performing such actions. He also agreed that if that kind of thing caused somebody pain, there would be a tendency not to do it.
248 I have already noted some relevant aspects of Dr Davis' examinations. At his first assessment on 12 June 2008, the plaintiff could not flex further than fingertips to knees, and could not squat normally, apparently due to pain in the right knee. In the consequent report of 17 June 2008, he said that the plaintiff's prognosis was for continuing pain and impairment which would significantly impact upon all spheres of her life, including her activities of daily living. "Her injuries have resulted in requirement for permanent restrictions [sic] with respect to heavy lifting, repetitive or sustained flexion (especially if accompanied by any degree of rotation), forceful activities, repetitive or sustained work above head height, repetitive use of stairs, repetitive or maintained squatting, prolonged travelling, working in confined or awkward spaces or any activity dictating static loading on her lower spine." He said that the injury has rendered her permanently unfit to return to work as a teacher in early childhood education and development, and also a permanent incapacity to return to her pre-injury duties. A right knee arthroscopy and patellar chondroplasty would eventually be required, and continuing medications were necessary, and it would be reasonable to refer her to a multidisciplinary pain management program.
249 At his next assessment on 4 August 2009, forward flexion was a little less restricted but the inability to squat remained the same. In the consequent report, he said that he believed the plaintiff had also developed an Adjustment to Injury Disorder with anxiety and depression. Although expressed in slightly different words, his opinion as to the restriction on the plaintiff's restriction on activities was essentially the same, and he said that she was permanently unfit to return to work as a teacher in early childhood education. There was no indication for any operative intervention with regards to her lumbar spine, although certainly she will develop increasingly degenerative changes in the lower discs and accompanying increasing instability which may eventually give rise to the consideration of a lumbar fusion. He said that the injury has affected her ability with respect to activities of daily living in other spheres, but also on her ability to enjoy the general amenities of life. In a further report dated 20 November 2009, he expressed agreement with the proposition that the plaintiff was suffering from a chronic pain syndrome. After having proved the documents in his evidence-in-chief, he was asked about having seen DVDs of the plaintiff in 2006 and during the course of 2009. He said that the contents of those did not alter his opinions.
250 In cross-examination, he agreed that there was a discord between the findings of straight leg raising of 85 degrees bilaterally and the limitation on forward flexion. The clear inference from his evidence is that further flexion would have been expected, given the degree of straight leg raising. As to suitable work for the plaintiff, Dr Davis said that at the very least, the plaintiff would need work where she could stand up, sit down, and move around as she needed to, and a need to avoid lifting above a weight of 8kg, or a less weight, if it was repetitive lifting. He would not agree that teaching was an ideal occupation for someone with the plaintiff's difficulties as described to him, because there was a lot of time spent sitting doing such things as course preparation, reading and marking, and although the person could get up and move around as need be, the fact of doing so meant an aggravation of the condition.
251 Dr Davis was asked about whether there was anything in relation to his findings that was based on objective, rather than subjective matters such as flexion, the discord with the straight leg raising being an example. Dr Davis said that the areas of suggested tenderness are supported by the diagnostic tests which include the radiology and the discograms, but otherwise he would agree there was nothing, except for what he described as dismetria which is an asymmetrical loss of side flexion. He said that it is unlikely a patient can reproduce that if it is untrue. He appeared to agree that if she had not been able to reproduce it to other clinicians in the same time period, it would be significant.
252 As to the video surveillance, he was shown a sequence of the plaintiff at the airport when she appears to have been squatting. He agreed that he could see nothing abnormal about her, and nothing to suggest a person suffering any function disability in the right knee, although he said that he did not think the function of squatting was relevant to the lumbosacral spine as it involved mainly hip movement. He was shown another sequence of the plaintiff putting on a jacket on an obviously windy day. He agreed there was "a bit of a struggle and a lot of twisting", and agreed that it looked all perfectly normal, but said that it really did not show anything; that it was irrelevant in that there was nothing to suggest anything either way, although he agreed that it looked like someone with perfectly normal function for the purposes of what she was doing. He was asked about having seen the video surveillance of the plaintiff walking around streets of Sydney and squatting down before a large window. He was reminded of his report in which he had said that the plaintiff was unable to squat normally. He was questioned about why he had reported that on his examinations, his explanation being that when the plaintiff had squatted, she had squatted fully but not with equal distribution, in the sense that one knee was higher than the other, suggesting the other uninjured side was taking more weight.
253 Dr Philip Reid is a psychiatrist. His evidence-in-chief consisted of two reports; 26 May and 9 November 2009. In the first report he noted the plaintiff's symptoms as including chronic low mood, frustration and anger at her pain. She had noticed considerable decline in her concentration, attention and memory. Her sleep initially was particularly poor but has improved somewhat over time. Anxiety continues with periods of tension, and anxious rumination, but her anxiety is minimised by avoidance and social withdrawal. Overriding the depressive symptoms is a deep sense of loss. The disability had led to the selling of her business and moving away from teaching. Her current lifestyle is in vast contrast to her productive life while working. Her then current medication was an anxiolytic and an anti-depressant.
254 His mental state examination "revealed a pleasant, co-operative woman" who appeared to be in pain when walking and seated, and who showed some distress when recounting her story. Dr Reid noted past psychiatric history as including the development of anxiety and depression in the context of a number of life stressors, and the prescription of anti-depressant medication for depressive symptoms. Her affect was restricted to a degree by anxiety, depression and pain, whilst her insight and her rapport were fair. His impression was that the plaintiff suffered from chronic pain syndrome. The pain had become persistent following the fall, and the reported pain seemed consistent with her history and investigations. The plaintiff did not give a sense of exaggeration during the interview. Ongoing panic, anxiety and social withdrawal are not uncommon with chronic pain states, but also are likely to reflect a continuation of the previous mental health difficulties the plaintiff exhibited before the fall. Previous symptoms of panic and depression were associated with obvious stresses, whilst stresses were now more chronic given her financial position and pain state.
255 As to whether pre-existing anxiety was relevant to her post-injury history, Dr Reid said that any form of mental illness, and in particular depression and anxiety, increased the risk of developing chronic pain state after a known injury, and ongoing depression and anxiety carries with it a reduced response to treatment for painful conditions. In the plaintiff's case, ongoing psychiatric symptoms have contributed to the severity and perpetuation of her incapacity. In the second report, Dr Reid said that he continued to see the plaintiff as suffering a "Pain Disorder". Her prior psychiatric history was a risk factor in developing such a disorder, but did not explain its ateiology. Given the standard definition of pain as an unpleasant sensory and emotional experience associated with actual or potential tissue damage, it is understandable that the expression of the emotional component is influenced by personality style, but it is incorrect to suggest that the plaintiff's personality is the cause of the pain.
256 In cross-examination, Dr Reid agreed that when he spoke of an appearance of pain, that indicated not pain but "pain behaviour", being the way in which the patient was behaving, and that it depended on the veracity of the person as to whether the pain behaviour had any relationship at all to the pain being experienced. He said that the plaintiff was in distress when reflecting on the losses her pain state had caused; loss of function and loss of her business. He agreed that it was normal for a chronic pain person to appear to be in at least some distress when recounting their story, and it would be highly unusual if they were not. When asked about the degree to which the plaintiff's affect was restricted by anxiety, depression and pain as had been recorded during the first examination, he said that any depression was not severe and was not colouring her pain state.
"Pain behaviours are reinforced when rewarded and are inhibited when ignored or punished; for example, moderate pain symptoms may become intense when followed by the solicitous and attentive behaviour of others".
Dr Reid accepted that this may be the case, but did not accept that the behaviour (of others) could cause the pain.
258 As to the criteria for diagnosing chronic pain syndrome, Dr Reid agreed that the pain needed to be of sufficient severity to warrant clinical attention, and such that it caused clinically significant distress or impairment in social, occupational or other important areas of functioning. Further, the symptom or deficit needed to be one not intentionally produced or feigned. Dr Reid said that he considered the possibility in the plaintiff's case, but given the history and examination, he believed the plaintiff has a pain disorder. This was because he had believed the history she had given him, together with "her mental state and in keeping with my experience with other pain patients".
259 Dr Reid was cross-examined about the differential diagnosis between purely physical pain and purely psychogenic pain, and the proposition that the two can be difficult to distinguish. Dr Reid said that he did not believe in the concept of psychogenic pain, but did agree with the propositions that physical pain fluctuates in intensity and is highly sensitive to emotional cognitive tension, and that pain that did not vary and was not sensitive to such tension could not be explained in the medical model. He agreed with the proposition that malingering patients consciously provide false reports and that their complaints are usually connected to clearly recognisable goals. As to whether "clearly recognisable goals" could include the goal of having solicitous attention from a spouse, Dr Reid said that they were usually more materialistic than that. In his experience malingering was for a very set goal; for instance to avoid going to war or to receive funds or possibly, he agreed, to avoid an unpleasant workplace. He did concede the possibility however, that a goal of malingering could include solicitous and attentive behaviour of a spouse.
260 In closing this part, I note that the evidence establishes that the plaintiff was seen by Dr Andrew Smith, an orthopaedic specialist, on three occasions; mid-2004, August 2006 and October 2008. She was also seen by Dr Leonard Lee, a consultant psychiatrist, in September 2009. From the evidence I infer that these assessments were made on behalf of one or more of the defendants. There are reports in evidence from Drs Gorman and Reid, commenting on reports from Drs Smith and Lee respectively. The reports upon which comment were made were not attached and are otherwise not in evidence. No medical expert opinion evidence was called by the defendants.
261 The present task is to determine, as best it can be done, the probable level, in general terms, of disability suffered by the plaintiff. That is to say, whether the plaintiff suffers from the level of disability as claimed by her, or whether, as the defendants argue, there is very little if anything wrong with her, and she is consciously manufacturing, or at least consciously exaggerating her symptoms for the purposes of gain.
262 There are some matters of principle which govern the approach to the task. It is trite that a defendant must accept the consequences of negligent acts upon a plaintiff who has a pre-existing condition, predisposition or vulnerability. Of course this extends to psychosomatic disorders triggered by a predisposition to neurosis or a pre-existing state of, or vulnerability to, depression: Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 247; Hoffmueller v Commonwealth (1981) 54 FLR 48; Lisle v Brice [2001] QCA 271; [2002] 2 Qd R 168. A defendant thus remains liable for disabilities arising from a distorted reaction to, or perception of, a physical condition caused by the negligence, including any neurotic reaction, although even in that case, allowance can still be made for what is obvious exaggeration: Parker v Commonwealth (1979) 49 ALJR 221 at 222.
