Plaintiff v Defendant

2 When the trial commenced the plaintiff sought damages from three defendants. The first defendant was her employer Scholastic Cleaning and Consultancy Services Pty Ltd. The plaintiff worked for Scholastic as a cleaner. Scholastic had a contract to clean the school owned and operated by the second defendant. The school contracted with the third defendant ISS Hygiene Services Pty Ltd to provide equipment and consumables within the school's toilets. During the course of the trial, ISS Hygiene compromised its disputes with the plaintiff and remaining defendants and on 30 November 2012, I dismissed the plaintiff's claim and the contribution proceedings with no order as to costs. The plaintiff's remaining claims in the proceeding that went to verdict were for damages for negligence, breach of statutory duty and occupiers' liability.

3 On 11 December 2012, a jury returned a verdict of no negligence and no breach of statutory duty following a 21-day trial that commenced on 13 November 2012. In accordance with the jury's verdict, I entered judgment for the defendants with costs and dismissed contribution proceedings between the defendants

4 The plaintiff appealed and successfully contended that by reason of statements made by the school's counsel in closing address, the jury ought to have been discharged without verdict. On 6 February 2014, the Court of Appeal pronounced its reasons for judgment[1] allowing the appeal and setting aside the judgment for the defendants. The Court of Appeal remitted the proceeding to be determined by me based on the evidence already led in the trial before the jury and such further evidence as I rule may be admitted. The Court of Appeal also reserved to me the costs of the trial in November/December 2012.

5 Shortly prior to the hearing of the remitted proceeding, the school compromised its disputes with the plaintiff and the first defendant. On 13 October 2013, I dismissed the proceeding against the school and the contribution proceedings between defendants with no order as to costs.

6 The plaintiff and Scholastic (who I refer to as the defendant or the employer) conducted the remitted proceeding on the basis of the evidence adduced before the jury, together with some updated medical reports and an updated report from an actuary.

7 Leaving aside the issue of costs, the issues that remained in the proceeding between the plaintiff and her employer were these:

(a) Was there any negligence on the part of Scholastic Cleaning Services Pty Ltd, its servants and/or agents that was a cause of injury to the plaintiff?

(b) Was there any breach of statutory duty on the part of Scholastic Cleaning Services Pty Ltd, its servants and/or agents that was a cause of injury to the plaintiff?

(c) If yes to either of the preceding questions, was there contributory negligence on the part of the plaintiff that was a cause of the said injury?

(d) If yes to the preceding question, by what percentage is it just and equitable that the total loss and damages to the plaintiff should be reduced, having regard to her own share in the responsibility for the said injury?

(e) What is a fair and reasonable sum to compensate the plaintiff for pain and suffering and pecuniary loss and damage?

8 The plaintiff started working with the defendant in August 2002. There was a team of eight cleaners at the school. Her initial supervisor, Cheryl Steiner inducted the plaintiff, ticking off the items covered on a checklist and the plaintiff signed an employment application in her presence. Ms Steiner gave the plaintiff a document entitled 'Job Description' that she did not recall.

9 When completing the employment application, the plaintiff told Cheryl Steiner that she had had back surgery in 1997 and 1998. When Ms Steiner asked if that was over and done with, she replied, 'everything's fine, closed out'. In October 2002, the plaintiff experienced some pain in her right hand, arm and shoulder. She told Cheryl about it. The plaintiff's back pain did flare up from time to time. She might have missed a day or two of work here and there as a result but she worked all the time. Cheryl Steiner, left in November 2002 and the plaintiff was appointed the supervisor at the school.

10 The plaintiff described the ordinary requirements of her job. She started at 2.30 pm. As a supervisor she had control of additional buildings, the administration building the hospitality building. She would clean P block and then go to I block where she would clean the toilets, refill the toilet paper, clean the urinal and hand trough. Another cleaner, Paul, mopped the floor. Then she would clean the administration building, trying to finish cleaning at 6.00 pm. Upon completion of her work, she locked the back gate, set the alarms, and locked the front gate. She finished work mostly about 6.30 pm but sometimes she worked over time. She had seven people under her supervision. The plaintiff also worked for Rowles & James for a few hours a week at a retirement complex. This was a relief position and it was not constant work throughout the year. The plaintiff described her work as:

hard, a physical job with lots of walking, bending, vacuuming and mopping. It was very repetitive.

11 The cleaners reported issues to the school through the Red Book, the cleaners' action book for communication between the cleaners and the school, mostly the maintenance staff. Not everything went into the Red Book. Verbal instructions and written loose notes were exchanged between school employees and cleaners.

12 There had been issues with vandalism at the I block toilets. There was a hole kicked in a wall, a door was unhinged, fires had been started using toilet paper. Students had burned soap dispensers, broken toilet seats, and spread Vegemite on toilet seats. The plaintiff reported vandalism incidents to Mark Siwek, the business manager, and if he was not there, to Russell Saunders, his assistant. She also reported the vandalism to the defendant. The plaintiff's area supervisor was Frances Harris. She communicated frequently with Mrs Harris and would call her to report to her anything that was 'really serious'.

13 On the day of the incident, 27 April 2005, Mrs Hudspeth had cleaned the hospitality block and she had cleaned P block prior to going to the I block toilets. P block was a drama and musical room. When she got to the I block toilets, at about 4.00 pm there was soap everywhere. She said:

WITNESS: I just stopped in my tracks; I couldn't believe what I was looking at. I had never seen so much soap in one place - not one place but in one room. I just walked around and looked at it; I had never seen anything like it. There was a huge pool of it - there's a drain in the centre of the room and there was a big huge pool of this blue-ish green it looked like, I'm not 100 per cent certain on that colour, but it looked blue-green. It was in the toilet stalls, it was in the toilets, it was slung all over the urinal, in the hand trough. I just never seen anything like that before. That really was the icing on the cake.

