Pike v Coles Supermarkets Australia Pty Ltd; Pike v Solomon [2021] NSWSC 1492 | Case summary

Pike v Coles Supermarkets Australia Pty Ltd; Pike v Solomon [2021] NSWSC 1492 | Case summary | Zoe

[2]

The Plaintiff

The plaintiff is 49 years of age. She was born in New Z4ealand and has lived in Australia since she was 13 years of age.
Since 1993, the plaintiff has worked various jobs in administration, customer service and maintenance/construction. She stopped working in 2010-2015 due to an autoimmune disease, "Buerger's disease". The plaintiff was also afflicted by a "prolapsed disc" in her lower back, which she deposed "prevented me from working". She received financial support via a Disability Support Pension.
In her evidentiary statement dated 10 May 2019, the plaintiff provided the following description of her pre-existing conditions: 22. Buerger's disease manifest such that my hands and feet freeze up so that I have reduced circulation and therefore reduced feeling in my hands and feet. This impacted on both hands and sometimes my feet. I received treatment for this disease. 23. At the end of 2010, I was hospitalised for a couple of weeks and received what treatment they had available. But unfortunately, there is not any treatment for this disease. 24. I always have tingling in my hands and the conditions flares up when it's cold or when I am stressed, and my fingers go numb. The condition has reduced from the intensity when I was initially diagnosed. 25. With respect to the prolapsed disc in my lower back, I had an operation in November 2013 at Nepean Hospital. The operation was a discectomy and it was successful. 26. Up until the accident in January 2015 I had no problems with my back at all and was able to work.
She stated that those pre-existing conditions left her "debilitated to a certain extent". However, she was still able to perform chores around her house including cooking, cleaning, washing, gardening and shopping. The plaintiff deposed "I had no physical limitations whatsoever in terms of my ability to do this type of work around the home".
Towards the end of 2014 and the beginning of 2015, the plaintiff stated that "I was feeling well enough such that I felt I could start work again". She made a decision to return to mowing lawns and trimming edges. Whilst the work is labour intensive, it is work she had previously performed and she believed she could "juggle the work around my ability to perform the work" in instances where her disease "flared up".
Immediately prior to the incident, the plaintiff had set up her own business: "Lawns N Edges". She prepared signs that stated "Lawns N Edges" and mobile phone number. Those signs were hung on power poles in the Penrith area. By the time of the incident, the plaintiff deposed she "had a handful of phone calls and had undertaken two or three jobs". The average lawn would cost between $50-80.
The plaintiff was required for cross-examination.

[8]

Karen Skinner

Ms Karen Skinner was the former Manager in Retail Property Management at RHC. She produced an evidentiary statement in these proceeding dated 2 September 2019, which contained the following, inter alia, annexures: 1. the agency agreement; 2. the lease; 3. correspondence with Coles between 15 August 2012 and 6 September 2012; 4. inspection reports prepared by Ms Skinner between 10 March 2014 to 16 September 2014; 5. correspondence about the incident with Coles on 21 January 2015; and 6. Incident Report prepared by Ms Skinner dated 21 January 2015.
At the time of the incident, Ms Skinner was employed by RHC as the Assistant Shopping Centre Manager at RHC. In that role, she had responsibility of several shopping centres, including the shopping centre at Cambridge Gardens (earlier defined). Ms Skinner deposed that she "would attend the Centre at least every month to undertake inspections". She also noted "I would prepare reports, manage major repair works and prepare the budget".
As Ms Skinner was not available for cross-examination due to sickness, the following exchange was had between counsel (T91): PRIESTLEY: Not from the defendants either, your Honour, although I should say, I wanted to read an affidavit from Ms Skinner and she's very unwell. I didn't understand my learned friend to be intending to try and cross-examine her but I should just clarify that now. TURNBULL: Your Honour, I understand she is ill, her statement is there, it has no s 67 notice has been given to us but, on the other hand, she does say she's very ill, we accept that and clearly she's not going to be capable of being cross-examined, so in those circumstances, assuming I'm not going to be held to any Browne v Dunn points, I have no difficulty with my learned friend reading the affidavit with the deponent not being called. PRIESTLEY: Yes, your Honour, I wouldn't be taking any Browne v Dunn points in relation to Ms Skinner's evidence if she's not cross-examined. HIS HONOUR: Could you identify where in the court book that statement may be found? PRIESTLEY: Yes, your Honour, it's p 114 of the court book, court book 1, 114 and it's got some lengthy annexures, your Honour, which run through to court book p 227, I believe, 227. HIS HONOUR: Her affidavit forms part of the court book which is now an exhibit in the proceedings but I note the exchange between counsel, to the extent required, her affidavit is treated as read on that basis. I would propose to take this course, subject to hearing further from counsel, to enable sufficient time for Mr Turnbull to consider the written submissions prepared by you, Mr Priestley and the transcript in that respect. By that, I don't mean limiting him to the transcript references that you've identified but those that he may have to have recourse to for the purposes of argument and then to deal with the balance of the hearing on the voir dire, make a ruling on that and then deal with any procedural questions that may or may not arise in relation to any ruling as may be required in the circumstances.
I will return to the relevant records and correspondence with respect to repairs and maintenance at a separate juncture.

[9]

MATERIAL BEFORE THE COURT

The Court had before it substantial material filed with respect to the proceedings, which consisted of evidentiary statements, medical evidence, clinical reports and various documentations relied upon by the respective parties to the proceedings. The material was tendered as one exhibit before the Court.
The following evidentiary statements were filed: 1. evidentiary statement of the plaintiff dated 10 May 2019; 2. evidentiary statement of Ms Skinner dated 6 Mary 2020; and 3. evidentiary statement of Mr Christopher McDowall, the plaintiff's son, dated 28 July 2020.
The plaintiff and Mr McDowell were cross-examined.
An exhibit in the proceedings was a Joint Conclave Report dated 22 September 2020, prepared by Dr Matthew Giblin, an orthopaedic surgeon qualified on behalf of the plaintiff, and Dr John Stephen, an orthopaedic surgeon qualified on behalf of Coles.
In addition to the Joint Conclave Report, the medical evidence relied upon by the plaintiff included, inter alia, the following: 1. medico-legal reports of Dr Giblin, dated 11 December 2017 and 18 May 2020; 2. medico-legal report of Professor John Yeo, Spinal and Rehabilitation Specialist, dated 28 September 2018; 3. reports of Dr Andrew Davidson, Neurosurgeon, dated 22 February 2013, 3* December 2013 and 29 January 2018; 4. reports of Dr Matthew Tait, Neurosurgeon, dated 16 October 2015, 29 August 2016, 26 September 2016, 13 February 2017 and 10 April 2017; 5. various MRI scans produced between 2007 and 2016; and 6. various CT scans produced between 2005 and 2017.
The following clinical records of the plaintiff, produced by various practitioners, were also relied upon by the plaintiff: 1. Dr Tim Ho, Rehabilitation and Pain Specialist, dated 4 October 2016 to 17 October 2017; 2. Dr Tait, dated 18 October 2015 to 26 June 2017 and 29 August 2016 to 14 August 2020; 3. Dr Davidson, dated 23 February 2013 to 3 December 2013; 4. Dr Ong, General Practitioner, dated 10 March 2003 to 25 August 2020; 5. Minchinbury Community Hospital, dated 6 July 2016 to 31 October 2016; and 6. Macquarie University Hospital, dated 25 January 2018 to 22 January 2020.
In addition to the abovementioned material, the plaintiff also relied upon the following documents: 1. the plaintiff's business card: "Jacqui of All Trades"; 2. schedule of Australian Unity Home Care Rates; 3. Coles List of Payments; and 4. "Lawns n Edges" sign (marked Ex 2).
Coles relied upon the following documents: 1. the medico-legal report of Dr Stephen, dated 23 January 2018; and 2. the occupational therapy report of Sanja Zeman, dated 4 May 2018.
The owners relied upon the following documents: 1. the lease; 2. email correspondence between Mr Mattingly and Ms Skinner dated 21 January 2015; 3. email correspondence between Ms Skinner and Ms Nohra and Mr Phillips dated 21 January 2015; 4. email correspondence between Mr Mattingly and Ms Skinner, together with the Incident Report, dated 24 January 2015; and 5. Incident Report dated 21 January 2015.
In support of the plaintiff's case for economic loss, the plaintiff relied upon the following: 1. income tax returns for 2011, 2015-2020; 2. notice of assessments for 2015-2020; and 3. payment summaries for 2011-2018.
As to the material before the Court, the following may be noted: 1. Senior counsel for the defendants objected to two aspects of paras 55 and 56 of the plaintiff's evidentiary statement. That objection went away with the relevant statements being received as a statement of belief by the plaintiff (see T13). No other objections to the statement of the plaintiff. 2. The report of Dr Fearnside was removed from the court book, in light of the ruling of the Court as to the receipt of that evidence (as discussed below). It was noted it will still appear in the index to the court book (see T124.27). 3. Turning to Mr McDowell's evidentiary statement, during his evidence-in-chief, he fixed an error in his statement: Q. Can you identify the paragraph, sir, to which you're referring? A. 35, "In August 2018" should be changed to 2017. I might have started doing some lawnmowing work again, I had to manage the business in addition to working full time. 1. During the hearing, the defendants tendered an electronic device containing surveillance footage. Following a ruling allowing the tender, the material was before the Court.
I now turn to the Court's reasons for the rulings with respect to the report of Dr Fearnside and the surveillance footage.
On 29 October 2020, the Court indicated that it would provide its reasons for decision with respect to the defendant's Markus application and the ruling concerning Dr Fearnside's report in the final judgment.
The next section of this judgment provide those reasons.

[12]

Relevant Legislation

Part 3.11 of the Evidence Act 1995 (NSW) concerns discretionary and mandatory exclusions. Section 135 and 136 provide: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 136 General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing
The definition of "probative value" in the dictionary to the Evidence Act provides: probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
Rule 31.10 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), relevantly provides: 31.10 Plans, photographs, audio-visual recordings and models (1) At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph, audio-visual recording or model at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof. (2) A party who fails to comply with subrule (1) may not tender the plan, photograph, audio-visual recording or model in evidence except - (a) in the case of a prescribed item - where the court is satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item, or (b) in any other case - by leave of the court. (3) This rule does not apply to any proceedings entered, or intended to be entered, in - (a) the Commercial List or the Technology and Construction List in the Supreme Court, or (b) the Commercial List or the Construction List in the District Court. (4) In this rule - audio-visual recording includes a sound recording or a record of moving images (or both) whether stored on film, audio or video tape, digitally, electronically or by any other means. prescribed item means a photograph or audio-visual recording that was made or obtained in connection with the relevant proceedings, by or at the request of a party, for the purpose of testing the credibility of a witness at the hearing.

[14]

Defendants' Submissions

The defendants advanced the following submissions in support of the application: 1. First, as to the purpose of the tender of the surveillance footage, the following was identified: 1. prove that the plaintiff has been working more hours and on more jobs than she has admitted in her testimony and in statements to medical practitioners; 2. demonstrate that she has significantly greater physical capacity, and less restriction, than she has said; 3. thereby challenge and test her credibility in relation to these matters, and matters of quantum more generally; and 4. affect the assessment of various heads of loss claimed, in particular economic loss and domestic assistance. 1. As to r 31.10 of the UCPR, it was submitted: 1. The material has not been served upon or otherwise notified to the plaintiff's solicitors prior to the tender, in accordance with r 31.10(1), which requires that a party who intends to tender an audio-visual recording at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof. 2. Rule 31.10(2) provides that a party who fails to comply with this requirement may not tender the surveillance footage unless the Court is satisfied there was a legitimate forensic purpose for not doing so (r 31.10.(2)(a)) or by leave of the Court (r 31.10(2)(b)). 3. The defendants submit that the surveillance footage should be admitted as there is a clear legitimate forensic purpose in not having served this prior to trial. 4. As a body of material the surveillance footage is plainly a prescribed item for the purposes of r 31.10(2)(a), as the reports reveal, this was obtained in connection with the proceedings at the request of Coles for the purpose of testing the credibility of the plaintiff: r 31.10(4). 1. It was contended that the surveillance, together with reports tendered with the audio-visual recordings, reveal the plaintiff doing the following (at para 9): 1. bending her back to 90 degrees whilst barely bending her legs, on numerous occasions throughout one day [4/4/18 at 7.40 and following, 16/12/19 at 9.10 and following]; 2. jumping down from the tray of her utility to the ground below [8/11/17 at 9.49 and 12.45]; 3. lifting the lawnmower off and on the utility tray without a ramp [8/11/17 at 9.58, 10.07, 14.15 and 14.29; 9/11/17 at 10.44]; 4. lifting and emptying apparently full grass catchers [27/7/17 at 11.33, 3/4/18 at 10.07, 30/11/18 at 11.59]; 5. pushing the lawnmower uphill [10/11/17 at 10.21, 4/4/18 at 8.50; 5/6/18 at 8.49]; 6. using a hedge trimmer to trim hedges [8/11/17 at 8.56]; 7. using a step ladder to trim hedges [8/11/17 at 8.57]; 8. working as early in time as 26 July 2017 ("1st report"); 9. Doing numerous jobs on weekdays [every day of the 16 days recorded was a week day]; 10. doing numerous jobs without her son present [her son is not seen to be present on any occasion]; 11. doing many more than 3 or even 6 jobs in a given week ("2nd report"); ("3rd report"); ("5th report"); the other reports also suggest as much]; 12. ultimately, performing all the tasks she undertakes in this work in an apparently fluid, efficient and unrestricted manner. 1. Each of these observations, it was contended, were either denied by the plaintiff in her evidence, or not admitted by her in her evidence, or were otherwise inconsistent with other aspects of her evidence, all matters raised in cross-examination. 2. This is precisely the sort of material that may tempt or enable a witness to tailor or attempt to tailor their evidence if considered prior to cross examination. 3. There is nothing in the material that would assist the plaintiff to advance her own case. It does however provide a necessary means of testing doubtful veracity. That submissions was supported with reference to the following authorities: Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; Prasad v AMP Life Ltd [2012] NSWSC 1076, (the "Markus principle": Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1). 4. The plaintiff has maintained that she has been, and is, only capable of doing a very limited number of lawn mowing/garden maintenance jobs, varying from 3 per week to 5 per week, in a piecemeal fashion, and only with assistance of her son. To test the honesty of such evidence it was necessary to first have the plaintiff commit to her position. This is a well-recognised legitimate and not unfairly prejudicial process. Reference was made, in that respect, to the following authorities: Naylor v Preston Area Health Authority [1987] 1 WLR 958; Australian Postal Commission v Hayes (1989) 23 FCR 320 at 327; ASIC v Rich (2009) 236 FLR 1.
As to the failure to make a pre-trial ex parte application pursuant to r 31.10(1) and (2), the defendants contended that omission "can provide no substantive basis for rejecting the evidence now" for the following reasons: 1. neither r 31.10 itself, nor any other rule, requires or even refers to such pre-trial procedure with respect to prescribed items under r 31.10; 2. presumably if it was a procedure to be encouraged, such reference might have been expected from the rule makers; 3. there is no evidence before the court, or other basis, to proceed on the footing that such pre-trial procedure is expected, or that failure to adopt it is irregular or even unusual; 4. whether the procedure was adopted or not cannot prejudice the plaintiff, as she would not have had any opportunity to address the material, in the context of r 31.10, until tender at trial in any event; 5. there is no basis to find that there has been any resultant delay from not adopting the procedure - almost certainly the audio-visual recordings would need to have been considered afresh in the proceedings by the trial judge, and the plaintiff's representatives, before tender, (who could have objected afresh), and once they are considered on the tender application may do not need to be "shown" or watched again; and 6. from the perspective of the principles in ss 56 and 57 of the Civil Procedure Act 2005 (NSW), it would appear more likely that requiring a duty judge to consider all the material ex parte may have constituted a waste of the time of the court and the defendants, and added unnecessarily to costs.
The defendants also submitted: 1. This is not a matter where it will apparently be necessary to provide the material to any of the doctors, but if that is considered essential it can easily be done. 2. The evidence should be admitted in accordance with r 31.10(2)(a). If it is otherwise necessary to obtain leave under r 31.10(2)(b), that leave should be granted.
During the hearing of the application, counsel for the defendants advanced submissions in reply to the plaintiff, as well as producing a table of transcript references for matters that they say are relevant to determining whether or not the evidence supports a finding of a legitimate forensic purpose, namely, for the assessment of credit. That table is extracted below: TRANSCRIPT ISSUE 17.40 Date of signage 17.40 Number of jobs 20.25 Date of signage 20.28 Assistance from Christopher 21.1 Lifting the lawnmower 21.13 Doing hedges 22.50 Assistance from Christopher 38.13 Date of signage 42.22 Date recommenced work 46.33 Working on weekdays vs weekends 47.45 Mowing on slopes 48.40 Emptying lawnmower catcher 49.25 Using a hedge trimmer 50.5 Jumping down from vehicle 50.16 ff Lifting lawnmower of and on vehicle 50.40 Bending back 90 degrees 51.25 Date of signage 52.26 Number of jobs per week 60.14 Assistance from Christopher 61.3 Ability to do gardening 62.10 Lifting at work

[15]

The following submissions were advanced as to the matters identified in the above table: 1. First, each of the above matter listed were put to the plaintiff in the context of cross-examination and, particularly in light of the surveillance footage, are relevant to the plaintiff's capacity and her credit on those issues. 2. Secondly, a general submission was advanced that what the plaintiff has said in her evidence does not always depict an accurate representation of the reality of the situation. As previously set out, the surveillance footage is at odds with aspects of the plaintiff's evidentiary statement, examination-in-chief and, in particular, cross-examination. 3. Thirdly, whilst noting there is merit in assessing each individual instance of contradiction, senior counsel for the defendants contended: [T]he significance in this case is probably more in the accumulation of so many many things that can be seen on the surveillance over so many days and comparing that with the plaintiff's story and when one considers what's put in the particulars, particularly in relation to her economic loss and the claim for damages, in my submission, your Honour, her surveillance footage, from what your Honour can discern from that your Honour has seen and from what's written in the reports, the picture that emerges from the surveillance dramatically contradicts her claims and it goes to the plaintiff's credit very much.
As to the further written submissions advanced by the plaintiff, counsel for the defendants submitted "we would dispute or raise issue with each of them". In that respect, it was contended: 1. In para 2 it is submitted that the case pleaded is that the plaintiff has, at best, a very limited ability to do the lawn mowing work. We agree with that. That is the way the case was pleaded, but it was not what was shown in the film in our submission. 2. In para 3 in the second or third last sentence it stated clearly if the plaintiff could do anything else making more money she would. We would say that that cannot be said to be clear or even arguable when one looks at her physical capacity. The job was performed over so many years in this work. The plaintiff has conceded more than once is hard work. 3. At para 4 it was submitted by the plaintiff that the fact that she may have denied or not recalled one or two matters that occurred more than three years ago. That is not however, accurate having regard to the film. 4. In para 5 it was submitted the surveillance material does not impinge upon her credit. That proposition is contested.

[16]

Plaintiff Submissions

In opposition to the tender of the surveillance footage, the plaintiff advanced the following submissions: 1. Reliance was placed upon the fact the material was not served in accordance with r 31.10. As such, save for the Court being satisfied that the defendant has a legitimate forensic purpose for not serving the material (see r 31.10(2)(a)), it ought to have been served at least 7 days prior to the commencement of the hearing. 2. The plaintiff observed that the defendant does not apparently seek to rely upon any report from a doctor who has viewed the surveillance material. Thus, there would appear to be no medical opinion on any of the issues in the case, particularly the issue of economic loss. In the absence of medical opinion, it was contended, the Court would not be assisted by the surveillance footage on the issue of economic loss or domestic assistance. 3. The only basis on which the film could, therefore, be admitted is that it has some value in relation to attacking the plaintiff's credit. To have any real effect in this matter, that is, to say to have any basis to propound that the film has a legitimate forensic purpose, the Court would need to be satisfied that what is shown in the film is so far removed from the evidence given by the plaintiff about matters shown therein that it would have some real effect upon her credit. It was contended that approach is problematic on two bases: 1. First, the plaintiff had agreed with senior counsel for the defendant in relation to just about everything that he asked her. She has not sought to hide, either in her oral evidence or in her histories given to the various doctors, the fact that she pushes a lawn mower for a living. She has not suggested to anybody that she is completely incapacitated in so far as work is concerned. What she does say is that when she does any of the heavier aspects of the job, which she mostly seeks to avoid and utilise the services of her son Christopher or her partner, she suffers for it. In response to one question by Mr Priestley she said that she takes Endone to manage the pain when she is working. She did not deny that she could not do these things shown. 2. Secondly, with the reliance upon the film is that she was cross-examined at a level of considerable generality. That is to say, specific dates and times were not put to her. Of course, even if that was done, she may not recall such dates. But simply putting matters in a general timeframe does not assist this Court at all in determining what the situation with the plaintiff was at any particular time. The only time that was even closely referred to is when she re-started work. The surveillance material commences in July 2017. The plaintiff was asked many questions about this. 1. What cannot be gainsaid is that she has been upfront, as far as her memory is capable, about her ability to work in circumstances where it would be unsurprising if she simply decided not to work anymore. As an example of that, the last set of surveillance covering the period before Christmas last year. It shows the plaintiff undertaking the tasks of which she gave evidence, namely, pushing a lawn mower around, using a small, apparently light weight whipper snipper and putting up signs and so on.
Turning to consider the footage in closer details, counsel for the plaintiff advanced the following submissions: 16. Further, what is seen in that surveillance is the plaintiff doing the work she says that she does, with pain, with the assistance, on that occasion, her partner. She gave evidence that her partner assisted her from time to time. Her son does not appear but all of the surveillance was undertaken on weekdays, not weekends when Christopher helps. 17. Other of the surveillance shows her doing lawn mowing, a couple of times a day as she said. Sometimes she does it without assistance, as she said she sometimes does. 18. The plaintiff emphasises that these are all matters that she said she can undertake. Further, the surveillance shows that the work she does, generally comprising 2 or 3 jobs on any given day, confirms that she cannot do the 6 to 8 jobs per day, 5 or 6 days per week, that she would do had she not been injured. 19. One also sees her shopping in the surveillance. Of course, that is consistent with what is contained in her evidentiary statement at [68] (CBP 112). That is to say Christopher does the big weekly shop but she is able to do small shopping herself every couple of days. It shows her doing things she says she can do.
As to the purpose of surveillance footage as relied upon by the defendants (and set out above), it was submitted: 1. As to the contention that surveillance footage reveals the plaintiff undertakes more work than she suggested, the plaintiffs evidence was that "she has done MORE work than is shown. The surveillance can't achieve the proposed purpose". Reference, in that respect, was also made to the fact the surveillance footage covers 16 days over a period of 880 days. 2. In the absence of medical opinion, the footage cannot establish the plaintiff has "greater physical capacity, and less restriction" that she has stated in her evidence, nor can it assist with the "assessment of various heads of loss". 3. The plaintiff rejected any contention that the material undermines her credibility. This is because "it does not show her doing anything she says she cannot do. And the Court should recall that she, unsurprisingly, has little recollection of the specific movements that she was questioned about".
In reply to the contentions at para 9, it was submitted: 24. So far as the matters contained in para 9 of the Defendant's submissions are concerned, contrary to the Defendant's submissions the only one she specifically denied was (b) and, I think, (c). These were a single incidents nearly 3 years ago. It can hardly provide grounds to suggest she is lying. 25. Some of the matters in [9] of the defendants submissions are easily met. She said she could do, or had no particular recollection of doing, the matters in (a), (d), (e), (f), (g) ,(i), (j), and (k) were all matters she agreed she could do. Of course (j) cannot assist because these were all week days. Finally, (l) does not impinge on the Plaintiff's credit unless evidence from a doctor says it does. 26. In those circumstances, what is there to be seen in the surveillance that is so inconsistent with her evidence that the Court should entertain an application to show surveillance film of more than 12 hours? The plaintiff's answer to that question is that there is so little value in what is shown in the film, indeed given her evidence no value, that the Court's time should not be taken up with showing this surveillance material.
The plaintiff also contended the Court would not accept the defendants' contentions that the plaintiff "tailored" her evidence to make it more like what is shown and that her evidence has "doubtful veracity". It was submitted both contentions are contrary to the evidence before the Court. In that respect it was noted, save for a couple instances, the surveillance footage shows "exactly what she says she can do" (see schedule of transcript references produced by the plaintiff). Further, the medical evidence "supports the plaintiff's case unreservedly".
The transcript references relied upon by the plaintiff, together with analysis by the plaintiff, is extracted below: T38.32 When the plaintiff first saw Dr Tait (October 2015) the plaintiff said that she would have been able to mow 6 to 8 lawns a day. That is to say the plaintiff told Dr Tait that her capacity to work, uninjured, was 6 to 8 lawns a day. T39.3 The plaintiff agreed that it was easier to walk forward pushing a mower because she had something to hold onto. T39.14 As at October 2015 plaintiff found it harder to work upright with a whipper snipper compared to pushing a lawn mower. T39.37 (During 2016 her business was) dropping off because I was in a lot of pain; in the end I just couldn't do any lawns. T41.47 (The plaintiff started mowing lawns and edges again) in around 2017, around the middle to end I'd say. T43.37 (The plaintiff was clearly unsure as to when she recommenced work but clearly it wasn't in 2016 as she was going to rehabilitation until January 2017). T46.19 The plaintiff gave evidence that she does a couple of jobs lawn mowing and edging on weekdays. This evidence does not seem to be constrained by a time period. She also gave evidence at T46.25 that she also works on weekends. At T46.29 she says she does more on Saturdays. T46.40 On the weekends Christopher goes with her. T46.50 The plaintiff agreed that she does have to bend from time to time. However, gave evidence in the previous answer that she finds it very hard. T47.6 The plaintiff agreed that she uses a whipper snipper which requires her to bend over to start it. T47.18 The plaintiff also agreed that's she has to bend over to start the lawn mower. T47.48 The plaintiff agreed that sometimes she needs to mow on slopes. T48.40 The plaintiff agreed that sometimes she has to empty the catcher. T49.2 The plaintiff agreed that sometimes she has to take the lawn mower up and down the ramp by herself. T49.22 The plaintiff said that she does not carry a hedge trimmer with her. However, the time to which that was meant to refer is unclear. Certainly, the surveillance shows her using a hedge trimmer in 2017 but not thereafter. T49.49 The plaintiff agreed she steps up onto the back of the ute. T50.5 The plaintiff could not recall jumping down onto the ground. Again, that was shown to have occurred in 2017, over 3 years ago. But she agreed in the next answer that she may have done it. T50.22 The plaintiff was asked whether she had ever lifted the lawn mower off the back of the ute without using the ramp. Her answer was 'not recently'. Again, that is consistent with what is shown in the surveillance. T50.35 It was put to the plaintiff that she can lift the lawn mower off and onto the truck without a ramp. Her answer was 'no'. Again, the question and answer would seem to refer to the present not some years ago when it is clear she did do it, as she said at line 22 on that page. T50.45 She was cross examined about bending her back to '90 degrees and hardly bending her knees'. Her recollection was that she did not. The following questions and answers clearly indicated that she was unsure about what in fact she did. Given that she had no particular reason to recall this it is hardly surprising. T51.39 The plaintiff was asked whether she put signs up since 2017. Her answer was 'maybe put one or two up, not anymore'. T52.42 The plaintiff agreed that she occasionally did jobs without anyone assisting her during the week. Following on she said that she was sometimes accompanied by her partner as can be seen in the surveillance. T57.27 The plaintiff agreed she collected scrap metal off the side of the road to sell. T59.18 The plaintiff agreed that when doing lawn mowing work in 2017 she would have been bending over from time to time. She went on to say that it set off pain when she did it. She went on to say then that if the pain was set off it didn't stop her doing the work. T61.3 The plaintiff did not accept that she was regularly lifting as part of her work. In the next answer she said her son was with her 'most of the time'. T61.28 The plaintiff agreed she may have been doing up to 6 lawns a week by December 2017. T61.47 The plaintiff was asked if she sometimes does whipper snipper work the answer was 'I do sometimes, yes'. She went on to agree that she lifts the whipper snipper up off the utility. All of that is shown in the film. Thereafter the plaintiff was cross examined about histories taken by Doctors. Presumably the intent of the cross examiner was to show that the histories that she had given did not align with the surveillance material. As the Court would be aware in Mason v Demasi [2012] NSWCA 210 the Court of Appeal cautioned that there was a restricted use that histories given to doctors could be put. This was because what the medical practitioner takes a history for is not the forensic purpose for which it might be used in Court (see also Simoes v Kel Campbell Pty Limited [2018] NSWCA 28.