263 The law imposes on a plaintiff an intermediate standard of reasonableness in relation to the fortitude with which injuries are borne. In Donjerkovic (above), White J at 354 - 355 said:
"I do not think that the law requires from this plaintiff the objective standard of fortitude of 'the reasonable man' nor the clear perspective of such a man standing on his feet in the real world. Nor do I think that the law can afford to pander entirely to the subjective standard of any particular victim and any distorted perspective which his psychologically disturbed condition conjures up as the standard of behaviour which he ought to follow. I think that the law requires some intermediate standard of fortitude and reasonableness; on the one hand, allowing fully for his personal idiosyncrasies and the effects of the accident thereon when assessing his credibility (including the presence of any conscious exaggeration); and on the other hand, when assessing the reasonableness of his efforts to mitigate his damage, allowing for his personal idiosyncrasies and the effects of the accident thereon, but only to some extent, while at the same time requiring some objective standard of reasonableness from him." [3]
264 The claimed symptoms and disabilities are the issue. The plaintiff's credibility plays a significant role in the determination of the facts. It is necessary to look at physiological signs as objective evidence, and the presence or otherwise of such signs, impacts on the claims which the plaintiff makes. The presence of such signs may support those claims, the absence may suggest untruth or exaggeration, but not necessarily. It is the whole of the evidence both subjective - the plaintiff's evidence and what she has said and done in the context of medical examinations - and the objective evidence which needs to be assessed.
265 I have of course already made adverse findings as to the plaintiff's credibility, and much of what I have said, and the evidence upon which those findings were based, is directly relevant to the present task. There is one matter which I should again mention as it is one which pervades this issue. It is quite clear that the plaintiff is prone to exaggeration and the use of hyperbole. Many instances of that appear in her evidence and I have documented some of them in the course of these reasons thus far. Other examples exist elsewhere in the evidence[4].
266 There are physiological signs of injury provided by the x-rays and MRI scans. There is no doubt the plaintiff has derangement of the discs at L4/L5 and L5/S1, with evidence suggesting symptomology arising from the latter. The knee has been shown to have a minor effusion, at least in September 2003, and degenerative change precipitated by trauma. The further objective signs, not reliant on what the plaintiff told the medical practitioners or how she behaved in response to requests for movements, appear in Dr Dixon's evidence in the report of August 2009 that he detected mild erecter muscle spasm which he says is involuntary and cannot be produced or ceased by a patient. Dr Davis took the view that asymmetrical loss of side flexion was an objective sign, but agreed with the caveat that it would be significant if this was not reproduced to others in the same time period. His examinations were in June 2008 and August 2009. In May 2009, Dr Gorman noted uniform loss of bilateral flexion, and in August 2009 Dr Dixon noted the same, measuring reduced loss of lateral flexion by one third. These observations of apparent symmetrical loss of lateral flexion would seem to detract from Dr Davis' statement that this was an objective sign. Further, the disparity between forward flexion and straight leg raising as conceded by Dr Davis is of some significance. The lack of forward flexion noted by all of the doctors is to be contrasted with the close to 90 degrees of bending noted in the surveillance footage. I would also observe that the rather strange loss of use of both legs for up to an hour does not seem to have been reported to any of the doctors. As to the knee, there are further objective physical signs in that Dr Dixon said he found some crepitus and laxity in the knee, although I note that neither Dr Gorman nor Dr Davis commented on this aspect.
267 There is a body of independent evidence which tends to support the plaintiff's claimed level of disability. This evidence comes from Mrs Beven, Ms Hunter, Mr Bansel, Ms O'Brien and Ms Shulver. The evidence of the latter two covers a much longer time frame, whereas the others relate to particular and limited points in time. I accept that as the defendants argue, the impact of their evidence is lessened somewhat by the plaintiff's tendency to exaggerate her predicament, and that her observed behaviour is consistent with a desire for solicitous and attentive behaviour from others. In any event there are aspects of this body of evidence which do not assist the plaintiff. Mrs Beven spoke of the plaintiff sitting for long hours on the boat reading and talking. Ms Hunter's second visit coincided with an episode of house sitting by the plaintiff which tends to belie her evidence of a high level of immobility and loss of social activity.
268 Moreover, there is the evidence of long distance driving and some sailing activity which I have previously detailed. This includes of course the correspondence to the KPMG personnel. Whilst I do not accept that the plaintiff's sailing activities were anywhere near as described, the material demonstrates the capacity to fabricate and exaggerate. As I said earlier, put alongside the other evidence, it seems to me that this material contains some truthful assertions as to the plaintiff's lifestyle and level of activity which are inconsistent with her claims.
269 In relation to the surveillance evidence, I am conscious that taken in isolation it relates only to a very few days in the time which has elapsed since the accident. I also do not lose sight of the fact that a person suffering from the effects of an injury has some days which are better than others, and that mobility and effort may be assisted by the use of analgesics. Furthermore, there is no doubt that persons suffering such injuries may undertake short periods of activity during which they appear to be without disability, but the activity results in an exacerbation of pain and immobility. All of that being said, the surveillance evidence needs to be put alongside the other evidence. Evidence of extended driving trips, of recreational dinghy use, and of general social activity, would suggest that the activity depicted in the surveillance evidence (to the extent that it revealed greater mobility and ease of movement than that claimed), was more common and less likely to be the product of "a good day" or the use of effort and analgesics.
270 I will deal with some particular aspects. In my view the footage of 12 June 2006 shows the plaintiff moving about the yacht and interacting with other people without any apparent difficulty at all. This material contains the instance of the plaintiff bending at close to 90 degrees to embrace visitors. Given the side to side movements shown, it is difficult to accept her explanation as to the fixed position of her body. The plaintiff's movements on the boat on 9 November 2006 also seem to belie her claims. As to 14 and 15 September 2009, the crouching at the shop window does have the significance of being something she told Mrs Berger she could not do, and a close study of the images, including what can be seen of her reflection in the window, seems to show that she was not using it for support. There are two instances of bending down and forward which, in the context of her claims, are of note. Whilst none of the three physicians said they saw anything inconsistent in any of the footage, there were some concessions in cross-examination which I have set out.
271 My observations of the plaintiff in the witness box are also a factor which should be taken into account. Ignoring the time when the plaintiff was recalled late in her case, her evidence was spread over seven days divided into three consecutive days followed by a break of three days, and then four consecutive days. However, during all of this four medical witnesses were interposed giving her breaks along the way. Again ignoring the recall, the plaintiff spent about 20 hours in total in the witness box. Having spent some 5¾ hours in the witness box over the first two days, it was not until the second session on the third day that she asked if she could stand. There was another such occasion on the first day after the break, and two such occasions early on the next day. On the day following, there were three sessions of in excess of an hour, and one session of about two hours and 20 minutes on the day following that, during which the plaintiff remained seated whilst under cross-examination. For the whole of the period, and in particular during that latter period, she seemed to be in no real discomfort. I am conscious that in her evidence she said that analgesics were helping her cope with the discomfort, but nonetheless the overall demands of the situation have some significance. Additionally, there were many occasions on which she was asked to flip through pages of various documents which she did with her left hand without any apparent difficulty. Lastly, contrary to what might have been expected from Dr Reid's evidence, the plaintiff did not appear to show emotional distress at detailing her plight.
272 Given the state of the evidence and the view which I have reached as to the plaintiff's credibility, it is a rather difficult task to determine the proper factual basis on which to proceed. There are objective clinical signs and independent evidence which support a level of impairment and disability of some significance. This is difficult to ignore. At the same time, there is material which cogently suggests that this level is not as great as the plaintiff asserts. My impressions of the plaintiff and my views as to her credibility also operate to that effect. In the main, I can only make findings in general terms. Having regard to the whole of the evidence, I am satisfied that the plaintiff has continuing symptoms of pain and limitation of movement in her back. These vary in degree of severity. I am not satisfied that they are a severe as she claims. I am not satisfied that her symptoms are sufficient overall to prevent her from the range of activities as she claimed, although I accept that there may be times when she is somewhat limited in what she can do, and there are things which she is restricted in doing, or should avoid. Specifically, I am not satisfied that her day-to-day domestic and social activities are as restricted as she claims. More specifically, I reject her evidence as to the extent of restrictions on her ability to travel and to socialise generally. I reject the evidence as to the extent of her immobility; for instance the asserted difficulties in making her way to the marina amenities block, and her general inability to care for herself. This is inconsistent with other evidence and I reject any proposition that this represents her general state.
273 In relation to the right knee, I am satisfied that it is more likely than not that there are some troubling symptoms from time to time but overall the level of pain and disability is of no great significance. The puzzling thing is the suggestion that the knee gives way causing her to fall. It will be recalled that she first described this as a failure of the knee to lock, but modified that in cross-examination to a description of "giving way". Dr Dixon in his reports of March 2006 and August 2009 noted without comment, the assertion that the knee locked, but there is no mention of falling. Dr Gorman in his report of May 2009 noted that the knee can give way on occasions "and she has had falls". In the same report he said that the plaintiff would reduce her falling if she increased her conditioning. Other than that reference, there is no evidence as to the malfunction in the knee which would cause it to give way. At the same time, the plaintiff was not challenged about the fact of the falls having occurred. On those bases, I am satisfied that falls have occurred, that it is more likely than not that there is a connection with the injuries but that attaining a reasonable level of activity and fitness should alleviate the problem. As to the hand, I am not satisfied that the symptoms suffered are any greater than a nuisance value. I am not satisfied that the plaintiff suffers any significant disability which has any impact on her ability to write or use a keyboard, other than on odd occasions and then only to a limited extent.
274 In relation to the proposition that the plaintiff suffers from chronic pain condition, I am satisfied that there are some elements of that condition present, but not that she suffers from an entrenched condition as such, to the degree suggested. I am conscious that this involves not accepting, at least to the full extent, the expert opinions. However, to a large extent, those opinions were based on what the plaintiff said, and I have had the benefit of a great deal of evidence which bears on the plaintiff's state. I accept that the plaintiff's lack of fitness and condition is playing a role in her restriction of movements to the extent that they are, and that depression affects her general wellbeing. However, she was apparently suffering depression before the accident; at least, she was regularly taking anti-depressant and anxiolytic medications. Sensitization may also be an explanation for the level of pain which does exist, but overall that level of pain and the level of disability of which I am satisfied is not such as to warrant the diagnosis of this entrenched chronic pain state.
The sale of Tingletree and the move to New South Wales
275 The question of whether these things were precipitated by the injuries suffered by the plaintiff, and the degree of the likelihood of them occurring in any event is one which is relevant to several aspects of the claim, as is the continued living on the boat. It is convenient to deal with it at this time. Under the heading, "Retirement Intentions Pre-Accident", the particulars of claim say "Notwithstanding various stresses and strains experienced by the Plaintiff from time to time associated with her position as principal at Tingletree, the Plaintiff had nurtured and was committed to the business, staff and the children who attended." After noting that the plaintiff and Mr Partridge were reliant on the plaintiff's income, the particulars continue:
"Hence, notwithstanding the stresses experienced by the Plaintiff, and the potential to sell Tingletree and seek employment elsewhere, considered as an option from time to time, the Plaintiff anticipates that, but for the accident on 17 June 2002 and the injuries she sustained, she would have continued to operate Tingletree on an indefinite basis and would have continued to remain as a principal potentially well beyond 65 retirement."