14 The plaintiff went straight from the toilet block to find Mark Siwek and she came across Russell Saunders. She took him to the toilet block. Mr Saunders went in and said to her 'Oh my' or, 'Oh God' or something similar. He was dumbfounded. It was a big mess and the plaintiff told him it was going to take a while to clean up. Mr Saunders shrugged his shoulders and left her to it.

15 After that conversation, the plaintiff rang Frances Harris and told her, 'We have got a big mess here'. The plaintiff told Mrs Harris that there was soap just everywhere in boys' toilet block. Mrs Harris said she would come around later, but the plaintiff should do the best she could at the time to clean it up. The plaintiff agreed and started to clean up the spill. She decided to use a mop and bucket and had to go and round up a mop because she does not normally mop floors. Her own words describe the task:

I got a mop and a bucket and headed back to I block and just tried to figure out how to do it. I worked at trying to mop it up but the more I mopped and tried to get the soap out of the mop, it just - the amount of foam and lather that soap produces was phenomenal. I just didn't know how to get it out of there but I just kept mopping and trying to - water and stuff because it wasn't draining down the drain, it was just foaming up everywhere. The mop had the water trough full of foam from the amount that was just coming out of the mop.

What sort of mop was it you found to use?---It seemed like it had a really tall handle, the pole of it and it's - the best way I can describe it, I've seen a sheep that looks like it has dreadlocks but the ropes are not that thick like dreadlocks, they are just ropes that hang down off this mop and they were probably that long and the mop was heavy, full of water and soap. I had never seen anything like that before.

16 The mop bucket had a foot pedal close to the rollers and the mop was pulled up through the rollers. This rinsing process was not working well as the suds were increasing. The plaintiff began to doubt that she had the right equipment to deal with the spill. The floor surface was slippery and she said she was very careful and worried about going over, losing her balance. She then tried the tap to wash the excess soap out of the mop but it got more foamy and spread further over the floor. She tried to work behind the mess but once the soap was diluted with water there was no way to avoid it. She didn't know how to clean it up and the mop was heavy, tall and awkward. Using the mop required quite a bit of force particularly when using the bucket or trying to rinse it under the tap.

17 The plaintiff had been cleaning the area for 30 to 45 minutes before the accident and she described what happened when she sustained her injury:

As I said, there was a huge puddle of this stuff. I was just trying to get some of it up and pick it up. The floor was really wet and the soap was all over it because it was draining out of the mop as I was putting it into the urinal. I turned the tap on and it just kept lathering and I went to step up on the urinal step itself and when I did that, it just happened so fast. I just kind of tried to plant the mop, tried to brace myself and I kind of - I can't tell you exactly. I went backwards, I twisted. Part of me was still facing - the bottom half of me I think was facing this way and I twisted back this way to keep from hitting the floor. I was using the mop to try and just plant it. I didn't know what to do. I was just grasping. Immediately prior to the slip I was trying to pick it up and put it into the urinal to turn the tap on and to run the water over it. I probably picked it up with both hands and went to put it in and as I was falling, slipping, that's when I let go with both hands and tried to grab this wall and plant the mop. I had to heave it. I just picked it up with everything I had and put it across.

18 There was a slight downward slope of the step towards the urinal and the step was very slippery, covered in soap and water. When she slipped and twisted, she struck the wall of a toilet cubicle. She said she felt a sharp pain right in her back along her hip and thought she had pulled a muscle when she twisted. She didn't think it was her back, meaning her lower spine where she had surgery in the USA.

19 The plaintiff continued to clean the area as well as she could and Frances Harris arrived between 6.00 and 6.30. By the time she spoke to Frances Harris her back and hip were hurting, having become painful as she finished the clean-up. She told Francis Harris that she thought she had pulled a muscle in her back.

20 After the incident, the plaintiff wrote a note to Keith, the maintenance man at the school, in the Red Book. She thought she wrote it on 27 April, and dated it 28 April as she knew that was when he would see it. The note read, relevantly:

Hi Keith, yesterday the boys in I block toilet poured a litre and a half of soap on the floor. I cleaned it the best I could. Would you please check it and see if it's slippery in there. If it is, ask Pamela to make an out of order sign. I will hose it down again tomorrow. Mark and I have discussed this, thanks.

There is an acknowledgement dated 29 April signed by Keith, 'Seems okay'.

21 The plaintiff was feeling sore overnight. She took Mersyndol. On Thursday, although her back was feeling pretty sore, she went to work. During the course of her shift on Thursday, she visited the I Block toilets and saw another huge mess of soap everywhere:

I went and got Mark this time, he was back, and I asked him if he knew about what had happened in I block toilets. He said no. I said, "Russ didn't tell you", he said no and I told him, "You need to come look at this", and I told him what happened the previous day, me twisting my back, all of it, and I wasn't happy because they had done it again and I asked him if we could - if I could just shut it down because I wasn't going to clean it again that night because we had spent so much time or I had spent over an hour cleaning it the first time. I said, "We don't have that kind of time to devote to one area or something else is not going to get cleaned", and he agreed, he said, "That's fine", so I asked him if I could put an out of order sign up and he said, "That's fine, you can do that". So when Frances came around again we put an out of order sign up.

22 The plaintiff's back was hurting on Thursday night but she thought it was just a pulled muscle. She went to work again on Friday. On Friday, the cleaners used a hose to hose the soap into a much bigger drain. The plaintiff said this method of cleaning up the soap spill was much better.

23 Cross-examined for the defendant the plaintiff said that when she started her employment, she did not meet the directors, Barry Steffenson and Michael Schadel, or Mrs Harris. She didn't recall the general induction with Cheryl Steiner or the induction booklet, although she had seen one before her injury in the cleaners room, after she became the site supervisor. She did not recall the job description but agreed that she had signed a copy. She accepted, although she couldn't recall it, that she had seen and signed the job description.

24 During the trial period, the plaintiff's back was sore, but not unmanageable, because she had never done that kind of work before. Her back did not compromise her ability to work.

25 The plaintiff was asked about a statement that she had made to WorkCover investigators on 7 June 2005. The plaintiff did not dispute the content of the statement or that her recollection of the events was then much better.