[18]

Reply Submissions as to Transcript Reference

During oral submissions on the application, the parties each advanced submissions in reply to the respective transcript references relied upon in support or in opposition to a finding of a legitimate forensic purpose, namely, challenging the credit of the plaintiff.
Counsel for the defendants, in support of the relevant forensic purpose, contended that transcript references provided by the plaintiff as to her evidence support an adverse finding as to credit. In that respect, it was submitted: 1. As to T47.48, one can see that dispute between the cross-examiner on the one hand and the plaintiff and her counsel on the other, as to what she will concede and the evidence. It was submitted, it can only be read as a denial by the plaintiff that she does that and, in effect, has ever done it and the film shows her doing it on a number of occasions. In that respect, the extract relied upon is a good example of a credit issue which is assisted by the admission of the surveillance footage and, further, was a legitimate basis to withhold the footage until the witness was cross-examined. 2. As to T50.35, which concerns the plaintiff's denial that she can "lift the lawnmower off and onto the truck without a ramp", that extract is again relevant to credit, specifically, as to whether or not she can do a task as heavy as that and when one sees her doing it on more than one occasion, "there's no evidence whatsoever to suggest any deterioration since the time that she was seen to be doing that, it is a genuine credit issue as to whether or not she can now and has been able to for some years". 3. As to T50.45, which concerns "bending", and the plaintiff's submissions therein, it was submitted that "that is a matter about which the film speaks on many many occasions and it's also a matter about which it was therefore legitimate to withhold and it goes directly to her credit". 4. As to T51.39, which concerned whether the plaintiff had put up signs since 2017 and the plaintiff indicated maybe one or two but "not any more". It was submitted that this issue is relevant to credit "because the plaintiff has gone to the trouble, when one looks at all of her evidence, to try and create a picture of her advertising the business in its early stages and not in its later stages and I can take your Honour to the film in due course if necessary but, in my submission, even from reading the reports, she is putting up signs on a number of the only 16 days of the last three years that she has been filmed". 5. As to T52.42, the plaintiff agreed that she occasionally did jobs without anyone assisting her during the week. That is a credit issue because "one cannot fairly view the film and accept that she only - that to say that she occasionally does jobs without anyone is a fair reflection of the way that she's been working over those years". A similar submission was advanced with respect to the plaintiff's evidence as to the assistance provided by her son. 6. As to T61.3, the plaintiff gave evidence that her son was with her "most of the time". In this respect, reference was made to the absence of her son in the footage that traverses a 16 day period, excluding weekends. Whilst it was accepted that Mr McDowell said he only assisted on weekends, it was submitted: "that does not mean that it was accurate or honest to say that her son was with her most of the time".
As to the transcript references provided by the defendants, counsel for the plaintiff advanced the following submissions as to a selection of references: 1. As to T20.28, which concerned the assistance provided by Mr McDowell, it was submitted that caution should be taken to ensure not to examine the extracts, such as this, devoid of the surrounding context. It is true the plaintiff gave evidence that she relied upon the assistance of her son, but she also conceded that in the past she had undertaken the work by herself but it takes longer. 2. As to the instances in the surveillance footage in which the plaintiff is seen jumping off the ute, for example, which she had earlier denied doing, emphasis was placed on the fact the footage was taken "three years ago". As such, the plaintiff should not be criticised for faults in her memory. 3. As to the T38.13, which concerns the plaintiff's evidence as to putting up signs, it was contended that the defendant mischaracterised her evidence - as she does not deny that she put up more signs. In fact, she confirmed that she put up more signs. 4. As to T46.33, this aspect of evidence concerned working on weekends. In reply to that reference, it was submitted that no relevant issue appeared to arise. This was because none of the footage concerns weekend work. Further, "[i]t was not suggested to the plaintiff's son this morning that what he was saying about doing work most Saturdays, it wasn't suggested that that was untrue. So that evidence will be accepted". 5. As to reference concerning mowing on slopes, emptying the lawn mower catcher, using a hedge trimmer, jumping down from a vehicle, lifting the lawn mower off vehicle and bending back 90 degrees, reliance was placed on written submissions (summarised above). In supplementation, counsel for the plaintiff also submitted: Remembering that these were three years ago that this film was taken. One doesn't see, for example, hedge trimming, despite the best efforts of the surveillance operative, one doesn't see any hedge trimming at 2017, and your Honour will remember that's when she goes back to work. One doesn't see her jumping down from the vehicle or lifting the lawn mower in the last two or three years. So those issues are hardly matters that could be said to go to her credit in any way, shape or form. 1. It was conceded that there were at least two instances of the plaintiff giving incorrect evidence, namely, about jumping off the truck or carrying in 2017, or lifting the lawnmower off the Ute in 2017. However, it was contended that "[t]wo or three matters like that do not mean that your Honour should exercise your discretion to admit into this case 12 hours of surveillance material".

[20]

Ruling of the Court

There was no dispute that the defendants had not complied with the provisions of r 31.10(1). The surveillance footage plainly falls within the definition of "audio-visual recording" pursuant to r 31.10(4) and the plaintiffs were not given the opportunity to inspect the recording 7 days prior to the commencement of the hearing (in fact, the recording was provided at the commencement of the hearing). Whether the application to address the footage was admissible fell for determination for the purposes of r 31.10 under sub-rule (2).
By r 31.10(2), a party who fails to comply with subrule (1) may not tender the audio-visual recording except under two circumstances: 1. in the case of a "prescribed item" - where the court is satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item; or 2. in any other case - by leave of the court.
The defendants primarily relied upon the former basis but alternatively sought leave of the Court.
To constitute a "prescribed item", the audio-visual recording must be obtained "in connection with the relevant proceedings, by or at the request of a party, for the purpose of testing the credibility of a witness at the hearing". I accept the submission advanced by the defendants that the footage was obtained by Coles for the purpose of testing the plaintiff's credibility, inter alia, with respect to her volume of hours and jobs worked and to demonstrate, in that respect, that she has greater physical capacity and less restriction then set out in her testimony and in statements to medical practitioners.
Both parties produced schedules of transcript references and advanced submissions as to why the Court would or would not be satisfied that there existed a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item. The defendants, in that respect, emphasised that credit issues arise in several aspects of the plaintiff's physical capacity. Several instances were sited, including references relied upon by the plaintiff, in which the plaintiff either down plays, denies or does not accurately describe the reality of her capacity - which may be contrasted with the footage (for example, her capacity to bend and lift the mower off the ute). Reliance was also placed on the accumulation of issues referred to is as significant as the examples highlighted for the attention of the Court.
In contrast, counsel for the plaintiff rejected the assertion that the transcript references produced by the defendant support adverse credit findings and, as such, do not sustain a finding of a legitimate forensic purpose. In that respect it was contended that the plaintiff generally agreed with what is shown in the surveillance footage, further, it was contended that to criticise an absence of specification or certainty of memory recall as to matters that occurred over three years ago is not a sound foundation to doubt the credibility of plaintiff.
Following a consideration of the submissions advanced by the respective parties, together with reference to the transcript references relied upon and my own observations of the surveillance footage and the evidence of the plaintiff, the Court accepted the submissions advanced by the defendants, because there are significant discrepancies between the plaintiff's evidence as to her physical capacity and that shown in the surveillance footage.
The service of the surveillance footage in advance would have hindered the legitimate forensic purpose sought to be tested in the light of those discrepancies, namely, the credit of the plaintiff. It follows that in order to properly test the plaintiff's credibility, the surveillance footage could not be served upon the plaintiff prior to the trial. To do so may have permitted the plaintiff to tender her evidence, a consideration reinforced, in part, by the evidence given by the plaintiff in the trial.
I do not consider that the evidence in the footage assists or materially assists the plaintiff's case. Hence, the defendants satisfied, in my view, the provisions of r 31.10(2)(a).
If leave were required of the Court, in the examination of the alternative case brought by the defendants, I would grant that leave.
An issue has been raised as to the exercise of the Court's discretion. Whilst not precisely defined, I have assumed that the submissions in that respect were directed to the provisions of ss 135 and 136 of the Evidence Act. I do not consider that those provisions and the considerations within them in either case should result in the Court refusing to receive the evidence in question.
There was no suggestion that the material was misleading or confusing. Further, the evidence is plainly relevant and for the reasons given with respect to r 31.10(1) the evidence has a reasonably high probative value. The timing of the receipt of the evidence had, no doubt, a prejudicial effect but, in all the circumstances, not such as to make the evidence "unfairly prejudicial".
Therefore, to the extent that an application was before the Court under r 31.10 of the UCPR, it was granted. For completeness, to the extent that there was an objection to the evidence sought to be led in the form of the surveillance footage, the objection is overruled.
As to the other material tendered on the application, namely, surveillance reports and the issue of costs, the Court noted: A bundle of material came before the Court, and in particular surveillance reports for the purposes of ruling upon the application/objection. I have not admitted that material as it is not sought to be admitted in the application presently before the Court but have regard to it for the purposes of the determination I have made. I mention that fact because there is much of the material contained in the surveillance report which prima facie may be objectionable in its own right, save for the purposes of considering the application and objection in question. I have, for the purposes of s 135. Taken into account the consideration as to the operation of costs with respect to the present application. That is a matter that will remain extant in the Court's consideration of the proceedings but it's not one that I propose to pass upon at the present time in that respect. I mention the question of costs both in terms of the notion of there being an application but also in terms of the provisions of s 135 and the considerations as to costs that may arise in that context.

[21]

Plaintiff's Application to Tender the Report of Dr Fearnside

On 27 October 2020, the plaintiff sought to tender the report of Dr Fearnside dated 9 July 2020.
The plaintiff's application is brought pursuant to r 31.28, which is extracted below: 31.28 Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports and hospital reports on each other active party - (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion. (3) Except by leave of the court, or by consent of the parties - (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied - (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).
It is common ground that the provisions of r 31.28(1) and (3) would exclude the admission of the report of Dr Fearnside by virtue of the report being served contrary to an order of the Court, unless leave were granted by the Court to receive the evidence by virtue of the exception contained in the preamble to r 31.28(3) and r 31.28(4)(a).
The Court has a discretion to admit relevant expert evidence despite failure to serve a report in compliance with this rule (or any order or direction): Cameron v Baker (Court of Appeal (NSW), August 1980, unrep); Dawson v Hall (Court of Appeal (NSW), 29 July 1994, unrep). The discretion conferred by r 31.28(4)(a) is limited by the requirement that the court is satisfied there are "exceptional circumstances" warranting the grant of leave. The rule does not set out what constitutes "exceptional circumstances" - that assessment must depend on a careful consideration of the facts of the individual case: AWA v Independent News Auckland [1996] 2 NZLR 184 at 186.
In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66], Campbell J considered the meaning of "exceptional circumstances": [66] Another question of construction concerned "exceptional circumstances" in rule 31.18(4). In San v Rumble (No 2)(2007) NSWCA 259 at [59]-[69], I gave consideration to the expression "exceptional circumstances" in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4): (a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208). (b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913). (c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]). (d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913). (e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186). (See also State of NSW v Tyszyk [2008] NSWCA 107 at [206]-[207].)
The mere fact that an opposing party is aware of the contents of the report is not necessarily sufficient to justify leave being granted to excuse non-compliance with the rule: Carey v Gruzman (Court of Appeal (NSW), 10 April 1991, unrep) at [10]). On the other hand exceptional circumstances, sufficient to justify leave, may exist where the opposing party is not only aware of the contents of the report but has had ample notice of its likely tender (for example as a result of prior cross-examination) and the tender would not give rise to significant prejudice: State of New South Wales v Tyszyk at [188]-[208].
In State of NSW v Tyszyk, in making a finding of exceptional circumstances, Campbell JA observed at [207]: …the combination of the reports having been cross-examined on, the reports having been in the plaintiff's possession for nearly one year, the defendant having notified an intention to tender the reports, lapse of a reasonable time for the plaintiff to take steps to deal with the tender of the reports (which might or might not be 28 days), and lack of any identifiable prejudice would, in the absence of any other countervailing factors, amount to exceptional circumstances.
The plaintiff advanced the following submissions, consisting of relevant procedural background, in support of the existence of exceptional circumstances: 1. On 28 September 2017, the plaintiff had previously obtained a medicolegal report from Dr Yeo, a spinal and rehabilitation specialist. 2. On 22 June 2020, the proceedings were listed for directions before this Court. The plaintiff was ordered to serve any refresher medical evidence by 8 July 2020. 3. Dr Yeo has since retired. As such, it was not possible to obtain a "refresher report" in order to comply with the rules of the Court. 4. The plaintiff sought to obtain a report from Associate Professor Fearnside. Professor Fearnside, whilst being a neurosurgeon, is also a spinal specialist and thus has expertise similar to that of Dr Yeo. It was also noted Associate Professor Fearnside had available to him the same radiological material as was available to Dr Yeo. 5. In the plaintiff's submission the retirement of Dr Yeo constitutes exceptional circumstances warranting the grant of leave.
In written submissions dated 27 October 2020, the plaintiff advanced submissions critical of the late objection by the defendants, noting the report was served on 15 July 2020. Further, the plaintiff contended that upon review of all the medical evidence "it is difficult to see that the opinion of Professor Fearnside could take the defendants by surprise. Frankly, their own Dr Stephen provides a similar, poor, prognosis". Particularly reliance was placed upon these two factors in support of a finding that "there can be no prejudice to the defendant[s]" in admitting the report.
In light of the emphasis placed on similarities between the medical evidence, as a contraindicator against a finding of prejudice, the relevant submissions are extracted in full below (together with references to the court book provided by the plaintiff): 15. At CBP 262 Professor Yeo under the heading 'PAST HISTORY' recorded that the plaintiff had recently become interested in 'gardening activities'. However, he confirmed that she was unable to participate in any repetitive, heavy lifting, particularly that involving rotation. 16. Dr Fearnside on CBP 278 ([7.2]) refers to the plaintiff requiring assistance in her lawn mowing business and a resultant fall in her earning capacity. 17. Of course, Dr Giblin also deals with the matter. At CBP 270 under the heading 'Work' the doctor recorded that the plaintiff was able to do 3 - 5 jobs a week with her son to help. Dr Giblin observes that the plaintiff has a real restriction in her earning capacity. 18. Accordingly, on the issue of work capacity the Court would not be satisfied that there was any appreciable difference in the opinions of the two doctors. 19. In the conclave report (CBP 287) at [4] Doctors Giblin and Stephen also record a limitation in her ability to do her lawn mowing business because of her symptoms. 20. In regards to prognosis Professor Yeo at CBP 263, [5] recorded the possibility of some improvement but noted that the plaintiff would remain suspectable to recurrence of low back pain. That was particularly so where it involved the rotation of the lumbar struck and pelvis. He noted scar tissue had developed in the region of the L5/S1 nerve roots, clearly being a matter that leads to her current problems. 21. In his opinion (CBP 278, [7.4]) Dr Fearnside opined that her prognosis was 'pretty much as she now presents'. Like Professor Yeo he was of the view that she would continue to experience low back pain with radicular symptoms in her legs. He also noted objective evidence of a right L5 nerve root lesion, that being in the same area that Professor Yeo had referred to. He thought that her problems were permanent. 22. In the conclave report at CBP 288 Doctors Giblin and Stephen said this: 'The prognosis is not good. The plaintiff would continue to have severe problems with low back and leg pain into the indefinite future. Both doctors had also noted possible impingement on the exiting left L4/5 nerve root (CBP 287, [6]).' 23. When one reviews all the medical evidence, but particularly that referred to above it is difficult to see that the opinion of Professor Fearnside could take the defendants by surprise. Frankly, their own Dr Stephen provides a similar, poor, prognosis.
The tender of the report was objected by the defendants. Whilst accepting procedural history summarised by the plaintiff, counsel for the defendants also noted that report was previously sought to be filed in the proceedings and, on 15 October 2020, the Common Law Registrar ultimately made a determination unfavourable to the plaintiff.
The Court's ruling, in this respect, was provide via an email to counsel dated 28 October 2020. That email is extracted below: His Honour has considered the plaintiff's application to admit the report of Dr Fearnside of 9 July 2020. The application was opposed by the defendants. For the purposes of considering the application, his Honour had regard to the written submissions of the parties and the notice of motion supported by the affidavit of Ms Tanya To of 9 October 2020, which was heard before the Common Law Registrar. The application is refused.
The reasons for that ruling may be shortly stated: 1. On 22 June 2020, the plaintiff was directed by the Common Law Registrar to file and serve "refresher" medical evidence by 8 July 2020. Rule 31.28(1)(a) provides that each party must serve expert reports and hospital reports "in accordance with any order of the court". The report of Dr Fearnside dated 9 July 2020 contravenes the order of the Court in two respects: 1. being a report produced by a new medical expert, it may not be accepted as "refresher" medical evidence; and 2. having been served after 8 July 2020, it was, in any event, provided late. Accordingly, leave is required pursuant to r 31.28(3) and (4). 1. The plaintiff properly conceded that exceptional circumstances were required to be established to warrant the grant of leave to admit the report. In that respect, the plaintiff primarily relied upon the retirement of Dr Yeo. In an attempt to emphasis the importance of the expert, reliance was placed upon his expertise with respect to spinal injuries. 2. I do not accept that the retirement of one expert and the inability to produce a singular "refresher" report, in the face of substantial medical material, constitutes exceptional circumstances, particularly, in light of the fact that updated reports could instead have been obtained from either of the two treating neurosurgeons who have previously provided reports, Dr Tait or Dr Davidson, and thus, have been tendered under UCPR 31.28(4)(b). Such an approach was permitted and invited by the 22 June 2020 direction of the Court. 3. Further, the suggested course to introduce a potential fourth neurosurgeon into the plaintiff's case at a late stage of the proceeding must be balanced against the possibility to prejudice to the defendants, which is twofold. First, Dr Fearnside's report, notwithstanding any similarities as to medical opinion, is not a "refresher report" - it is fresh evidence. The defendants correctly submitted that the report introduced a further element to the plaintiff's case relating to spondylitic change at L4/5, and raised the possibility of an acceleration of degenerative change at that level, (adjacent to the fused level). Whilst there may be matters of concurrence of opinion between the experts, to which the plaintiff identified and relies upon to counter arguments of prejudice, the relevance of this new information was not addressed. 4. The overall lateness of the sought tender is particularly relevant in light of its proper characterisation as fresh evidence. 5. In all the circumstances, I find the plaintiff has not established exceptional circumstances that would warrant the grant of leave to admit the report of Dr Fearnside.

[22]

Defendants' Submissions

Turning to the credit of the plaintiff, counsel for the defendants contended the Court would not accept the plaintiff as a honest or convincing witness. That contention was supported by reference to the plaintiff's evidence during cross-examination and in particular, the contrast between her manner of answering questions prior to viewing the surveillance footage. Counsel for the defendants also sought that the Court place particular weight upon the surveillance footage in its assessment of the plaintiff's credibility vis-à-vis her account of physical limitations, capacity to work and pain. It was also contended that the surveillance footage casts doubt upon aspects of the medical evidence that relied upon the plaintiff's self-reporting.
Counsel for the defendants contended the plaintiff was "an entirely unconvincing witness". She was "terse and guarded" in her answers. She would continually adjust her evidence where she perceived there may be risk to her in not doing so. This was particularly evident with respect to her evidence concerning her various work activities, the putting up of signs for the business after surgery and the proportion of customers who paid cash. During oral submissions, it was submitted: "her approach to questions seemed to be, I don't want to deny anything outright, but I don't really want to admit anything outright. She was quite aware, it would seem, of the risks in doing either".
The ultimate example, it was contended, was an attempt by the plaintiff to "sweep away so much of what was inconsistent in her evidence when compared to the surveillance footage". It was submitted that the plaintiff "insisted" that she had testified that her condition had deteriorated since 2017 (reference was made to T107.7). The transcript, it was submitted, reveals this too was untrue. The relevant portion (together with a portion of the cross-examination that follow) relied upon appears below (T107.7-26): Q. Do you know when you gave that evidence? A. Yesterday. Q. You saw yourself, did you not, on 8 November 2017, lifting a lawnmower off the utility tray? A. Yes, I don't remember doing it. I usually do use the ramp. Q. Yes. A. It's a long time ago. Q. Yes, and at that time, you didn't have any back pain or back restriction that stopped you doing that, did you? A. That's not true. Q. In fact, did you also see yourself lifting it from ground level, with straight legs, up onto the tray of the utility? A. Yeah, very difficultly. Q. Ms Pike, has your back completely recovered since that surgery in 2016? A. No, it hasn't.
There were no accounts of worsening symptoms or disability in the plaintiff's evidentiary statement, or the medical histories, and the court can be quite confident, it was submitted, that had there been any genuine deterioration, evidence would have been led of this chief.
There were numerous examples in the plaintiff's oral evidence of her reluctance to admit the true position as relevant to her capacity, which may be contrasted with the capacity displayed in the surveillance footage. The defendants, in this respect, repeated earlier submissions advanced on the Markus application. In the surveillance the plaintiff can be seen: 1. bending her back to 90 degrees whilst barely bending her legs, on numerous occasions throughout one day (4/4/18 at 7.40 and following, 16/12/19 at 9.10 and following); 2. jumping down from the tray of her utility to the ground below (8/11/17 at 9.49 and 12.45); 3. lifting the lawnmower off and on the utility tray without a ramp (8/11/17 at 9.58, 10.07, 14.15 and 14.29; 9/11/17 at 10.44); 4. lifting and emptying apparently full grass catchers (27/7/17 at 11.33, 3/4/18 at 10.07, 30/11/18 at 11.59); 5. pushing the lawnmower uphill (10/11/17 at 10.21, 4/4/18 at 8.50; 5/6/18 at 8.49); 6. using a hedge trimmer to trim hedges (8/11/17 at 8.56); 7. using a step ladder to trim hedges (8/11/17 at 8.57); 8. working as early in time as 26 July 2017 (1st report); 9. doing numerous jobs on weekdays (every day of the 16 days recorded was a week day); 10. doing numerous jobs without her son present (her son is not seen to be present on any occasion); 11. doing many more than 3 or even 6 jobs in a given week (2nd report; 3rd report; 5th report; the other reports also suggest as much); and 12. ultimately, performing all the tasks she undertakes in this work in an apparently fluid, efficient and unrestricted manner.
It was contended that each of the above listed matters were put to the plaintiff during cross-examination and were either denied by the plaintiff in her evidence, or not admitted by her in her evidence, or is otherwise inconsistent with other aspects of her evidence.
It was also noted, the surveillance footage included footage of the plaintiff attending to a job in July 2017. In that footage, the plaintiff does not appear to be exhibiting signs of pain and/or physical limitation. This visual representation of the plaintiff at that time stands in contrast with her description of symptoms to her treating surgeon on 17 July 2017. The surgeon recorded she was "very much debilitated". It was submitted there is no real room to think that they can be reconciled because of the pervasive inconsistency between her complaints to doctors and her apparent capacity.
Whilst the contrast between the two portions of cross-examination reveal "a more concessionary approach in the further cross-examination after the surveillance footage was admitted into evidence" (see, in particular, T106-111), it was contended that the plaintiff still refused to face up to the fundamental question of capacity. The defendants contended, in that respect, that the plaintiff is fit to work and she has no basis to be on a Disability Support Pension.
Prior to the surveillance footage, counsel for the defendant questioned the plaintiff at length about her application and knowledge of the Disability Support Pension, together with the requirement to declare earnings to the Australian Taxation Office. The plaintiff gave evidence that she had received the pension since 2010 and gave evidence that, since that point, she had always been in receipt of that pension.
Building upon that accepted position, counsel for the defendant turned to the plaintiff's tax returns between 2016-2019. In summary: 1. The plaintiff accepted her "business income" for the financial year ending June 2016 was around $20,000. 2. The plaintiff also accepted that her business income for the financial year ending June 2017 was "nought". As to the difference between the two periods, the plaintiff said "I had my operation and I was quite bad afterwards". 3. As to her taxable income in the financial year ending June 2018, the amount recorded was $4,306. The plaintiff accepted that she "did a couple cash jobs" that were not declared but rejected the suggestion that she "earnt a lot of cash money" and did not declare. 4. As to her taxable income in the financial year ending June 2019, the amount recorded was $3,029. The plaintiff did not accept the propositions put to her, namely, that during that time she had worked nearly every week day and "received substantially more income than you've declared". 5. As to her taxable income in the financial year ending June 2020, the amount recorded was $2,630. The plaintiff again rejected the suggestion that she "received much more than that in that financial year from your lawn mowing business".
Following that cross-examination, the following exchange occurred: Q. … I suggest to you been declaring only those small amounts for the last three years so that your pension wouldn't be affected, isn't that right? A. No. Q. Do you maintain that you have no idea how much you can earn without affecting your pension? A. Yes.
The plaintiff also gave evidence that she never declared income earned relating to scrap metal. That evidence appears below: Q. Can we take it you haven't declared any money that you've made from doing that in your tax returns? A. I didn't know you had to declare scrap metal. It's an occasional thing.
Even the plaintiff's account that she had complete recovery from the November 2013 operation, it was submitted, must be strongly doubted. She was still complaining of back and hip pain 6 weeks after surgery (see CBP 241), her regular GP's clinical notes reveal complaints of back and buttock pain in mid-2014 (see CBP 512) and the same GP's notes record her symptoms from the fall in January 2015 with the note "exacerbate low back" (see CBP 521).
In all the circumstances, it was contended, the plaintiff would not satisfy the court that she has other than relevantly recovered, that is, recovered to the level she was or would have been functioning at but for the incident.
During oral submissions, counsel for the defendants was asked to consider the basis upon which, as a matter of evidence, the Court could properly come to doubt views expressed as to the existence of pain and its relevance to credit findings. Counsel for the defendants advanced the following submissions: 1. If all that is left in doubt is the level of pain, there is nothing in the surveillance footage that suggests she suffers any pain at work, such as facial expression, touching body parts, moving cautiously, or pausing. Whilst it was conceded, during oral submissions, that such observations are not of themselves conclusive, it was submitted, "if one watches someone doing hard work for a long period of time and can see nothing, that does start to become a quite material matter". 2. The fact that the plaintiff continues to undertake such work also raises the question, it was contended, "as to whether she would do it if it causes pain". Whilst accepting the plaintiff provides as least two explanations for her choice of work, namely, financial necessity and trouble sitting or standing for long periods of time, those explanations must be considered in circumstances where manual labour, it may be contended, is not the only option for the plaintiff. In that respect, reference was made to her prior experience as a bookkeeper. This submission will be returned to in the context of causation. 3. Reference was also made the medical evidence before the Court, in particular, that reported by doctors based upon the self-reporting by the plaintiff. It was noted that "her treating doctors have taken the approach that they probably should, which is to accept what she says at face value". The understandable nature of such acceptance is supported by the serious nature of the plaintiff's pathology in 2015 and 2016. Turning then to treatment targeting resolution of the plaintiff's symptoms, in particular fusion surgery, it was submitted that such resolution is a "reasonable prospect" that may have occurred in the case of the plaintiff. The only basis upon which that was not accepted, including by doctors, is because the plaintiff continued to complain of pain throughout 2017-2019.
In terms of credibility and assessment of the plaintiff's pain, that latter point concerning the plaintiff's self-reporting to medical practitioners, particularly in light of the surveillance footage, attracted considerable attention in oral submissions, to which I now turn.
As a starting point, counsel for the defendants contended that the Court should place "considerable weight" upon the surveillance footage when compared to the medical evidence. Three reasons were advanced in that respect: 1. First, the proper focus, in this respect, is upon the volume of work undertaken by the plaintiff, which is related to issues of earning and physical capacity. The doctors have a limited capacity, it was submitted, to comment upon the volume of work undertaken by the plaintiff. 2. Secondly, reference was made to the accepted utility of the medical reports, including with respect to medical history that touched upon the plaintiff's capacity or limitations as to work, but noting that the doctors did not have access to surveillance footage of the plaintiff's accounts of the work she undertook to factor into their diagnosis or prognosis. As with the first point, "this is a matter of degree". 3. Thirdly, "[i]t's not a matter at all of saying one has to accept the medical evidence unless the film is shown to the doctors. It's a matter of saying can and does the surveillance film cast doubt on the opinions of the doctors as they have put in their reports". Reference, in this respect, was made to Kubovic v HMS Management Pty Ltd [2015] NSWCA 315.
Without traversing submissions that will be advanced in the context of causation and/or damages, save for some minor overlap the following submissions seek to "cast doubt" upon particular opinions expressed in medical reports in light of contended unreliability of the plaintiff: 1. As to Dr Tait's observation in 2017, with respect to the plaintiff's "debilitation", it was contended: "she was not very much or much debilitated by her symptoms in July of 2017 except that she has back pain at the lumbo-sacral junction and by distribution, this is worse on the right than the left and also radiates into the hips … in my submission, one does not see bending avoidant behaviour in all of the hours of the film but trying to work out what objectively was happening is, of course, important for another reason". 2. As to the relevance of Dr Yeo's observation vis-à-vis "no localised muscle wasting", it was submitted: That examination, in my submission, is not entirely, or that finding, rather, is not entirely consistent with someone who was suffering from debilitating back pain from the surgery, and I say that, although even though it's not a reference to pain, because physically she appeared to be fit and strong and, in fact, we know that, at that time, she was because of what we see in the film only two months later in November of 2017 and that's important film because your Honour will recall that that's the date or the month in which I selected as one solid block of 55 minutes in which your Honour can see her working with substantial strength and fluidity but, nevertheless, Dr Yeo makes his findings about limitations of capacity to work that are seen over at p 263 where he says, at about point 2, "Ms Pike has a capacity...repetitive heavy lifting." He went on to say something about the need for domestic assistance but, in my submission, your Honour, that perhaps is a window into the reality in this case. This was the spinal specialist engaged by the plaintiff for her damages case and the only restrictions he considered that she had were to avoid repetitive heavy lifting. Your Honour, repetitive heavy lifting is obviously something that everyone should avoid and it doesn't suggest any particular medical difficulty, in my submission. 1. It should be noted, following that submission, it was conceded that the above observation as to Dr Yeo, as with all medical reports, should not be considered in isolation and, further, that aspects of Dr Yeo's report support the plaintiff's account of pain, for example, reporting of "evidence of localised inflammatory pathology in the region of the left sacroiliac joint and this is contributing to the nature of her recurrent bilateral low back lumbar pain". 2. As to the report by Dr Giblin, in particular his record that the plaintiff takes "twice as long" to do a lawn mowing job, in light of the surveillance footage, it was submitted: Your Honour only needs to return then again to the footage from November of 2017 to see that that description of all her work is quite misleading. There's nothing that can be seen in my respectful submission that would suggest that she is taking twice as long to do a lawn mowing job than she would or anyone ordinarily would, quite the contrary, faster than many would do it, "a piecemeal fashion", I don't know what that means but in my submission your Honour would get that from anything in any of the days of footage. Relying heavily on medication, that's what she maintains before your Honour, we cannot know, but importantly mowing lawns three times a week for an hour at a time certainly was not the case by November of 2017. 1. Additionally, arising from the contrast between what the plaintiff reported to Dr Giblin and what is seen in the surveillance footage, it was contended, "if one were to wonder about the solidity of that doctor's opinion about future work and future work capacity, your Honour would not confidently rely upon it". Counsel for the defendants submitted that Court should be cautious with the weight placed upon medical opinion to determine the plaintiff's capacity for work. 2. As to medical reports highlighted throughout oral submissions (which will be returned to below), in particular, opinions as to capacity to work, it was submitted: [Y]our Honour is not, as a matter of law, at all obliged to accept conclusions from the medical practitioners about matters such as her capacity for work, her future capacity for work, her capacity to do her own domestic chores, her current level of pain or even her likely future circumstances in relation to any of those matters. Indeed, in my submission, your Honour would look to medical opinions on those subjects only to the extent that your Honour was satisfied that the doctors were in a better position than you were, in all of the circumstances, to form views about those matters but, coming back to where I started, that's stands in stark contrast to medical opinion about matters such as pathology and diagnosis and the like.
In support of submissions concerning the credibility of the plaintiff, counsel for the defendant also provided a document entitled "Detailed Observations & Medical Histories Schedule". The observations are structured in chronological order, together with references to the relevant timestamp in the surveillance footage. Reference was also made to a selection of medical reports and clinical records, which it was contended support the submissions advanced by the defendants.
The defendants' submission was as follows.
Without setting out every observation, noting the Court has viewed the surveillance footage, the below extract sets out the defendants' observations with respect to medical evidence, in contrast to their observations of the surveillance footage: Thursday 27 July 2017 9.07 Plaintiff loads vehicle with mower, fuel cans and whipper snipper Drives to 143 Andromeda Drive Cranebrook 9.26 commences work - mower, whipper snipper, blower 10.26 Plaintiff drives through Cambridge Gardens, Werrington and St Marys, hammering advertising signs on telegraph poles 11.01 7 Glenview Street St Marys uses whipper snipper mower and blower 11.11 bending and walking briskly 11.26 Plaintiff drives through Claremont Meadows and South Penrith, hammering advertising signs on telegraph poles 12.00 contact broken. 28 September 2017 Dr. J Yeo Restricted ability to flex lower spine for lifting Completes with some difficulty most activities of daily living. Some limitation of household duties, particularly vacuuming, and is no longer able to participate in gardening or any lifting activity. She has more recently become interested in gardening activities but is unable now to participate in any repetitive heavy lifting particularly involving rotation. … Friday 10 November 2017 8.42 leaves 8.59 arrives 26 Fowler Street, Claremont Meadows Uses whipper snipper blower mower 9.59 to Calgaroo Crescent, Kingswood Uses whipper snipper and mower 10.21 mowing up slope 10.58 leaves. 11.28 arrives Coombes Drive, Penrith Uses whipper snipper, Blower, mower 1.16 leaves to Clark Rubber and McDonalds 1.58 contact lost 2.53 - 3.00 plaintiff not at home 11 December 2017 Dr. Giblin: Mows 3/week one hour at a time Can only lift light weights Relies heavily on pain medication Lawns done piecemeal, takes twice as long Son does vacuuming, mopping, cleaning, all gardening and hedging. 23 January 2018 Dr J Stephen son aged 20 does all the heavy housework and the garden. She can push a mower and actually mows three lawns a week. … Wednesday 4 April 2018 7.09 drives to 90 York Road, South Penrith Uses whipper snipper, blower, mower 7.40 bends, attempts to start mower over a period of minutes 7.46 takes shoes off and on standing up 7.51 bends and empties catcher 7.55 bends and empties catcher 8.08 Drives home, mower centre 8.28 arrives 125 Smith Street South Penrith 8.50 Uses mower, uphill slope 9.16 leaves 9.19 arrives 54 Jamison Road, Kingswood Uses whipper snipper, mower, blower 9.41 bends to fill bag 9.43 bends to fill bag 9.58 leaves, shops 10.13 arrives Susanne Avenue, Cambridge Park Uses whipper snipper, mower 10.29 carries full bag to bin 11.07 leaves 11.34 arrives Leanne Place, Quakers Hill Uses whipper snipper, blower and mower 12.21 enters another property carrying a bucket 1.01 climbs onto ute and bends 1.29 arrives home 1.30 observations cease. 4 May 2018 Ms S Zeman (NB Assessment was on 18 April 2018) "resuming her lawn mowing business on or around early December 2017, once again, continuing to gain assistance from her son on an intermittent basis dependent on symptom presentation." 11.6 Son works as a heavy vehicle diesel mechanic with Toll. Christopher McDowall 12.1.4 "Her physical performance was limited by significant fear avoidant behaviours" 14.7.2 Finds vacuuming painful, given forward flexion adopted in task performance. Relies on son for assistance. Increased pain with mopping and relies on her son Son does window cleaning and bathroom cleaning 14.7.3 Son hangs out washing and brings it in. Pl finds basket heavy to carry, and the repetitive bending to ground level aggravates symptoms 14.7.4 Son assists with changing sheets 14.7.5 Can lift whipper snipper , and can position ramp, and push mower up and down ramp. Seven hedges at home require weekly maintenance done by son 1 hour [Original emphasis by the defendants, to emphasise distinction between observations of surveillance footage and observations of medical evidence.]
In reply submissions, at the hearing, counsel for the defendant further submitted: Finally, your Honour, in relation to the suggestion that the plaintiff was a reliable or honest witness perhaps because she made some concessions, on the contrary, your Honour might well have thought that her partially qualified, guarded admissions such as they were entirely consistent with some apprehension on her part, she might've been observed lawn mowing some time over the last three years since she brought the proceedings.