276 In her evidence, the plaintiff did not directly attribute the sale of Tingletree to her injuries. Her evidence was that before the accident she had no intention of selling the business, and the matter depends on the inference being drawn. The evidence suggests that the Tingletree sale settled in September 2003, returning a net amount to the plaintiff of $35,000 with a further $6,000 received at the end of the next financial year. The sale of their home was settled in late November 2003 from which a net figure of $8,000 was achieved. The plaintiff's evidence continued as follows:
"So having divested yourself of your home and your business, what did you and your husband then do?......We decided to move to New South Wales. Rightly or wrongly, I believed that there was possibly a larger choice of specialist services that I could access and focus on recovery and pain management. I also found it extremely difficult to relate to work colleagues and other people that I was used to mixing with because my life had changed completely and I couldn't bear to be so close to Tingletree and not involved.
Had you been at that stage provided with a referral to a specialist in New South Wales, whether formal or informal?.......Yes I had. I'd had an informal referral to Dr Dixon in Hornsby and I believed from several sources that he was very competent. On that basis we chose where we rented our property when we got to New South Wales so that it was in driving distance of Dr Dixon."
277 In cross-examination it emerged that Booker Bay, where the property was rented, was only 12 kilometres from Kincumber, where Mr Partridge's parents lived. The plaintiff conceded that this was "a peripheral reason" for choosing Booker Bay. The plaintiff was asked what were the "stresses" referred to in the particulars which I have set out. She said she had a number of them, in which she included her frustration and desperation at her physical inability to run the business, but that of course was a misunderstanding of the question. She explained the other stresses as worry about her mother's position within the company given her age and the fact that she was not coping; there were business stresses of being the principal and centre director; stress within the relationship with her mother, and relationship stresses with her husband.
278 As noted much earlier in these reasons, issues with the plaintiff's mother were the subject of discussion between the plaintiff and Mr Hamer in the consultations with him. The plaintiff admitted in evidence to strained relationship in terms of working with her mother. Various entries of Mr Hamer disclose statements as to this difficulty and complaints about her mother's behaviour. In evidence the plaintiff agreed that she had a lot of trouble with her mother, that it was disheartening, the problems were ongoing, and a constant source of inner conflict with persisting issues which remained unresolved right up until the time the business was disposed of. In general terms, the plaintiff described her mother as abrupt and grumpy with a draining and strong personality who interfered in the business; she was a difficult woman who would not listen. The plaintiff agreed that all of this had an adverse impact on her enjoyment of the business and was a source of stress. There is a note of Mr Hamer's concerning considerable distress and considerable resentment concerning the plaintiff's mother.
279 The timing of the discussions for the sale of the business and the decision to sell was a matter of some contention. In evidence-in-chief, the plaintiff said that the approach from the buyer was made about three months after the accident, with the decision to sell being made in mid-January 2003. In cross-examination, the plaintiff agreed that she had consulted professional people about the pros and cons of selling the business beforehand, on the basis that it was "good business practice". She acknowledged that before the accident there had been serious interest in buying the business, although the plaintiff denied that in 2001 she was already looking to sell, and that an offer from the ultimate buyer had been made before the accident. The plaintiff disagreed with the suggestions arising from Mr Hamer's notes of 6 June 2002 of "discussing pros and cons of selling again". That serious consideration was being given to selling the business at that time was denied. As to a further entry by Mr Hamer of 4 July 2002 noting "another meeting" with the plaintiff's mother and a lawyer about an interest in an offer from a national childcare group, the plaintiff said that she had regularly received such offers, considered them all, regularly met with accountants and lawyers but could not really remember whether what was being discussed in early July 2002 related to the ultimate buyer or not.
280 I have already dealt with the issue of the discussions between the plaintiff and Mr Partridge as to selling up and moving interstate, as revealed through Mr Hamer's notes and Mr Partridge's evidence. I have no doubt that the plaintiff was not being frank in her evidence about the basis of her discussions with Mr Hamer. I reject the proposition that they were exercises in fantasy. It is clear from Mr Partridge's evidence that the matter was discussed, and it is clear from the Hamer evidence that the matter was constantly spoken of by the plaintiff. The plaintiff's position is that this pressure and the other stresses, particularly that caused by her mother, would not have led to the sale. As revealed by evidence which I have already set out, that was Mr Hamer's impression.
281 A matter of some significance in all of this, is the evidence that the business and home were sold, with the decision being made about then to move to a location near to Dr Dixon, to whom the plaintiff had been given an "informal" referral. With all due respect to Dr Dixon, and without wishing to be at all derogatory, I imagine there were appropriate orthopaedic specialists in a number of areas of New South Wales and beyond. No real explanation as to why the decision to move interstate was made. I will later deal with this more fully but it must be borne in mind that the Serendipity was acquired shortly beforehand. It seems to be an extraordinary coincidence that the plaintiff ended up living on a yacht in northern New South Wales by the process which she has described, when that was the precise sort of proposal apparently promoted by Mr Partridge, and discussed at length with Mr Hamer.
282 The sale of the home itself is also significant. On the face of it, there was no compelling reason for the house to be sold as well as the business. The plaintiff's evidence about this was brief and to the effect that they could no longer afford the mortgage payments. When asked why not, the plaintiff said "Simply because we had - only had the house for a couple of years. We bought it as a long-term investment. And although Tim and I share our finances, because my income was steady and reliable from fortnight to fortnight I chose to take responsibility for the house remortgage payments and things like private health insurance. Tim's earnings were more related to just normal household expenditure, certain of the bills, entertainment and those issues." As will shortly be seen, the mortgage on the home secured monies borrowed to buy the Serendipity. It is also to be remembered that at the same time as the house was being sold, a lease for the Booker Bay property was entered into at monthly rental of $2,390, the commitment later being increased by $120 per month for the yacht mooring. In the circumstances, I do not find the plaintiff's explanation to be convincing.
283 The time at which the Serendipity was bought is also relevant to this issue. In evidence, when the plaintiff first mentioned the purchase of the Serendipity she said that it "replaced" the Semille, but said later in cross-examination that it was bought after they had gone to New South Wales. She said that the purchase price was more than $140,000 but less than $160,000, and when asked where the money came from, she said that she believed there was some form of bridging finance. When this was explored, she agreed that it could have been the case that the purchase price was secured by the mortgage over their home in New Town, which she acknowledged, would mean that the vessel was bought whilst they still owned that property. Mr Partridge first said that the Serendipity was bought, he thought, in 2003, but he was not sure; it could have been 2002, but it was before they moved to New South Wales. The boat was not brought to Tasmania, although that was the intention.
284 In cross-examination he said that the purchase price was $160,000, and when pressed as to the purchase date, said he believed it was 2002, but said that he could be wrong. He was shown several pages of bank statements relating to their mortgage loan. He again said that it was either 2002 or 2003, but when asked how long before the house was sold was the boat bought, he said three or four months, which he agreed would put it somewhere in the middle of 2003. He said that "all financials to do with the loan, the bridging loan, if that's what it was ..." were handled by the bank. He was asked again whether the boat was bought in the middle of 2003. He said, "Oh we - with your good - your goodselves help we have established that I - we bought the boat four months - four or five months before October 2003, because the actual sale of the house was when we were moving and I know that was October 2003". He went on to say that it had taken a considerable amount of time for the house to sell. This suggests a close proximity, if not a concurrence, of the decisions to buy the boat and sell the house.
285 But all of this notwithstanding, I am satisfied, after careful consideration, that it is more likely than not that the decision to sell the business was contributed to by the difficulties which the plaintiff was experiencing. I have already determined that it is more likely than not that the plaintiff was suffering continuing symptoms throughout the relevant time, and I would again note that she consulted Dr Dixon in November 2003 and underwent discogram and facet block procedures in early 2004. However, I find that there is a very high degree of likelihood that this decision would have been taken in any event, and within only a few years at most of when it actually occurred. As to this, I would note in particular the discussions with Mr Hamer of 10 January and 6 June 2002 which have been documented. In the latter, after the discussion of the pros and cons of selling, and before the interest from the national group is noted, there is a reference to part of the plaintiff's dream being to live on a boat and work in a childcare centre or do relief teaching in primary school, with Tim having much more work and being happier.
286 There is other evidence which provides strong reason to take the view that the business would have been sold within a relatively short period in any event. The financial records of the business were in evidence, and Mr Wallace of KPMG gave oral evidence. In the financial years ending 2002 and 2003, the Tingletree business returned an operating loss before tax of about $3,500. There was a small profit after tax, but Mr Wallace agreed with the "short point" that in each of the 2002 and 2003 years Tingletree was not a profitable business. After being taken through further analyses of the figures, Mr Wallace confirmed that the statements showed "not only a continuing shortage of operating cash but a critically increasing shortage of operating cash". He agreed that he was simply unable to comment on the financial ability of the business "to continue to derive sufficient profits to enable [the plaintiff] to receive the same level of earnings as she did prior to her injury, because economic conditions significantly change from year to year, and child care centres operated in a competitive market". The high degree of likelihood of the sale of the business in any event, carries with it the same degree of likelihood of the pursuit of a more relaxed lifestyle in another State.
287 This brings me to a related issue which is the consequences of the plaintiff's continued living on the boat. The plaintiff herself acknowledged, albeit indirectly, that living on the boat exacerbated her condition. When she was asked by her counsel to explain the apparently "fluent" movements shown on the surveillance DVD of 14 and 15 September 2009, after saying that she knew she was under surveillance and that it was not one of her worst days, said:
"I think the other reason is that having been in Tasmania has meant that I was not in a position of living on Serendipity and climbing stairs and climbing on and off the boat, and so I believe that some of the difference between the two videos is because I've been residing in a flat residence rather than on the marina on a boat with stairs and steps and rails."
288 There is expert support for the view that living on the boat aggravates the plaintiff's condition. In his report of 17 June 2008 Dr Davis said that he would urge the plaintiff to return to a land dwelling "which would be expected to result in some assistance compared to the aggravation of her symptoms whilst living on a yacht ...". At the very least all of this suggests a high degree of likelihood that the plaintiff's condition would improve significantly if she were living in normal land-based accommodation. I am not able to see why it was necessary for the plaintiff to live on the boat after the lease at Booker Bay had expired, when her level of pain and disability was as she claimed. When they moved to New South Wales they had the boat which was acknowledged to be worth between $140,000 and $160,000, together with the proceeds of the sales of the business and house. At the time that was about $42,000. They entered into a 12 month lease on a two storey waterside house for some $2,400 a month, later increasing their liabilities by $120 a month for the mooring.