26 Counsel explored the mechanism of the slip. The plaintiff said:

As I was stepping up to the urinal, I don't know that I had my foot on the step, but I was going towards stepping up, the action to do that, either got over balanced too far as I leaned back to step up and I just felt like I was fixing to fall. I don't recall how I was over balanced but I know it was the water and the soap on the floor that caused me to my balance I was standing all in it. I don't recall whether it was my left or right foot that slipped. I believe I had the mop in my left hand.

The plaintiff did not recall which foot lost traction but she did not fall to the ground. On the right side, maybe to the centre of her back, she struck the cubicle wall as she was falling backwards. She did not feel any pain immediately but shortly after she felt a catch in her lower back and she thought she had pulled a muscle. The step up to the urinal was about 8 inches to a foot high and about the same in width.

27 The plaintiff agreed that she did not mention in the June 2005 statement either the injury to her hip or her first conversation with Mrs Harris, but she maintained that there was a pulling pain between her hip and her back. She affirmed that when she took him to the toilet she asked Russell to tell Mark and then she called Frances. Frances told her to do the best she could. She thought the vandalism on this occasion was a cleaning job not a maintenance job and presumed that Russell had agreed with that assessment. It would have taken too much of Pauls' time if she had asked him to help her.

28 The cross-examiner pressed the plaintiff about whether she had called Frances on two occasions, firstly, before she started cleaning and later when she finished cleaning. She rejected the suggestion that she should have told Keith about her back in the Red Book entry. Counsel's proposition to the witness was that injury to her back occurred because she slipped on the urinal step because of the soap as opposed to injuring her back while engaged in the task of mopping.

29 The plaintiff, when cross-examined for the school, maintained that she had always given a consistent account of what occurred over the relevant three days. The cross-examiner strongly challenged that answer. First, the plaintiff agreed that she had attended the school with Mr Dohrmann (a retained expert) and fully canvassed with him what had occurred between Wednesday and Friday. Mrs Hudspeth said she gave Mr Dohrmann an accurate account of what occurred. When taken through the assumed facts in Mr Dohrmann's report, the plaintiff agreed there was inconsistency between what Mr Dohrmann had recorded and what she had told the court. She explained that Mr Dohrmann was in error, not her.

30 Next, the plaintiff rejected Russell Saunders' denial that he went to the toilet block with her. Then the cross-examiner turned to the Red Book entry, taking the plaintiff through it line by line. The plaintiff became uncertain whether she wrote the entry on the 27th and dated it the 28th. The entry referred to Mark and the cross examiner told the plaintiff that Mark would say that, it being seven years ago and doing his best, Mark believed he did not go to the toilet block on the Thursday. The plaintiff was not certain that Mark went to the toilet block on the Thursday night; suggesting she may have told Mark in his office about what happened on the Wednesday, and that Russell had seen it, when seeking Mark's agreement that she declare the toilet block out of order following the second soap incident. Keith Skinner's entry in the Red Book was dated the 29th and the cross-examiner put that this was inexplicable when the plaintiff had reported that the second spill on the Thursday had not been cleaned up. The plaintiff stated that on the Friday when she went to work, the door was open, the padlock had been removed, she didn't know where the sign was, and there was a soap mess on the floor that was hosed out that evening.

31 The plaintiff agreed that Paul would have had a bucket and mop, and there was an opportunity to summons assistance but the plaintiff didn't think she needed help just to mop up the soap. She didn't anticipate the magnitude of the task. Once she started, she just got stuck into finishing it. On the Friday, when the second mess was cleaned up, another person assisted with the water hose. It enabled them to push the soap outside into a drain. This was a lot quicker and she felt physically able do it.

32 The plaintiff again explained to the cross-examiner the mechanism of her slip and contact with the wall:

WITNESS: I don't know how it happened exactly. If I felt like I was falling, it just all happened so fast. I was stepping up to rinse the mop out and I tried to catch myself falling backwards is what I felt, I guess, because I tried to plant the mop so I could not fall.

COUNSEL: Did you have the feeling that you were over-balancing? --- I don't know - I guess that's how you put it, I just lost balance with it or the floor was wet.

COUNSEL: What caused you to lose the balance? --- I don't know.

COUNSEL: Might you have missed the step? --- No, I didn't trip on the step or anything or slip off of the step, I don't recall doing that.

COUNSEL: You didn't slip off the step? --- No.

COUNSEL: When you felt like you were over-balancing, did you have both feet up on the step? --- I don't think so.

COUNSEL: Were you in the process of stepping up? --- I think I was.

COUNSEL: Did your foot slip forwards or backwards? I know it's hard for you to think back on it now, but if you can? --- It was just in the blink of an eye, it all happened so fast and you are trying to - you are saying what just happened, you know, and collect yourself and you've still got a job in front of you and it just felt like I pulled a muscle. I don't know - I really can't explain it any better than that.

COUNSEL: Are you sure you slipped instead of just lost some balance? --- I felt like I slipped. In my mind today, I felt like I slipped.

33 The cross-examiner returned to the issue of the sequence of events on the first evening. The plaintiff stated that that she came across the mess, she left the toilet block, went to get Mark but found Russell, took him back to the toilet block where he just came in, saw it, made the remark and she told him it was going to take a while to clean the mess up and then he left. She didn't speak to him in his office. She then she phoned Mrs Harris, told her about the mess and she just said, 'Do the best you can, I'll be there later'. Mrs Harris did not offer any help or give any instruction. The plaintiff was looking at the mess as a cleaner: 'It was a mess, I had to clean it'. She did not expect that Russell would have gone about cleaning it. If there was to be any assistance with cleaning it, it had to come from her employer.