[23]

Plaintiff's Submissions

The high point in the defendant's case in this matter, indeed probably the only material to which they can point as being in any way possibly contrary to the plaintiff's case, is the surveillance undertaken on her over a period of 2 ½ years. It is the cornerstone used by the defendants to challenge the credibility of the plaintiff, as such, the plaintiff focused its submissions upon that evidence.
First, at the outset of submissions, the plaintiff emphasised there is no medical opinion concerning the effect of the surveillance material on any of the issues in this case. If that surveillance has been the subject of any medical opinion, which one would ordinarily have thought it would have been, such opinion has not been tendered in this matter. The submission of the defendant would appear to be that the surveillance material shows that the plaintiff is not telling the truth about the nature and extent of her injury nor about her ability to work. One would have thought that such matters would have been put to her treating doctors, such as Drs Davidson, Tait or Ho. More so, one might have thought that an opinion from Dr Stephen or Dr Cochrane (whose report has not been served or tendered) would have been obtained. This did not occur. I will return to this submission in the context off causation and damages.
Emphasis was also placed upon the period of coverage and the footage captured. The surveillance footage covers 16 days over a period of about 883 days. The defendants' counsel put to the plaintiff a proposition to the effect that what was shown in the surveillance is what occurs all the time. She denied that. It was submitted, the surveillance is a "mere snapshot of her life". It is 16 days out of 883.
Turning to credibility, it was contended, to have any real effect in this matter the Court would need to be satisfied that what is shown in the film is "so far removed from the evidence given by the plaintiff about matters shown therein that it would have some real effect upon her credit". The plaintiff contended that reaching the requisite level of satisfaction is problematic for the following bases: 1. The plaintiff has agreed with senior counsel for the defendants in relation to just about everything that he asked her. She has not sought to hide, either in her oral evidence or in her histories given to the various doctors, the fact that she pushes a lawn mower for a living. She has not suggested to anybody, certainly not to your Honour, that she is completely incapacitated in so far as work is concerned. 2. What she does say, of course, is that when she does any of the heavier aspects of the job, which she mostly seeks to avoid and utilise the services of her son or her partner, she suffers for it. 3. In response to a question by Mr Priestley she said that she takes Endone to manage the pain when she is working. The relevant extract appears below: Q. Did you say to him something to the effect of it stopped you doing almost anything? A. It stops me doing a lot, yes and what I do do causes me a lot of pain. I'm on very heavy medication at work. Q. Do you say that the work that you do in your lawnmowing business causes you a lot of pain? A. It does, I take Endone afterwards and before. Q. I suggest to you that if that was true, you would not do nearly as much of that work as you do, isn't that right? A. No. Q. I suggest to you that if you needed medication to get on with the jobs of lawnmowing and edging, as much as you do, you wouldn't do that work, isn't that right? A. No. 1. The plaintiff was cross-examined at a level of considerable generality. That is to say, specific dates and times were not put to her. Of course, even if that was done, she may not recall such dates. But simply putting matters in a general timeframe does not assist this Court at all in determining what the situation with the plaintiff was at any particular time. 2. Further, what is seen in that surveillance is the plaintiff doing the work she says that she does, with pain, with the assistance, on that occasion, her partner. She gave evidence that her partner assisted her from time to time. Her son does not appear but all of the surveillance was undertaken on weekdays, not weekends when he helps.
Other parts of the surveillance showed her doing lawn mowing, a couple of times a day as she said. Sometimes she does it without assistance, as she said she sometimes does. The plaintiff emphasised that these are all matters that she said she can undertake. Further, the surveillance shows that the work she does, generally comprising no more than 2 or 3 jobs on any given day, confirms that she cannot do the 6 to 8 jobs per day, 5 or 6 days per week, that she would do had she not been injured. The relevant extract appears below: Q. Ms Pike, you do some of your lawnmowing and edging work on weekdays, is that correct? A. I do a couple of jobs if I can, if there are some small jobs. Q. On weekdays? A. Yes. Q. Do you also work on weekends? A. Yes, sometimes.
One also sees her shopping in the surveillance, which was not addressed by the defendants. That footage, it was submitted, is consistent with what is contained in her evidentiary statement at para 68. That is to say her son does the big weekly shop but she is able to do small shopping herself "every couple of days". It shows her doing things she says she can do.
Before being shown the film the plaintiff generally agreed with most of the propositions put to her by senior counsel for the defendant. As has been submitted, the failure to recall some matters in 2017 should not impact upon her credit. That is particularly so in circumstances where the lifting of the lawn mower or the cutting of the hedges is not seen to occur in the surveillance footage until after 2017.
As the defendants placed particular reliance upon the contended contrast between the answers prior to the surveillance footage against the answers after seeing the surveillance footage, the plaintiff identified a series of transcript extracts supportive of the immediately preceding submission. The below table set out particular extracts identified by counsel for the plaintiff, to highlight the "approach" taken by the plaintiff. Cross-examination of the Plaintiff Prior to viewing surveillance footage After viewing surveillance footage Bending Q. In your gardening and edges jobs, you have to do bending over, don't you? A. I do as little as I can, bending over, I find it very hard. Q. But you do have to bend from time to time, don't you? A. Yes. Q. Would you accept that you have to bend often in the ordinary job? Q. …The first thing I want to suggest to you is that you would have seen yourself bending over from time to time, do you accept that? A. No, not really. A. Yes, starting the whipper and that, yes. Q. When you're using the whipper snipper, you have to bend over to start it, don't you? Q. What I want to suggest to you is that you can be seen bending over without protecting your back at all, in other words, you're bending from the back and not from the knees, do you accept that? A. Yes. A. Yes. … Q. I suggest to you that if you had a bad back, in other words, you were feeling pain in your back or restriction in your back, you wouldn't do that, you bend from the knees and try and protect it, do you accept that or not? Q. If you were doing lawn mowing work at that time, you would have been bending over from time to time just to get through your work, wouldn't you? A. No. A. Yes. Q. It wasn't setting off pain when you were bending over at that time, was it? A. Yes, it was. Q. I suggest to you that if it had been setting off pain, you wouldn't have been doing work that required you to do bending, that's right, isn't it? A. No Slopes Q. Do you accept that you are seen in the film pushing lawn mowers uphill? A. I didn't see any hills, but I'm sure I've done it once or twice. Q. Sometimes when you're doing lawnmowing jobs, you have to mow on sloped lawns, is that right? Q. It would be wrong if you had said that only your son does that task, wouldn't it? A. My son mows those lawns if there's any slopes. A. I have said yesterday I have done it once or twice. Q. But sometimes slopes need to be done, don't they? Q. Are you sure that that's what you said yesterday? A. Yes, but I don't take many jobs like that. A. I'm pretty sure. Q. I suggest to you that you didn't say that at all, you said your son does it, what needs to be done. You don't accept that? A. I can't remember Lawn Mower Catcher Q. When the lawnmower catcher is full, it has to be emptied, correct? A. That's right. Q. You have to bend down, take it off, carry it and empty it, is that right? Q. It needs to be done, doesn't it? Q. I suggest to you that you are seen many times over the 16 hours emptying the grass catcher off the back of the lawn mower, lifting it up and taking it to empty it somewhere. Do you accept that that's depicted in the film without having seen it all or not? A. Yes. A. Well you have to do that when you mow lawns. Q. You do it, don't you? Q. So do you accept that it's shown in the film on a number of occasions at least? A. Sometimes. If it's very heavy my son does it for me. A. I haven't seen it. Q. What about when he's not there and it's full? Q. Do you doubt that if you were followed for 16 days that you'd be seen doing that on a number of occasions? A. I don't fill it all the way up. A. You'd have to empty the catcher I think. … Q. When it's full of grass it's heavy, isn't it?: Q. Sometimes you just jump down onto the ground, don't you? A. No, not all the time and I try not to fill it all the way. A. Not that I recall. Q. I suggest that when you lift the grass catcher to empty it you don't have any pain or restriction, do you accept that or not? Q. Do you think that you might have done that in the running of this business? A. Not with pain, no I don't, I have pain going on. I'm on heavy medication 10 every day. A. Possibly. Q. Do you think that you might have done it on a number of occasions? A. Not that I recall Lifting the lawn mower off the back Q. You saw yourself, did you not, on 8 November 2017, lifting a lawnmower off the utility tray? A. Yes, I don't remember doing it. I usually do use the ramp. Q. Yes. A. It's a long time ago. Q. Yes, and at that time, you didn't have any back pain or back restriction that stopped you doing that, did you? Q. Have you ever just lifted the lawn mower off the back of your ute without using the ramp? A. That's not true. A. Not recently. Q. In fact, did you also see yourself lifting it from ground level, with straight legs, up onto the tray of the utility? Q. That's something that you've done, isn't it? A. Yeah, very difficultly. A. Before I had the accident I did probably, yeah. Q. Ms Pike, has your back completely recovered since that surgery in 2016? Q. It's something that you've done since you had the surgery in 2016, isn't it? A. No, it hasn't. A. Not that I recall. Q. That's something that you could still do now, isn't it-- Q. That's something that you can do, isn't it? A. No. A. Not - no. Q. --that is lift the lawn mower up from ground level onto the tray of the utility, do you know how heavy-- A. I used the - Q. --sorry, go on? A. I use the ramp. Q. Yes, but you could lift it if you didn't have a ramp, couldn't you? A. I don't think so, no Whipper snipper Q. You do whipper snipper work yourself in your business sometimes, don't you? A. I do sometimes, yes. Q. …The first thing I want to suggest to you is that you would have seen yourself bending over from time to time, do you accept that? Q. You just pick the whipper snipper up off the utility and you start working on the edges, don't you? A. Yes, starting the whipper and that, yes. A. Yes.

[24]

It was contended that the plaintiff was an honest witness. She answered to the best of her knowledge. At times she may have been unable to readily provided specific times, but she was able to indicate acceptance and/or denial of propositions put to her.
She volunteered, without being pressed and obviously without anybody being able to have such knowledge, that on a couple of occasions she had been paid in cash and not declared it because she thought there was a limit that you could in fact do that for. But the trousering of a couple of $50 handed to her is not the sort of matter that should cause the Court to reflect adversely upon her credit. Certainly, she did not say that she did it to avoid tax, which would have to be the case since she did not earn anything like the taxable limit from this work. Nor did she do it to keep it from the Department of Social Security.
Counsel for the plaintiff further contended that, if the defendants wanted to suggest that the surveillance shows the plaintiff as being an exaggerator and able to do much more than she claims, then they ought to have obtained medical evidence on the point. It was submitted that the Court should reject the submission by the defendants that "[t]his is not a matter where it will apparently be necessary to provide the material to any of the doctors, but if that is considered essential it can easily be done". That submission, it was contended, almost recognises the problem with the surveillance footage and then suggests that such evidence can be obtained. Yet no doctor has been subpoenaed in this case.
As to the medical evidence before the Court, counsel for the plaintiff relied upon the consistency of that evidence: "all doctors who had provided a report in these proceedings accept that she has a significant injury to her lower back that is causing her a high degree of pain and that that will continue".
During closing submissions, counsel for the plaintiff replied to some particular submissions advanced by the defendant, which have bearing on credibility: 1. As to the plaintiff's choice to undertake lawn mowing work and the suggestion that she could do other work. Counsel for the plaintiff contended that the plaintiff's evidence, in that respect, is consistent with the evidence before the Court. Thus, not supportive of an adverse finding vis-à-vis credibility: Firstly, it's what she knows how to do, it's manual labour that she has done in the past. She started this business and the accident happened, she was on her way to building it up and it just obviously hasn't worked out. Secondly, she is not someone who would be a reliable employee now for two reasons. One, the Buerger's disease is a difficulty for her, although not a substantial difficulty and didn't stop her doing the lawn mowing. Also now, she can't sit for long periods, she can't stand for long periods, she can't walk for long periods. All of that is in her evidence, it's consistent with the histories given to the doctors, and it was not suggested to her that that was untrue. 1. None of the medical evidence concludes that the plaintiff does not have the capacity to lift up a lawn mower and put it down, namely, a reference to the conduct seen in the surveillance footage. Rather, the medical evidence indicates that the plaintiff "should not" be undertaking such work. The fact is that the plaintiff "has had a fusion to her spine and a discectomy. She's got a nerve root coming out that's being compressed, the L4 nerve root". That medical evidence is not disputed. It is clear that the plaintiff should not be doing the work seen in the surveillance footage. It was submitted "[f]inancial necessity has meant that that's what she does". 2. Focusing on the topic of pain, it was also submitted: "pain doesn't necessarily stop you doing things, pain just makes them harder to do, and that's her case". The plaintiff is able to continue her lawn mowing work, which causes pain, with the assistance of "very strong analgesic medication". Examples include: Endone, Lyrica and Mobic. 3. Returning to the submission that the surveillance footage provides a "snap shot" of the plaintiff's life, it was submitted the Court should be careful not to conflate all the dates or make the assumption it provides an accurate depiction of how she acts all of the time. This submission is particularly relevant in reply to the defendants contention that there is no overt signs of pain (whilst accepting such an observation is not conclusive). It was submitted: What we see are snippets, yes, she's pushing the lawnmower back in 2017 she's trimming the hedges, doesn't do that anymore, it's not suggested that that's untrue but there's all this period in between when we don't know what's going on, except she tells you and, in my respectful submission, you would accept her, that it's a problem for her, that it's painful for her to do these things. 1. In reply to the contention that the plaintiff was vacillating in her evidence, in particular the contention that she intentionally did not deny or admit anything outright, it was submitted: May I say, with respect, your Honour, that is firstly wrong. When she was cross-examined, before we were aware of the film, she admitted most things that my learned friend put to her. She admitted that she mowed lawns, that she pushed the lawnmower up and down the ramps. There were a couple of matters, in 2017, she said she didn't do but you would not accept that as being a credit issue. In fact, she made many, what might be seen as admissions against interest. I mean, the best of that is, oh well, I put the odd $50 in my pocket. She thought she had a reason that she was allowed to do that but, even if your Honour didn't accept that, it's neither here nor there in overall terms of her credit but to suggest that she didn't admit anything outright or didn't deny anything outright, that's just not true, your Honour. I'm sorry, not the deny, he didn't say that. She made very full and frank admissions and it is a matter, your Honour, on which I rely to say you would accept the truthfulness of the evidence that she gave.
As to the plaintiff's demeanour, counsel for the plaintiff submitted: TURNBULL: I would ask your Honour to accept this. Given that she has answered all of those questions that my learned friend put to her before disclosing the film, answered them, your Honour would accept, in an honest and frank way, she was forthright, she accepted things that - if you'd wanted to lie it would have been easy, not knowing that there was film, but that's not her case. She didn't exaggerate in my respectful submission, she didn't hesitate in answering, she gave admissions against interest. In my submission you would accept her evidence as being given in an honest and frank way. And indeed whilst there was some suggestion to her that she was perhaps exaggerating, it wasn't strongly pressed and in my respectful submission there are good reasons for that. She was asked, for example, well, do you actually take the medicine. Your Honour may recall that her answer was - perhaps indignation was a bit too strong - but her answer was very forthright, yes, of course I do. Why would you ask me that sort of thing. She is a woman, your Honour, who has suffered, she has suffered - sorry, there was one other matter before I conclude really. My learned friend told you this afternoon it is for the plaintiff to establish that her back is worse than it would have been, as I understood, but for the accident. There are two answers to that, no, it's not for the plaintiff to establish, it's for the defendant to establish it. The onus remains on the defendant if they wish to suggest that there are pre-existing factors or other factors that claim to this unrelated to the injury created by the tort, that is the defendant's onus, Watts v Rake makes that entirely clear. Secondly, even if it wasn't, the GP notes show the progression of the complaint of pain after she had this fall.
For completeness, during the course of closing submissions, the Court raised the following with respect to making a finding as to credit based upon observations via AVL (T143-144): HIS HONOUR: All right. While I am mentioning matters of that kind, a matter fell from Mr Priestley which I think I should take up with counsel, and that is this. There are credit issues in this case. My observations of the witness, namely the plaintiff, was entirely by means of audio visual link. I propose to make whatever determination I make as to credit based on my observations by that medium. If that represents an issue for either counsel, then it's as well that it be raised and that any accommodations or other approaches be identified. TURNBULL: I think from my perspective, your Honour, I don't wish to be heard on that issue. It is what it is and it's an unsatisfactory system that we have to deal with it, it seems to me. HIS HONOUR: All right. PRIESTLEY: Your Honour, can I but in and say in my submission your Honour can still make some observations of demeanour. Presumably, they would be more limited. I wouldn't have any objection to your Honour making observations through to me.
The defendants' contentions as to the credibility of the plaintiff traversed several categories which broadly concerned the plaintiff's capacity to work and related considerations as to her reliance on assistance from her son and her level of pain when undertaking lawn mowing and/or gardening work.
As to capacity to work, the sub-categories included the plaintiff's evidence as to bending, pushing a lawn mower on "slopes", jumping on and off the ute, lifting equipment and the number of jobs she undertook. It was contended that the contrast between the plaintiff's evidence as to those categories prior to seeing the surveillance footage and after, casts significant doubt upon the credibility of the plaintiff as a witness.
Whilst conceding some aspects of the plaintiff's evidence after viewing the surveillance footage may be properly described as "incorrect", counsel for the plaintiff disputed that a drastic contrast existed between the two components of the plaintiff's evidence such that would support the adverse credit findings sought by the defendants, and that, generally, the plaintiff did not challenge what was depicted in the surveillance footage.
I now turn to my conclusions in that respect, by examining each area of capacity/incapacity in turn, for the purpose of analysing the parties' cases on credit. The ultimate conclusion on credit must lie with an overall assessment of the evidence.

[25]

Bending

Prior to the surveillance footage, the plaintiff gave evidence that bending was an aspect of lawn mowing work and involved in her gardening and edges work. As to the latter, she said "I do as little as I can, bending over, I find it very hard". In response to the suggestion that in the course of her would she "can bend your back 90 degrees and hardly bend your knees", she said "no". Following that answer, she retreated away from that emphatic response. She stated she could not recall bending in that manner and said she was not sure how she positioned her knees or, for that matter, how she would bend.
It should also be noted that the plaintiff emphasised the difference between the occasional bending associated with lawn mowing work and the "continual" bending associated with mopping and vacuuming. She said "I can bend over to pick something up but I can't bend over and keep bending over". When asked whether bending was causing pain, at that time, she said it was. It was suggested if she was in pain she would not be doing that kind of work. She rejected that assertion.
The surveillance footage of 4 April 2018 and 16 December 2019 have several examples of the plaintiff bending her back fluidly and without restriction to 90 degrees over the course of one day. (There is also footage of her bending in July 2017.)Following the playing of the footage, the plaintiff accepted that she can be seen bending her back and, further accepted, she can be seen bending without protecting her back (ie from the knees). It was again suggested if she experience pain she would not bend in that manner. Again, consistent with her evidence prior to the footage she rejected that assertion.
My observations with respect to the plaintiff's evidence as to bending are that her evidence was not satisfactory. She was cross-examined at length about her capacity to bend in different scenarios. She did made concessions that she could bend in particular ways. However, prior to seeing the footage, the plaintiff did clearly exhibit significant reservations as to her capacity to bend "90 degrees", whereas, upon viewing the footage - she accepted she was, in fact, bending in that fashion with some regularity. Footage reveals her bending without objective signs of pain apparent in the video.