289 The plaintiff agreed that the boat was worth between $140,000 to $160,000 at the time they moved from Booker Bay to Yamba. When asked why it could not have been sold at that time, and the Partridges had no money, the plaintiff said that she still expected and hoped to get better, and at the end of the year in Booker Bay their hope was to bring the boat back to Tasmania. That of course did not answer the question. Accepting for the moment that there was reluctance to sell the yacht because of a hope of improvement in the plaintiff's condition, that hope, on the face of the plaintiff's claims, objectively would have been a forlorn one at the end of 2004, or within a few months or so after that. The plaintiff claims that impecuniosity compelled them to live on the yacht. In all of the circumstances, assuming the plaintiff's disabilities to be as she claims, I cannot see that it was reasonable to not sell the yacht and move to land accommodation, using the proceeds of sale and what income they had or could generate, which of course would govern the type of accommodation obtained.
290 As noted at the outset, the plaintiff is now 49. I need to make an estimate of the income which she would have generated in the period to date had she not been injured, and to set against that an estimate of the income she in fact earned, or was capable of generating had she chosen to exercise a capacity to earn during that time. I also need to make an estimate of the income which the plaintiff would have generated for the remainder of her working life, and to set against that an estimate of the income she would in fact generate or is capable of generating if she chooses to exercise her capacity to earn. This involves determining what past matters are established on the balance of probabilities and making adjustments based on estimations of the degree of likelihood as to the various hypothetical issues: Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.
291 The claim is based on the plaintiff's average earnings in the four years before the accident; a gross amount of $59,923 per annum. That figure is then adjusted for increases in accordance with the CPI. This seems to me to be a reasonable approach supported by the evidence. The past component of the claim is made from the start of the 2002/2003 financial year through to December 2009, a net amount of $378,586 from which is deducted the net amount actually earned of $74,725. The particularised approach is then to deduct a further $4,582 on the basis of an allowance for three months away from work to take into account the heart attack suffered by the plaintiff in May 2005, and the possibility of her having a child as a result of the contemplated IVF treatment. The reduction is not on the basis of loss of wages, as it is said that this would not have occurred due to the business structure, but on the basis that the plaintiff would have borne the loss of her share of profits. This is estimated to be $4,582, making the net claim $299,279. On my calculations, using a 2.5 per cent increase in the CPI, that past component would now be approximately $356,890.
292 The future component of the claim is based on the continuing employment of the plaintiff at the appropriate net weekly rate, which I have now estimated (using a 2.5 per cent increase) to be $1,108, through to the age of 70. It is said that that is a realistic retirement age for the plaintiff given her circumstances at the time of the accident. On that basis, using the agreed 7 per cent discount tables as set out in Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, (multiplier 582.8) the claim in relation to the future is for approximately $645,740. On the basis of a retirement at 65 (507) the figure is $561,756. Those calculations make no allowance for mortality. A net weekly loss of $1,108 to age 65 with an allowance for mortality (496.9), amounts to $550,565; to age 60 (395.4) is $438,100. The only evidence about the plaintiff's intention as to retirement was as follows:
"[At the time of the accident] had you given any thought to ceasing work and retiring? ... Absolutely not. I had never considered retirement in any shape or fashion. I, as owner of Tingletree, I expected to be able to keep on with my developments there and work possibly way beyond retirement age. My Mum was over sixty when she came to work for me at Tingletree as Vice-Principal, and when Tingletree was eventually sold she remained on as Centre Director for ABC until she retired at seventy-four and so, therefore, my expectation was that I would be able to continue my involvement with Tingletree for the foreseeable future."
293 In relation to this approach, in the first place I do not believe that the reduction for the heart surgery and the possibility that the plaintiff would have had children in the period to date is reasonable. In my view a far greater period of time would have been involved. The evidence of Dr Gandhi, a consultant cardiologist, shows that the plaintiff, following acute coronary syndrome, underwent coronary artery bypass grafting. A "triple" bypass procedure seems to have been necessary. The plaintiff said she took about three months to recover and the evidence shows that shortly after that period of time, the plaintiff had her gall bladder removed. Both these matters are unconnected with the injuries suffered in the accident.
294 According to Dr Ghandi the plaintiff was diagnosed as having "cardiac disease", which is incurable. In terms of the future, whilst Dr Gandhi said that he did not believe the plaintiff's heart problems would make her unable to pursue any business, he agreed with the view that it was possible that the plaintiff would develop further symptoms of heart disease at some time in the future "but with intense risk factor modification and appropriate medications her outlook is generally very good". He agreed that in the context of that comment, the plaintiff should stop smoking. He said that she admitted to drinking excessively and seemed to agree that this should also cease in the interests of her health. The plaintiff still smokes cigarettes to varying extents; up to one packet each day.
295 Returning to the plaintiff's treatment of the past component, the allowance for the possibility of time out of the workforce due to child bearing must be significantly greater. Allowance must be made for the IVF treatment itself. The plaintiff's age must be borne in mind, and on more than one occasion the plaintiff spoke of having "children". At a broader level, in my view there needs to be substantial discounting for the very high degree of likelihood that the business would have been sold in the period to date in any event, and the consequential fact that the plaintiff would have chosen not to exercise her capacity to earn for a significant period or periods of time. That also assumes that the location in which the plaintiff was living enabled her to exercise the capacity to earn if she chose to do so.
296 As demonstrated by Evans J in McLennan v Luttrell [2006] TASSC 44 at [36] - [43], accepting a "usual" discount of 15 per cent for the major contingencies, and leaving aside the issue of unemployment, (subject to the point I am about to address), the discount for other major contingencies is minimal; see also Dobson v Jackson [2009] TASSC 118 at [20] - [26]. In this case, time out of the workforce and a greater risk than usual for ill health require consideration. The plaintiff submits that no reduction should be made to take into account any future entitlement to "Centrelink benefits" after the expiration of the preclusion period provided for in Part 3.14 of the Social Security Act 1991 (Cth). The plaintiff submits that the Tasmanian line of authority which holds otherwise should not be followed. That line of authority is constituted by Sorenson v Woolnough [1989] Tas R 315 (NC 15), 32/1989, Burbury v Sievers 83/1994, Stoward v Joron Pty Ltd (In liq) B66/1994 and Pasminco Australia v Gasu 42/1996. It is suggested that there is Queensland authority to the contrary: Muscat v Statewide Industries Pty Ltd [1988] 1 Qd R 637; Dabinett v Whittaker [1989] 2 Qd R 228. In Renehan v Leeuwin Ocean Adventure Foundation Ltd [2006] NTSC 4; (2006) 17 NTLR 83, Mildren J specifically declined to follow the Tasmanian authorities. (See the discussion in Marlow v Walsh [2008] TASSC 58 at [171] - [175].)
297 The defendants did not argue the point, saying that it did not arise because no loss of earning capacity caused by the plaintiff's injuries had been demonstrated. Put simply, the defendants say that the plaintiff is fit to work and has simply decided not to do so. On that basis there was "no evidence capable of supporting the submission that the benefits should be taken into account". Whatever is to be made of the authorities elsewhere, as I said in Marlow v Walsh at [173], the decision of the Full Court in Pasminco v Gasu clearly endorses the principle (see the judgment of Zeeman J, with whom Wright and Slicer JJ agreed). At [39] Zeeman J carefully explained how the exercise should be undertaken in the factual scenario of that case. I consider that I am bound to follow that decision, but the application of the principle depends on the circumstances of the case. I will shortly return to this issue.
298 Prominent in the consideration of this claim is the question of residual earning capacity. I am satisfied that the injuries which the plaintiff has suffered have caused a diminution in the value of her earning capacity. Particularly because of her underlying low back pathology there are undoubtedly limitations on the types of things which she could do in terms of remunerative employment. However, on the whole of the evidence I find that there is a retained capacity to earn of significant value. Even as things stand at present, it will be recalled that Dr Gorman essentially agreed that the plaintiff could manage with a teaching role which did not involve lifting or bending and flexing tasks, and that she could carry out other administrative roles as long as she was able to get up and move around. He said that the analgesic medication taken would not affect the plaintiff's cognitive function. In any event, it seems to be the analgesic combined with a sedative which may be causing a problem, and there is no evidence of a need for this type to be taken during the day. In light of the plaintiff's evidence about this which I set out earlier, I am not satisfied that any impediment to work is caused by analgesic use. Similarly, Dr Davis agreed that the plaintiff could carry out work where she could stand up, sit down and move around as she needed to and avoid lifting weighty objects or any repetitive lifting. She would need to avoid prolonged sitting. In both instances prolonged sitting was the perceived problem.
299 I have already set out my views as to the plaintiff's capabilities. I take the view that she is capable of sitting for more prolonged periods than she makes out. That is borne out by the evidence as to lengthy driving trips without any apparent undue delay (and which she said she was incapable of), long periods of sitting on the yacht, and perhaps of less, but still of some, significance is her time in the witness box. An added consideration is the fact that in the view of the medical experts the pain management and strengthening programs have a reasonable chance of improving her mobility and general functioning.
300 There are aspects of the plaintiff's own evidence which have to be considered. She continued with her course leading to a diploma of children's journalism and also enrolled in a diploma of professional counselling course. She says she was unable to complete either because of her physical limitations. Nonetheless the fact of pursuing these courses confirms her often stated desire to be able to return to remunerative work at some stage. In my view it is of significance that the plaintiff has maintained her registration as a teacher in Tasmania. I have already discussed her application for renewal made in 2007, in relation to her credibility generally. In evidence-in-chief, the plaintiff said that she managed to maintain her teaching registration until it runs out this year; "But in having discussions with the Registration Board they have accepted involvement in study and personal development as an adequate reason for renewal of the registration, but there is a time limit."
301 The study and personal development suggested in the application also included working with groups of indigenous children, in community arts and crafts programs, and with "at risk children in holiday activity settings". As this is inconsistent with her claimed level of disabilities, if it did not occur, she has made false statements in a statutory declaration required for the application. If she has done those things, that speaks for itself. The document was produced to the Court in obedience to a subpoena after the plaintiff had given evidence but before her case was closed. The contents were not put to her. It was tendered as part of the first defendant's case and no application was made on behalf of the plaintiff to be able to respond to it. None of the defendants has suggested that I should conclude from the document that the plaintiff has in fact carried out those activities, and in all of the circumstances I do not think I would be able to do so. If much of what the plaintiff has stated in the application is accepted as being false, the fact that she made false statements and declared them to be correct in order to maintain her registration, of itself is significant. It goes to assessing the plaintiff's own perception of her ability to function in a way which is potentially remunerative.