34 Dr Cubitt is a mechanical engineer engaged by the plaintiff's solicitors who measured and reported on the floor surface in the toilet block. He measured what he described as the slope-corrected coefficient of friction using a pendulum friction measurement device in accordance with an Australian Standard. He concluded that the floor, when soapy, was highly slippery. It tested with a very low slip resistance. He measured the slope of the step at the urinal at 4 degrees and the step height at 150 millimetres. He considered the risk of a person slipping on soapy inclined tiles adjacent to the urinal to be high.

35 Mr Mark Dohrmann was a professional consulting engineer with qualifications in mechanical engineering who had worked in the field of occupational health and safety since 1976 principally as a professional expert witness. He was asked by the plaintiff's solicitors to provide a report about risks of injury in the plaintiff's work place, which he inspected. Mr Dohrmann was instructed by the plaintiff's solicitors in writing and by the plaintiff when they both inspected the school. When Mr Dohrmann started to tell the jury what he assumed to be the facts of the incident in which the plaintiff was injured, the plaintiff's counsel interrupted and diverted him by quoting extensively from the plaintiff's evidence in court. Following a successful objection, the witness returned to explaining his assumed facts as reported for the purposes of expressing his opinion. Quickly, it emerged that there was confusion about the correct dates.

36 Mr Dohrmann had assumed that the plaintiff had gone to the toilet block on the afternoon of 26 April 2005 and there observed one soap dispenser torn off the wall above the wash basin, its contents spilt on the tiled floor. She had seen the extent of the mess, locked the toilet, reported it to the business manager, Mark, and placed an 'out of order' note on the door. She had also reported the matter to the assistant business manager, Russell, and recorded her observations in what was called the Red Book.

37 Mr Dohrmann assumed that the following day, 27 April, the plaintiff returned to the same toilet bock and found the door opened, the note missing, and liquid soap still all over the floor. A second soap container had now disappeared from the wall and there was more liquid soap spilt about the tiled floor than there was the previous evening. She said the mess was everywhere and it had the appearance of deliberate vandalism. She again reported it to the same assistant business manager and she telephoned her supervisor, Frances Harris. She was instructed by Frances Harris to clean up the mess in toilet area as best she could.

38 Mr Dohrmann then described what he assumed she did:

She attempted to clean the floor surface herself because Paul had other things to do and he was mopping up, and as she was mopping up the area near where the missing soap dispenser had been secured, one of her feet forward on the soapy surface causing her to begin to fall backwards towards a cubicle wall on which she struck her back, feeling immediate pain in the lower back.

39 Mr Dohrmann's report stated that he had understood that the soap dispensers had been fitted perhaps six months earlier and he said that the plaintiff told him that she had previously seen evidence of vandalism on the soap dispensers during the few months over which they had been installed (as apparently stated in paragraph 4.24 of his report). However, in the witness box Mr Dohrmann said, and repeated twice at counsel's invitation, that the plaintiff had said that she had not previously seen any evidence of soap dispenser vandalism. This second version was plainly not what was written in the report being followed in the court room.

40 Mr Dohrmann considered the soap dispenser was the wrong choice for the school toilet. Mr Dohrmann said the plaintiff was placed at risk of injury by the defendant in the dangerous conditions produced by the liquid soap on the floor, which she was directed to mop up. He said there were measures which both the defendant and the school could have taken to prevent exposing the plaintiff to risk. They were, first, fastening the dispenser securely to the wall; secondly, by providing cakes of soap; thirdly, by better and closer supervision for the plaintiff, by a system which meant that the plaintiff's immediate supervisor would guide her in the event of an unusual situation reported to them, a system which required the plaintiff to stop and report problematic situations and ones where the supervisor would, where appropriate, attend and assist or even say, 'Lock it up, don't go there'. He said both the defendant and the school should not have required the plaintiff to enter a slippery area until it was hosed out or prepared to a safe condition.

41 In cross-examination, the defendant's counsel established that Mr Dohrmann had a one hour conversation with the plaintiff at the school and had been provided with a quantity of written material by the solicitors. Questioned about the two versions of his report that were in circulation, Mr Dohrmann described one as a draft copy and the other as a file copy. Mr Dohrmann examined them both and he then said:

Right. If you would just bear with me for a moment, I do have two reports, each dated 9 April 2010. They both have the same [paragraph] 4.12 on them, Thursday, the 27th of April. The report I just referred to as a draft in fact is not. It's a more recent rewriting by me of this report, or these two reports following the reading of a statement which I got the other day which clarified and recollected me as to the order of events, which is where we are discussing at the moment. I have that too.

42 At the end of this answer, Mr Dohrmann was actually referring to a third version of his report which was yet to be discovered by the cross-examiner. Mr Dohrmann had two copies of the same report of the same date with a different paragraph 4.24. Asked which was correct, he went to his notes in his file that read 'No prior observation of loose or torn dispenser'.

43 Mr Dohrmann said he had discovered the anomaly during the lunch adjournment. He did not know when he made the alteration to clause 4.24. Initially, he could not explain it. Pressed, Mr Dohrmann said that it was a typographical error; a disingenuous response. Counsel pointed out why and Mr Dohrmann then said he would always amend a draft report until he was satisfied that it says what he wanted to say. Again asked about when the changes were made, Mr Dohrmann said probably on the same day because both copies have the same date; at best a matter of deduction not recollection.

44 Mr Dohrmann then revealed to the jury that in the preceding week before giving evidence he had been given a statement by the plaintiff that included a chronology of events. When he took it all on board he realised that if the chronology were true, his assumptions were 'out of line' in several areas. He denied that the plaintiff's solicitors had been in contact with him, but he couldn't quite remember whether he got a telephone call, it was possible.

45 Counsel explored some comparisons between Mr Dohrmann's notes and his reports, particularly about the sequence of events. In his report, Mr Dohrmann had assumed that on the first day, the plaintiff had gone in, seen the mess, attempted to clean it, or whatever she did, without accident and then locked the door and left. When questioned, Mr Dohrmann didn't know whether she had cleaned the floor on the first day. He said, 'Well, yes, I did find out about her cleaning the floor but I haven't found out properly about days one, two and three and as to which days were cleaning days'. He could not say when the plaintiff had phoned her employer on day one. Mr Dohrmann stated, once taken to the note that he had written at the school on the back cover of his file, that his record of what the plaintiff said about how she first went about the task of cleaning the toilet block was that she tried to hose it out on day one.