[30]

Conclusion

The defendant correctly submitted that the plaintiff's evidence before and after the surveillance footage reveals a shifting of evidence to adjust to the inconsistencies in her account. So much is evident from both the terms of her answers as I have discussed them and from the manner in which she gave her evidence. As mentioned, her evidence was somewhat collaborated to avoid risk before the surveillance footage and further adjusted afterwards.
Further, the surveillance footage is often inconsistent with the plaintiff exhibiting pain or physical limitation and demonstrates some resumption of functionality at pre-incident level.
Despite the evidence as to the underlying existence of pain there was the absence of facial expressions or the movements of the body demonstrative of pain being felt during the discharge of work.
The nature of the work and the activities shown in the footage, all of which are arduous, must raise doubts about the level of pain experienced at the time the footage was taken and the reports of medical professionals as to the same. The contention that the discharge of that work was necessary for financial reasons has a superficial attraction (in the sense of working through the pain) but some doubt must be cast upon that explanation because of her prior evidence of her experience in relatively light work as a bookkeeper (although some medical reasons were advanced for not taking up that work).
The credibility of the plaintiff's evidence as to her afflictions is also strained by the volume of work undertaken by her in the absence of her son and the passage of her evidence in which she insinuated her condition had deteriorated since 2017 (see transcript at 107).
Her evidence as to her availability for a disability pension must, in the light of the evidence, be doubted.
My overall impression is that the plaintiff's evidence as to the extent of her incapacity and as to the extent of the pain she expressed are exaggerated and that her concessions were tailored for the avoidance of exposure as to the true state of her capacity for work (including arduous work). I do not find that the plaintiff's evidence was untruthful as such but that the content and manner of it reflected very poorly upon her as a witness. I consider her to be an unreliable witness. In particular, her evidence is unsatisfactory as to the existence of incapacity and pain. This necessarily impacts her reports to medical professionals as to those states of being from time to time, and overall, suggests that the plaintiff has a capacity for even arduous work from the start of her lawnmowing business, even though she may have suffered some ongoing pain managed by medication..

[31]

Mr McDowell's Credit

In Mr McDowell's evidentiary statement, he gave the following evidence as to the assistance he provided the plaintiff following the incident: 1. He reduced his workload and declined overtime, resulting in a reduction in wages, "so I could help my mother around the household" (para 27). 2. He assisted with "general household duties such as cleaning, mopping, changing the bed sheet, washing, grocery shopping, scrubbing the bathroom and cooking at least 2 to 3 days a week". He estimated that the tasks "would take me about 12 hours per week to perform" (para 28). 3. "I also continued my mother's business activities during the weekend. My mother would only do the administrative tasks including bookkeeping" (para 30). 4. "I performed domestic tasks about 10 hours a week from the date of accident until mum's operation in June 2016" (para 31). 5. The plaintiff assisted with domestic chores where she could, Mr McDowell noted that he would hang and take down the laundry on the clothesline, "and once its dry mother will fold most of it" (para 32). 6. As to times spent assisting with chores post-surgery in June 2016, Mr McDowell said: "I undertook an additional 2 hours to the 10-12 hours I performed" for a period of around 6 months (para 33). 7. The plaintiff commenced lawnmowing work in "August 2018" (as previously mentioned, this was corrected at the hearing and changed to "2017"). Mr McDowell said that he had to manage this business in addition to working fulltime, most of the jobs were on Saturday and "I did pretty much [the] majority of the work" (para 35).
During cross-examination, Mr McDowell gave the following account of the plaintiff's lawn mowing activity: Q. After the accident she kept going off to do jobs in the Lawns 'n Edges business to your observation, is that right? A. After the accident? Q. Yes? A. Can't remember exactly. Q. Do you remember that throughout that year of 2015 she would be - you would see her either going off to work in her Lawns 'n Edges or coming home from work in that business? A. It's possible, yes. Q. Is it fair to say that you really don't have any idea how much lawn mowing work she did in 2015? A. Yes, that's fair to say. Q. Is it fair to say you don't really have any idea how much lawn mowing she did in 2016? A. I don't think she did much at all in 2016 because of her back. In 2017 around August she started back up on the lawn mowing.
Following a concession that he did not now how much lawn mowing work the plaintiff was doing in 2015, Mr McDowell appeared to reluctantly accept that he could not be certain, as stated at para 30 of his evidentiary statement, the plaintiff was only doing administrative tasks. That passage of cross-examination appears below: Q. Yes, but you don't know whether or how much work she was doing herself during the week, is that right? A. I don't believe she was doing that much at all in fact, not that I can remember. Q. Sorry, I thought you answered a question of mine a moment ago but in relation to 2015 you didn't really have any idea how much work she was doing herself, is that not correct? A. That's correct. Q. You say in that statement in the second sentence at paragraph 30, "My mother would only do the administrative tasks including bookkeeping", you see that? A. Yes. Q. But that's not right, is it, in fact you don't know that she was on administrative tasks, correct? A. Could not have had - well yes, she was, she was doing them. I thought you meant more in terms of actual physical work, not administrative and she was doing the quotes and booking in the jobs. Q. You do not know how much lawn mowing work she was doing in 2015, isn't that right? A. That's correct. Q. So it's wrong to say, isn't it, that she would only do administrative tasks, isn't it? A. I - guess so.
Counsel for the defendants pressed Mr McDowell about the error he corrected at para 35 of his statement: Q. Why did you, if you like say in that statement, August 2018 initially? A. I believe that was an error, both on either my part or the person who was writing up the statement at the time, because while I don't have a very good memory and I'd only had correspondence with that person twice when writing the statement, and that was a confusing time, trying to get a time - more correct. Q. You did your best, did you? A. Yes, at the time, but I had since reviewed it and corrected my mistake. Q. Yes, and how was it that you've come to realise that that was a mistake? A. Just trying to think back and place where I was at the time and where Mum was, and what I was doing around the time of the operation. Q. What happened, did you read this statement recently and realise it was wrong, is that what you're saying? A. Yes, that's correct. In reading through it and trying to make sure everything's to the best of my knowledge, and I realised that 2018 was incorrect. Q. Can I suggest that you wouldn't have noticed that that date was wrong in any way unless someone had brought it to your attention and suggested that it might not be correct, isn't that right? A. That's ..(not transcribable).. Q. When did you read that statement and realise the date was wrong? A. It was yesterday, when I was reviewing it, I'd printed it off the email, so off my account to review it before coming in today, and I realised straight away that it was incorrect. Q. In October of now 2020-- A. That is correct. Q. --you read your statement and you realise it should say 2017 instead of 2018? A. Yes. Q. You realise just from reading it on your own, is that right? A. Yes. It was a draft copy of the statement that I had printed off, so it was - like we might have fixed it up beforehand but it was not close. Q. Otherwise there's not one word in that whole statement that you would correct or change at all, is that what you say? A. Yes.
When questioned about the timing breakdowns provided in his evidentiary statement, with respect to hours spent doing chores, Mr McDowell consistently stated the figures provided were "an average". He also gave evidence that his brother assisted on occasion.
Counsel for the defendants contended that the evidence of Mr McDowell "regrettably bore the same character as that of the Plaintiff". His statements of the what chores he did, and more importantly why, it was submitted, could not be reconciled with the plaintiff's demonstrated strong physical capacity in 2015, and since 2016. Reference was made to T85.1-13, T87, T88 (extracts appear above). It was also contended that his estimates of time spent years earlier, as a teenager, were also "completely unconvincing" in any event.
As to the evidence of Mr McDowell, counsel for the plaintiff submitted: I should say briefly, your Honour, Christopher's evidence, again you would find him to have been an honest witness, he wasn't really challenged, it wasn't put to him that he wasn't telling the truth about the assistance that he's provided around the house. It may seem odd, your Honour, that the plaintiff can mow lawns but not do the chores around the house, but of course mowing lawns is something of an economic necessity, and just because - and she shouldn't have to do it - just like she shouldn't have to do the domestic chores, and the moment she relies upon Chris he says he wants to move out and that in my respectful submission rounds a claim for future paid care. Unless there's anything else, your Honour, they're my submissions.

[38]

Incident Report

As mentioned, on 21 January 2015, Ms Skinner prepared an Incident Report. The report noted that the location of the incident was in the "Car Parks" and that the weather conditions were "Fine". The plaintiff was identified as the injured person.
The following description of the incident was provided: Sequence of Events Leading Up To The Incident (By injured party): Customer was putting shopping into car, & stepped back into an uncapped drain. Description Of Incident (By injured party): Bruising & graze to skin on right leg.
The Incident Report indicated the "Possible Reasons For Fall" as "[o]pen drain in car park".
The injury was described as bruising and lacerations to the legs and ankles of the plaintiff.
The report also confirmed that the plaintiff sought medical treatment. She was taken to a doctor. It was also noted that "first aid [was] given by Coles staff".
Under the heading "Additional Information", Ms Skinner recorded the details of a follow-up conversation she had with the plaintiff on 5 February 2015. She relevantly recorded: Karen Skinner called Jacqui to see how she was. Jacqui advised that the haematoma on her leg had not gone down & she is planning to go back to her doctor tonight. She has already been to the doctor once & has had x-rays done, which did not show any bone damage. Jacqui is now complaining of knee & hip pain. She has a pre-existing condition which caused pain in her lower back & right hip for which she had surgery last year. Jacqui has advised that she will be seeking compensation for medical expenses & time off work - she has her own business. Jacqui has promises to send through photos of her injury.
The Incident Report also included a floor plan showing the location of the incident. The floor plan is extracted below. Ms Skinner identified the location of the incident by putting an "X" in the car parking space in which the fall occurred. Ms Skinner's original marking was black, however, to assist with viewing, the relevant annotation has been overlayed with colour.

[47]

ISSUES IN DISPUTE

The parties initially filed separate statements of issues in dispute outlining issues of dispute with respect to, inter alia, duty (in particular, issues concerning occupation), causation, nature and extent of the plaintiff's injuries, contributory negligence and damages.
The plaintiff's case was that the defendants owed the plaintiff a duty to take reasonable care to ensure that she was not exposed to unnecessary risk of injury. In summary, it is submitted: 1. The drainage pipe into which the plaintiff stepped clearly had its cover/cap removed. There was no evidence before the Court of a damaged cover, noting there were no screws in the hole, nor evidence from the defendants as to why or when it was removed. Further, the detritus surrounding the pipe, again, suggest a period of time has past with the cap missing. 2. The plaintiff did not see the uncapped drainage pipe because, whilst she put her groceries into the passenger front seat, the drainage pipe was initially concealed by the vehicle parked in the western bay.
By the close of submissions, the parties were in agreement as to the duty owed by the respective defendants and, in light of the Joint Expert Report, any dispute as to the seriousness of the plaintiff's injuries fell away. As to duty, counsel for the defendant conceded that both sets of defendants owed a duty of care to the plaintiff and the duty arose from "the circumstances in which they were each, in their own way, to some extent, occupiers, in the sense conventionally recognised under the common law". As such, "it could not be said on behalf of either sets of defendants that they had no duty to entrants to that property".
The plaintiff drew a distinction between Coles as occupier and the owners as the relevant owners of the premises. However, for the purposes of determining liability, senior counsel for the plaintiff recognised that the submissions advanced for the defendants had, in substance, accepted that Coles was the relevant occupier. For example, the following exchange with the Court occurred: HIS HONOUR: Is it not implicit, I hadn't really wished to excite a lengthy submission in respect of the question I was asking. TURNBULL: I'm sorry, your Honour. HIS HONOUR: But is it not at least implicit in Mr Priestley's submissions, around this topic, that Coles was the occupier for all relevant purposes? TURNBULL: I think that's right, your Honour. I think that's right, yes. HIS HONOUR: That might shorten things. TURNBULL: Yes, well, your Honour, my submission is that they're the occupier, they ought to have been the ones really who firstly could provide evidence as to what was going on and, secondly, should have resolved the issue.
Turning to the scope and content of each of the duties, whilst both sets of defendants conceded that Coles had assumed responsibilities for maintenance, subject only to matters of structural or capital repair, it was submitted that the Court should approach questions of liability with respect to Coles and the owners, respectively, "independently". In that respect, it was also submitted "issues about respective responsibilities do not need to be determined on the factual and legal issues in proceedings".
It being conceded that the defendants, respectively, owed a duty of care to the plaintiff, the primary area dispute remaining in the plaintiff's liability case was causation. Whilst a joint document was not filed, by closing submissions, counsel for the defendants confirmed the crux of the dispute with respect to liability was one of causation. As to the issue of causation, senior counsel for the defendants submitted: 1. in relation to Coles, "[liability] arises from whether or not had Coles had a proper system, this risk would have been identified and addressed"; and 2. in relation to the owners, "there was a sufficient discharge of the duty, in other words there was a duty as owners and to some extent occupiers, although having regard to the terms of the lease and the - that are taken through their commercial agents, such reasonable precautions as were required under s 5B of the Civil Liability Act were taken".
Section 5B of the Civil Liability Act 2002 (NSW) requires that the risk of injury, if appropriate precautions were not taken, be foreseeable and not insignificant. In the plaintiff's submission there can be little issue but that that risk was clearly foreseeable. The relevant risk of harm in this matter was identified as the risk that a person such as and including the plaintiff could step into a hole such as that that was uncovered and sustain injury. The defendants conceded that risk was foreseeable and not insignificant.
The position of the defendants is that the defendants, in their respective capacities, had taken reasonable precautions, which constituted an adequate response to the risk and there is no breach of duty by either Coles or the owners. However, the defendants concede that risk was foreseeable and not insignificant.
It might also be noted that the defendants' arguments as to contributory negligence was abandoned at the time of closing submissions. The relevant exchange appears below: HIS HONOUR: … The third question, in the area of liability and this time the final question is, should I take it that the issue of contributory negligence has fallen away from the way you've put your submissions? When I say, your submissions, your written submissions? PRIESTLEY: Yes, your Honour, there's nothing more I can say about it in light of the plaintiff's evidence.
I will return to the dispute vis-à-vis damages at a separate juncture, after considering the disputes as to liability.

[49]

Section 5B

The question of breach is governed by s 5B of the Civil Liability Act. The relevant sections of that Act are set out in Pt 1A Div 2 and extracted below: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
Consistent with my earlier observations, it has been repeatedly stated that identification of the relevant risk of harm is critical for a proper evaluation of breach of duty under the Civil Liability Act, because it enables assessment as to whether that risk was "foreseeable" for the purposes of s 5B(1)(a) of the Civil Liability Act, whether it was "not insignificant" for the purposes of s 5B(1)(b), and whether the defendant failed to take reasonable precautions in response for the purposes of s 5B(1)(c): see Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151; Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 at [35].
In a case where different risks are present, particularity is required: Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 at [116]; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 at [67]. That particularity requires some articulation of the general causal mechanism of the injury sustained: McKenna v Hunter & New England Local Health District [2013] NSWCA 476 at [266] per Garling J (in dissent, but not on this point).
As earlier found, the relevant risk of harm in this matter was the risk that a person such as and including the plaintiff could step into a hole such as that that was uncovered and sustain injury.

[51]

Section 5B(1)(c)

To establish breach of duty under s 5B(1)(c) of the Civil Liability Act, the plaintiff has the onus of demonstrating that a reasonable person in the defendant's position would have taken those particular precautions in response to the risk of harm.
Prior to reaching a conclusion as to s 5B(1)(c), as part of that evaluative process, the Court must evaluate each specified precaution against the mandatory considerations in s 5B(2) and s 5C of the Civil Liability Act: Bunnings Group Ltd v Giudice [2018] NSWCA 144 at [38]. The Court must also assess the cumulative effect of the various precautions deemed reasonable: Weber v Greater Hume Shire Council [2019] NSWCA 74 at [197].
The Court must turn to the second part of the enquiry posed by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48 now enacted under s 5B(1)(c)), namely, what a reasonable person in the position of the defendant would do by way of response to the risk. As Ipp JA said in Waverley Council v Ferreira [2005] NSWCA 418 at [47], s 5B(1) was adopted to emphasise to trial courts the distinct nature of these steps.
In Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103, Meagher JA observed at [54]: In assessing what reasonableness requires in response to a particular risk of harm, the reasonable person in the occupier's position is entitled to take into account "with due allowance for human nature, [that] a person he permits to be on his premises will use reasonable care for his own safety": per Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74; a passage cited with approval in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [45] fn 69 (Gummow J); [2007] HCA 42. The weight to be wgiven to that expectation is in each case a matter for factual judgment: Thompson v Woolworths (Q'land) Pty Limited (2005) 221 CLR 234 at [35]; [2005] HCA 19; and the matters to be considered include the "obviousness of [the] risk, and the remoteness of the likelihood that other people will fail to observe and avoid it" (at [36]). The Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) continued (at [37]): The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.
In Neindorf v Junkovic [2005] HCA 75, Gleeson CJ observed (at [8]): This development in the common law resulted in a generalised standard of care, described as what a reasonable person would, in the circumstances, do by way of response to a foreseeable risk. Developments in legal principle do not, however, alter the practical realities to which legal principle must be applied. The same problems of everyday living that were sought to be addressed by the old, categorical approach to liability still had to be accommodated by the new approach. Those practical realities include the following. Not all people live, or can afford to live, in premises that are completely free of hazards. In fact, nobody lives in premises that are risk-free. Concrete pathways crack. Unpaved surfaces become slippery, or uneven. Many objects in dwelling houses could be a cause of injury. People enter dwelling houses for a variety of purposes, and in many different circumstances. Entrants may have differing capacities to observe and appreciate risks, and to take care for their own safety. An ordinary kitchen might be reasonably safe for an adult, and hazardous to a small child. The expression "reasonable response in the circumstances" raises a question of normative judgment which has to grapple with all the practical problems that the law had earlier attempted to solve in the manner described by Professor Fleming. The problems did not disappear. They now require consideration under a somewhat different rubric. The fundamental problem remains the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises. That problem is no longer addressed by prescriptive legal rules which attempt to establish precise and different standards of care for different classes of entrant. Yet the problem remains.
It is also apt to recall what Gleeson CJ said in Jones v Bartlett (2000) 205 CLR 166 at [23]-[24]. The comments were directed to dwellings, but apply equally to outdoor amenities: 23 There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense. 24 In Phillis v Daly, Mahoney JA said: "There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed."
Bryson J (Meagher and Heydon JJA agreeing) warned in Waverley Council v Lodge [2001] NSWCA 439 at [29] about the difference between foresight of risk and an obligation to act on the risk: This passage, in which a majority of the High Court concurred, shows that decision on foresight of risk of injury is quite distinct from decision on reasonable response. Mason J's expressions show that foresight of risk is readily available, but they also show that foresight does not commit to action. Shirt's case does not in my view show a short pathway to a ready conclusion but requires the Court to address the degree and magnitude of the risk, its degree of possibility and other relevant factors, with openness to a possible outcome that no response should be made, even though simple and cheap measures can be suggested; those measures though simple and cheap may not be the response of the reasonable person. The facts of the instant case are to be addressed, and generalisations of outcomes cannot be reliable.
As to principles relevant to breach of duty, the following summary of principles set out by Basten JA in Weber v Greater Hume Shire Council [2019] NSWCA 74 is apposite (at [94]-[101]): 94 First, the requirement in ss 5B(2)(c) and 5C(a) that the court consider "the burden of taking precautions" refers, in relation to a public authority, to the allocation of necessary financial and other resources, additional to those already deployed, to achieve the precautions that would have been taken by a reasonable council, for the purposes of s 5B(1)(c). 95 Secondly, that assessment must take into account the additional burden which would be required to avoid "similar risks of harm" in other activities conducted by the authority: s 5C(a). 96 Thirdly, in determining whether it would be reasonable to require the taking of additional precautions, the court must apply as a principle the assumed fact that such financial and other sources as are reasonably available are "limited": s 42(a). That is not to say that the court cannot find that an additional allocation of resources was reasonably required to meet the risk of harm, so long as the broader inquiry, extending beyond the circumstances of the plaintiff's case, is undertaken in accordance with s 5C(a). 97 Fourthly, the reference to "functions required to be exercised by the authority" in s 42(a) is to be understood as referring to functions which may involve similar risks of harm, so as to operate coherently with s 5C(a). The phrase "the broad range of its activities" in s 42(c) would not, in the present case, require reference to the activities of the Council in maintaining libraries, roads or other services with no direct relationship to the operation of waste management sites. Nor would it include management of Council lands not used for waste disposal. 98 Fifthly, the court is not permitted to allow a plaintiff to "challenge" the general allocation of "those resources", being the resources that are reasonably available for the exercise of the functions identified in s 42(a), as understood in accordance with the broad range of activities identified in s 42(c). There is, of course, no reallocation of resources as a result of the court's order; rather, the defendant authority will be required to pay damages to compensate the plaintiff's loss. What is prohibited, however, is the conclusion that additional resources should have been made available, although they had, at the relevant time, been allocated to the exercise of other functions. 99 Sixthly, while there can be no challenge to the general allocation of the resources so identified, the court can conclude that more unallocated resources should have been provided. No claim in negligence against a public authority can succeed unless the plaintiff establishes that there were precautions available which a reasonable public authority in the position of the defendant would have taken. In most cases that will involve the putative allocation of resources at a time prior to the point at which the risk of harm materialised. 100 If this understanding of the operation of s 42 (read in the context of ss 5B and 5C) is correct, it is less likely, in comparison with a broader reading, that its application will disrupt the efficient disposal of the plaintiff's negligence claim. In any event, the purpose of s 42(b) is to prevent, rather than encourage, the tender of large volumes of accounting material by a public authority, as occurred in the present case. 101 Thus, the Council tendered evidence at trial from its general manager, Mr Steven Pinnuck, and an officer involved in preparing Council's accounts, Mr David Smith. Their statements annexed or exhibited more than 1,400 pages of financial reports. Of those, fewer than 250 were included in the appeal books. Even when questioned by the Court, a very small proportion even of those pages were referred to in the course of submissions.

[52]

Plaintiff's Submissions

The plaintiff claimed that the defendants failed to "take any or any adequate precautions for the Plaintiff's safety". The precautions to be taken were not otherwise particularised.
The plaintiff advanced the following submissions: 1. Given the fact that the car park was part of the supermarket and used for the purpose of parking cars so as to access the supermarket, Coles as "the likely occupier of the premises", ought to have had a system in place to ensure that holes or pipes such as that into which the plaintiff stepped, which clearly posed a danger to persons using the car park, were not left open. Further, given the nature of the detritus around the edge of the exposed drainage pipe it is clear that it must have been in that state for some considerable period of time. 2. A reasonable precaution Coles ought to have taken was to have the car park regularly inspected as part of a cleaning process or otherwise, which it did not. The following contentions were made in support of that proposition: 1. Senior counsel for the defendants agreed with that proposition, namely, that Coles had a duty to take steps. Reference, in that respect, was made to the following extract from the defendants' outline of written submissions: "In fact Coles did engage third party cleaners who were contracted to clean the car park 5 days a week" (para 12, Defendants' Opening Submissions). 2. As to the "no evidence" contention, it was submitted, the only lay evidence that has been put before the Court by any of the defendants is the statement of Ms Skinner. Whilst that statement attaches numerous documents, confirming correspondence between Coles and RHC, "[t]here is no evidence within that document that Coles had in place any system of inspection of its car park" (original emphasis of the plaintiff). 3. Further, reliance was placed upon the photographic evidence annexed to Ms Skinner's statement, as supportive of the "poor state of the car park" at least 10 months prior to the incident and, contended, "if there was a system of inspection and maintenance such system was entirely inadequate". 4. The failure of Coles to put before the Court any evidence of a system of inspection and maintenance in the car park, particularly in circumstances where senior counsel for the defendants has suggested that is what reasonable precautions on the part of Coles required, would suggest that "there was in fact no formal or effective system of inspection of the premises". That is a breach of Coles' duty. 1. Turning the duty of the owners to take reasonable precautions against the risk of harm. There is no evidence that Coles informed the owners of any capital or structural repairs or that the owners conducted their own occasional inspections. It was contended, in that respect, that the defendants' submissions at para 12 of the Defendants' Opening Outline is "devoid of any evidentiary basis". 2. There is no evidence of any system of inspection and maintenance. 3. As to the defence filed on behalf of Coles, it was submitted, it does nothing more than admit, deny or not admit various allegations. No positive allegation is made that: 1. there was in place a reasonable system of inspection and maintenance; 2. it was a defence to the plaintiff's case that it cannot be said how long the hole was uncovered; or 3. no reasonable system of inspection or maintenance would have been able to detect the risk of harm and address it prior to the plaintiff's accident. As each of those matters are matters which the defendant seeks to rely upon to defeat the plaintiff's case, they are matters that ought to have been pleaded so that the plaintiff was on notice that this would be an issue in the case. The failure to plead such matters means that the defendant should not now be allowed to rely upon them. In any event, the submission would fail as failing to have any proper legal basis. Reference in that respect was made to Strong v Woolworths Limited (2012) 246 CLR 182 ("Strong"). 1. In light of the authority of Strong, the following submissions were advanced: 1. The evidence of the plaintiff was that she arrived at the car park some time between 4.00pm and 4.30pm on Tuesday, 20 January 2015. There is no reason to assume other than that the supermarket had been open since at least 9.00am that morning as common experience would tell. 2. Further, there is no basis for concluding that the pipe became uncovered at any particular time rather than any other time. The probability is that it occurred in the 6 or 6.5 hours leading up to the plaintiff's fall rather than in the hour or so before that. Accordingly, causation is made out. 1. The defendants conceded that the risk was foreseeable. 2. Further, the risk was clearly not insignificant as evidenced, if nothing else, by the injuries suffered by the plaintiff. It was clearly open to anybody looking at that hole to see that if someone stepped in it accidently serious injury could occur. 3. In the circumstances, Coles ought to have taken precautions to ensure that the hole did not remain uncovered.
When considering s 5B(2) of the CLA, the plaintiff submitted: 1. Clearly in a car park that services not only Coles, but other stores, there was a high risk of harm occurring if care was not taken. 2. The seriousness of the harm cannot be underestimated. Stepping into a hole that is something like 9 inches deep, when one is not aware that it is there, was clearly going to present a risk of serious harm. 3. Coles was running a commercial operation in so far as it maintained its supermarket on the site. The car park was for the purpose of persons parking their cars and shopping in the Coles store. For those reasons Coles and/or the owners ought to bear the responsibility of taking precautions to avoid the risk of harm that was likely to occur if the hole remain uncovered. 4. There is no social utility in allowing holes to remain uncovered in car parks such as this.
During the plaintiff's opening statement, it was stated: [T]here is no lay evidence from Coles at all, so there is no evidence of any system of inspection or cleaning Further, the statement of defence, filed by Coles, makes no plea that they had in place a system or had in place a contract to put in place a system of inspection. So there is no pleading about inspection and there will be no evidence about a regime of inspection. Simply put, there is just no evidence that they had a regime of inspection at all and the photographs that I took you to at 199, the first photographs, would frankly suggest that certainly as at March 2014, if they had a system of inspection and maintenance, it was not a very good system because there is a lot of, as at March 18, a lot of problems, as one can see, in those photographs. So, your Honour, our case would be that your Honour could easily form the conclusion, come to the conclusion that this cover was likely removed deliberately, that it was removed some considerable time before Ms Pike stepped in and that in those circumstances, Coles and/or the Solomons, and there was a dispute between those two parties, about who had the obligation here, did not have in place a proper system of inspection and allowed the hole to be uncovered and quite possibly caused the hole to be uncovered, creating a hazard to people like Mrs Pike who was using the premises. One might have thought that Coles would have some evidence about this, but, as I said, there is no evidence about what in fact occurred in relation to that hole at all because Coles has not put on any lay evidence at all.
During closing submissions, counsel for the plaintiff supplemented the above submissions with the following: 1. Building upon submissions advanced with reference to the "probabilistic reasoning" of Strong v Woolworths, reference was made to the usual trading hours of the shopping centre: "an 8am start on every day" and the defendants contention that a reasonable system of inspecting the car park would be daily. It was contended the Court may be inclined to find that "because, presumably, they have people going round collecting trolleys, that it should be a bit more than that but the problem is, we don't even know whether the hole was exposed only that day or days before". Hence, applying the approach of Strong, the issue of causation is made out. 2. Emphasis was also placed upon the photograph of the exposed drainage pipe, which, it was contended, supports a finding that "that this was not a situation where the cover was broken. It has clearly been removed". The conclusion is available, it was submitted, because there are no signs of broken pieces or screws in the hole. Further, there was no evidence produced by the defendant as to how that came to be the case. The combination of those two facts, namely, the absence of damage and the absence of explanation/evidence from the defendants, it was contended, support a conclusion that, at some point, someone on behalf of Coles or the owners "removed the lid and had not chosen to tell anybody about that". There is a strong inference that "somebody has removed that lid and not replaced it". As to this submission, it was noted that the probabilistic reasoning in Strong "is not relevant because it's a positive action by the defendants, I'll use that plural, that has created the hazard and obviously therefore they would be aware of it". 3. Thus, it was submitted, the issue of causation is "easily made out" if the Court accepts that either somebody from the defendants removed the cover or it was removed for such a period of time that a reasonable system should have discovered it (noting there is no evidence of such a system before the Court).