302 As to the past aspect of the claim, I am not satisfied that but for the injury the plaintiff would have worked for the entire period. In addition to a greater period away from work due to the heart surgery and the possibility of child bearing and care (for say one child), there is a high degree of likelihood the plaintiff would have chosen not to work at all, or on a part time basis, or a combination. A significant period of time would have been involved. As I have found, it is at least highly likely that the business would have been sold in a few years in any event, and the choice made to move interstate to pursue a lifestyle centred on the yacht and sailing activities.
303 The question is but for the injuries, for what period of time would the plaintiff have worked, and when. I think it is likely that the plaintiff would have worked to the equivalent of a full time capacity for no more than about half the period which has elapsed since the sale of the business. (I acknowledge that a small part of the claim relates to when the plaintiff was still working at Tingletree.) I am conscious that the evidence does not show that the plaintiff or Mr Partridge have savings or any independent wealth, but in my view the couple's income would have been supplemented by income earned by Mr Partridge. It is possible that irrespective of the injuries the business would have been sold at or about the time it was,, and events occurred as they did. The better approach may be to assume that the period for which the plaintiff would have worked is likely to have been split into a period before a projected later sale of the business, and the more recent period. Using the average of the earliest and latest net earnings, a maximum amount of potential earnings on that basis, is approximately $200,000. As to the actual level of earning capacity, doing the best I can with the evidence as it stands, I think that this would not have been very great in the period up to about the end of 2004, but increasing from that point. In my judgment, a reasonable assessment of retained capacity to earn for the whole of the relevant period is in the order of 50 per cent. It follows that my assessment of past loss is $100,000.
304 In terms of the future component, as a starting point I do not think it is very likely that the plaintiff would have worked to age 70. I note that the pension age for the plaintiff is 67. More particularly, I act on the basis of my findings as to the degree of likelihood as to the sale of the business and the lifestyle which the plaintiff would have pursued. However, I recognise the need for an income. At the same time, it is reasonably possible that the plaintiff's coronary disease would have manifested itself at some time in the future. Of itself this would interrupt the plaintiff's working life and may impact on the age of retirement. I will use as a starting point the figure of $645,740 which is the discounted present net weekly wage to age 70, with no allowance for mortality. Some discounting of this figure is needed because of the real possibility of retirement before that age. In addition to the customary discount, further discounting is necessary in this case for the increased risk of ill-health, and for periods when the plaintiff would have chosen not to work, either at all or only on a part-time basis. The way in which the Full Court in Pasminco Australia Ltd v Gasu (above) dealt with the possibility of receipt of benefits beyond the preclusion period was to take it into account at this point of discounting for contingencies, rather than in the next stage of the exercise relating to retained earning capacity. However, the latter way was adopted by Blow J in Anthony v Tasmanian Alkaloids Pty Ltd [2004] TASSC 118 at [83]. In the context of considering retained earning capacity, his Honour took into account the possibility of the plaintiff mitigating his losses by obtaining social security benefits, taking into account the preclusion provisions. I think there is something to be said for taking that approach.
305 In this case, the preclusion period would commence from the last payment of weekly compensation: Social Security Act, s1170(1)(a). The present income cut-out amount referred to in s1170(4) is $789.10 per week. Looking at the probable overall award, the preclusion period is likely to have expired. Accepting that precision is impossible, I would put a total figure of 35 per cent on all of the required discounting. The most significant factor is that of the plaintiff being out of the work force for one reason or another, mainly I think, as matter of choice. As to the plaintiff's retained earning capacity, I accept that to an extent she would be at a disadvantage in the labour market. I take into account the reasonable possibility that the plaintiff's condition will improve quite significantly given the appropriate treatment. At the same time I note a slight possibility of deterioration in her condition, although I think that more likely to occur towards the end of her working life. All in all, I think it reasonable to adopt a discount figure of 60 per cent for retained earning capacity and the possibility that the plaintiff will be able to maintain benefits beyond the preclusion period. That gives a final figure of $167,890, which should be rounded up to $168,000.
306 Looking at the issue overall, I am satisfied that the total resultant figure of $268,000 is a reasonable figure representing the diminution in the value of the plaintiff's pre-accident earning capacity. The net claim for past loss includes an amount of $13,350 paid by way of weekly payments of compensation. Because the net claim is reduced accordingly, and because of the Workers Rehabilitation and Compensation Act, s133, that amount should be added so that the total figure is $281,350.
307 The evidence as to the consequential loss of these entitlements was given by an actuary, Mr Jeff Morley. Using the ordinary time earnings applicable to the equivalent of the plaintiff's role at Tingletree under the Childcare and Children's Services Award, and on the basis of the particularised claim for loss of earning capacity, Mr Morley, in a report dated 14 September 2009, said that the total superannuation loss at age 70 was $364,420, the present value of that loss discounted at 7 per cent being $81,746. Mr Morley's calculations were based on the history of weekly salary from 1 August 2003 to 1 August 2009, and he assumed a salary inflation of 4 per cent from 1 August 2010 to age 70. The respective figures for past and future loss are $24,404 and $57,342. Mr Morley's evidence is to the effect that a reduction in the loss of earnings essentially gives rise to a proportionate diminution in the superannuation loss. Using the percentages of the discounted loss as they relate to the claimed figures for loss of earning capacity, applied to the two figures which I have used to arrive at the award for loss of earning capacity, gives amounts of $8,150 and $14,952; a total of say $23,100. I think it reasonable to allow that figure.
308 The plaintiff's evidence was that the services of a cleaner were employed to come to the home and do jobs that were impossible for her to do. This included cleaning the bathroom, toilets and showers, vacuuming, washing the floors; basically all cleaning tasks, together with cleaning out the fire places, bringing in wood, "all of those sorts of activities". Loretta Szczypior was the cleaner. Ms Szczypior gave evidence that before the accident she had worked for the Partridges for about a month doing three hours a week. After the accident this increased to six hours a week for 16 months. She was paid $10 an hour for the six hours. The plaintiff said that she believed the amount paid to Ms Szczypior was $3,600. Three hours a week for 16 months at $10 an hour is $1,920. I think it is reasonable to make some allowance for domestic care in the period following the accident, but not for a period of 16 months. Having regard to the medical evidence; in particular Dr Edwards' notes, and the period which the plaintiff was capable of spending at work in early 2003, I think it fair to allow 12 months, the resultant figure, rounded up slightly, is $1,500.
309 I have already mentioned the claim which was originally made in relation to the care provided by Mr Partridge. There is a residual claim put on the basis that in the future, the plaintiff will continue to rely on him on an indefinite basis for domestic and personal care. Should he for some reason become incapacitated or otherwise unavailable to provide that care, the plaintiff will have to replace his services at cost. I have regard to the whole of the evidence and my findings as to the level of disability suffered by the plaintiff. In my view, the evidence does not justify making any allowance for any such possible need in the future.
Medical, physiotherapy and associated expenses
310 The plaintiff makes a claim for $1,145.25 for past medical and like expenses. There is claim for $51.25 in respect of an attendance on Dr Edwards which has not been reimbursed by Medicare. There is also a claim for $38 paid to the Ettalong Medical Centre. The plaintiff's evidence is that this amount was not included in the "statutory declaration" in respect of the Medicare history statement. From that, I am prepared to infer that it relates to treatment for injuries connected with the fall. Those two amounts will be allowed. The balance of the past claim relates to counselling sessions with Mr Hamer for 22 consultations after the accident at $80 per session, reduced by 40 per cent on the basis of Mr Hamer's estimate that between 50 per cent and 70 per cent of the cost of that counselling related to the accident. Given that it is probable the cost of $80 per session would have been incurred irrespective of the subject-matter of the discussion, the question is whether the injuries created a need for consultations additional to those which would have taken place in any event. Having regard to the subject-matter of the consultations before the accident, and what Mr Hamer's notes reveal, I think it is reasonable to make an allowance for eight sessions necessitated by injury-related issues. That gives a total for the three claims of $729.25 to which should be added $15,497, which was paid by way of workers compensation. The resultant figure is $16,226.25.
311 Future medical expenses are claimed as follows:
•
Three general practitioner attendances a year, at an average cost of $50 for the plaintiff's life (36.5 years) discounted at 7 per cent (multiplier 706) - $2,037.
•
A five-yearly review by an orthopaedic specialist at a current cost of $250, similarly discounted - $680.
•
Five-yearly diagnostic investigations at $500, similarly discounted - $1,360.
•
Arthroscopic debridement of the knee required in five years' time, $4,000 at present value - $2,852.
•
Right knee surgical intervention required in ten years' time, $6,000 at present value - $3,050.
•
Lumbar fusion required in 15 years' time, $15,000 (the evidence is $16,000) at present value - $5,436 (or $5,798).
•
Facet block procedures for low back at $400 per procedure on average every five years, similarly discounted - $1,090.
312 In light of the state of the discs at L4/L5 and L5/S1 levels, I take the view that the first three items claimed are reasonable and should be allowed. In relation to the knee surgery, Dr Dixon pointed out that there is a duplication from which I infer that only one arthroscopy may be needed and the different procedures (if there be a difference) could be carried out at the same time. In his report of 8 September 2009 Dr Dixon said that the mooted arthroscopy "appeared reasonable" but in his evidence, he said that it was not indicated at present and that the need for it "would be driven by clinical deterioration". There was no evidence as to when this might occur. Taking Dr Dixon's costings, and assuming the procedure is required in 10 years' time gives a present cost of approximately $2,035. Based on an assessment of the likelihood of this procedure being required, in light of what I view to be the level of symptoms and disability, I think it reasonable to allow $1,000. Lumbar fusion surgery, according to Dr Davis, was dependent on whether there is further disc protrusion. The degree of likelihood as to this and the timing were not addressed. I think an assumption of a moderate chance in 15 years' time and hence an allowance of $1,500 for the possible future costs of this procedure, is reasonable. As to the facet block procedures, the evidence is that the plaintiff refused such a procedure when it was recommended by Dr Oberoi in early 2003. In early 2004 when she had two such procedures on the recommendation of Dr Dixon, she said that the pain caused was "immense for weeks", and that Dr Dixon decided that she was not a suitable candidate for such procedures. In light of that evidence I consider it highly unlikely that there will be a need in the future which will cause a loss to the plaintiff. It is not reasonable to make any allowance. The total for future medical expenses (rounding up the figure) is therefore $6,600.
313 There is a claim for future physiotherapy costs which I will include under this head. It is for physiotherapy following the postulated arthroscopic debridement for six weeks - three times per week at $60 per session. Assuming that takes place in five years' time, the present value of the cost of $1,080 is $770. Taking the same approach as I did to the procedure itself, I make an allowance of $400. The overall total under this head is $23,226.25.