46 The following morning, counsel asked Mr Dohrmann whether he had any note supporting his assumption that the plaintiff had been directed to mop up the dangerous conditions produced by the liquid soap on the floor. His handwritten notes made no reference to the word 'mop'. He said the source material for that statement was his memory but without a written record, he withdrew the use of the word 'mop', so far as that direction was concerned.

47 Mr Dohrmann recorded the plaintiff's instructions about the exchange with Frances Harris as being that there was an interchange with Frances and encouragement to proceed with the cleaning. He said that he did not acknowledge in his report that he had some difficulty with the plaintiff in putting together the chronology. His usual practice was to wait until the solicitors tell him that there is a factual inaccuracy in what he has recorded.

48 Mr Dohrmann considered that the cleaner had a responsibility to look into the way in which fixtures were fixed to walls in the school and that the cleaner could have said to the school a concern about the dispensers because of the risk of vandalism. Despite Mr Dohrmann standing by the version of his report that stated there was no previous evidence of vandalism, he maintained that cleaners would ordinarily examine the wall, assess the capacity for fixtures to be ripped it and have either opened the soap dispensers or asked for them to be opened to make sure that the soap was going to stay where it was meant to be. He said a responsible employer should look at every fixture and fitting where there was obviously the possibility of risks arising like soap being spilt.

49 About his suggestion that cakes of soap be supplied instead of liquid soap, Mr Dohrmann knew nothing of the commercial arrangements between the school and the cleaners. Mr Dohrmann explained that the issue of better and closer supervision was about communication with supervisors. He suggested the appropriate directive was that the plaintiff should not have been required to enter a slippery area until it was hosed out, probably but not necessarily by the employer. It was open to the school to take that on.

50 Mr Dohrmann explained that, in the past, he may have offered his services on a no win, no fee basis and he agreed that the suggestion was unanswerable that, on that basis of remuneration, he would have an interest in the outcome of the case.

51 Mr Dohrmann confirmed to counsel for the school that he adhered to the Expert's Code of Conduct. He said he had electronically signed his report (the first version) and that his office staff sent it out to the solicitors. That published report would not have been described as a draft but he would have expected the solicitors to have read it carefully and come back to him if there were errors. The solicitors didn't do that but he had changed the draft in any event.

52 Mr Dohrmann didn't know whether he communicated to the solicitors that he had made changes and he conceded that he had put two different versions of the same document into circulation. Mr Dohrmann said that it was only during his evidence in chief on the preceding day that he had discovered his office had sent out two different reports.

53 Mr Dohrmann recollected that the plaintiff had told him of various forms of vandalism, and that the students 'were naughty boys who broke things'. He didn't make a written note of those instructions. Mr Dohrmann conversed with the plaintiff's senior counsel[2] after the plaintiff's cross examination when he learned that 'he had his facts wrong' and that Mr Richards SC would send him the plaintiff's statement that set out the proper chronology. Mr Dohrmann thought that he was simply undertaking the normal solicitor's role of verifying his assumed facts. The plaintiff's senior counsel invited Mr Dohrmann to reconsider the plaintiff's instructions about what had happened and the order of events, but Mr Dohrmann did not think he was suggesting or requesting that he alter his report. Mr Dohrmann prepared a third version of his report, sent it off and was awaiting directions on what to do with it.

54 Mr Dohrmann was asked about a yellow Post-It note located on his file that appeared to record instructions about appropriate amendments to reflect the 'correct' sequence of events. Mr Dohrmann agreed that he amended the report on instructions received after the plaintiff had given her evidence. He accepted that he was directed to alter the facts that he was taking into account, but he wasn't told to change any opinion. He was prepared to make the alteration because it didn't affect his opinions.

55 Amongst the written material that had originally been provided to Mr Dohrmann was an affidavit sworn by the plaintiff that set out the circumstances of the accident, which he said he had read. Mr Dohrmann accepted that the third report reflected the changes that had been recorded on the yellow Post-It note, with deletions to the statement of assumed facts. He signed it, acknowledging it as true and correct, and sent it through to the solicitors. Mr Dohrmann considered that when acting in this way during the trial, he was observing the Expert's Code of Conduct.

56 Mr Dohrmann acknowledged that he understood an order had been made for witnesses to leave the court and that they not communicate about the evidence that was given in court. He didn't turn his mind to that issue when talking to the plaintiff's legal representatives. He recalled that counsel said to him that he could not speak to him about the evidence.

57 Mr Dohrmann was then cross-examined about matters relevant to the case against the school that are not relevant on this remitter, save that Mr Dohrmann explained that his suggestion that the school could have better supervision, was directed to better supervision of cleaners, not supervision of students. He suggested there could have been someone at the school that the cleaner could have recourse to, to complain or to get help if needed, or to close up the toilet and arrange for it to be cleaned later when they had worked out a safe way of doing it. Finally, counsel took Mr Dohrmann back to the entry in the Red Book which Mr Dohrmann agreed was not consistent with what he recorded as the assumed facts.

58 At this point in the narrative, I pause to record that I reject Mr Dohrmann's evidence in its entirety. The defendant was informed by the analysis of Mr Dohrmann's evidence by Whelan JA in the Court of Appeal's judgment[3]. Nonetheless, the defendant submitted that I ought to accept Mr Dohrmann's evidence in part in support of its submission impugning the credit and reliability of the plaintiff. I informed the parties at the outset of the remitted hearing that Mr Dohrmann's evidence was before the court, notwithstanding that subsequent events might support the conclusion that it should not have been admitted at all. I informed the parties of my view about the reliability of Mr Dohrmann, yet the defendant pressed the submission. For this reason, I will state my reasons for rejecting his evidence.