[53]

Defendants' Submissions

Turning to the question of breach, counsel for the defendants advanced the following submissions.
As to Coles, it was contended that there was no longer any issue or submission to be made as to breach, the issue of liability being confined to causation under s 5D of the Civil Liability Act.
Nonetheless, it was contended the Court should identify the precautions Coles should have taken in order to properly address the question of liability.
As to the owners, regard must be had to factors: 1. As earlier mentioned, the defendants conceded that Coles had assumed responsibilities for maintenance, subject only to matters of structural or capital repair, which "put the onus on a large commercial operator in Coles to maintain the car park". 2. The owners had their own commercial agents going around from time to time to inspect the condition of the property. Being a reference to work conducted by Ms Skinner of RHC.
By taking those steps, it was contended, the owners had adequately discharged their duty to take reasonable precautions for the purposes of s 5B of the Civil Liability Act.
It was also contended that in assessing the same, the fact that the owners were "owners of commercial property upon which there were other independent commercial operators there operating and occupying the property pursuant to lease with associated obligations for maintenance for all of the property", should be taken into account.
The defendants have properly conceded the question of breach with respect to Coles. The provisions of cl 29.7(a) of the lease plainly provide that Coles was required, at its expense, to repair and maintain the car park.
The risk of harm in this matter is the risk that a person would step into a hole that was uncovered and thereby sustain injury. The hole was located in the car park and, self evidently from the photos of the hole after the incident, was in need of maintenance or repair.
The reasonable precautions to be taken by Coles in that respect, having regard to its obligations under the lease involved, in order to properly maintain and repair the car park, regular inspection of it.
Thus, a system of inspection by means of cleaners or other persons to inspect the car park would have been required as reasonable precautions. There would seem to be no dispute that a daily inspection would have been reasonable, workable and appropriate in that respect.
There was no evidence of a system of inspection by Coles, but there was evidence of Coles being aware and reminded of its obligations in that respect before the incident as to the state of disrepair of the car park and Coles' responses taking steps under the lease. The hole into which the plaintiff stepped was indicative of a state of disrepair. Coles was required to take reasonable steps to effect maintenance and repair of the car park.
In those circumstances, it may be concluded that Coles failed to take reasonable precautions, either by failing to have and applying any system of inspection, maintenance and repair, or adopting a system which was wholly inadequate in its terms or application in that respect for the purposes of s 5B of the Civil Liability Act.
I consider the submissions of the owners to be correct in this respect, namely, the owners had adequately discharged their duty to take reasonable precautions for the purposes of s 5B. The owners were owners of commercial property which was leased to a large commercial operator with specific obligations to maintain the car park. They reminded and pressed Coles to fulfil those obligations and with reasonable frequency, inspected the condition of the property to ensure the obligations were met and took steps to remediate the property including the car park either directly or through the contractor.

[54]

Section 5D

The question of causation is governed by s 5D of the CLA. The relevant sections of that Act are set out in Pt 1A Div 3 and extracted below: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
The application of the CLA requires the plaintiff to establish factual causation and scope of liability. The plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: s 5E of the CLA.
The relevant authority on causation was summarised in Weber v Greater Hume Shire Council [2018] NSWSC 667 at [85]-[94], which I adopt and extract below: 85 The traditional approach to the question of causation requires a determination of a question of fact, namely what was the cause of a particular occurrence: Fitzgerald v Penn (1954) 91 CLR 268; Stapley v Gypsum Mines Ltd [1953] AC 663; [1953] 2 All ER 478 (at 681). This factual determination is generally described as the "but for" test or "causa sine qua non". 86 The common law approach to the issue of causation has since developed by reference to two distinct considerations, succinctly set out by Mason CJ in March v E & MH Stramare Pty Ltd (1991) 99 ALR 423; [1991] HCA 12 ("March v Stramare") (at 430) and summarised as follows: (1) The application of the "but for" test (as well as the further question of whether a defendant is contributory negligent for damage if his or her negligence has played some part in producing); and (2) The applicability of value judgments and considerations of policy. 87 In March v Stramare, the High Court ruled that the "but for" test should not be treated as the definitive test of causation where negligence is alleged. Rather, in certain circumstances, causation is to be determined by policy and/or a value judgment involving ordinary notions of language and common sense. 88 This development addressed the oft-cited difficulty in application of the "but for" test in circumstances where there were two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The limitations of the test, particularly where there are two or more acts or events, each of which would be sufficient to bring about the plaintiff's injury, or where a defendant seeks to rely upon a "supervening cause" or "novus actus interveniens", are well established: March v Stramare at 430; Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 ("Chapman v Hearse") at 124-125. This difficulty was summarised by Mason CJ (March v Stramare at 431-432) and extracted below: … the "but for" test does not provide a satisfactory answer in those cases in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation which would otherwise have resulted from an earlier wrongful act. Many examples may be given of a negligent act by A which sets the scene for a deliberate wrongful act by B who, fortuitously and on the spur of the moment, irresponsibly does something which transforms the outcome of A's conduct into something of far greater consequence, a consequence not readily foreseeable by A. In such a situation, A's act is not a cause of that consequence, though it was an essential condition of it. No doubt the explanation is that the voluntary intervention of B is, in the ultimate analysis, the true cause, A's act being no more than an antecedent condition not amounting to a cause. But this explanation is not a vindication of the adequacy of the "but for" test. The facts of, and the decision in, M'Kew illustrate the same deficiency in the test. The plaintiff would not have sustained his ultimate injury but for the defendant's negligence causing the earlier injury to his left leg. His subsequent action in attempting to descend a steep staircase without a handrail in the normal manner and without adult assistance resulted in a severe fracture of his ankle. This action was adjudged to be unreasonable and to sever the chain of causation. The decision may be explained by reference to a value judgment that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant's wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff. But in truth the decision proceeded from a conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action. The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk: see Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN(NSW) 1070. To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content. … As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the "but for" test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it. 89 Deane J also relevantly observed (March v Stramare at 435-436): … the mere fact that something constitutes an essential condition (in the "but for" sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a "cause" of that occurrence as a matter of either ordinary language or common sense. Thus, it could not, as a matter of ordinary language, be said that the fact that a person had a head was a "cause" of his being decapitated by a negligently wielded sword notwithstanding that possession of a head is an essential precondition of decapitation. Again, the mere fact that a person makes a gift of money to another is not, in any real sense, a "cause" of the damage sustained by that other person when his agent negligently loses the money notwithstanding that the loss would not have occurred "but for" the original gift. As Lord Reid pointed out in Stapley (at 681): The question [of 'what caused an accident from the point of view of legal liability'] must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally. 90 Further relevant developments by the High Court, cited in March v Stramere, included the following: (1) In Chapman v Hearse, the High Court rejected reasonable foresight as a test of causation (at 124-5). Rather, "it marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act" (at 122). (2) In Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 1 59 ALR 722; [1985] HCA 37, the High Court observed (at 725): A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens: M'Kew v Holland & Hannen & Cubitts [1970] SC(HL) 20 at 25. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone: see Chapman v Hearse (1961) 106 CLR 112 [at 124-5]. Whether such a line can and should be drawn is very much a matter of fact and degree (ibid, at p 122). 91 The two-fold common law approach in March v Stramare, set out above, is now reflected in s 5D of the Civil Liability Act. A determination that the defendant's negligence caused particular harm requires satisfaction of the following: (1) whether the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (2) whether it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). 92 Causation will be established if the evidence justifies, in light of the statutory test, a finding or inference of "probable causal connection between the breach of duty and the harm suffered": C Sappideen and P Vines (eds), Fleming's The Law on Torts (10th ed, 2011, Thomson Reuters) at 226-227. If the probable causal connection is established, the law treats as certain that to which there may be no conclusive answer: Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5 at [70]. 93 Causation in tort is not established because a tortious act or omission increases the risk of injury, even though the relationship between risk and causation must be assessed. The mere existence of an association between one occurrence and another does not, of itself, establish factual causation for the purposes of s 5D(1)(a). 94 In Carangelo v State of New South Wales [2016] NSWCA 126 ("Carangelo") at [71], Emmett AJA (with whom Macfarlan and Gleeson JJA agreed) stated, in this respect: 71 Causation in tort is not established merely because the allegedly tortious act or omission increased a risk of injury. The risk of an occurrence and its cause are quite different things. However, the relationship between risk and causation must be considered. Ordinarily, risk refers to a challenge or danger, or the chance or hazard of loss. The existence of an association or a positive statistical correlation between the occurrence of one event, and the subsequent occurrence of another, may be expressed as a possibility which may be no greater than a real chance that, if the first event occurs, the second event will also occur. The mere existence of such an association or correlation does not justify a statement relevant to factual causation in law, that the first event creates or gives rise to or increases the probability that the second event will occur. Such a statement contains an assumption that, if the second event occurs, it will have some causal connection to the first. However, if the association between the two events is shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the first event has been at least a contributing cause. An inference of causal connection may be reached on the balance of probabilities after the event, notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a mere possibility or a real chance that the second event would occur, given the first event. (Amaca Pty Limited v Booth [2011] HCA 53; 246 CLR 36 at [41]-[43]).
I will turn to the judgment of the High Court in Strong below.

[55]

Plaintiff Submissions

As to causation the following submissions were advanced: 1. When looking at s 5D(1) it is clear that the reason the plaintiff was injured was because of the negligence of the occupier of the premises. Thus, negligence was a necessary condition to the occurrence of the harm. 2. It is obviously appropriate for the scope of the occupier's liability to extend to the harm caused to the plaintiff given that the car park was provided by the occupier to members of the public for the purpose of accessing the Coles store.
The following aspects of the evidence before the Court were also highlighted in support of the plaintiff's claim: 1. The plaintiff relies upon an evidentiary statement of herself and Mr McDowell, in particular, her summary of what occurred on the day of the incident at paras 40-44 of her statement. As earlier mentioned, counsel for the defendants does not cavil with the plaintiff's summary of the incident (noting earlier arguments of contributory negligence were since abandoned). 2. It is the plaintiff's case that the uncovered hole presented a serious, and to large extent, hidden danger in the car park. A close examination of the photographs of the uncovered hole discloses that there appears to be no screws in the screw holes. Further, no broken pieces of the cover can be seen. Accordingly, it would not appear that it has been broken but, rather, removed. 3. The photographs of the exposed hole appear to show considerable debris between the two concentric rings. This would suggest that it has been exposed for some considerable period of time. The defendant relies upon no lay evidence to explain how the cover came to be off the hole.
Having regard to the totality of the evidence it is clear that the hole into which the plaintiff inadvertently stepped was a danger of which the defendants ought to have been aware and ought to have been either covered or guarded so that persons could not accidently step into it. In causing the cover to be removed or failing to have a cover on the hole or in failing to barricade off the hole whilst it was uncovered the defendants have been guilty of negligence.
It is the plaintiff's submission that the requisite elements required to establish causation under s 5D are established in the present case.

[56]

Defendant Submissions: Causation

The only aspect that arises for determination in relation to the liability assessment of Coles' position is under s 5D of the Civil Liability Act and that is causation. The question, in that respects is as follows: 1. what reasonable precautions should have been taken because, without assessing that, the Court cannot proceed to properly consider the question of causation; and 2. if those precautions had been taken, is it reasonably likely that the risk of harm would have been avoided.
As to the issue of causation, with respect to Coles, counsel for the defendants submitted: 1. The finding should be that a reasonable precaution that should have been taken by Coles, having regard to its obligations under cl 29 in the lease, would have been to perform some sort of inspection of the car park. In my submission, it being a car park, a reasonable system of inspection would have been either through cleaners or through inspectors per se to have patrolled the car park at least once per day. 2. The causation submission is simply that had that been done, the risk would have necessarily been obviated. In the absence of any evidence as to how long the risk had been present, the Court could not confidently conclude that it would have been. Reliance was placed upon Strong. 3. It was contended that caution should be taken when assessing the time based upon the photograph of the hole, namely, "approximately an hour after the event, that there was a detritus visible in and around the hole to suggest that it had been uncapped for a period of time". It was submitted: "one cannot say with any confidence from that photograph, or from any other evidence, whether the hole had been uncovered for days, or hours or minutes before the accident, and so in those circumstances the Court would not be satisfied in relation to the matter of causation".
During the course of submissions, counsel for the defendants made a relevant concession with respect to Coles: HIS HONOUR: Yes, two. If I formed the view that the photographic evidence, at least, was sufficient to indicate that the hole in question had been uncovered for the day, in other words, the day of the accident, then that's the end of the causation so far as the defendant, Coles is concerned, is it not? PRIESTLEY: Your Honour, I wouldn't be able to say much against it, I must say, on a Woolworths v Strong basis. In other words, if your Honour was inclined to find you were satisfied, on the balance of probabilities, that the hole had been open, if you like, since the previous day, HIS HONOUR: Yes. PRIESTLEY: Such that issues of timing of the daily inspection became irrelevant, then that would be, I have to concede, the end of the causation analysis.
As to the issue of causation, with respect to the owners, counsel for the defendants submitted: 1. First, regard must be had to the relevant obligations of the owners. In that respect, it was contended, in light of the obligations imposed by the lease upon Coles, the obligation upon the owners "would have been lesser". This is because, the issue of maintenance was "largely delegated". It was contended the owners' duty "would have been no more than to, if you like, oversee that process by conducting less regular inspections itself". 2. Secondly, as to the duty to conduct such inspections, it was contended that was done through the owners' commercial agents. Reference in that respect was made to the evidence of Ms Skinner; she conducted such inspections on a "monthly" basis. 3. Therefore, it was submitted, one must doubt whether whatever system should have been adopted by the owners, directly or through their agents, would have detected the risk.

[57]

Conclusion: Causation

Attention was directed by the parties to the judgment of the High Court in Strong. In that matter, the appellant suffered serious spinal injury when she slipped and fell while at a shopping centre. At the time she was in the sidewalk sales area outside the entrance to a Big W store. That area was under the care and control of the first respondent, Woolworths Limited.
The appellant was disabled, being an amputee, who walked with the aid of crutches. The tip of her right crutch came into contact with a greasy chip that was lying on the floor of the sidewalk sales area. The crutch slipped from under her and she fell heavily.
Woolworths did not have any system in place for the periodic inspection and cleaning of the sidewalk sales area. The issue in the matter concerned the familiar difficulty in slipping cases of establishing a causal connection between the absence of an adequate system of cleaning and the plaintiff's injury when it was not known, such as in this case, when circumstances producing the risk of harm arose (in Strong this concerned the deposit of the slippery substance).
The scope of liability issue arising under s 5D(1) of the Civil Liability Act did not represent a particular difficulty in Strong, attention being focussed upon the question of factual causation. Under s 5D, factual causation required proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm: Strong at [20].
The nature of the issue to which the Court directed attention is found at [32] of the judgment of the majority of the Court as follows: The appellant was required to prove on the balance of probabilities that Woolworths' negligence was a necessary condition of her harm. Woolworths' negligence lay in its failure to employ a system for the periodic inspection and cleaning of the sidewalk sales area. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W.
The resolution of that issue commenced with the following passage of the judgment which was central to the submissions of the defendants in this matter (at [34] and overall): Woolworths' submission that it was necessary for the appellant to point to some evidence permitting an inference to be drawn concerning when the chip was deposited must be rejected. It was incumbent on the appellant to prove that it was more probable than not that Woolworths' negligence was a necessary condition of her fall, but this onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited. The point was illustrated by Hayne JA (as he then was) in Kocis v SE Dickens Pty Ltd . His Honour posited a case in which reasonable care required the occupier of premises to carry out inspections at hourly intervals. Assume that no inspection is made on the day the plaintiff slips on a spill eight hours after the premises opened for trading. If there is no basis for concluding that the spill is likely to have occurred at some particular time rather than any other time, the probability is that that the spill occurred in the first seven hours of trading and not in the hour preceding the plaintiff's fall. As Hayne JA observed, a plaintiff must prove his or her case on the balance of probabilities and it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open. The determination of the question turns on consideration of the probabilities. (footnotes omitted)
As to the determination of the matter was predicated upon that process of reasoning.The High Court found at [37]-[38]: 37 If one reckons lunchtime as between 12 pm and 2 pm, it is right to say that the probabilities are evenly balanced as to the deposit of the chip between 12 pm and 12.15 pm and 12.15 pm and 12.30 pm, provided the chip was acquired for consumption at lunch. The Court of Appeal said that there was no basis for concluding that it was more likely than not that the chip was not dropped "comparatively soon before the [appellant] slipped". It did not explain how it reasoned as to the likelihood that the chip was acquired at lunchtime. There was no basis for concluding that chips are more likely to be eaten for lunch than for breakfast or as a snack during the course of the morning. The inference was open that the chip was not present on the floor of the sidewalk sales area at the time the area was set up for the day's trading. However, the conclusion that the chip had been deposited at a particular time rather than any other time on the day of the incident was speculation. 38 Reasonable care required inspection and removal of slipping hazards at intervals not greater than twenty minutes in the sidewalk sales area, which was adjacent to the food court. The evidence did not permit a finding of when, in the interval between 8 am and 12.30 pm, the chip came to be deposited in that area. In these circumstances, it was an error for the Court of Appeal to hold that it could not be concluded that the chip had been on the ground for long enough for it to be detected and removed by the operation of a reasonable cleaning system. The probabilities favoured the conclusion that the chip was deposited in the longer period between 8 am and 12.10 pm and not the shorter period between 12.10 pm and the time of the fall. (footnotes omitted).
There is no evidence as to when the hole into which the plaintiff stepped became uncovered or broken. The evidence reveals that in the late afternoon of 20 January 2015 the plaintiff stepped into the hole which, at that time, had no cover. A photograph of the hole in that state was taken a short time later.
I accept, as submitted by the defendants, that caution should be exercised in drawing inferences from the bare fact of a photograph of the hole. Particular caution of should be taken in drawing an inference that, because no screws were apparent in the screw holes or broken pieces of the cover visible, that Coles had, in fact, removed the broken cover and had failed to replace it, thereby ending any real issue as to causation.
However, in my view, the fact that the photograph illustrated that the hole was open, there were no apparent screws or broken pieces of the cover remaining and the considerable debris between the two concentric rings of the hole leads to the reasonable inference that the hole had been exposed at least for a period greater than the day of the incident. There is no contradictory evidence. It follows that I am satisfied, on the balance of probabilities, that the hole had been open at least since the previous day or although most likely for a longer period sufficient to enable the cover or broken cover and screws to be removed and for the debris to accumulate in the hole.
In those circumstances, and as properly conceded by senior counsel for the defendant, the judgment in Strong does not defeat the plaintiff's case against Coles on the issue of causation. The hole into which the plaintiff inadvertently stepped was a danger of which the defendants ought to have been aware and ought to have covered or guarded so that persons could not accidentally step into it. The precautions which I found to be reasonably required by Coles would then have obviated or mitigated the risk of harm.
Thus, factual causation for the purposes of s 5D of the Civil Liability Act has been established. In failing to cover the hole or in failing to barricade of the hole whilst it was uncovered, Coles is guilty of negligence.
The scope of liability issue did not arise in this case. In any event, it is appropriate for the scope of the occupier Coles' liability to extend to the harm caused to the plaintiff given that the car park was, in essence, provided by the occupier to members of the public for the purposes of accessing the Coles' store (which the plaintiff did).
It is strictly unnecessary to consider the question of causation with respect to the owners given my earlier finding. However, it may be observed that the obligation upon the owners would have been less than that falling upon Coles because, as senior counsel for the defendants contended, the issue of maintenance was largely delegated to Coles. The obligation to oversee the process fell upon the owners by way of an overview of the process to ensure compliance with the lease. A duty to conduct inspections in that context was done through the owner's commercial agents. This was done on a monthly basis. Significant doubt must be held as to whether the conduct of inspections on that basis would have detected the risk of harm and whether the plaintiff's established factual causation with respect to the owners.

[59]

Plaintiff's Submissions

At the time of this accident the plaintiff was a 48 year old lady. She had had a problem with her back some years prior to this accident. That problem had completely resolved.
Before this accident the plaintiff had, for many years, been on a disability support pension. However, as is made clear in her statement she wanted to get back to work around the end of 2014 as she said she found it difficult to be on the pension and was feeling isolated and had lost her independence.
Her statement discloses that she had left school at the end of year 9. After that she had generally worked in manual work, often work that required significant physical input. However, she had worked as an office manager and bookkeeper.
Her case is that she cannot do those types of clerical works because, as the medical evidence demonstrates, she has had difficulties standing, sitting or walking for long periods of time. It was not put to her that that was not the case.
Accordingly, her desire was to work in her own business where she could be flexible having regard to her Buerger's disease problems and it was something that she was capable of doing. Accordingly, she commenced a lawn maintenance and garden care business.
For that purpose, she put out flyers around her local area attached to telegraph poles. She started receiving work.
Her claim is that but for the accident she would have worked 5 to 6 days a week doing on average 6 to 8 jobs a day earning between $50 and $60 per job.
The plaintiff, in 2015 and then again in 2017 (after the operation to her spine in June 2016) returned back to doing some lawn mowing work. However, she requires the assistance of her unpaid son or partner. It is clearly not something that she is going to be able to do in the long term. She has ongoing pain and restrictions in her back. The fact that she has in fact even tried to return to work, both soon after the accident and in more recent times, is a testament to her desire to work if at all possible and her stoic nature. It is also a testament to her need to earn income beyond that provided by the pension.
If the defendants seek to suggest that there was other work that she could do and which was available to her or that, medically, she is capable of doing more than that which she currently does, then that is a matter the onus of which falls on the defendants.
Similarly, if the defendants wish to assert that pre-existing conditions that she suffered from would have meant that she could not work any more than she currently does then, again, the onus falls on the defendants to prove that issue: see Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164.
There is no medical evidence from any of the defendants that provides such an opinion. The plaintiff was required by the defendants to be examined by Dr Cochrane, a neurosurgeon. That appointment was undertaken on 15 March 2019. No report from a neurosurgeon has been served. An inference that his report would not assist the defendant's case is irresistible.
Otherwise, the only other medical evidence on which the defendant relies is the report of Dr Stephen.
The Court cannot substitute its own opinion for evidence: see Strinch v Singh [2009] NSWCA 15. Thus, in the absence of a medical expert commenting upon the surveillance footage, it was contended "the Court will not be assisted by the surveillance on the issue of economic loss or domestic assistance".
Perhaps the most telling medical document in this matter is the joint report prepared on 22 September 2021 by Dr Matthew Giblin, an orthopaedic surgeon qualified on behalf of the plaintiff and Dr John Stephen, an orthopaedic surgeon qualified on behalf of the defendants. The report shows that both orthopaedic surgeons are almost entirely in agreement.
They agree: 1. Her major injury following the fall on 20 January 2015 in the Coles car park was to her back where she had a recurrence of back and right leg pain. 2. They agree that this injury led to a further injury in June 2016. That operation was a decompression and posterior interbody lumbosacral fusion. 3. They agree that the operation was long and difficult. 4. They agree the operation was not successful and that she continued to have back pain and right leg pain. 5. They agree that in addition to the back and right leg pain she was making complaints of numbness in the right foot and left leg. 6. They both agree that there was some restriction in lumbar movement and straight leg raising which produced pain at the posterior of the thigh on both sides. In addition, Dr Stephen found numbness over the right foot, an absent right ankle jerk and a diminished left ankle jerk. Those findings would be consistent with significant nerve problems from her spinal injury. 7. They agree that in addition to various bruises the plaintiff 'much more importantly' has sustained a persistent and severe recurrence of her low back and right leg pain. 8. Both experts agree that the fall in January 2015 was the major contributing factor to her current impairment and disability. 9. Critically they both agree that her prognosis is not good. They both agree that the plaintiff will continue to have severe problems with her back and leg into the indefinite future.
There was some disagreement as to whether she requires further surgery.
The other very telling evidence are the records of the general practitioner, Dr Ong. These notes commence at CBP 1, page 515. On CBP 521 the records record the date of the injury on 5 February 2015. From that point forward to when she had her operation in the middle of 2016 and beyond, up to the end of the records at CBP 572, there is continued reference to back pain. These references also include the prescription of powerful analgesia such as Lyrica, Mobic, Endone, Targin and so on.
The notes also record, particularly after the operation in 2016, that the plaintiff was prescribed pain killing injections in the form of nerve blocks and facet joint injections. The notes also record back pain radiating down to both legs.
The GP notes confirm the serious and ongoing nature of the complaints that the plaintiff made in relation to her back. It was not suggested to her that when she made these complaints she was lying to her GP. It was not suggested to her that she did not need to take any pain killing tablets but was doing it for some nefarious reason. The Court would have no reason to find other than, consistent with the plaintiff's own history, that she has ongoing significant problems with her back.
The plaintiff also relies upon reports from the doctor who initially treated the plaintiff for a back problem prior to this accident, Dr Davidson. In the latter report he notes that the plaintiff's radicular symptoms were completely relieved following that earlier operation.
Dr Davidson provided a further report, post-dating the accident. It is dated 29 January 2018. In that report, on the second page, he noted that an MRI scan taken in July 2015 showed a right sided L5 Pars defect. A Pars defect is a fracture of the lower part of the spine. In addition, the doctor found a grade 1 spondylolisthesis, a situation where one vertebra slips forward onto the bone of the vertebra beneath.
He was satisfied that the Pars defect was acquired as a result of her fall. It was this that led to her back operation in June 2016.
The management of her condition was transferred from Dr Davidson to his colleague, Dr Tait. Dr Tait has provided a number of reports starting at CBP 243. It was Dr Tait who carried out the surgery to her spine in June 2016.
A report of Dr Tait of 16 October 2015 (CBP 243) noted that she had bilateral leg pain worse on the right. It radiated to the foot and affected all toes. She had numbness and paraesthesia.
He also recorded that she had great trouble walking but was still able to mow 6 to 8 lawns a day as she found it easier to walk leaning forward with the mower. He noted that she was taking Lyrica and Mobic.
A report from Dr Tait of 26 September 2016, 3 months after her L5/S1 fusion operation (CBP 246), recorded that she was still experiencing pain across her lumbosacral junction, worse on the right than the left. He noted that it was extending to her foot. In a further report of 13 February 2017 (CBP 248) Dr Tait noted that there appeared to be compression of the L4 nerve root seen on a CT scan. That compression of the nerve would of itself explain her pain and the radiation into her legs.
His report of 10 April 2017 which was prepared nearly 10 months after the operation, noted that he was disappointed with the results. He also noted that nerve root injections created terrible pain for her and that the radiating pain into her legs was continuing.
The plaintiff was referred to Dr Ho, a pain rehabilitation specialist. His report is dated 4 October 2016. He noted that she had been referred to him for management of chronic back pain. He took a history of stabbing pain over the lower back radiating to the hips. It was worse with activities such as prolonged sitting and standing. It interfered with her sleep and mood.
On the second page of his report Dr Ho noted that there were physical capacity restrictions including carrying out her domestic assistance. He said that she denied any anxiety or depression. Indeed, she denied any emotional component of her pain. On this he said: This may further accentuate her pain experience and further emerge as a somatic symptom.
He diagnosed a chronic sensitised mechanical low back pain with neuropathic leg component secondary to a failed back surgery, right L5 radiculopathy and saw an ongoing requirement for opioid medication. He noted that she was 'coping with resilience'.
The plaintiff also relies upon a report from Associate Professor Yeo of 28 September 2017 (CBP 260). Dr Yeo recorded the difficulties that the plaintiff has in carrying out her household duties. Whilst he thought she had a capacity and fitness to return to work there was a limitation of avoiding heavy lifting. He thought she required some domestic assistance although probably impermissibly he sought to quantify such care: see Boral Bricks Pty Limited v Cosmidis [2013] NSWCA 443 at [93]. On page 2 he noted that the operation she had undergone in June 2016 was prolonged and complicated requiring special post operative care for a CSF leak from the wound.
He thought that she remained prone to recurrent back pain since the 2015 accident. He noted that sitting was restricted to less than an hour and that she was restricted in her ability to flex her lower spine.
Dr Yeo diagnosed the plaintiff as suffering from a persistent right L5/S1 radiculitis in association with a recurrence of a right disc prolapse. He also thought that there was evidence of localised inflammatory pathology in the left sacroiliac joint. He opined that she would remain permanently susceptible to recurrence of low back pain.
The plaintiff also relies upon a report of Dr Giblin, orthopaedic surgeon of 11 December 2017 (CBP 264). The history given to Dr Giblin was the same as the plaintiff has given to this Court. She has difficulties carrying out household chores although, surprisingly enough, is able to lean on a lawn mower to push it forward. However, she is limited in what she can do in that regard.
Dr Giblin's opinion was that her injuries were consistent with the accident noting that there was an injury to the L5/S1 disc. He thought that she was unfit for work that involved repetitive bending and heavy lifting. He did not see her being able to do mowing of lawns into the future.
Dr Giblin provided a second report on 23 January 2018 (CBP 280). He noted no inconsistencies and found that her son did all of the heavy housework and garden (page 3). On the following page he found that she had a persistent and severe recurrence of her low back pain and right leg pain leading to further surgery.
He thought the prognosis was not good and he anticipated that the plaintiff would continue to have severe problems with her lower back and leg pain into the indefinite future.
The plaintiff in this matter does not have simple soft tissue injuries. She has suffered a fracture to her lower spine causing the spine to slip forward onto the vertebrae below. As a result she has undergone surgery in the middle of 2016 including a fusion to her lower spine. The doctors all agree that this surgery has failed. In particular it is clear from the records of the GP and the opinions of all of the doctors who have provided reports in this case that she has a mechanical problem with her spine that will cause her long lasting, probably permanent, pain and restrictions.
So far as an alternate career is concerned the Court would observe that she is now 48 years of age. She has a significant ongoing problem with her lower back as a result of her fall in January 2015. She has difficulties standing for long periods of time and difficulties sitting for long periods of time. Her back is easily aggravated.
In those circumstances the chance of the plaintiff being able to find work that she could do that would make her any meaningful income is illusory. The stark reality is that she has only been able to work at the present because of the unpaid assistance of her son and partner. Even then she has obviously had significant problems and limitations in trying to work.
During oral submissions, counsel for the plaintiff submitted: All doctors, your Honour, all doctors who had provided a report in these proceedings accept that she has a significant injury to her lower back that is causing her a high degree of pain and that that will continue. One of course can't say forever the future's unknown country, but the likelihood is it will continue forever. All doctors. There is of course a doctor you haven't heard from and that's Dr Cochran, as my learned junior reminds me. A neurosurgeon who saw the plaintiff last year but whose report we haven't been graced with. There's clear Jones v Dunkel inference and I ask your Honour to draw that inference, that is that it would not have assisted the defendant's case to prove that this lady was capable of more work, was capable of doing her domestic chores, was not suffering pain. Otherwise, your Honour, all doctors agree.
As to the Joint Expert Report before the Court, senior counsel for the plaintiff provided the following overview: What's remarkable about that joint report is that there is almost no disagreement. The only disagreement appears at 288 where Dr Stephen thought that further surgery would not be helpful, Dr Giblin was of the view that there could be a place for surgery insofar as there might be a decompression of fusion of the L4/5 disc if investigations proved appropriate. Everything else is agreed between these two experts, and in particular, your Honour, para 8 and 9 on p 288, both experts had no doubt that the fall on 20 January 15 has been the major contributing factor to the plaintiff's current impairment in disability. Nine, the prognosis is not good. The plaintiff would continue to have severe problems with low back and leg pain into the indefinite future. As your Honour sees from that, Dr Stephen is in almost total agreement with Dr Giblin and both of them see a very poor prognosis with the plaintiff having to live with pain and her other problems probably for the rest of her life. That's a very significant matter when someone is 47 years of age with another 35 to 40 years of life ahead of them.
He also referred to other expert reports: In addition to Dr Giblin, the plaintiff has also seen, my instructing solicitors will qualify, a number of other doctors. One of those was a Dr Yeo and his report appears at p 260 of the Court book. I don't need to take your Honour to it at the moment, but he provided a report, he's a spinal and rehabilitation specialist, on 28 September 2017. My instructing solicitors went back to him some time ago and asked for a further report, but he had retired. Accordingly they obtained a report from a Dr Fearnside, a neurologist specialising in the spine. That report was of course not a refresher report in the sense that Dr Fearnside had not provided a report before, but we couldn't get one from Dr Yeo. The defendants, as they were entitled to do, objected to us relying upon the report of Dr Fearnside and on the Thursday before last an application was made to the registrar to extend the time for service of that report so that we could rely upon it. That application was refused by the registrar. In support of that application there was an affidavit sworn by my instructing solicitor, Ms To, which should be on file, and your Honour, I remake the application to rely upon Dr Fearnside's report. I should say, I didn't tell my learned friend this but his solicitors were made aware of that, hopefully yesterday, but your Honour in making this application can I also tell your Honour that the plaintiff was examined by Dr Cochran, a neurosurgeon, on behalf of the defendants, the Solomon defendants, in May 2019. No report from Dr Cochran has been served on us. In fact the only medical report we have from the other side is from Dr Stephen.
As to the reliance upon the surveillance footage in preference to the medical opinion before the Court, counsel for the plaintiff submitted: No attempt was made to have any of the doctors called and showed the film to get them to change their opinions. I accept what my learned friend says, it's not a matter where you would be bound to accept necessarily the evidence of the doctors in light of what my learned friend says is shown in the film. Surely, your Honour, surely if he was confident in his position that, for example, Dr Stephen would change his position, you might think that the film would have been sent to Dr Stephen and said, listen, what about this. Of course, your Honour, we know that the film commenced in July 2017.
Senior counsel for the plaintiff relied upon the authority of Coles Supermarkets v Haleluka [2012] NSWCA 343. At T11, senior counsel for the plaintiff stated: Similarly, she has significant issues working around the house, doing the household chores and we have made submissions about that. Your Honour will have before you, a report of an occupational therapist who, essentially, doesn't believe her, that's what it comes down to. Dr Steven (sic) believed her but the occupational therapist decided, even though Ms Pike says, well I can't do vacuuming and she will explain why, I can't do these things, the occupational therapist says, oh well, she's got movement in her back, she can do these things. There is a decision, your Honour, which I alluded to but didn't take your Honour to of Coles v Haleluka and I will refer your Honour to that in due course, that basically says, if you accept the plaintiff as a truthful witness, and your Honour will, in my respectful submission, that is the important evidence; that is the important evidence in terms of what she can do and what she cannot do around the house. [Emphasis added]
The Court confirmed that the question of pain and whether such conduct aggravates it is fundamental to the question of damages: HIS HONOUR: The question that comes is whether in the case that has one of its components of reliance upon pain, that is in its various manifestations, and work that actually aggravates that pain, how is the Court to assess or make the relevant assessments as to damages. That's really the nub of the question that I'm raising.
It may be noted that during closing submissions, counsel for the plaintiff confirmed that to the extent any medical practitioner advances an opinion as to the amount of time that the plaintiff needs assistance for domestic tasks, that material is not relied upon (see Boral v Cosmidis at [92] (per Basten JA)).