314 The claim for past expenses is $2,659.56. The plaintiff produced lists and receipts starting in October 2003 relating to the purchase of Mersyndo, Panadol, Panadeine, Panadiene Forte, and like analgesics, together with the anti-depressant Efexor, and the anxiolytic Xanax. The plaintiff's evidence was that these lists detailed part of her past medication expenditure for which she had retained receipts. Analgesic use was supported by the medical evidence, but there was little evidence in relation to the need for the anti-depressant and anxiolytic medication. In Dr Dixon's report of 23 December 2003 the use of these drugs is merely noted, whilst only the use of analgesics is referred to in subsequent reports up until that of 6 August 2009, in which he says that it is "reasonable for her to continue" the Efexor and Xanax. It is far from clear whether Dr Dixon was aware of the lengthy use of theses drugs before the accident. Dr Edwards' notes show the prescription of anti-depressant medication as early as October 1996. Xanax comes into the picture in April 2001 and continues on from there. Efexor use seems to commence in September 2001 and continues from that point. The defendants disputed that the need for this medication was caused by the injuries. The plaintiff's counsel maintained the claim but regrettably did not address the issue. For the moment, I will deal with medications other than these two. Removing those from the lists provided gives a total of $2,275.31 to 30 June 2009. The period represented by the receipts is 68 months, giving a monthly average of $33.50. The plaintiff said that prior to retaining the receipts, she was using medication very similar to that listed. There might be some attraction to the proposition that the analgesic use is excessive, or more particularly that the use of sedative analgesics to the extent claimed is unnecessary. However no real dispute was raised by the defendants in relation to the costs of this form of medication. I think it is fair to make some allowance for the period for which receipts were not kept, and using the average monthly figure, the total claim for past medication costs is approximately $2,610.
315 The claim for future medication expenses seems to be based on the plaintiff's oral evidence and not the lists which she produced, notwithstanding that the claim for past expenses was based on those lists. The oral evidence covered the cost of the continued use of Mersyndol, Panamax Co, Panadol and Panadeine. Averaging out the figures given by the plaintiff gives a weekly cost of $48.60, not the $8.37 as represented by the lists. Adding to the confusion, is that after detailing the costs, the plaintiff said that non-prescription medication cost her about $100 per month, with prescribed analgesics costing $5.60 per month. The claim as particularised was for $122.75 per month for life (based on asserted figures not borne out by the evidence), the discounted result being $20,050. It is accepted in the particulars that the outcome of attendance at the pain management program will significantly reduce the need for medication, the result being a claim of about half the particularised amount, namely $10,000.
316 In all of that, I think it is appropriate to moderate the claims made by the plaintiff in evidence to a large degree, bearing in mind the lists which she provided. It is possible that the cost of such medications is likely to increase over time. Starting with $8.37 as a base figure, and using the individual item costs as detailed in the evidence, I think it fair to allow $12 per week, which discounted at 7 per cent for life (multiplier 704) gives a figure of about $8,450. Accepting the plaintiff's approach as to the pain management program, I think a fair allowance for future medication is $4225. As to the Efexor and Xanax, the evidence of Dr Dixon together with the other evidence about injury related depression supports the making of some allowance, although the approach will be necessarily broad. I think it is reasonable to allow three years at the average costs established by the lists, with an ongoing cost at the current monthly figure of $5.25 (in accordance with the most recent list), for two years. The respective figures are $174.60 and $514.50; say a total of $689.10. That makes the total allowance for medication costs of say $7,525.
317 These claims come from recommendations of Dr Dixon. In his written material, he said that the plaintiff would require a replacement TENS machine in the foreseeable future. In evidence, the plaintiff said that the use of the large TENS machine at New Town Physiotherapy gave her complete relief for about half an hour to an hour; that she had a smaller one for use at home which provided "some pain relief" although not as significantly as the large one. The present cost of the replacement unit is $350 which, with five yearly replacements, amounts to a discounted figure of $955.80. The replacement of consumables, being electrodes, cables and batteries, is claimed at respective amounts of $1,876, $404 and $680. On balance, I think it is reasonable to allow the replacement of the TENS unit for the purpose of providing relief for the symptoms which the plaintiff does experience. However, I think the use will be much less than that anticipated, and taking a broad view, I think it is fair to allow half of the amounts claimed which is $2,058. The other items which Dr Dixon says the plaintiff will probably need are a lumbosacral binder ($120) a "Merve Basset" car seat ($90), a lumbar support cushion ($60), an infrared massage unit ($200), and a wheat pack ($30). The respective replacement costs are $120, $452, $545 and $410. There was no evidence by the plaintiff of the use of any of these items, although there are references in Dr Dixon's reports suggesting use of a back brace and a wheat pack. Again, on balance I take the view that the provision of these items is reasonable but the use will be less and hence the replacement costs are less. Allowing acquisition costs and at half the replacement frequencies, gives an approximate figure of $1,235. That gives a total allowance for all of these items of $3,293.
318 Each of Drs Dixon, Gorman and Davis said in their written material that the plaintiff would benefit from the attendance at a pain management program, although curiously, Dr Dixon in his oral evidence said that he did not remember making such a recommendation. In any event, it is a need not disputed by the defendants. The cost as claimed is $16,033 which includes the initial attendance and assessment, and the subsequent lengthier program itself. The claim includes an allowance for Mr Partridge to accompany the plaintiff, and on that basis, includes secure parking at the airport on two occasions and meals at $50 per day for two persons. The defendants say that it is not necessary for Mr Partridge to accompany the plaintiff and I agree. On the basis though that he drives her to the airport, the travelling is doubled and there is no need for secure parking. I think it is reasonable to allow an additional cost of $50 per day for the meals for one person. The end result is an allowance of, say, $14,700.
319 Both Drs Dixon and Davis recommended a strengthening program carried out under proper supervision at a gymnasium. The plaintiff said that she would avail herself of such a program, "particularly in - in a rehab scenario with medical support or the support of a medical practitioner, I think that that would be something that I would love to do." The claimed cost totals $18,784, which is comprised of an initial cost of $2,500, with gymnasium membership at an average cost of $1,100 per annum for life, the present value of which is $16,284. I should note that Dr Dixon in a report of 6 August 2009 said that the plaintiff would benefit from hydrotherapy and the cost of a pool membership for one year would be $400. He said that she "may benefit from a gym strengthening program to do core strengthening exercises for her back and quadriceps and hamstring stretches for her right knee and the cost of a gym membership for six months would be $600. She would require intermittent physiotherapy supervision of a hydrotherapy and gym at a cost of $60 a session but could then self-manage after two months". The cost claimed comes from a report of Dr Davis of 7 August 2009 which deals with a recommended program at an initial cost of $2,500 but with a "requirement to provide her with annual gym membership at a cost of $1,000 per annum so that a self-monitored programme may be continued." I think it is reasonable to allow the initial cost of $2,500. On the evidence, I think it is reasonable to allow a further period of gym membership for self-management. In my view that should only be for a period of five years, after which I think it becomes a matter of the plaintiff having to continue at her own expense. At $1,000 per annum, the present value is $4,250. The total for the gymnasium program and continued membership is $6,850, making the overall total under this head, $21,550.
320 There are two components which I have included under the one head. There is a claim for "future equipment expenses", and one for "future occupational therapist attendances and home and driving licence expenses". Both claims are principally based on the evidence of Mrs Berger, the occupational therapist, to whom I have previously referred. As to the first claim, there are 21 items claimed, the total amount being $15,420, representing acquisition and replacement costs for the rest of the plaintiff's life. These are recommended by Mrs Berger "to assist Ms Partridge increase her level of independence with personal care". The plaintiff did not give any evidence as to her need for, or intended use of, these items. The list includes such things as a shower chair, a wheelie walker, monkey bar, non-slip mat, together with long handled personal care and cleaning items, and various aids for the kitchen. Dr Davis said that he believed that Mrs Berger's reported requirements for personal care to be reasonable and necessary as a result of the accident. Dr Gorman endorsed a back support for the motor vehicle and the toilet seat aid whilst the plaintiff was still de-conditioned, the monkey bar for use while she was de-conditioned, and a non-slip mat for the shower recess, together with long handled equipment "again whilst she is de-conditioned and inactive now". There were some items that he specifically disagreed with. Included in Mrs Berger's list, but not claimed in the particulars, were an electric scooter, a trailer to carry the scooter behind a motor vehicle, a wheelchair, and a cushion for the wheelchair. Dr Dixon only supported the items which have previously been dealt with under pharmaceutical costs, and pointed out that there was a duplication in Mrs Berger's list in that the Therapod back rest is the same as the "Merve Basset" back rest which he recommended.
321 It is clear to me from Mrs Berger's cross-examination that she was totally reliant on what the plaintiff said to her. She was also reliant on the plaintiff's performance of flexion and extension, and lateral flexion. These movements were done by the plaintiff "actively", that is without assistance. Having regard to the evidence of the statements made by the plaintiff to Mrs Berger, I am satisfied that the plaintiff considerably exaggerated her situation to Mrs Berger. I have previously set out some of what was said to Mrs Berger by the plaintiff. I have regard to the evidence of Drs Davis and Gorman, together with my own assessment of the plaintiff's general level of disability. The question is whether these expenses are reasonably incurred as resulting from the injuries. It is not a matter of what is ideal, and there is also a question of whether there is a benefit having regard to the cost: Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563. In order of the items as claimed, I am prepared to make an allowance for a toilet seat, monkey bar, non-slip mat, four items of long handled equipment and a shower scrubber, but not for the whole of the period of the plaintiff's life. The present weekly cost is $5.43. Discounted at 7 per cent for five years gives an amount of $1,200 which I allow.
322 The second claim is for $800. It relates to the asserted need for an occupational therapist to visit and make recommendations in relation to any house to which the plaintiff may move. Although the heading of the claim mentions "driving licence expenses" the claim for which is based on a further aspect of Mrs Berger's report, this is not particularised and I assume no claim is made[5]. I am not satisfied that the plaintiff's injuries have created a need for home assessment, or alternatively that there is any real benefit to be derived from the cost. I declined to make any further award under this head.
323 The agreed rate for travelling in a motor vehicle is 40 cents per kilometre. There is a claim for past travelling expenses relating to medical treatment, assessments and investigations whilst living in Hobart, at Booker Bay and at Yamba. The total claim for past travelling expenses is 2,600 kilometres, making a claim of $1,040. A considerable portion of the amount travelled, 1,500 kilometres, relates to a visit to Dr Dixon in Hornsby whilst the plaintiff was living at Yamba. Dr Dixon's file makes it clear that this was an appointment arranged by the plaintiff's solicitors to obtain a report for the purposes of the action. That part of the claim should not be allowed. There is also a claim for 15 kilometres relating to 15 visits to Dr Trichard or Dr Groves, the evidence from Mr Partridge being that the surgery was only 250 metres from where they lived. For reasons which I consider are obvious, I do not regard a claim for travelling in a motor vehicle to that extent to be reasonable. Otherwise, proceeding on the basis of the plaintiff's evidence as to frequency, Mr Partridge's evidence about distances, and a number of concessions made by the defendants in closing submissions, I allow a claim for 1,273 kilometres, a total of, say, $510.