59 At trial, cross-examining counsel used Mr Dohrmann's evidence against the plaintiff on the assumption that Mr Dohrmann accurately recorded what she told him were the circumstances of 27-29 April 2005. I do not accept that there is any validity in that assumption and I accept the plaintiff's response that Mr Dohrmann had it wrong. The explanation for any inconsistency or conflict between the assumptions of fact recorded by Mr Dohrmann and the plaintiff's evidence is that Mr Dohrmann was incompetent in analysing the material in his brief, in recording an oral instruction from the plaintiff and in preparing his report.

60 Watching Mr Dohrmann's evidence unfold before the jury was like watching a train wreck. I was persuaded that Mr Dohrmann's evidence was unreliable because he was not frank with the court about the circumstances in which any version of his report was created, particularly the third version. His responses were disingenuous. I considered that Mr Dohrmann well understood why the plaintiff's counsel was not permitting him to read from his report to state the assumptions on which his opinion was based. He knew that the third version of his report dealt with that very issue.

61 Mr Dohrmann's proper position would have been, at the first available opportunity, to inform the court that he had prepared a third version of his report on instructions from the plaintiff's legal team, and to state that he based his opinion on different instructions from the assumptions set out in the earlier versions of his report, because that was the truth. Alternatively, he could have responded that the evidence of the plaintiff put to him by counsel was not consistent with what she told him at the school when they inspected the toilet block. He could have stated that he could express an opinion on the basis of what counsel was then putting to him, but his obligations to the court required him to reveal that his assumptions about what occurred were, in a significant part, based on what the plaintiff directly said to him at the school. Mr Dohrmann gave neither of these responses.

62 Not only did Mr Dohrmann not properly record his instructions, as cross-examination about the comparison between such notes as he had written on the back of the file cover and his report demonstrated, but from the outset he was briefed with an affidavit sworn by the plaintiff that was largely consistent with her evidence at trial. Apart from his say so, there was no evidence that Mr Dohrmann read that affidavit. I consider that he had not properly reviewed and understood his instructions. At one point in his evidence, Mr Dohrmann said that he had a 'lot of trouble putting the order of events in' and if there was any error it was his 'not hers'.

63 Further, Mr Dohrmann adopted a very casual practice about verification of his assumptions. His instructing solicitors could, he said, review his report, as if it was a draft although not actually marked as such, and suggest amendments which he would readily make. In breach of the Expert Code, the different versions of his report in evidence did not reveal his source of information in support of amendments. The first two versions of the report were indistinguishable save for the different detail in the text that could only be discovered on close analysis. The fact that the reports were dated the same day and not marked as drafts, or as amended, or with particulars of further instructions, mislead the court.

64 By his own paperwork, Mr Dohrmann also mislead himself. He was all at sea before the jury when searching for an explanation for the two versions of the report revealed during his evidence in chief. I am satisfied that Mr Dohrmann had no idea at all about the circumstances in which two versions of his report bearing the same date came into existence, and his attempts to explain the differences and answer which version was correct were speculative. An expert observing the Code would have conceded that he had no explanation for the discrepancies and would need to make further inquiries. Because of his failure to adopt that response, Mr Dohrmann left the jury with a potentially very damaging impression that the plaintiffs legal team did not ask him to reconsider his report until after the plaintiff had been cross-examined. No attempt was made by the plaintiff's legal team during the remainder of the trial to correct any misconceptions or misunderstanding that might have arisen from Mr Dohrmann's evidence.

65 Having observed his evidence and subsequently analysed it with care following an application to discharge the jury during final addresses, I am persuaded that his evidence was evasive and at times not honestly given. He speculated when he didn't know an answer and although he did display confusion and bewilderment at times, he remained committed to the objectives of the plaintiff's legal team. In particular, Mr Dohrmann lacked an impartial commitment to inform the court of all matters relevant to the expression of opinion evidence irrespective of the interests of a litigant, or more particularly in this case, the litigant's legal advisers. He breached the expert code of conduct in a number of respects, but principally by acting as an advocate for what he perceived the plaintiff's counsel wanted from him in evidence.

66 Mr Schadel was a co-owner and director of the defendant. He had no personal knowledge of the accident on 27 April and only obtained his knowledge from others after the event. He produced various relevant documents that are referred to elsewhere. Within about two days of the accident he had spoken to the plaintiff herself. He had no knowledge of liquid soap in the I block toilet at the school prior to the incident.

67 Cross-examined by counsel for the school, Mr Schadel explained that whenever the company obtained a new cleaning contract, new cleaners would be employed and inducted. Mr Schadel was satisfied from the documents completed by the plaintiff that she was an appropriate employee, and physically fit to undertake the work. Explaining the routine that applied in the case of a spill, Mr Schadel said:

If it was a large spill which was caused by vandalism, they would report that first to the business manager, to the school, who would then either talk to maintenance, or if it was part of maintenance to clean it up, or it became part of Scholastic to clean it up. If it was part of Scholastic, depending on whatever the damage was, they would just - basically, if it was in the toilet as we are talking about, it would be hosed out.

Mr Schadel agreed that many consequences of vandalism would be maintenance for the school's attention, while others, such as a spill of liquid on the floor, would be matters for the cleaner. Mr Schadel agreed the 'Safety at Scholastic' document classified a spill in the category of a hazard to be cleaned up immediately.

68 The plaintiff had authority to direct any one of the other cleaners at the school to assist her to clean something up. She also had full authority to use all of the equipment at the school. If she had any doubt about it, she should have communicated with the area supervisor whose responsibility it was to go out and assist. Mr Schadel said that the supervisor would normally discuss with the cleaner how best to go about cleaning an unusual situation and if it was very bad, instruct that the area be locked up and it not then be cleaned.

69 The defendant's protocol if a cleaner came across a slipping hazard was set out in the slips, trips and falls section of that document, and the cleaner, and in particular the site supervisor, should assess what should be done and who could handle it. If a cleaner/the plaintiff felt she needed assistance, she could get it and if she felt that it could not properly be cleaned up, she could lock up the area. The site supervisor would report back to the area supervisor, who was a person trained and experienced in cleaning schools, or if she was uncertain how to proceed, seek instruction before proceeding.