[63]

Clinical Records of Dr Ho

As earlier mentioned, the clinical records of the plaintiff, produced by various practitioners, were before the Court. Particular attention was placed upon the records produced by Drs Ho, Tait, Davidson and Ong. A selection of records produced by Dr Ho, and referred to throughout submissions and/or the course of evidence, appear below.
On 4 October 2016, Dr Ho provided a diagnostic and management opinion with respect to the plaintiff for low back pain. He opined: However, post operatively she had persisting pain. She went on to have an MRI on the 18th July 2016 which showed narrowing of L5/S1 bilaterally but this had improved from the prior scan. Her bone scan on the 1st September 2016 showed left L4/5 facet joint arthropathy and to a lesser degree, bilateral L2/3, L3/4 and L4/5 facet joint arthropathy. She had previous bilateral sacroiliac joint injection without benefit. She continued to have physiotherapy without significant improvement of her pain.
Dr Ho recorded the description of pain provided by the plaintiff: She described her current pain as stabbing and dysaesthetic over the lower back radiating to the bilateral hips. The pain is worse with activity such as prolonged sitting and standing. The pain radiates to the right foot however, the foot and leg pain was not bothersome. There is interference with activity, sleep and mood from her back pain. There is no reflex. There is spontaneous pain at night and hypersensitivity with activity.
Dr Ho also recorded the plaintiff's account of her "current physical capacity": 1. Standing tolerance of 10 minutes, sitting tolerance of 10 minutes and walking tolerance of 30 minutes. She has a lifting tolerance of 5 kgs. 2. She is able to perform light duty domestic ADL's. Her son does heavy duty domestic AOL's such as cleaning, vacuuming, gardening. She was able to return to driving. 3. Jacqueline reports she was not able to return to work and has not attempted due to her pain and lack of progression with physiotherapy.
He further observed: She has a reduced active range of motion of the lumbar spine with end range pain. There are tender points of bilateral facet joint over the L3/4, L4/5 and over the bilateral gluteal muscles. There is no neurotension in the lower limb. SIJ stress did not reproduce her pain. Stress to her hip joint did not reproduce her pain. Lower limb neurological examination was unremarkable. Common sensory testing showed hyperaesthetic response to deep mechanical stimulus to the lumbar sacral spine.
Dr Ho diagnosed the plaintiff with "chronic sensitised mechanical low back pain with neuropathic leg component". That diagnosis was described as secondary to: 1. Failed back surgery syndrome with persisting facet joint arthropathy and lateral low branch neuralgia. 2. Right LS radiculopathy with dysaesthetic sensation. 3. Ongoing requirement of opiate and antineuropathic pain agents which requires monitoring. Ongoing use of Endone. 4. The plaintiff is coping with resilience. However, "she will need further coping strategies in the long term especially when she disassociates pain and sensation from emotional distress. This may further worsen her pain experience".
A pain management program "with 7 medical, 12 psychology and 12 physiotherapy sessions" was recommended. It was anticipated that the plan would be effective and achieve the following: a. Reduce pain severity 50% to facilitate therapy and optimise medication safety. b. Functional physical capacity: increase sitting, standing, walking tolerance by 50%. Increase carrying, lifting 50%. c. Psychological capacity: increase emotional regulation and self-efficacy. Increase social participation. d. Return to work gain: meaningful physical and psychological capacity gain that is translatable to work capacity. Ready for vocation capacity assessment at the end of the program. e. Ability to apply pain self-management strategies in real life situation.
On 1 November 2016, Dr Ho identified the following pain issues: 1. Failed back surgery syndrome with? [sic] persisting facet joint arthropathy and lateral branch neuralgia. 2. Right L5 radiculopathy with dysaesthetic sensation. 3. Ongoing requirement for opiates and antineuropathic pain agent. 4. Coping with resilience.
On 6 November 2016, he reported that the plaintiff's pain on mobilisation had improved. He wrote: She is mobilising much better with improved walking tolerance to 1 hour. She reports her remaining issue is bilateral buttock pain limiting sitting tolerance - % hour. She is keen on trialling further radio frequency treatment given the previous good response. I have done education and set realistic expectation for pulsed RF for bilateral superior cluneal nerve.
On 21 February 2017, Dr Ho identified the following pain issues: 1. Failed back surgery syndrome 2. Adjacent level disease ofL4/5 disc protrusion with discogenic pain and left L4 radiculitis 3. Coping with resilience 4. Workplace injury
Dr Ho also noted that the plaintiff had "L4 sheath injunction two days ago" but was "still waiting for the benefit to kick in". Dr Ho advised that it may take "up to a week for the injection to work". He also reported that he "asked to her to avoid heavy lifting or prolonged bending".
On 11 July 2017, he identified the following pain issues: 1. Failed back surgery syndrome, ?persisting [sic] facet joint arthropathy, lateral branch neuralgia 2. L4/5 disc protrusion 3. Right L5 radiculopathy with dysaesthetic sensation 4. Required ongoing opioids and antineuropathic pain agent for pain relief 5. Coping with resilience. Need further pain coping mechanism in the long term expecially [sic] when looking at return to work 6. Workplace injury 7. CT 3.1.2017 - adjacent level disease with L4/S disc osteophyte impinging on the left L4 nerve root. Had left U nerve sheath injection
Dr Ho reported the plaintiff's "pain remains at staus quo". He also noted that the plaintiff had a recent MRI and bone which showed "facet arthropathy and SIJ dysfunction".
As at 17 October 2017, the pain issues remained the same.

[64]

Reports and Clinical Notes of Dr Andrew Davidson

On 22 February 2013, in a letter addressed to Dr Lawrence Ong, Dr Davidson reported: She has a history of Berger's disease and rheumatoid arthritis. She is not on steroids at the moment. Her medications include Oxycontin. On a background of a longstanding history of lower back pain she developed worsening back pain and right leg pain over the last twelve months. She feels that the whole leg hurts especially when she tries to be active. Tramadol is improving her symptoms and making them tolerable. In the past she has had physiotherapy and a nerve sheath injection helped for a few months. On clinical examination she had full power in all muscle groups in the lower limbs. Reflexes were normal and symmetrical. Plantars were downgoing. There was straight leg raise positivity at low degrees on the right side. A recent MRI scan of her lumbar spine: showed an LS/S1 right sided disc herniation compressing the S1 nerve root. We discussed with Jacqueline and her partner the risks, alternatives, and expectations of surgery. She wishes to proceed with surgery and this will be done in the form of a microdiscectomy and rhizolysis at Nepean Public in the near future.
On 3 December 2013, in a further letter addressed to Dr Oong, Dr Davidson reported: Jacqueline Pike was admitted to Nepean Hospital and underwent surgery on the 6th of November 2013. Since l saw her in the rooms earlier this year, she developed bilateral symptoms. She had bilateral LS/51 microdiscectomy and nerve root decompression performed. Her disc herniation was quite central, with bilateral lateral recess stenosis and S1 nerve compression. I elected to perform her surgery using bilateral interlaminar approach, rather than a complete laminectomy. Jacqueline's radicular symptoms were completely relieved in the postoperative period. She had an uneventful postoperative recovery. I would like to see her in six weeks time to see how she is getting on. Thank you for continuing Jacqueline's care in the meantime.
On 29 January 2018, Dr Davidson addressed a letter to the Brydens Lawyers, the plaintiff's solicitors, setting out information, with respect to "specific requests" made by them, following a review of his medical records of the plaintiff.
He provided the following overview of the plaintiff's history, known to him, in 2013: I first met Jacqueline Pike on the 22nd February 2013, when she presented with a long history of lower back pain and a history of 12 months of right-sided sciatica. Her imaging showed a central and right-sided disc protrusion, causing nerve root compression. She was recommended to undergo surgery, and was placed on the waiting list for surgery at Nepean Hospital. She was seen by the Neurosurgery Registrar at the Pre-Admission Clinic at Nepean Hospital on or about the 28th October 2013. At this time she advised my Registrar that she now had left-sided sciatica as well as rightsided sciatica. Following a discussion with her, it was decided to perform a bilateral microdiscectomy and nerve root decompression at the time of her upcoming surgery. Jacqueline underwent surgery at Nepean Hospital on the 6th November 2013, where she underwent a bilateral LS/51 microdiscectomy and nerve root decompression. The surgery was uneventful and she was discharged home on day 1 postop. I saw Jacqueline on the 20th December 2013, approximately six weeks postoperatively. She was already back at work at that time. She had a complete resolution of her sciatica. She still complained of some ongoing pain and hip pain.
Dr Davidson next turned to 2015, being the next time he saw the plaintiff. He reported: I then saw Jacqueline again on the 8th May 2015, with ongoing lower back pain and right leg pain after falling over an exposed drain in a Coles car-park on the 20th January 2015. She complained that she injured her back in the fall. She had a CT scan which showed a mild disc bulge at LS/S1, worse on the left, with some evidence of epidural scarring on the right. She was recommended to undergo a course of physiotherapy, and return to see me with a contrast MRI scan. I then saw Jacqueline on the 31st July 2015. She complained that her pain had been the same over the preceding two months. It was predominantly right hip and leg pain, with pain radiating into the dorsum of the right foot. Her MRI scan.at that time showed a right-sided LS pars defect with a grade 1 spondylolisthesis, as well as some epidural scarring irritating her right LS nerve root.
Dr Davidson noted that he reviewed a CT scan from 6 February 2015, which demonstrated a "pars defect, which was not present on her preoperative imaging". That pars defect "was confirmed on the MRI scan dated 3rd June 2015".
As to his findings at that time, Dr Davidson reported: At the time of my consultation on the 31st July 2015, I concluded that her symptoms were due to an acquired right LS pars defect, a grade 1 lytic spondylolisthesis and some epidural scarring. Given that Jacqueline had been free of radicular symptoms following her surgery, and developed the new onset of right-sided radicular pain after her fall on the 20th January 2015, I concluded that the acquired right LS pars defect had occurred as a result of the fall, and not as a complication of surgery. In view of the instability, I referred Jacqueline to my practice partner, Dr Matthew Tait, who saw her on the 16th October 2015, and took over the management of her case from that time.
Dr Davidson was asked a specific question "regarding the relationship between Jacqueline's bilateral microdiscectomy and her pars defect". He opined: I feel confident that Jacqueline's surgery did not cause the right LS pars defect. Although Jacqueline did not have any imaging of her lumbosacral spine in the time between her surgery on the 6th November 2013 and the CT of her lumbar spine on the 6th February 2015, she had no symptoms of right-sided LS nerve compression until her fall on the 20th January 2015. It would also be extremely unusual for a microdiscectomy approach to impact upon the pars. The microdiscectomy approach does not usually require a significant bony resection, and should not have weakened the pars interarticularis. In my opinion, Jacqueline's recent symptoms commenced on the 20th January 2015, following her fall. It is my opinion that her right-sided LS pars defect has occurred as a result of this fall. I do not feel that her previous surgery at LS/51 has contributed to her injury. However, the inevitable presence of epidural scarring after her surgery in 2013 may have contributed to her poor outcome after an LS/51 fusion.

[65]

Reports and Clinical Notes of Dr Matthew Tait, Neurosurgeon

On 16 October 2015, in a letter addressed to Dr Davidson, Dr Tait produced a report setting his observations and findings following his examination of the plaintiff.
Following his examination of the plaintiff, he reported: Many thanks for referring Jacqueline to the rooms where I saw her today. She is a 43-year-old righthanded lady who owns her own lawn mowing company. About nine months ago, she fell down a drain in Coles carpark and since this time she has been complaining of bilateral lower limb pain, worse on the right than the left. The pain radiates via the outside of the thigh, the outside of the calf, and into the foot where it appears to affect all the toes. There is numbness and paraesthesia also in a similar distribution. She is having great trouble walking in the street; however, she is still able to mow 6-8 lawns a day as she finds it easier to walk leaning forward with the mower. She finds it far more difficult working upright with the whipper snipper. She is currently taking Lyrica and Mobic, which have been helping. … On examination, there was moderate spinal tenderness. There was no tenderness at the sacroiliac joints. There was normal tone, power, reflexes, and sensation throughout both lower limbs. Gait was normal. Jacqueline's MRI scan shows an LS/S1 spondylolisthesis with associated right LS nerve root compression. The remainder of the spine is healthy in appearance.
As to the MRI results, Dr Tait opined that her "MRI findings certainly explain her symptoms, which she is finding extremely bothersome". Dr Tait, in the result, recommended "an LS/51 posterior lumbar interbody fusion".
Dr Tait also noted the following: In November 2013, she had a bilateral LS/SI microdiscectomy via a bilateral interlaminar approach for a large disc performed by my practice colleague, Dr Andrew Davidson. At that point, there was no evidence of LS/S1 instability. Previous medical history: Berger's disease.
On 6 July 2016, an "MR Scan of the Spine" was performed, which was compared again the MRI from 3 June 2015. The results recorded: 1. There has been a L5 and S1 laminectomy, with posterior rods and screws in good position. The metal prostheses are causing some distortion. 2. Signal distortion a L5/S1 is consistent with a well positioned PLIF. No evidence of disc herniation is seen. 3. There is a mild-moderate narrowing at L5/S1 bilaterally, but this is still improved compared to the previous MRI.
Dr Piers Dugdee prepared the MR scan results. He concluded: "Unremarkable post-surgical lumbar MRI within the limitations caused by metal artefact. There is narrowing al L5/S1 bilaterally, but this still appears better than on the pre-operative MRI. No cause for the patient's symptoms is identified.
On 29 August 2016, in a letter addressed to Dr Ong, Dr Tait produced a report following his examination of the plaintiff following her fusion surgery.
As to his examination, he reported: Jaqueline came back to see me in the rooms today. Since I last saw her she has had some improvement in the numbness in her left leg which has now almost settled. Her mobility is continuing to improve however her main issue remains pain. Two and a half weeks ago she started a new set of exercises at physiotherapy and since then has had pain in the right side of the wound and right buttock. She says that this feels more musculoskeletal than nerves. She has stopped those exercises however is still doing three hours a week of hydrotherapy and three hours a week of physiotherapy. In terms of analgesia she has stopped taking Endone and has reduced her Targin dose. She is still on Lyrica. On examination the wound is well healed with no evidence of infection. There was tenderness of the right sacroiliac joint which reproduced her pain.
Dr Tait further opined: It maybe that Jaqueline's recent fusion has stressed her right sacroiliac joint therefore I have requested a bone scan to look for inflammation there and given her a request form for right sacroiliac joint injection and will review her in the rooms in a months time.
On 26 September 2016, in a letter addressed to Dr Ong, Dr Tait reported on his 3.5 month review of the plaintiff since her "LS/51 posterior lumbar interbody fusion for isthmic spondytolisthesis with radiculopathy".
Dr Tait reported: Unfortunately she is still experiencing pain in a band across the lumbosacral junction worse on the right than the left radiating into both buttocks again worse on the' right than the left and furthermore radiating down the right lower limb via the lateral aspect of the thigh, posterior aspect of the calf and into the top of the foot affecting the medial three toes. She also has abnormal sensation on the dorsum of the right foot. The pain is not present currently and Jackie is not sure of the exact distribution as it does tend to vary. Currently she is doing physiotherapy and hydrotherapy as well as taking Targin, Mobic, lyrica and Endone. She is not keen on taking analgesia and has tried to keep this to the very minimum. On examination today there was no tenderness of the lumbar spine or either sacroiliac joint. Power was intact throughout. There was pain at extremes of external rotation of the right hip.
As to examinations and treatment following the fusion surgery, he reported: Since her operation, Jackie has had an MRI scan which has failed to show any evidence of ongoing nerve root compression. Her bone scan has shown facet joint arthropathy bilaterally at L2/3, L3/4 and L4/5 most severe at the left l4/5 facet joint. There is also increased uptake at LS/51 around the screws and in the intervertebral joint however this is likely to be ongoing healing following her surgery. Note was also made of degenerative change in the hips. Jackie has had a right sacrolliac joint injection which has improved her symptoms but has not settled things down entirely.! have encouraged her to continue her exercise program and have referred her to the Pain Specialist for optimisation of her analgesia as well as their opinion as to the best treatment for her facet joint arthropathy.
On 13 February 2017, in a letter addressed to Dr Ong, Dr Tait reported on the status of the plaintiff's health 8 months since her fusion surgery. At the outset he noted "I was pleased to hear that with Dr Ho's expert management she has been making slow, but significant, progress since I last saw her".
As to the result of the examination, Dr Tait reported: Her recent CT scan of the lumbosacral junction shows good fusion at the LS/51 intervertebral space. There is a suggestion of an L4/S far lateral disc with associated L4 root compression seen on the CT scan. To investigate this as a potential cause of her left lower limb pain l have requested a left L4 nerve root injection. I will see Jackie again in one month, after she has had the injection.
On 10 April 2017, in a letter addressed to Dr Ong, Dr Tait provided a summary of the results of his examination of the plaintiff. He reported: Jacquie returned to the rooms for review today. I was sorry to hear that her left L4 nerve root injection resulted in terrible pain from which she is only now recovering. Currently she experiences pain at the lumbosacral junction radiating to both hips and this is the worst of her symptoms. She is also experiencing left lower limb pain radiating via the lateral thigh and into the shin as well as in the foot. The pain wakes her at night. It is now nearly ten months since her operation and I am disappointed with the results. l have asked her to bring all of her imaging up to the rooms so I can go through it and discuss her case with some colleagues before getting back to her.
On 19 June 2017, in a letter addressed to Dr Ong, Dr Tait reported that the plaintiff was "currently experiencing her pain on and off". He reported: Jacqueline returned to the rooms for review today. She is currently experiencing her pain on and off. Although she is not too bad this week, she was in terrible pain the week before. She is still experiencing back pain radiating into the hips on either side and right lower limb pain which is not currently continuous. She has persistent numbness on the sole of her right foot. She is still under the care of Dr Ho who has offered her a spinal cord stimulator, although she is not currently keen on this. Her most recent CT scan may have demonstrated a right-sided L4/5 disc protrusion and therefore t have requested an MRI scan to confirm this.
On 29 June 2017, a bone scan was conducted by Dr Jonathan Tow of Nepean Radiology. The reason for the scan recorded "Lower lumbar pain and radiculopathy, L5/S1 fusion 17/06/16. For further assessment". Dr Tow, reported: SPECT imaging demonstrates a mild to moderate increase in isotope activity in bilateral L4/5 facet joints, and to a lesser degree in bilateral L2/3, and left L3/4 facet joints, corresponding to degenerative change on low dose CT. Mild activity is seen in the left sacroiliac joint inferiorly, with degenerative features. Isotope uptake associated with the surgical screws in L5 and S1 appears in keeping with the time since surgery {ongoing bony remodelling). Increased uptake is also seen in the L5/S1 anterior interface, likely related to the fusion.
Dr Tow included the following comment: 1. There is lumbar facet joint arthropathy, involving bilateral L4/5 facet joints, and to a lesser extent bilateral L2/3, and left L3/4 facet joints. 2. A degenerative arthropathy is seen in the left S1 joint inferiorly. 3. Ongoing bony remodelling is noted in the L5/S1 anterior interface (interbodyfusion), and with the surgical screws in L5 and S1, which appears less active than on the previous bone scan of 01/09/2016.
On 17 July 2017, in a letter addressed to Dr Ong, Dr Tait reported that the plaintiff "is still very much debilitated by her symptoms". He reported: She has back pain at the lumbosacral junction in a band like distribution. This is worse on the right than the left. It also radiates into the hips. Bending over particularly sets off her pain. On the right side of the lower limb she has pain at the lateral aspect of the hip and thigh as well as the posterior and lateral aspects of the calf. There is numbness in the dorsal of the foot and she has occasional pain shooting into the hallux and the next lateral two toes. Symptoms are similar on the left although mainly concentrated on the lateral aspect of the hips. She often wakes in the morning with hip pain.
As to the result of investigations conducted around that time, he reported: Jacqueline's CT scan of the lumbar spine shows good interbody fusion at LS/51. There is good alignment at the levels and no evidence of foraminal stenosis. Her bone scan shows bilateral L4/5 facet joint arthropathy and to a lesser extent at L2/3 bilaterally as well as the left side at L3/4. There is also evidence of increased uptake in the left sacroiliac joints. Jacquie's MRI scan does not show any evidence of nerve root compression including at L4/5. The LS neural foramina is not possible to see bilaterally due to artefact from screws.
Turning to the "back pain" experience by the plaintiff, Dr Tait noted "her imaging has not shown any explanation for her ongoing symptoms". That opinion, in context, is extracted below: Some of Jacquie's back pain may be arising from her facet joint arthropathy however, I do not think there is much point in repeating injections at those levels as Dr Ho has already been managing this. She has not had an injection on the left side in the sacroiliac joint and I think it is worthwhile doing that. So far her imaging has not shown any explanation for her ongoing symptoms however, we have not managed to get a clear view of the LS nerve root fora men on either side.
The plaintiff was cross-examined with respect to her July 2017 consultation. That evidence is extracted below: Q. I want to suggest to you, and this is in the report of this that appears at page 378 of the Court book, in the first line it says you recorded being still very much debilitated by your symptoms. Would you have said debilitated as a word or not? A. I'm not sure. Q. Did you tell him on that occasion that you couldn't do much physically because of the symptoms that you were having? A. Yes. Q. That was not true at all, was it? A. Yes, it was. Q. I suggest to you it wasn't true because at that time you were regularly doing lawn mowing and edging work, weren't you? A. No. Q. You certainly didn't tell him that you were doing that work, did you? A. I'm not sure. I can't recall. Q. You told him, didn't you, that bending over could particularly set off your pain, didn't you? A. Yes, it does. Q. At that time, that is July of 2017, you were regularly having to bend over in the course of the work that you were doing, weren't you? A. No. Q. Were you doing any lawn mowing work at that time, that is the middle of July 2017? A. Like I said before, I'm not sure exactly what month I started in 2017. Q. If you were doing lawn mowing work at that time, you would have been bending over from time to time just to get through your work, wouldn't you? A. Yes. Q. It wasn't setting off pain when you were bending over at that time, was it? A. Yes, it was. Q. I suggest to you that if it had been setting off pain, you wouldn't have been doing work that required you to do bending, that's right, isn't it? A. No.
On 25 September 2017, in a letter addressed to Dr Ong, Dr Tait reported that the plaintiff was "still suffering from shooting pain to the right toe as welI as numbness over the lateral aspect of the calf and into the dorsum of the foot. I am still unable to explain the cause of her ongoing symptoms". He further reported: Her EMG from the 18th September showed no evidence of an ongoing right-sided L5 or S1 radiculopathy. Her nerve conduction studies from the 8th September showed no evidence of peripheral neuropathy, however, Dr Park did note there was a slight reduction in sensory function of the right superficial peroneal nerve. This does supply the area which Jacqui finds is numb. l have therefore requested an ultrasound scan of the nerve to see if there is any ongoing compression. In terms of her back pain, I think the best approach would be to address the inflamed facet joints seen on the bone scan from the 29th June. This showed mild to moderate increased uptake at L4/S bilaterally as well as mildly at L2/3 bilaterally and on the left at L3/4. Jacqui's imaging thus far has not shown any evidence of ongoing nerve root compression. Her CT scan from the 3rd January 2017 shows good positioning of the hardware and good interbody fusion. There is no evidence of postoperative infection.
On 2 November 2017, in a letter addressed to Dr Ong, Dr Tait reported that "[d]espite extensive investigation I haven't been able to identify the cause of her right lower limb numbness and pain". He provided a summary of the plaintiff's account of pain and description of symptoms, together with his own observations based upon investigation. The full report is extracted below: I was very pleased to see Jacquie back in the rooms today. Since I last saw her she has noticed a degree of worsening of the numbness in her right lower limb. Her left side has cleared up well however. Overall she feels that since the operation she has benefited in terms of her symptoms. Despite extensive investigation I haven't been able to identify the cause of her right lower limb numbness and pain. There is no evidence of nerve root compression on her imaging and there was no response to a nerve root injection. Her EMGs have not shown any evidence of ongoing radiculopathy. Her recent ultrasound scan of the right peroneal nerve showed no evidence of entrapment. I think the main thrust of subsequent management is going to be her interventional treatments by Dr Ho. I have not made a routine appointment for Jacquie in the rooms, however would of course be pleased to see her in the future should the need arise. Of note she does have similar numbness in her hands caused by her Berger's disease.
On 26 March 2018, in a letter addressed to Dr Ong, Dr Tait recorded a new ailment. He said: "She is now suffering from a new left lower limb pain which radiates via the lateral thigh, lateral aspect of the calf and shin before terminating at the top of the foot. This is possibly consistent with an L4 radiculopathy. She still has ongoing right foot numbness".
On 2 May 2018, in a letter addressed to Dr Tait, Dr Pon Ketheswaran advised that he performed a "CT guided highly selective left L4 nerve root block… using a 22 gauge spinal needle". Dr Ketheswaran reported that 2ml of Dexamethasone with 1ml Xylocaine had been injected around the nerve root. The plaintiff "did not have any change in pain score before or after injection".
On 30 May 2018, Dr Tait reported that the plaintiff "is not at all keen on further surgery". He described that position as "very reasonable".
On 18 February 2019, in a letter addressed to Dr Tait, Dr Ganesh Shretha confirmed that a bone scan had been conducted on the plaintiff. The following conclusion was recorded: • Minimal uptake n the L5/S1 discovertebral level and along the screws in the L5 vertebra. • No focal increased uptake is seen in the lumbar facet joints. • Mild osteoarthritic uptake in the bilateral knees, including the patellofemoral joints.
On 19 February 2019, in a letter addressed to Dr Tait, Dr Sarah McGlone confirmed that a MRI lumbosacral spine scan had been conducted, with comparison to the previous MRI performed in April 2018. She reported: There has been a posterior spinal fusion at L5/S1. There ls mild disc desiccation at L4/5 and !Md degenerative facet joint disease. Mild neural exit foraminal narrowing on the left resulting in mild compression of the exiting left L4 nerve. This was seen previously. No neural exit foraminal narrowing at L5/S1. No narrowing of the lateral recess. No abnormal enhancement post intravenous contrast.
Dr McGlone also made the following comment: "The appearance is stable. No compromise of the right L5 nerve. There ls neural exit foraminal narrowing at L4/5 mildly compressing the exiting left L4 nerve".
On 6 March 2019, in a letter to Dr Ong, Dr Tait reported that the plaintiff's symptoms "have shown no sign of abating". The plaintiff's pain was described as follows: She is currently experiencing right lower limb pain in the buttock, side of the thigh and in the lateral aspect of the calf. There is long-term numbness in the dorsum of the right foot. She does not have any left-sided lower limb pain. She is also experiencing back pain, particularly after getting up and has difficulty sitting.
As to objective factors available he noted that "there was tenderness around the right greater trochanter".
On 1 July 2020, in a letter to Dr Tait, Dr Ali Atabaki communicated the results of a bone scan. He opined that the "pattern of vascularity is unremarkable in early phrase images". He also found "[t]here is a mild focal uptake at medial compartment of the left knee, suggestive of degenerative disease". He concluded that there was a "[m]ild uptake at L5/S1 disconvertebral joint, most likely degenerative in nature. No active facet arthropathy in lumbar spine".
On 19 June 2020, in a letter to Dr Ong, Dr Tait reported that despite having had a L5/21 posterior lumbar interbody fusion on 16 October 2015, "she is still experiencing debilitating back pain as well as left more than right lower limb pain and weakness". His consultation with the plaintiff on that occasion was conducted over the telephone and not in person. During cross-examination, the plaintiff gave the following evidence with respect to the June 2020 report of Dr Tait. That evidence is extracted below: Q. You went to see Dr Tait again in June of this year, didn't you? A. I did. Q. Were you honest with him about your symptoms at that time? A. Yes, I was. Q. Do you say you've always been honest with the doctors about your symptoms over the time? A. Yes. Q. He's written a report which appears at page 384 of the court book and he says that unfortunately, this is June of this year, "Unfortunately, she is still experiencing debilitating back pain as well as left more than right lower limb pain and weakness." Did you say to him that you were having back pain? A. Yes. Q. Did you say to him something to the effect of it stopped you doing almost anything? A. It stops me doing a lot, yes and what I do do causes me a lot of pain. I'm on very heavy medication at work. Q. Do you say that the work that you do in your lawnmowing business causes you a lot of pain? A. It does, I take Endone afterwards and before. Q. I suggest to you that if that was true, you would not do nearly as much of that work as you do, isn't that right? A. No. Q. I suggest to you that if you needed medication to get on with the jobs of lawnmowing and edging, as much as you do, you wouldn't do that work, isn't that right? A. No.