324 As to future travelling expenses, the plaintiff accepts the difficulties with quantification. It is suggested that there would be one attendance upon a specialist at either Hornsby (1,500 kilometres) or Sydney (1,560 kilometres) every five years for the balance of the plaintiff's life. That amounts to $1,633. An allowance for additional travelling in relation to other treatment and therapies, at 40 cents per kilometre, amounts to approximately $400. In relation to that aspect, there is no evidence as to the whereabouts of any health care provider which it is likely the plaintiff would attend. Taking a broad approach, I consider that it is reasonable to allow the sum of $1,000. That makes the total claim for travelling expenses $1,510. The defendants claim that, at least as far as the past claim is concerned, the evidence shows that the travel "was gratuitously provided" by Mr Partridge and occasionally Mrs Beven. They argue that on that basis the Common Law (Miscellaneous Actions) Act 1986, s5, precludes recovery. I reject this submission. Travelling expenses which relate to costs incurred by the use of a motor vehicle does not amount to "compensation for the value of services of a domestic nature or services relating to nursing and attendance" within the meaning of s5.
325 The claim is for reimbursement of expenses incurred in relation to the sale of the business and the winding-up of the company. The claim is for $2,200, in support of which an account from KPMG dated 18 December 2003 was tendered, the plaintiff agreeing that it was an account relating to her "half share of the wind-up costs associated with the Tingletree company". The account is for $4,650, together with GST, making a total of $5,115. There are four items on the account, the two most substantial items relating to the preparation of interim financial statements to the period 30 September 2003, with a review of accounts and calculating estimated payout figures from the winding-up, and the preparation and lodgement of Business Activity Statements for the months August to November 2003 inclusive. I need not consider whether some of these costs would have been incurred in any event, because I have come to the view that no part of the claim should be allowed. That is because I consider it probable, as previously discussed, that the business would have been sold within a few years in any event. There is nothing to suggest that an earlier sale created any additional expense.
326 The claim is for $15,120.20 which is made up of solicitor's fees, real estate agent's commission and fees and bank fees, together with a Telstra disconnection fee. The claim is made on the basis that the sale of the business made it no longer possible to service home mortgage repayments. I have already dealt with the sale of the house, the plaintiff's financial circumstances at that time, the rental of the property at Booker Bay, and the purchase of the yacht. On the whole of the evidence, I am not satisfied that the defendants' negligence caused or contributed to an impecuniosity such that required the house to be sold. Moreover, I think it is probable that the sale of the house would have accompanied the sale of the business within a few years in any event. No award will be made under this head of damage.
327 This is claim for $464.93 for four items of equipment and two nights of accommodation, one in December 2005, and one in July 2007. They are put forward as expenses incurred in relation to the safety associated with the plaintiff living on the yacht. The evidence was that the two nights' accommodation were for the plaintiff when the yacht was out of the water on a stand for cleaning and anti-fouling processes, the assertion being that the plaintiff could not get up and down a ladder to be on the boat in that situation. Leaving aside the issue of whether each item claimed was expense reasonably incurred, the entire claim is based on the proposition that there was an injury-created need for the plaintiff to live on the yacht. I have already dealt with that. I am not satisfied on the balance of probabilities of that proposition, and this claim must fail.
328 Having said that, there are some features of the claim which should be mentioned. There is a claim for $45 for a "safety step". There is a receipt from Yamba Trading Co said to relate to this safety step. The only evidence of a step used from the marina walkway to the yacht is that of a red plastic milk crate with a sheet of plywood attached to the top. Mr Partridge said he got the milk crate from the Marina Café, and somebody gave him a piece of ply ready cut to put on top of it. Mr Kesby helped Mr Partridge in putting this milk crate step together.
329 The plaintiff has claimed the expense of storing furniture and household contents whilst they are living on board the yacht from 7 December 2004 and continuing at the rate of $30.50 per week until she is able to relocate to a domestic dwelling. The past claim is now about $9,120. For the reasons which I have given, I do not consider that this is a proper claim. The need to live on this yacht was not, in my view, caused by the defendants' negligence.
330 The plaintiff claims the sum of $2,765.41 for what are said to be study and rehabilitation expenses "thrown away". The expenses of a retraining course may be properly recovered if they are costs reasonably related to mitigation of damage: Tuncel v Renown Plate Co Pty Ltd [1976] VicRp 50; [1976] VR 501. A two-page handwritten list, together with a bundle of receipts, was produced in support of this claim, the plaintiff saying that it was a list of expenses incurred in pursuing the three courses; namely the Diploma of Children's Journalism course, the "inshore skippers" course, and the Diploma of Professional Counselling course. The first course was commenced before the accident, the second two, judging by the dates in the handwritten list, commenced in 2004, the last dated receipts being for July and December 2008. It is not clear from the evidence when each of these courses was abandoned.
331 The first matter of note is that an amount of $211.50 paid in November 2004 is for the plaintiff's re-registration with the Tasmanian Department of Education. No doubt that is an expense which would have been incurred in any event. Much of the list is made up of stationery, including a printer and paper, postage and associated items, together with a few text books. It is not possible to divide these costs between the three courses. The plaintiff's evidence was that $750 was paid for the children's writing course, although the handwritten list claims $700. Additionally, there are receipts from the New South Wales Counselling Association and the Australian Counselling Association for annual membership fees in January 2005 and January 2006 respectively. It is not clear why these payments were necessary to pursue the counselling course. The plaintiff's evidence was that the main reason for undertaking this course was to maintain her teacher's registration. She said that she checked with the Registration Board and that the sailing course also fitted "the parameters of being an avenue of study to keep my registration for teaching current even though I was disabled".
332 All in all, I am not satisfied that these expenses should be allowed as reasonable costs incurred in the mitigation of damages. As to the sailing course, I take the view that it was far more a matter connected with the plaintiff's interest in sailing, than something done with a view to maintaining her teacher's registration. As to the other two, the plaintiff's reasons for not continuing them were that she could not do the writing and keyboarding necessary, particularly for the journalism course, and could not physically deal with the practical components of the counselling course. I am not satisfied that her level of disabilities were such that the failure to complete these courses can be attributed to her injuries to the extent that the defendants should be required to pay the costs.
333 The amount claimed is $1,396.70 which, although it is conceded that some deduction is appropriate to take account of the fact that a component of the attendance is related to medical issues not accident-related. There is nothing in the evidence to guide me in this deduction. I will allow $1,000.
334 The net payments of weekly payments of compensation have been included in the claim for past loss of earning capacity. The tax paid on that compensation is $3,764.84. That should be allowed in full by virtue of Fox v Wood [1981] HCA 41; (1981) 148 CLR 438.
335 I see no need to revisit the relevant evidence. I think I have sufficiently summed up earlier in these reasons the plaintiff's situation as I view it. I accept that she has had a back injury of moderate severity and that she suffers pain and discomfort to a varying extent. There was a need for various treatment regimes for about two years, and there is an ongoing need for analgesic use. The plaintiff also has difficulties with her knee, although that is of far less significance, and whatever symptoms remain from her hand injury, are of nuisance value only. She will continue to suffer to one degree or another in the foreseeable future, but I do not accept that her level of pain and suffering, and the loss of amenities of life have been and will be as she suggests. I am required to have regard to the proportionality of the sum awarded to the plaintiff's injuries and their consequences, and the sum awarded must be fair and reasonable compensation for those injuries: Southern Regional Health Board v Grimsey (1998) 8 Tas R 166 at 188. I allow $40,000.
337 Deducting 20 per cent from the total for contributory negligence gives $327,215.27. To be further deducted is the total amount of workers compensation payments of $32,611. 84, which results in a figure of $294,603.43. In order to comply with the principle established by Fox v Wood (above), 20 per cent of the tax paid of $3,764.84 which is $752.97, should be added. That gives a figure of $295,356.40. Assessment is a matter of overall judgment aided by calculations. There will be judgment for the plaintiff against the defendants for $295,350.00.
MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TRESIZE t/as TRESIZE LAWYERS, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS
338 The plaintiff made a claim for workers compensation in respect of her injuries, the subject of this action. The obvious premise of the claim was that she suffered an injury arising out of or in the course of her employment, the absence from the place of employment being work-related. In her evidence, the plaintiff said that she had been doing some "Tingletree errands" before the accident. She had done some banking and that an appointment had been arranged with Mr Tresize to discuss the potential action against a marine surveyor over the sinking of the Semille. She said that she had neglected for some time to touch base with Ms Webster "whose role it had been in the past to try and gather some outstanding fees". It was also her intention to go to the Antarctic Centre after leaving Mr Tresize's office to see if it was appropriate for a kindergarten excursion. She said that there was also a staff member on prolonged maternity leave and it was her intention to "touch base" with her to ascertain when she might return to work. She said that Mr Partridge had arranged the appointment with Mr Tresize but as she was the co-owner of the vessel, she chose to attend as well. When they arrived at Mr Tresize's office he was not ready at that time to see them. The plaintiff said that whilst they were waiting, "I took the opportunity to have a discussion with Christine Webster about the status of the Tingletree accounts. I don't really recall the content of that discussion it was more of a touch base really".
339 In examination-in-chief a copy of a hand written diary page for the day in question was tendered. Starting at 11am there is an entry, contained in which is a list of items set out as follows:
Banking (x 2)
Antarctic Centre Reccy
See Chris W
See Gen
Lunch
340 The last two entries are intermingled with a phone number which the plaintiff said was in her mother's handwriting. The end of the whole entry is also intermingled with another phone number in the same handwriting. The entry of course makes no reference to the appointment with Mr Tresize. It was put to the plaintiff in cross-examination that the entry had been made after the event in order to support the claim for workers compensation. This was denied.
341 The plaintiff was closely cross-examined about the circumstances of the making of the claim and subsequent events involving the insurer. Relevant aspects of that cross-examination are as follows:
•
The plaintiff agreed that after payments had been commenced, she had been contacted by someone for the insurer, but she denied that the point of the discussion was that she may not be entitled to compensation because the visit was not work-related. The plaintiff said that she was told that the insurer wanted to investigate the events as they had decided to recoup their "losses" from the persons responsible for her injuries.
•
The plaintiff agreed that she then spoke to an investigator in about mid-September 2001, and in early October 2001 signed a statement which she read through briefly and signed as being true and correct.
•
The plaintiff agreed that she made a second statement but said that she did not understand the making of that statement to have related to an issue of whether or not the visit to Mr Tresize's office was work-related. She said that she thought she was required to "focus on the paper exchange" between her husband and Mr Tresize, and the fact of the actual appointment as proof that she was there.