70 Mr Schadel stated that the area supervisor was trained in cleaning different situations and that it was appropriate for the site supervisor to seek instructions from her about the safe way to go about any particular task. Mr Schadel did not want his employees tackling a task that exposed them to a risk of injury or in a manner that was inappropriate. Whether a cleaner could be left to his or her own devices in what they were doing depended upon the personal skills of the individual.

71 Mr Schadel was not aware that there was a problem with vandalism at this particular school, although there was vandalism at every school. He agreed that upon discovery of the liquid soap mess, the first thing that the plaintiff should have done was to contact the school's business manager, who could step in and give directions in relation to the spill. Mr Schadel agreed that it was the business manager's responsibility to make a judgment on whether vandalism was an issue for maintenance people or for the cleaners, because excessive cleaning duties attracted an extra charge. When asked what advice he would give about a spill of soap all over the floor and whether he would tell them first to stop until he had come and had a look at it, Mr Schadel said that he would get the cleaner to explain the situation, what was there, how bad it is, and then make a judgment. He would suggest a cleaner could hose out a soap spill.

72 He agreed that it would be inappropriate to expose employees cleaning the floor to an obvious risk of danger and would want the area supervisor to discuss the safe way of going about cleaning up the spill. Mr Schadel would not want an employee walking over the soapy floor trying to mop it and would prefer to have the soap hosed out first before anybody walked on it. Mr Schadel explained that damp mopping and wet mopping techniques explained in the manual and the processes that are followed in undertaking those tasks would not be appropriate for a situation where there was a lot of liquid soap on a floor. A mop would not be an effective cleaning method because the cleaner could not rinse out the mop.

73 He stated that the proper instruction that he would have given was:

Depending on the situation, if it has to be done now and I'm not there, I'm on the other side of Melbourne, I would just instruct them, normally, hose it out, do what you can and then we would follow up. If there's any extra time involved, then that's my problem. I've got to adjust her pay or their pay to suit the situation but if it's got to be cleaned, it's got to be cleaned.

74 Mr Schadel agreed that manual handling tasks must be assessed prior to any task being undertaken and that part of the risk assessment included looking at the environmental conditions. Asked whether a risk assessment about cleaning a floor covered with liquid soap would identify that there would be a risk of slipping if the person mopping the floor is to walk to the floor whilst mopping it, he replied:

Depending on the surface and what footwear they have got. If they have got the correct footwear and you've got the right surface, then it minimises the slip factor.

He agreed that a risk assessment would reveal that the way to deal with the spill was to get all the soap hosed out off the floor before somebody walks on it.

75 Mrs Harris was employed at Scholastic for 12 years, initially as a cleaner but mostly as a supervisor. She was responsible mainly for another College, but supervised the school. She explained that the defendant terminated the employment of Cheryl Steiner some years ago.

76 Mrs Harris described the process of induction of a new employee and identified the exhibited documents as part of the package handed to an employee. Copies of the Working Safely at Scholastic and the Cleaner's Induction and Training Guide documents were kept in folders on site in the main cleaners' room. Those two documents were shown to cleaners who were encouraged to read them, to take them home and study them but also to refer back to them if there was ever an issue.

77 Although Mrs Harris was the area manager, her boss Mr Schadel also did what she did. The company's office was in Nunawading, about 20 minutes from the school by car. By April 2005 the plaintiff was the site supervisor at the school working from 2.30 to 6.30 pm. Mrs Harris described the plaintiff's general responsibilities, and she said that her relationship with the plaintiff was very good. She had obtained work for the plaintiff at Rowles & James, a company that she managed.

78 Mrs Harris' memories of the events of 27 April 2005 were very vague. She remembered that there was an incident with the soap dispenser because the plaintiff called her and told her there was a big spill in the I block toilets. She recalled a telephone conversation with Mrs Hudspeth during the afternoon but could not recall the time or whether she had had one or two conversations. She remembered that she attended the school later that day, around 6 pm, because of a phone call from Mrs Hudspeth.

79 When she attended the school, she conversed with Mrs Hudspeth. She believed the plaintiff had cleaned up the mess 'and she did say that she had done something and had felt a catch in her back'. Mrs Harris believed it to be true that this had happened while the plaintiff was cleaning up the mess. She did not recall inspecting the toilet. She did not believe that she attended the school the following day. She did not remember a telephone conversation with Mrs Hudspeth the following day. She did attend on the Friday, believing there was another incident with soap dispensers in the same toilet the night before.

80 Prior to April 2005, Mrs Harris had not heard that the plaintiff had surgery to her lumbar spine in America and did not know that she had any back problems.

81 Counsel put to Mrs Harris some options that she might have said when told about the spill. They were: 'Can you clean it up by yourself', and, 'Go and get another cleaner and the two of you can clean it up', and, 'If it can't be managed by the cleaning staff tonight, lock it up and we will have a think about how it's going to be cleaned up and then we will clean it up at some later time'. She agreed that they were essentially the options open to her but she cannot remember what advice if any she gave to Mrs Hudspeth.

82 Mrs Harris believed that Mrs Hudspeth was an extremely conscientious site supervisor who could be relied on. She would have thought that, being the person she was, the plaintiff could handle the decision herself, that is, choose one of those three options. That was a judgment she would make for herself. Mrs Harris did not think it important to go down and take control.

83 Mrs Harris' attendance at the school on the Friday night (the 29th) could have been routine because the school is on her way home, or she may have been asked to attend, but the plaintiff would have been there to permit her access. She does not remember seeing Mrs Hudspeth on the Friday, but possibly did. She can recall that there was, on the night after the incident, another spill of the same sort in the same toilets but she did not believe that Mrs Hudspeth had cleaned up that second spill, rather she had locked down the toilet block.