[66]

Medico-legal reports of Dr Matthew Giblin

On 11 December 2017, Dr Giblin produced a report setting out the result of his examination conducted on the same day. At the outset, he noted that the opinion expressed in that report was "entirely based upon [the plaintiff's] clinical history and upon the evaluation of objective findings and history obtained on 11th December 2017".
Dr Giblin set out his findings as to the plaintiff's "present disabilities" in four categories: general, work, home and social. His findings are extracted below: General Pain killers give her moderate relief from pain; she can only lift light weights, she can walk for half a kilometre, sit for an hour and stand for an hour. She can manage journeys of two hours. She aches with changes in the weather. Work At work she is still mowing lawns, but only three times a week for an hour at a time. She relies heavily upon her medication however, to allow her to do that. Most of the lawns are done in a piecemeal fashion and what she used to do in half an hour, she now does in an hour. Home Presently she lives in a house with her twenty year old son. Her son helps her with the housework, particularly vacuuming, mopping and cleaning. He now does all the gardening and hedging as well. She is able to manage her personal care such as washing and dressing, but it does increase her pain. She gets about four hours sleep with tablets. Her sex life is restricted by pain. Social Her social life is restricted and she no longer plays social cricket or football; she can't wear high heeled shoes and if she goes out for outings, she can't sit for any period of time. She can't dance.
Dr Giblin provided the following opinion and prognosis: II is my opinion this lady's injuries are consistent with the accident described, she sustained an aggravation of a pre-existing asymptomatic condition to the lumbar spine. This was an injury to the LS/S1 disc. There also may have been an aggravation of her pars defect.
Following that prognosis, Dr Giblin provided a further opinion with respect to work attended to by the plaintiff. He opined: Presently she remains unfit for work that involves repetitive bending and heavy lifting. Whilst ever she is back mowing lawns, [ don't see her being able to do that full time and l think it is likely she will need to consider an alternative career that doesn't involve repetitive bending or heavy lifting.
On 18 May 2020, Dr Giblin produced a further report for the medico legal purposes. He re-examined the plaintiff for that purpose.
Dr Giblin provided a short "history" of what had occurred since his last examination. He reported: Since I last saw her on the 11th December 2017, she has remained under the care of her family doctor and Dr. Tait and Dr. Ho. She continues to complain of low back pain with radiation down both legs and has had multiple injections and is due to see Dr. Tait again in a month's time. She remains on Lyrica, Mobix, Maxalon and Endone. She has a lawn mowing business and only now docs a few selected customers, but gets a lot of help from her son.
As to the her "present disabilities", Dr Giblin returned to the four categories addressed in his earlier report. His findings are extracted below: General Pain killers give her moderate relief from pain. She can only lift light weights; she can walk for half a kilometer: sit for half an hour and stand for the same period of time. Journeys are limited to two hours. She aches with changes In the weather. Work She does three to five jobs a week and may do it for half an hour to an hour, depending on whether her son is able to help her. Most of the lawns are done in a piecemeal fashion. If she has to use a whipper snipper, she uses a strap. She finds that she has to medicate in order to get through the work. Home She still lives in a house with her twenty three year old son and the disabilities outlined in my previous report remain the same. Social Her social life is still restricted and that hasn't changed.
Dr Giblin's opinion and prognosis in this second report remained the same as his previous report. He reported: "this lady still has persistent pain and discomfort. It is possible that part of her symptoms may relate to the L4/5 level".
Turning to considerations relating to future work, he opined that she "remains unfit for work that involves repetitive bending or heavy lifting".
During cross-examination, the plaintiff said she could "not really" remember seeing Dr Giblin. She qualified her answer with the following: "I remember seeing doctors but I don't remember their names". As to representations made by him about the amount of jobs she did, she gave the following evidence: Q. Do you remember that by December of 2017 you were back working in your Lawns 'n Edges business? A. Yes. Q. And you told Dr Giblin, didn't you, his report is at page 264 of the book, and he records something at page 265, you told him, didn't you, that you were only doing three jobs a week? A. Around that, ..(Not transcribable).. Q. I suggest you told him that you were mowing three lawns a week and you'd spend about an hour at a time, you accept that's what you told him? A. Possibly, I can't remember. It may have only been three a week. Q. Or it may have been six, may it? A. Possibly.
She further said: Q. You also said that, I suggest, to Dr Steven (sic), when you saw him for the defendant a month or so later, do you accept that, that is that you were only doing about three jobs a week at that time? A. If that's what it says. Q. But those statements were not true at all, were they? A. Yes, they were. Q. I say that to you because I'm suggesting to you that you were doing significantly more than three jobs a week at that time, do you not accept that? A. No, I don't. Q. I suggest to you that you felt physically capable of doing a lot more than that at that time, that's right, isn't it? A. No.

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Medico-legal report of Professor John Yeo

On 28 September 2017, Dr Yeo produced a medico-legal report, following his consultation with the plaintiff.
As to her past history, Dr Yeo reported: The clinical examination confirmed that the claimant had a normal and balanced gait. Straight leg raising was within normal limits in both lower limbs. Movements of the lumbar spine in flex ion, extension and lateral tilt were limited to 80% of normal pain free range, but there was no obvious marked paraspinal muscle spasticity during these attempted movements. Her operative scar is well healed and not sensitive. On examination of the right and left hip joints, there was some limitation of pain free range of movements in the right hip joint but normal range in the left hip joint. The restriction in the voluntary movements in the right hip joint was essentially associated with the susceptibility to the development of low back pain with these movements. On examination of the lower limbs, motor power appeared to be normal in both right and left lower limb with normal coordination demonstrated and normal muscle tone and no localised muscle wasting. On examination of sensation, there was a diminished response to pain in the distribution of the right L5/S1 dermatomes, but normal sensation in bilaterally in the sacral dermatome distribution and normal proprioception in both lower limbs.
As to the "nature and extend of the continuing disabilities", Dr Yeo opined: Ms Pike is continuing to suffer from the persistence of a right LS/S1 radiculitis in association with a recurrence of the right disc prolapse and necessary surgery in an attempt to control localised and referred pain. She also has got evidence of localised inflammatory pathology in the region of the left sacroiliac joint and this is contributing to the nature of her recurrent bilateral lower back lumbar pain.
In advancing that opinion, reference was made to a review of the plaintiff's x-rays, including the bone scans dated I September 2016 and 29 June 2017 as well as the MRI studies on 6 February 20I5, 3 June 2015, and 29 June 2017. Dr Yeo also noted that he had the opportunity to review CT scans of 8 July 2016 and 3 January 2017.
Turning to capacity to work, Dr Yeo opined that the plaintiff has "capacity and fitness to return to work with the limitations being the need to avoid repetitive heavy lifting".
Dr Yeo's prognosis is extracted below: I would anticipate with this controlled exercise routine that Ms Pike will without surgery have some improvement in her pain syndrome. She will, however, remain permanently susceptible to recurrence of low back pain, particularly involving rotation of the lumbar trunk and pelvis. This recurrent pain is associated with trigger points in scar tissue which has developed in the region of the emerging right L5/SI nerve roots and in the region of the left sacroiliac joint.
During cross-examination, the plaintiff was questioned about her consultation with Dr Yeo. She said she "vaguely" remembered seeing him, noting "I've seen a few doctors, I'm not sure which one that was".
Turning to his advice about gardening, she said: Q. He's written a report which is at page 260 of the Court book. This is at page 262. Do you remember telling him that you're no longer able to garden at that time? A. What year is it? Q. This is September 2017? A. I don't remember. Q. It was not true, was it, that you were not able to garden at that time? A. I don't remember saying that. Q. I'm just asking you now, whatever you said to him, it was not a fact, was it, that you were unable to garden? A. It was - sorry, can you repeat that? Q. Yes. As at September of 2017 it was not a fact that you were not able to garden? A. I'm not sure, like I said to you, I can't remember what month I started. Q. Let's put aside your business then as well. You were able to do gardening work physically in September of 2017, weren't you? A. I'm pretty sure I was working in - it could have been October, I can't remember the actual month. Q. Yes, but my question was you were physically able to do gardening work in September of 2017, weren't you? A. No. Q. Do you think that you were working in your gardening business but not able to do gardening, is that what you're saying? A. I wasn't able to do much, no. Q. You were able to do other people's lawns and edges for money, weren't you? A. Occasionally but I'm not sure what month that was. Q. It would've been false to say at that time that you couldn't do gardening, wouldn't it? A. I can't remember what month I started, so I can't tell you. Q. Do you accept that it would have been false to say it then, regardless of what you were doing in your business? If you weren't physically able to do it, that would've been false, wouldn't it? A. No. No. Q. What I'm going to suggest to you is that you did make that false statement to that doctor at that time, didn't you? A. No.
Turning to the topic of lifting, she gave the following evidence: Q. You also told the doctor at that time that you weren't able to do any lifting activity, didn't you? A. I don't recall what I said to the doctor. Q. Do you think that - I'll read out what's there, this is at the top of page 262, Dr Yeo says this, "She has ..(not transcribable).. to household duties, particularly ..(not transcribable).. and is no longer able to participate in gardening or any lifting activity". You say something like, I cannot do any lifting? A. Quite possibly. Q. That was not true at all, was it? A. It is true. If I lift something I'm in a lot of pain. Q. You were doing lifting regularly in your work at that time, weren't you? A. I don't remember when I started work. I'm not sure which month it was in 2017. Q. Do you accept that some time in late 2017 you were regularly lifting as part of your work? A. No. Q. Is that because your son was always with you doing any lifting that needed to be done? A. Most of the time.

[68]

Medico-legal report of Dr John Stephen

Dr John Stephen produced an independent medical examination of the plaintiff at the request of the defendants' solicitors. Dr Stephen examined the plaintiff on 23 January 2018.
At the outset, Dr Stephen noted: The documentation you supplied has been minimal. It consisted of your referral letter and the solicitor's claim and the particulars. When Ms Pike attended today it was with a series of investigations which enabled me to piece the history together. There were no reports.
As to the incident, he reported: On this occasion Ms Pike was shopping at Coles. She had parked her ute. She was putting groceries into the ute on the front seat. She stepped back into an open drain hole. She stepped back with her right leg which was extensively bruised over its upper outer segment, following which there was a haematoma which was drained a few times by her general practitioner. When she fell, it was backwards onto her bottom. After this, her back pain and right leg pain recurred. She saw her general practitioner who arranged for a CT scan. This is described below. Ms Pike was referred to Dr Davidson, who did the original discectomy, who in turn referred her to Dr Tait, who in June 2016 at Macquarie Private Hospital performed a posterior interbody fusion at the lumbosacral level. Prior to operation, she was troubled by back and right leg pain. She could not remember if there was any left leg pain. Ms Pike tells me that the operation took 8½ hours because of problems with scar tissue and freeing up the nerve roots. She was in ICU for a couple of days, during which time she said there was drainage of fluid from her spine. This drainage stopped eventually. Following the operation she had much in the way of physiotherapy but continued to have the symptoms described immediately below.
Under the headings "current complaints" and "current treatment", he reported: CURRENT COMPLAINTS Ms Pike still has a lot of back pain. She has leg pain on both sides now. Her right leg pain is in the right buttock and thigh and leg and right foot generally. There is numbness chiefly over the dorsum of the right foot, but also to a lesser extent underneath. Her left leg pain extends from the buttock to the outer thigh and outer and posterior calf to the foot generally. There is no numbness in the left foot. She said there was no numbness in the right foot prior to the operation. Bladder control is normal. She is constipated because of her medications. CURRENT TREATMENT Following the operation, because of ongoing symptoms, Ms Pike has had a number of injections, including that into either sacroiliac joint, a selective L4 nerve root block on the left side and bilateral L5 nerve root injections. These have not helped her. She is to have another injection later this week involving, she thinks, the facet joints. Her medications include Maxolon, Endone, Mobic and Lyrica.
Dr Stephens conducted a physical examination. His findings are extracted below: Ms Pike was noted to be of average build. She walked without a limp. She was cooperative. There were no inconsistencies. There was a largish soft tissue lump about the size of a small saucer (1 Ox 8cm) over the right upper outer leg, the site of the previous haematoma. Lumbar posture was normal. There was a vertical scar of approximately 10cm. There appeared to be no muscle wasting in the lower limbs. There was a fair range of lumbar movement. She could walk on heel and tiptoe. There was no localising tenderness. Her hips moved through a normal range. Straight leg raising on each side was to approximately 60° with posterior thigh pain on either side. There was numbness over the dorsum of the right foot and a lesser degree of numbness over the plantar aspect. There was no weakness of extension of the hallux on either side. The right ankle jerk was absent. The left knee jerk was somewhat depressed compared with the right.
Dr Stephen provided a summary of his review of the CT and MRI scans. The review, is extracted below: A CT scan of the lumbar spine dated 6 February 2015, about two weeks after the incident, showed the old right laminotomy defect at the lumbosacral level where there was marked disc degeneration. I noted a pars defect on the right at LS, as reported. The radiologist reported moderate to severe bilateral foraminal stenosis more marked on the left, but I did not agree with this. Elsewhere there was mild degenerative change at L4/5. An MRI scan performed on 3 June 2015 showed a slight but definite forward slip of LS on S1 with posterior annular tear in the degenerate lumbosacral disc, together with a right sided pars defect and evidence of the previous right sided laminotomy. The radiologist reported narrowing of the right neural exit foramen with likely compression of the exiting right LS nerve root. I was not convinced of this. A post-operative CT scan of the lumbar spine dated 22 June 2016 showed the PLIF at the lurnbosacral level with well positioned pedic!e screws. An MRI scan dated 8 July 2016 did not add anything to the CT scan. A CT scan of the lumbar spine dated 3 January 2017 and a second scan only a few days ago dated 17 January 2018 showed the lumbosacral fusion probably to be solid. There did appear to be some narrowing of the left L4/5 foramen, possibly with impingement on the exiting !eft L4 nerve root. I saw plain x-rays of the right leg shortly after the date of the injury showing no evidence of any fracture.
Following his examination of the plaintiff, Dr Stephen provided the following diagnosis: Ms Pike, as a result of the fall, sustained a large haematoma of the right upper outer leg (anterolateral aspect) which has left her with a minor soft tissue deformity here in the form of a lump. Much more importantly, Ms Pike sustained a persistent and severe recurrence of her low back and right leg pain, previously, according to her description, much improved (she claims entirely absent) after the operation performed in 2013. This led to her having a further lumbosacral decompression and posterior lumbar interbody fusion. I understand there was difficulty at the time of the operation. She has symptoms and signs of an ongoing right LS radiculopathy and a possible L4 radiculopathy on the left side (the clinical features being diminished knee jerk and the radiological findings described above).
Dr Stephens further opined "[t]here is no doubt in my mind that the fall of 20 January 2015 has been a significant contributing factor to Ms Pike's current impairment and disability".
As to the prognosis, he opined: "The prognosis is not good. I anticipate that Ms Pike will continue to have severe problems with low back and with leg pain into the indefinite future. This is unlikely to be improved by further surgery".

[69]

Joint Conclave Report

As mentioned earlier, Dr Giblin and Dr Stephen produced a Joint Conclave Report dated 22 September 2020. The experts provided a joint opinion with respect to matter of agreement and disagreement, respectively, which are set out below.
As to matter of agreement, they opined: 1. The plaintiff injured her back aged 15. She had back and right leg pain for which she had a right-sided lumbar discectomy in 2013. The operation was a success. Before the fall of 20 January 2015, she had no significant back or leg pain. 2. When she fell on 20 January 2015 it was backwards onto her bottom. Her lesser injury was extensive bruising over the right leg with a haematoma. Her major injury was to the back, where she had a recurrence of back and right leg pain. This led to a further operation in June 2016 when she had a decompression and a posterior interbody lumbosacral fusion operation. This was a long and difficult operation and was not successful. After the operation she continued to have back and right leg pain. In addition to this she complained of numbness in the right foot and left leg pain. 3. Her current complaints are of ongoing back pain, right leg pain and left leg pain. She has numbness as described above. Bladder control is normal. 4. The plaintiff has a lawn mowing business, which is limited by her symptoms. She mows lawns about three times a week, but, prior to the fall, had planned to do more. 5. On physical examination, there was a largish soft tissue lump about the size of a small saucer over the right outer upper leg, the site of the previous haematoma. There was some restriction of lumbar movement and straight leg raising produced posterior thigh pain on both sides. Dr Stephen found some numbness over the dorsal and plantar aspects of the right foot, an absent right ankle jerk and a diminished left knee jerk. 6. Both experts agreed that a CT scan demonstrated the PLif to be going on to solid fusion. There did appear to be some L4/5 disc narrowing with some possible impingement on the exiting left L4/5 root. 7. Concerning the diagnosis both experts agreed that as a result of the fall, the plaintiff sustained a large haematoma of anterolateral aspect of the right leg (below the knee), with a residual lump. The plaintiff sustained a persistent and severe recurrence of her low back and right leg pain. The lumbosacral decompression and posterior interbody fusion of June 2016 did not improve her symptoms. She still has back pain and right and left leg pain. She has symptoms and signs suggestive of an ongoing right LS radiculopathy and a possible left L4 radiculopathy. 8. Both experts have no doubt that the fall of 20 January 2015 has been the major contributing factor to the plaintiff's current impairment and disability. 9. The prognosis is not good. The plaintiff would continue to have severe problems with low back and leg pain into the indefinite future.
As to matters of disagreement, the experts noted only one point, which is extracted below: Whereas Dr Stephen thought that further surgery would not be helpful and may worsen matters. Dr Giblin was of the opinion that there could be a place for surgery in the form of an 14/5 decompression and fusion if the investigations were appropriately positive.

[71]

Employment

Senior counsel for the plaintiff made the following submission as to the plaintiff's business and the involvement of her son following the accident: To come to work, she started the lawns and edges business beforehand and that requires pushing round a lawnmower and trimming and that sort of thing, that one understands, occurs when one maintains lawns commercially. She had done it before, she was confident she would get the work and then this accident occurs. She doesn't give up work, she gets her son, Christopher, to help her. He can't work very much but she needs the money and so her son, Christopher, who lives with her, who works fulltime elsewhere, comes out and helps her. She stopped for some time after the accident because she had an operation in 2016 to her spine which all the doctors agree was a result of this accident. It is fair to say that the operation was a failure. She received no real benefit, there was some resolution of tingling down the legs, I think, but, at the end of the day, she remains with very significant pain and restriction in relation to her back. In late 2017, after that operation, which was in 2016, in late 2017 she goes back to work, she's working two or three jobs a week, just trying to make a bit of money, but her son, Christopher works for her, unpaid and without him it just wouldn't be possible for her to do anything. The reality is, your Honour, this lady has battled on in circumstances where many may have given up and I will say this in front of her but, in my respectful submission, your Honour will come to the view that what she is doing is not maintainable into the future and the reality is, she has very little in terms of, if any, residual, real residual earning capacity that she could utilise. We have made some submissions about that in our outline of submissions.
I note that during cross-examination, the plaintiff was challenged about her choice of work in face of pain. Her evidence is extracted below: Q. Do you actually take the tablets that you go and get? A. Of course I do. Q. You take them because of pain, correct? A. That's right. Q. Have you considered not doing lawnmowing work might also help you with your pain? A. Yes, but I need the money, I need some extra money, I can't survive, it's pretty hard. Q. You can't survive on the disability support pension, is that right? A. It's pretty hard, yes. Q. Have you done anything in the last four years to look for lighter work than lawnmowing? A. No. Q. Why not? A. Because I can't sit or stand for long periods of time in one spot, I have to keep moving, getting up and down. Q. Have you thought about part time bookkeeping? A. I can't sit down for long periods of time. Q. Surely, wouldn't you expect in a bookkeeper's job you could stand up at your desk from time to time if you needed to? A. I haven't thought about it, usually a job in an office is sitting down. Q. I suggest you haven't looked for any bookkeeping work because you're making good money in your lawnmowing business, that's right, isn't it? A. No.
Senior counsel for the defendants further cross-examined the plaintiff as follows: Q. You are continuing to do the work that you have described as hard work, aren't you? A. Yes. Q. I suggest that you're doing that because, in fact, since shortly after the surgery in 2016, you've had very little by way of symptoms, is that not correct? A. That's not true.