•
However, immediately after saying that, when asked whether by the time she prepared the second statement she was aware there were problems with respect to her claim, she said that she remembered demanding to be taken to the insurer's office and to go straight to the manager to "find out what on earth was happening". She said that she was told it was "a procedural issue" and that she should get in touch with the investigator and "add further information" to the statement.
•
When asked what the problem was as she understood it, she said that she had in fact been told beforehand that the problem related to her failure to mention that the visit was work-related. She said "I ... omitted my chat with Christine Webster ... which was work-related in the first statement - that statement omitted that part of my day and Julie rang me and told me that it would have to be rectified or it may not be work-related had I not had that chat with Christine Webster".
•
The plaintiff said that she was "as mad as a meat axe" when she went to speak to the manager. She was trying to resolve what Julie had meant when she said that there was a doubt about the claim, but did not know at that stage that her payments might be terminated.
•
The plaintiff said that she did not find out that her payments might be stopped. She said the manager explained to her that if the journey was not work-related then workers compensation insurance would not cover it. She said she believed the focus in the statement was to help the insurer have physical proof that she was at the top of the staircase. She agreed that the manager explained to her the consequences if her claim was not accepted. She said "I believe he said at one stage ... oh it's a fairly simple matter Moira, you just have to give the money back". This notwithstanding, the plaintiff denied that she knew that payments would be stopped or that payments would have to be returned, but immediately after agreed that if it was not a work-related accident she was aware that the consequences were that she would have to repay the money to the insurer. She also agreed that she assumed, rather than knew, that the payments would be stopped.
•
The plaintiff agreed that she had said (in the context of making statements to the insurer) that she was at Mr Tresize's office solely for business, but denied that this statement was wrong. She immediately went on to agree that she was not there solely for business but at the same time again would not accept that when she had said that she was there solely for business, it was wrong. She said she was there for a dual purpose, repeating though, that to say she was there solely for business, was not wrong.
•
At this point, I asked the plaintiff to explain how such a statement could not be wrong. After intimating that the manager had given her some instructions, she said that she "thought it was the same statement ... I thought I was adding to the same statement". (As it became clear the assertion about being at Mr Tresize's solely for business was contained in the second statement.) All of this led shortly after to her again being asked whether she had told anybody that she was there solely for business, to which she said "No"; whether in writing or otherwise, she had not ever said it.
•
Part of a statement dated 7 October 2002 was put to her. The plaintiff said that the words were not hers but agreed that she had signed the statement and adopted it as being "true and correct to the best of my knowledge and belief", which she confirmed "it was at the time". A lengthy passage was read out concerning her activities at Mr Tresize's office in which there was no mention of Tingletree business or any conversation or discussion with Ms Webster.
•
Part of a statement dated 13 November 2002 was also put to her. When asked whether that was a statement she had made, the plaintiff said "No, but I've signed it". It was suggested that she had adopted it as being her statement, to which she replied "I adopted it as being an additional set of information for the first statement as instructed" by the insurance company manager. When the cross-examiner persisted, the plaintiff said she did not take a lot of notice of the words. As will become apparent from the next point, that comment is significant. This statement contained the words "On this particular day it was the case that my visit to Michael Tresize's office was solely for the purpose of discussing Tingletree business with Chris Webster and the fact that my husband and I spoke to Michael Tresize during the course of his visit for the purposes of delivering a marine survey was both secondary and incidental to my visit ...".
•
The evidence shows that this statement of the plaintiff also makes obvious reference to the first statement and says that she focussed on the aspect of the visit which involved Mr Partridge providing Mr Tresize with the marine survey "as this involved proof of being there (ie paper exchange) rather than focussing on or even mentioning the principal purpose for my attendance".
•
As to that second statement, the plaintiff agreed that she had changed a draft given to her by including the word "whole" in a passage which reads "at this point I which to clearly state that my whole journey from the Tingletree premises in New Town, including my visit, was for work-related purposes".
342 Weekly payments of workers compensation ended on 20 December 2002, but payments for medical expenses continued until March 2005. In cross-examination the plaintiff agreed that ultimately an application was made to terminate payments, to which she consented. The plaintiff's evidence about this issue is notable for the contradictions as to whether or not what she had said about being at Mr Tresize's office solely for business reasons was wrong or not. It is also notable for the fact that the plaintiff was really unable to explain her statement in evidence that such an assertion was not wrong. This assertion is contained in the second signed statement, the full impact of which the plaintiff tried to deflect by saying that she did not take much notice of what was in it, and by insinuating that she was following instructions. She had to concede however that she had, of her own volition, amended a draft to make the point even clearer. The proposition that she thought she was simply adding to the first statement is really no explanation at all; that first statement remains an assertion which has its obvious meaning on its face.
343 I acknowledge that I heard no evidence from either of the two insurance company persons mentioned, but I found the plaintiff's attempts at attributing the making of the relevant part of the second statement to a desire on the part of the insurer to properly document it for recovery purposes, quite unconvincing. Very reluctantly, after some prevarication, the plaintiff ultimately conceded that when she went to see the manager she had been told of the possibility of payments being stopped, and that she may have to make reimbursement. Further, her attempts to distance herself from both written statements do no good to her cause. Whatever the understanding or motivation, the plaintiff signed the second statement which, on her own evidence was simply untrue. Even leaving aside the manner of giving her evidence, this of itself shows a willingness to distort the truth.
344 Apparently it was the plaintiff's practice to send out a newsletter to the parents of children enrolled. I infer that this was done on a monthly basis. The November newsletter bears the plaintiff's signature with "Director/Principal" and her qualifications set out under her printed name. The second paragraph contains the following:
"As some of you may be aware 2002 has been a personally challenging year for me with various trips to hospital and an accident resulting in broken bones and other injuries. Under the guidance of Cathy and Jo the team have run the centre beautifully (but, needed or not, I am very very happy to be back!!)"
345 The plaintiff was first cross-examined by counsel for the first defendant, the point being the extent to which the plaintiff was required to be present at the centre in order to ensure its proper conduct and smooth running. When asked whether it was true that the team had run the centre beautifully, the plaintiff said that she meant "as beautifully as they could", adding that that was not something that the parents needed to know. She did not raise any question about the authorship of the document.
346 Counsel for the third defendants also took the plaintiff to this document. The following exchange occurred:
"Now I take it the only accident you were referring to in that newsletter was the one of 17 June 2002 when you fell down Mr Trezise's steps?......Yes.
And that was a lie wasn't it that you'd suffered broken bones?......It's - it's incorrect, yes.
No, Mrs Partridge, you knew full well when you authored that newsletter that you hadn't suffered any broken bones?......I signed the newsletters but we all - the senior staff all contributed to the content.
Yet your signature is on it......It is.
It was not true was it?......No, I had no major broken bones.
Ah, no major broken bones, you had no broken bones at all did you?......No.
And you knew that and when you signed this newsletter you'd read it hadn't you?......I expect I had.
Yes, and so you allowed the statement that you'd had an accident resulting in broken bones to remain in there as though it were a true statement?......I possibly overlooked it.
HIS HONOUR: Well are you saying you didn't write that part?
WITNESS: I don't remember but all the senior staff had input into what was written in the newsletter.
HIS HONOUR: But they wouldn't write about your personal experiences would they?
WITNESS: Um, I doubt it. I mean the paragraph begins, 'As Director I can assure you', so I suspect that it was written by me but I don't remember doing it."
347 As can be seen, the plaintiff did not claim that the statement about broken bones was intended to be wry humour or dramatic irony, but in my view at least, she attempted to dissociate herself from the making of it.
[1] These distances were asserted by counsel for the defendants in joint closing submissions. It was submitted that I could, by virtue of the Evidence Act 2001, s144(1)(b), inform myself of the place locations and the relevant distances by the use of maps. Reference was made to Odgers, Uniform Evidence Law, 8th ed, at 758 [1.4.600] in which the author says that the provision should permit reference to such things as street directories. Neither the distances asserted nor the proposition that I could inform myself by way of appropriate maps was challenged by counsel for the plaintiff. The issues were not addressed at all. Accordingly, in the absence of any dispute, I have verified the distances by use of Google on-line maps.
[2] In an email to Dr Dixon of 3 June 2004, the plaintiff requested amendments to a draft report which ultimately became Dr Dixon's report of 7 June 2004. The evidence suggests that it was amended as a result of this email. The plaintiff seems to have responded to a note by Dr Dixon "in the draft", that the plaintiff could possibly teach with her physical restrictions. In the email the plaintiff said "please don't state that I could possibly teach with my physical restrictions as it would be impossible!!! Nobody could employ me as I'm uninsurable, could not perform CPR or even pull a child out of danger".
[3] See also Slicer J in Falzari v Brown [1998] TASSC 57 at [27] in which his Honour said that even accepting the complexity of the effects of physical injury on mental health and the onset of depression with the attendant "feedback" on the physical condition, "the Court ought not permit passivity and a 'victim mentality' to automatically result in an inevitable award of 'maximum' damages".
[4] For instance, in the email to Dr Dixon of 3 June 2004 previously referred to in the footnote to par [235], the plaintiff requested amendments to a report which ultimately ended up as Dr Dixon's report of 7 June 2004. The evidence suggests that it was amended as a result of this email. The plaintiff seems to have responded to a note by Dr Dixon in the "draft", that x-rays of the right leg "showed no significant abnormality". The plaintiff asked Dr Dixon to refer her lawyers to the treating surgeon, Dr Mills, "as my kneecap is damaged and inoperable".
[5] It is suggested in the report that if the plaintiff wishes to resume independent driving, she may require modifications to the safe steering and acceleration and braking, which will need to be assessed by an occupational therapist trained in driver assessments. It is said that six hours of assessment, driver's instruction time at $50 per hour, and a series of sessions to determine specific modifications and education and safe usage, is required.
Partridge
Hobart City Council [2010] TASSC 62
(1906) 4 CLR 764
(1980) 24 SASR 247
(1979) 49 ALJR 221
(1959) 101 CLR 298
(2009) 236 FLR 1
(2004) 217 CLR 469
(1987) 162 CLR 479
(2005) 80 ALJR 431
(1987) 47 SASR 455
(2005) 223 CLR 422
(2007) 234 CLR 330
(1982) 56 ALJR 839
(1999) 171 CLR 506
(1992) 176 CLR 408
(1988) 192 CLR 431
(1997) 42 NSWLR 307
(1998) 195 CLR 232
(2001) 205 CLR 434
(2008) 19 VR 335
(2003) 201 ALR 470
(1989) 17 NSWLR 553
(1981) 54 FLR 48
(1990) 169 CLR 638
(2006) 17 NTLR 83
(1977) 138 CLR 563
(1981) 148 CLR 438
(1998) 8 Tas R 166