[72]

Consideration re Medical Evidence and Capacity of the Plaintiff in the Light of the Surveillance Footage

The plaintiff underwent back surgery by Dr Davidson on 6 November 2013 at Nepean Hospital. That surgery was undertaken after a long history of the plaintiff suffering back pain (particularly since 2005) and imaging showing a central and right sided disc protrusion causing nerve root compression. The plaintiff underwent a bilateral LS/51 microdiscectomy and nerve root decompression.
The operation was substantially successful. Dr Davidson reported that the plaintiff had a complete resolution of her sciatica, but had some ongoing pain including hip pain. I have some doubt about the plaintiff's evidence of complete recovery of her back problems after this operation given that she complained about back and hip pain six weeks after the surgery (even though the sciatica had been resolved), there was an ongoing record of back and buttock pain in 2014 and her GP's notes of January 2015 refer to "exacerbate lower back" (after walking into an open plastic drain).
As a result of the incident, the plaintiff suffered serious injury which Dr Davidson felt was not contributed to by her previous surgery. The injury suffered was evidenced by a right-sided L5 pars deficit with a grade 1 spondylolisthesis.
In June 2016, some 18 months after the incident, Dr Tait performed an LS/51 posterior lumbar interbody fusion for isthmic spondylolisthesis with radiculopathy.
Following surgery, the plaintiff underwent a substantial period of rehabilitation and recovery to the end of 2016.
On 4 October 2016, Dr Ho, a pain and rehabilitation specialist, described the plaintiff as experiencing stabbing and dysaesthetic pain over the lower back radiating to the bilateral hips. She had reduced motion of the lumbar spine and restricted current activity. Dr Ho diagnosed chronic sensitised mechanical lower back pain with failed back pain surgery syndrome. A physiotherapy regime was put in place.
Dr Ho's diagnosis was confirmed on 21 February 2017. Reference was made to a disc protrusion with discogenic pain. The plaintiff was told to avoid heavy lifting.
In April 2017, Dr Tait stated that he was disappointed with the results 10 months after the plaintiff's operation. The plaintiff described pain at various locations of her body including the lumbosacral junction and left lower limb pain.
On 11 July 2017, Dr Ho identified the continuance of failed back surgery syndrome and a L4/5 disc protrusion. The plaintiff was 'coping' with resilience and ongoing opioids and an antineuropathic pain agent.
On 17 July 2017, Dr Tait reported that the plaintiff was still very much debilitated by her symptoms. He stated that the plaintiff reported back pain at the lumbosacral junction which was worse on the right side. Dr Tait referred to Dr Ho as managing the pain.
In July 2017, the plaintiff commenced her lawn mowing business which involved voluminous and arduous work involving significant lifting and bending as demonstrated by the surveillance footage before the Court.
The plaintiff was cross-examined about being "debilitated" by her symptoms at this time as referred to in Dr Tait's report and, in particular, as to her reporting that bending set off the pain. I have earlier referred to the plaintiff's unsatisfactory evidence in this respect in the light of the surveillance footage which, inter alia, depicts at about this time (and in subsequent years) the plaintiff bending whilst undertaking mowing work without any bending avoidance behaviour. That aspect of the work together with other aspects of the work such as lifting mowers raises significant doubts about the extent of any incapacity suffered by the plaintiff and the assertion of pain or at least the extent of the pain referred to by the plaintiff as referred to earlier in this judgment in discussing the Markus ruling, the credit of the plaintiff and the review of the medical evidence. It may be noted that at this time, Dr Tait stated that there was no explanation for the plaintiff's ongoing symptoms.
In September 2017, Dr Yeo stated that the plaintiff demonstrated normal muscle tone, no localised wasting and with limitations in pain free movements of the right hip but a normal range of movements in the left hip. He noted the persistence of a right SLS/S1 radiculitis in association with a recurrence of a right disc prolapse.
Dr Yeo also also stated that there was evidence of a localised inflammatory pathology in the left sacroiliac joint although the relationship with the incident in this respect is unclear.
Dr Yeo made his assessments in the light of the history of the plaintiff's surgeries. He stated that the plaintiff needed to avoid heavy lifting. That type of lifting was, of course, inherent in the mowing work undertaken by the plaintiff which the surveillance footage showed was done with some strength and fluidity at that time.
In November 2017, Dr Tait stated that he was not able to identify the cause of the plaintiff's right side numbness and pain. Dr Tait also noted that the plaintiff had numbness in her hands caused by Buerger's disease.
In December 2017, Dr Giblin issued a report with respect to the plaintiff which contained, inter alia, a heading "Present Disability". In this section of the report, he indicated that the plaintiff had reported that she was mowing lawns three times a week for an hour under heavy medication. She apparently reported that what used to take half an hour, now took an hour. That reporting did not reflect, on the surveillance material, the manner in which the plaintiff undertook her continuing mowing business at that time.
That said, Dr Giblin took the view that, even at the reported level of mowing activity, the repetitive bending and heavy lifting involved in mowing should have the plaintiff looking for "an alternative career". It may also be noted in this respect that Dr Giblin's report and his subsequent report in 2020 are the first reports to recognise, to some degree, the work actually being undertaken by the plaintiff.
It may also be noted that Dr Giblin's report in 2020 again refers to the plaintiff undertaking mowing tasks by doing three to five jobs a week for approximately one hour each. Dr Giblin maintained the view that the plaintiff had persistent pain and discomfort which possibly related to the L4/L5 level of her spine and that she remained unfit for work that involved repetitive bending and heavy lifting. Again, the surveillance evidence revealed a fitness for the heavy mowing work at a very strenuous level requiring strength and agility proximate in time to this report.
Dr Stephen concluded an examination of the plaintiff on 23 January 2018. He reported that the plaintiff walked without a limp, there were no inconsistencies, her lumbar posture was normal, there was no muscle wasting in the lower limbs and that the plaintiff had a fair range of lumbar movement. He also reported that hip movements were in the normal range and that numbness in the foot was reported.
Dr Stephen opined that the plaintiff had sustained a large haematoma of the right outer leg which left a minor soft issue deformity. He found that the plaintiff had sustained a persistent and severe recurrence of her lower back and right leg pain which she claimed was much improved after the operation performed in 2013 (in fact, she claimed that it was entirely absent).
Dr Stephen opined that the incident was a significant contributing factor to the plaintiff's current impairment and disability. He considered that the prognosis was not good but that her condition was unlikely to be improved by further surgery.
In the Joint Conclave Report, Dr Giblin and Dr Stephen opined that the plaintiff had undergone a difficult operation after the incident which was not successful and that she continued to have back and right leg pain. She also complained of numbness in the right foot and left leg pain.
In the joint report, the doctors indicated that the plaintiff had complained about ongoing back pain and that her lawn mowing business was limited by her symptoms. The doctors indicated that there appeared to be developing a solid fusion and some narrowing of the L4/5 disc with possible impingement on the L4/5 root. It was also reported that the plaintiff had sustained a persistent and severe occurrence of her lower back pain and right leg pain and that the surgery in 2017 had not improved her symptoms. Both experts opined that the incident was a major contributing factor to the plaintiff's current impairment and disability and that her prognosis was not good. There was a disagreement as to whether surgery would be of some assistance.
In Kubovic v HMS Management, the NSW Court of Appeal dealt with a matter in which the appellant was injured in an accident whilst he was working as a chef for the respondent and where, in an action for negligence, the primary judge had not accepted the injuries sustained by the appellant were serious in the light of surveillance evidence that was admitted in that matter. This was notwithstanding medical evidence called in the proceedings.
The Court found that: 1. The inquiry to be made as to the admission of surveillance evidence (in that case, pursuant to s 318(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)) was essentially factual. In circumstances where the appellant's credit was put in issue, the use of the surveillance evidence was relevant to enable the tribunal of fact to determine the reliability of his account. It was in the interests of justice to permit the respondent to adduce the surveillance evidence (see at [103] and [105] per McColl JA in the minority with whom Ward JA and Adamson J agreed). 2. The primary judge did not fall into error in assessing the weight that could be placed on the opinions of the appellant's medical experts, or on the expert evidence of the appellant, in the light of the surveillance evidence (per Adamson J at [185] with whom Ward JA agreed at [137]. 3. There was no obligation on the respondent to require the appellant's doctors for cross-examination to put the surveillance evidence to them and no denial of procedural fairness occasioned by the doctors not being required for that purpose (per Adamson J at [184]).
The surveillance footage in that case involved the depiction of the appellant performing certain activities at a gym.
The further observations of Ward JA as to the surveillance footage are appropriate in that respect at [143]-[145] were as follows: 143 True it is that caution is required before relying upon the records taken by doctors of medical histories given to them by patients (Mason v Demasi [2009] NSWCA 227). In the present case, what had to be considered was not so much as to what could be concluded from the lack of reference to particular gym activities in the doctors' records of the medical history given by Mr Kubovic but, rather, as to the weight to be placed on medical opinions apparently made on an assumption (among others) as to the nature of Mr Kubovic's physical activities at the gym and perhaps also as to his level of pain during or after physical activity. 144 While I accept that his Honour may well have erred in drawing any inference as to the length of the activities undertaken at the gym by Mr Kubovic, in circumstances where the video footage was limited and was not continuous, the difficulty as I see it for Mr Kubovic was that insofar as the medical reports were based (at least in part) on assumptions derived from the reported history that his exercise was limited to yoga, pilates, physiotherapy, light exercises or stretching, and that he found pain was increased "by any type of activity" (see in particular the repwort of Dr McGroder on which considerable reliance was placed by Mr Kubovic at first instance), the factual foundation for those assumptions was squarely put into doubt by the surveillance evidence. 145 I accept that it was not for the primary judge to form his own opinion as to Mr Kubovic's medical condition based upon his observations of the surveillance evidence, although as noted above this is apparently what his Honour was invited to do. Neither, however, is it for this Court to do so. Whether or not the exercises depicted on the video were limited to lower bodywork does not answer the question as to what stresses they may have involved to the upper back, for example. Mr Kubovic, himself, accepted in cross-examination that in part of the video his back was arched so that his shoulders were raised off the horizontal while his feet were secured by the exercise equipment and that such exercises caused some pain (T 106.19-21). The significance of that was something that none of the doctors seems to have assessed, presumably because activity of that kind was not reported to them. Nevertheless, what the surveillance evidence does clearly show is that Mr Kubovic's regime went beyond yoga, pilates or stretching (and, from a lay observation, would not be readily be described as physiotherapy or "light" exercise).
It is perhaps understandable that the treating and examining doctors may have taken, at face value, the statements by the plaintiff as to the extent of her pain and suffering. She experienced a serious injury and underwent surgery, although there were aspects of the opinions of the doctors querying why the operation had not better resolved the plaintiffs back and leg condition.
However, the medical opinions were given either without knowledge of the nature and volume of the work performed by the plaintiff in the mowing business at the time of the medical evaluations or based on an inadequate understanding of those considerations and volume of work performed or its actual nature. (For example, Dr Stephen referred to pushing a mower and Dr Giblin, "mowing" although he refers to the avoidance of a career involving bending or heavy lifting).
I have found the plaintiff's evidence to be unreliable. The surveillance footage reveals a person capable of arduous work involving bending and heavy lifting. It is demonstrative of strength and a fluidity of movement. The unreliability of the plaintiff's evidence also undermines her account as to the suffering of pain or suffering to the degree she reported to the doctors providing reports. The work shown in the surveillance footage is hard work, inconsistent with the suffering of acute back and leg pain. Furthermore, the surveillance footage does not show a restriction in movement or objective signs of pain. I do not consider the period of the surveillance to be unrepresentative of the plaintiff's work given the amount of the footage, period of time over which it was conducted and the consistency of the observations of the plaintiff.
I consider that, even in the absence of cross-examination of the doctors providing medical reports in the proceedings, the weight that may be given to medical reports in these circumstances must be significantly reduced insofar as they are based, as they substantially were, upon the self-reporting of the plaintiff as to her work activities, her capacity for the same (or assumed capacity) and the level of pain she suffered whilst undertaking the physical activity which is her business and work. This is particularly so given the volume of work undertaken by the plaintiff over an extended period. Overall, I agree with the submission of the defendant that a significant part of the plaintiff's case depended upon her credibility as a witness.
I do not find that the plaintiff does not suffer any ongoing back and leg pain deriving from the incident., There is in prospect some ongoing pain in the plaintiff's back and leg which may modestly impact the plaintiff's future career earning prospects, for which I have made provision in the head of damages. However, as I have stated, her assertions are significantly exaggerated when viewed in the light of the evidence before the Court such that the weight of the medical opinions predicated upon her accounts of the severity of her condition is significantly reduced. The plaintiff has a capacity to work, even to undertake arduous work, with pain managed adequately by medication.

[73]

Schedule of Damages

The plaintiff relied upon an amended Schedule of Damages (see p 703 and following of the Court Book). By an email dated 6 November 2020, the defendant provided an amended Schedule of Damages.
Senior counsel introduced the plaintiff's current treatment regime, in summary: Her treatment at the moment consists of taking various analgesia, prescription analgesia; seeing her treating surgeon, Dr Tait, T-A-I-T, who is the surgeon who carried out the operation in 2016. She can't afford to have physiotherapy but would have it if she could afford to have it. So, it's a cushion for future economic loss in the sum of $40,000 is sought, it's not a lot of money and, in light of what has already been paid, it's frankly, in my view, a very low amount, but nevertheless that is what has been pleaded and that's what we seek. This is a matter that comes to be assessed pursuant to the provisions of the Civil Liability Act. As your Honour may know, she is entitled to damages for pain and suffering, known as non-economic loss, which is to be determined as a percentage of the most extreme case and I have made some comment about this in my submissions; it is not the most extreme case, you don't have to be a brain damage, quadriplegic to get 100 per cent; it's a most extreme case. She is a woman who is 47 years of age, 48 years of age, will live on, on the tables, for another 35 to 40 years and the medical evidence is clear that she will continue to suffer significant problems with her lower back probably for the rest of her life. It sounds, in a significant percentage of a most extreme case, in my respectful submission, and our submission, our schedule of damages suggests 40 per cent. As I have said in the written submissions that I forwarded to your Honour yesterday, on one view of it, that is a bit low. To have to put up with what she's going to have to put up with, on a daily basis, constantly; lack of sleep, problems walking, problems sitting, problems standing for the rest of her life, is a major impost upon her life.

[77]

Plaintiff's Submissions

So far as economic loss is concerned the past is based upon $800 per week net which she should have been able to earn but for the accident. From that amount has been deducted the various amounts that her tax returns show that she has earned. There has also been some reduction to take into account the fact that she has had a hysterectomy and would not have been able to work for a week or so in any event.
If plaintiff had not been injured in the accident, she would have derived gross earnings from her lawn mowing and gardening business from 6 to 8 jobs per day in summer and 4 to 6 jobs per day in winter at $50 per job. This amounts to gross weekly earnings of between $1,800 and $2,400 on average over the course of a year. She had proposed to work 6 days per week. Assuming an average of 7 jobs per day, 6 days per week a gross income of $2,100 is produced.
The expenses that the plaintiff has incurred in deriving her current gross business income were: 1. Up to $15 for machine fuel per week; 2. $30 for car petrol per week; 3. Replacement of lawn mower blades 4 times per year (3 times in summer and once in winter at a cost of $20 for blades and $20 for servicing on each occasion and amount of $3.80 per week) weekly expenses of between $43 to $48 on average over the course of a year.
Accordingly, her current weekly expenses average between $43 to $48 per week over the course of a year. This is for doing the approximately 6 jobs per week that she is currently doing.
Presuming that she was able to do 7 jobs a day, 6 days a week her expenses would then be: 1. up to $90 per week for fuel; 2. $180 for car petrol per week; and 3. $24 per week for blades and servicing.
As a result of injuries sustained in the accident, the plaintiff was unable to resume her lawn mowing and gardening business in the manner that she had hoped to carry it out prior to her accident. She did not return at all until May 2015.
At the time the plaintiff returned to her lawn mowing and gardening business in about May 2015, she performed 3 to 6 jobs per week at $50 per job. This amounted to gross weekly earnings of between $150 to $300 per week.
Reducing the weekly income of $2,100 by $334 leaves a taxable income of $1,766 per week. On current tax rates that would amount to $1,310 net per week.
However, the particulars relied upon by the plaintiff provide a significant margin for the fact that the business was being built up and other such vicissitudes. Accordingly, for the period up to the present the claim proceeds on a basis that she would have earned $800 net per week. The plaintiff does not seek to resile from that claim.
In relation to the future, the claim, more realistically, is based upon a net loss of earnings of $1,250 per week. This is amply justified by the evidence.
Further, so far as the future is concerned the Court would accept the plaintiff's evidence that she could work at least 30 jobs a week earning $50 to $60 per job. That amounts to $1,500 to $1,800 gross per week. From that tax would have to come as would expenses.
Of course, the matter is one where some speculation is required given that she had only just started her business. What the Court would accept is that this lady had a very strong work ethic, even in the face of injuries that might have brought other people down.

[79]

Conclusion: Economic Loss

A substantial part of the defendant's submissions accord with the findings I have made as to the plaintiff's evidence, her undertaking of work and her capacity to undertake hard physical work. I also agree with the defendant's historical summary of work undertaken by the plaintiff and the relevant passages of the plaintiff's evidence relied upon in the defendant's submission on this issue.
The defendant proposed damages for past economic loss upon the bases noted for each time period: (a) January 2015 to 31 December 2015: Nil The Plaintiff was building her business which commenced in late 2014. In October 2015 the Plaintiff was doing multiple jobs (possibly 8-9) per day. The Plaintiff alleges she deteriorated until the surgery in June 2016. The Defendant allows no economic loss until 31.12.15. (b) 1 January 2016 to 5 June 2016: $10,400 The Plaintiff deteriorated until the surgery. The Defendant allows three months (13 weeks) at $800 net per week. (c) 5 June 2016 to 31 December 2016: $20,800 The Plaintiff gradually returned to full fitness. The Defendant allows $800 net per week for 6 months (26 weeks). (d) 1 January 2017 to date: Nil The plaintiff was fit for all forms of employment.

[81]

Plaintiff's Submissions

The report of Ms Zeman contains much inadmissible material. For example, at CBP 882 in para 8.6, the author, an occupational therapist without medical qualifications, delves into medical matters, particularly in the second and last sentences. In CBP 886-887 the author has sought to undertake what would normally be a medical examination and then put her own, non-medical, opinion in her report following from those examinations.
At CBP 889 the author has apparently undertaken psychometric testing. What qualifications she had to do that is unknown. Further, the results that she has produced apparently rely upon unverifiable testing. The methodology is not disclosed and the results are not disclosed beyond her interpretation of them.
In Brighten v Traino [2019] NSWCA 168 at [78]-[79], the Court of Appeal was particularly critical of neuropsychological testing "the validity of which was impenetrable and unproven in Court".
The purpose of the assessment undertaken by Ms Zeman was to: 1. undertake an Occupational Therapy Assessment of Ms Jacqueline Pike's living arrangements and ability to independently undertake Activities of Daily Living; 2. undertake a review of Ms Jacqueline Pike's current status and treatment requirements; 3. provide recommendations regarding Ms Jacqueline Pike's current functional abilities and limitations.
Ms Zeman was not provided with the reports of Associate Professor Yeo, Dr Matthew Giblin or Dr Ho.
At 5.6, BACKGROUND Ms Zeman stated "Despite reported total resolution of spinal symptoms in 2013, Ms Jacqueline Pike has not worked since 2012, assumed to be associated with her ongoing symptoms of Buerger's Disease".
At 6.24, HISTORY Ms Zeman stated "Ms Jacqueline Pike stated that prior to the subject incident, she last worked in 2012, undertaking lawn mowing and property maintenance as a contractor".
At 6.25, HISTORY Ms Zeman stated "At the time of the subject accident, Ms Jacqueline Pike was on a disability support pension...in the process of starting up her own lawn business in the Penrith District. …she had started advertising…she had not been working prior to such given her having been diagnosed with an autoimmune disease and given her previous history of spinal injury and associated surgery".
At 6.26, HISTORY Zeman stated "…following the subject accident…she went on to establish her lawn mowing business…."
At 14.2, Post Incident Roles and Responsibilities Ms Zeman stated "Ms Jacqueline Pike advised that some four months following the subject incident, she started up her lawn mowing business…."
Having regard to the evidence available in these proceedings, the above statements are clearly not correct.
At 8.6, PREMORBID AND CONCURRENT MEDICAL HISTORY Ms Zeman provided an opinion as to the triggering of Buerger's disease.
Ms Zeman is not qualified to give this opinion nor was such opinion reasonably required for the purposes of the assessment.
At 12, FUNCTIONAL CAPACITY EVALUATION, Ms Zeman reported (12.1.3 Cooperation and Engagement) "Ms Jacqueline Pike…initially refused to allow observation of her home without solicitor approval…was unable to assess the whole home, as assessment access was restricted to living areas, kitchen and bathroom only".
In examination-in-chief, the plaintiff denied stopping the OT access to parts of her house other than the bedrooms (T 25.38-T 26.5).
At 13, RESULTS OF STANDARDISED TESTING Ms Zeman undertook psychometric testing.
The plaintiff submitted the Court should have no regard to the purported results and the opinions expressed by the consideration of the testing. Ms Zeman is not qualified to issue psychometric testing, nor is she qualified to interpret any purported results from such testing. She has no qualifications in general medicine or psychology.
Such testing was not reasonably required for the purpose of the assessment.
At 14.4, Assumptions regarding Gratuitous care periods, Ms Zeman notes from the report of Dr Tait, "She is having great trouble walking in the street; however, she is still able to mow 6-8 lawns a day as she finds it easier to walk leaning forward with the mower". Ms Zeman further noted "Ms Jacqueline Pike reportedly continued to undertake such work until 2 May 2016, gaining assistance from her son as necessary".
At 14.7.2, Internal Housekeeping Ms Zeman assessed the plaintiff as having the functional capacity to complete light routine household maintenance tasks, including vacuuming, mopping and bathroom maintenance. This assessment is based upon a report to Dr Tait, after the subject incident and before surgery in June 2016, and apparently disregarding of the plaintiff's stated functional restrictions.
Ms Zeman opined that, with respect to reported difficulties with packing and unpacking and the need for assistance from her children, that "this would have been required in any event, given her past history of spinal injury and co-morbidities". This assessment failed to have regard to the plaintiff's report of no pain or restriction of movement prior to the incident in January 2015.
In Internal Housekeeping Gratuitous Assistance (Past Care) (other than periods 1,3,5 and 6) Ms Zeman assessed the plaintiff as "having the capacity to likewise engage in routine residential maintenance tasks with pacing of task performance".
The plaintiff submitted that the above assessment is based upon a false premise. That false premise being that at "other times she demonstrated the capacity to engage in heavier tasks such as mowing associated with her business". The plaintiff's evidence and the uncontroversial medical evidence, including treating general practitioner notes, should be accepted above this assessment.
Similarly, with respect to the assessment of 14.7.3 Laundry Gratuitous Assistance (Past Care), the plaintiff submitted the necessity for assistance from her children with respect to hanging out laundry, the plaintiff's evidence and the uncontroversial medical evidence, including treating general practitioner notes, should be accepted above this assessment.
With respect to 14.7.5 External Heavy Household Maintenance, Ms Zeman opined that for the period 11 May 2015 to 2 May 2016 "the sequelae of the subject incident itself did not impact on heavy household maintenance tasks". The plaintiff submitted that the evidence should be preferred as to her pain and restriction of movement and functioning during this period. Ms Zeman relied upon what Dr Tait says that she told him (Dr Tait's report of 16 October 2015). In cross-examination, the plaintiff denied telling Dr Tait she was mowing 6-8 lawns a day.
At no stage did Ms Zeman report what the plaintiff says about the frequency and nature of the lawnmowing work she does.
At 14.7.6 Shopping/Financial Management (CBP 903), Ms Zeman provided no basis for the assessment that the plaintiff is assessed as fully independent with shopping. The plaintiff submitted the evidence of the plaintiff and her son should be preferred.
At CURRENT SYMPTOMS, Ms Zeman reported the subjective experience of the plaintiff's pain as at the date of the assessment - April 2018. The rating given with respect to pain and weakness across the entire lumbral sacral region, pain aggravated by seating etc, was said to be 5-8/10.
An ntermittent 'tearing' sensation over the bilateral hips, radiating down the lateral and posterior aspect of both lower limbs and into the feet was given a rating of 5-8/10.
The plaintiff submitted that in the contemporaneous clinical notes of Dr Ong, the reports Dr Davidson, Dr Ho and Dr Tait there is continued reference to back pain. These references also include the prescription of powerful analgesia such as Lyrica, Mobic, Endone and Targin. It was also submitted that no reasons are given by Ms Zeman for such a broad rating.
The plaintiff further submitted that it is inexplicable in the circumstances of the objective medical evidence as to why such a broad range of 'subjective experience of pain' is provided, when the objective medical material and the plaintiff's own report identifies serious and persistent pain. Further, again, having regard to the objective medical material, and the plaintiff's reported pain and restriction of movement provided at 10. CURRENT SYMPTOMS, the assessment provided by Ms Zeman at 12.2.4. Range of Motion (ROM) for Hip - Normal active ROM in all planes - is inexplicable.
In all of the circumstances, no weight should be given to the report of Ms Zeman and the evidence of the plaintiff and her son should be preferred. Further, the objective medical evidence with respect to capacity and past and future care should be preferred.
For those reasons alone the plaintiff submitted that little weight can be placed upon the report of Ms Zeman.
Further, the way that Ms Zeman approached the matter was apparently to disbelieve the plaintiff, something that Dr Stephen certainly did not. For example, Ms Zeman finds that so far as the internal housekeeping is concerned the plaintiff was independent. Yet under the heading 'Comment' she recorded, presumably from the plaintiff, a history that she, the plaintiff, currently relies upon her son for assistance. However, in the third last paragraph of that page Ms Zeman gives a medical opinion, namely that the plaintiff's report of difficulties with tasks such as vacuuming, mopping and bathroom cleaning, were not consistent with her reports to Dr Tait. Essentially, Ms Zeman chose to disbelieve this plaintiff and instead make her own medical evaluation.As the Court of Appeal has found elsewhere, the lay evidence of persons involved in the house cleaning is to be preferred over the assessment of someone such as Ms Zeman.
The plaintiff's evidence and that of her son is that he has been spending about 10 hours per week assisting her. Accordingly, a claim is made in that regard on the basis that the care has been provided gratuitously.
However, that is unlikely to continue forever. The plaintiff should be provided with damages that allow her to engage a cleaner for some hours a week. The claim in the schedule of damages claims 8 hours a week at $41 per hour. There is evidence as to what it costs to employ such persons, namely $52 per hour. That leads to a claim for future domestic assistance of $375,232.

[82]

Conclusion

I accept that, as contended for the plaintiff, there are aspects of Ms Zeman's report which should be viewed with considerable caution and afforded little weight particularly as opinions of a medical character.
Nonetheless, in my view, the evidence does not ultimately support any claims for domestic assistance for the past. There may have been some periods where she required gratuitous assistance in this regard, but having regard to her work history, it has not been established that there have been any periods of 6 hours per week for 6 months in accordance with the statutory threshold.
I have already found that the evidence of the plaintiff's son as to domestic assistance may be doubted. His statements of what chores he did, and more importantly why, cannot be reconciled with the plaintiff's demonstrated strong physical capacity in 2015, and since 2016: His estimates of time spent years earlier, as a teenager, were unconvincing.
There is no basis to conclude that the plaintiff will require any domestic assistance in the future, paid or otherwise. She continues to regularly perform tasks in her work as or more onerous that any household chores.
I agree that, even the occupational therapist's modest allowances for assistance, were too much. Ms Zeman was however correct in using the fact that the plaintiff could do paid gardening work as an objective indicator, rather than simply accepting the plaintiff's statements. Ms Zeman's assessments as to the plaintiff's lawn mowing work are compatible with the findings in this judgment as to the plaintiff's capacity.
I note that during cross-examination, the plaintiff gave the following evidence as to the difficulties she experiences with "bending" for housework in contrast to lawn mowing work which underscores why her claim for domestic assistance should fail, in the light of my findings as to the unreliability of her evidence. An extract of that evidence appears below: Q. You've given some evidence, haven't you, about not being able to do your own housework, that's right, isn't it? A. Yes. Q. I suggest to you that the work that you have been doing for years now, since the surgery in 2016, is physically heavier than any of your internal household chores, isn't that right? A. It's not - not that, it's the bending over. Bending over back, I can barely stand up afterwards. Q. But you do regular bending in your work and get on with the job, don't you? A. I need the money or I go to work and I take medication and I'm in a lot of pain. Q. What I suggest to you again is that the work that you do get on and do in your lawnmowing job is physically heavier than any of your internal household chores, do you accept that or not? A. No. Q. You've told people, haven't you, that you have difficulty mopping and sweeping in your own home? A. Yes, I do. Q. Yet you can use a whipper snipper and a lawnmower in other people's yards, correct? A. Yes. Q. So it's not true, is it, to say that you have difficulties sweeping and mopping, is it? A. Yes, it is. Q. How is that so? A. Bending over continually while you're vacuuming or mopping hurts more than anything. I cannot bend at that rate. I can bend over to pick something up but I can't bend over and keep bending over.
Any claim for past domestic assistance by the plaintiff would, in my view, be at best for closed periods and would no surpass the threshold under s 15(3) of the Civil Liability Act. I do not consider the plaintiff will require further domestic assistance.

Pike v Coles Supermarkets Australia Pty Ltd; Pike v Solomon

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