84 She agreed that the initial soap spill was a unique experience for both Mrs Hudspeth and for her. She could not remember any similar vandalism at the school with soap prior to that night. She agreed that there was vandalism in every school in different forms. Some are the cleaner's role to clean up, some are matters for maintenance. Soap spills, she said, were a matter for the cleaner.

85 When cross-examined for the plaintiff, Mrs Harris agreed that she did not now know if Mrs Hudspeth rang to ask for instruction about the mess. She did not now know if Mrs Hudspeth rang before or after she had cleaned it up, but she agreed that when she spoke with Mrs Hudspeth for the first time about the problem, the plaintiff was telling her there was a mess, not that there had been a mess, on the floor. She did not recall saying that Mrs Hudspeth should just do the best that she could at the time to clean it, but she might have.

86 Counsel questioned Mrs Harris about cleaning up the mess using a mop and bucket. Asked whether that was a good way to go about it, Mrs Harris responded:

WITNESS: Well, now I probably know different but as a first time thing, probably we did the best we thought at the time.

COUNSEL: She was left having to do the best she could at that time?---Yes.

COUNSEL: We have had evidence from Mr Schadel that the way to deal with a spill of liquid soap is to hose it out so you are not walking on the soap; could that have been the better way of doing it?---I truly don't know. I never had to do it so I don't know.

COUNSEL: The plaintiff says she was left to just do the best she could?---M'mm.

COUNSEL: As the job was in front of her, might that be so?---That is.

COUNSEL: She said the more she used the mop and bucket to try and remove the liquid soap, the more it foamed up?---With liquid soap it would.

COUNSEL: So it was not a good way of doing it?---With soap and water together, I don't know if any way is really a perfect way.

Mrs Harris agreed that excess amounts of soap and water are not a good combination. The floor, she imagined, would become very slippery.

Counsel put to Mrs Harris her 7 June 2005 statement in relation to the events of the day. She agreed that her memory in June 2005 of the events was then much better. Counsel took Mrs Harris through a number of propositions set out in that statement and she agreed that those statements represented her recollection in June 2005. Mrs Harris accepted the following statements as correct. She agreed that in that statement she said that Linda had called her in the afternoon to advise her that there was a very big mess in the male toilets and she agreed that what she was saying was that Mrs Hudspeth had advised of its existence of the mess before she cleaned it up. Linda also told her that she informed Russell of the vandalism and showed him the mess. She said she possibly did say, 'Do the best you can, I'll be down later' and when she attended at the school and was talking with the plaintiff as she went around the school grounds locking up, Mrs Hudspeth told her that as she was cleaning the liquid soap she had slipped and felt a catch in her back.

87 Mrs Harris agreed that in that statement she said that the plaintiff had called her on the Thursday and advised her that liquid soap was again on the floor in the same toilets, that she was upset and would talk to the business manager about closing off the toilet area as she did not have enough time to finish the clean-up. On the Friday when she attended at the school, the plaintiff advised her that even though she had put an out of order sign on the toilets the previous evening, someone had taken it off and unlocked the doors and the students had been using the toilet all day with the liquid soap still on the floor.

88 Mrs Harris said in that statement that she noticed Linda was limping and favouring her back. She asked if she was okay and Linda said something along the lines that she was experiencing pain in her back. She received a call from Linda's husband the following Sunday, advising that Linda would not be coming back to work due to severe back pain. She said in the statement that the plaintiff called her on the Monday morning when she said her back was giving her grief and when she stood up she felt the pain shooting down into her buttocks and legs.

89 Mrs Hudspeth came to work the following Wednesday for two hours but was in pain, left early to visit the doctor and that was the last day that she worked. Mrs Harris had been speaking to the plaintiff on a weekly basis and had visited her and could see that she was experiencing pain with her back, from the way she carried herself. Mrs Hudspeth completed a claim form.

90 Although Mrs Harris stated in the June 2005 statement that Linda did have a pre-existing back injury, 'but I do not know the details', she said that was something Linda told her after the accident. Linda's work was not affected by this previous back injury and if Mrs Harris had not later been told, she would not have noticed.

91 Mrs Harris did not know at the time to tell Mrs Hudspeth to hose the soap out, as Mr Schadel had suggested he would have told the cleaner. She did not know how Mrs Hudspeth would go about doing her best. In hindsight she agreed it would have been helpful for her if she had rung Mr Schadel to ask what could have been done in the situation. She said, 'using a mop and bucket with water and soap was not a good combination'.

At the time Mrs Hudspeth rang you, did it not occur to you that the liquid soap on the floor might be posing a hazard to her if she tried to clean it up?---I don't know what I thought at the time. Obviously, I didn't realise or I would have supported her in a different way. I don't know.

93 Barbara Hudspeth was a teacher's aide and the former wife of Stephen Hudspeth. The defendant had employed her until about 2006, and she cleaned the J block. She described her induction by Frances Harris when she commenced work. She played a role in getting Mrs Hudspeth the job at Scholastic because her ex-husband came to her and asked if she could help out. She said she did not know about Mrs Hudspeth's prior back injury, only discovering about it afterwards.

94 Barbara Hudspeth described hoses with a twisting nozzle being available to clean a toilet floor. She said they were not high pressure hoses. She had not observed anything of the events of 27 April, and only came to know about that afterwards when Frances Harris told her about it. She said that vandalism was a problem at the school that affected the work of the cleaners. There had been other occasions when liquid soap had been thrown all over the floor and, despite representations, the vandalism continued. The school took their time to do anything effective about soap spills but it had stopped eventually, long after Mrs Hudspeth was injured.

95 Until he left at the end of 2006, Mr Watson was the deputy principal of staff at the school. He was responsible for staffing, for industrial relations, for human resources management and for occupational health and safety. Mostly, his evidence was not relevant to the case between the remaining parties in this proceeding, however the defendant sought to rely upon certain aspects of it.

96 Mr Watson held a Graduate Diploma in Human Resource Management and Industrial Relations, which covered occupational health and safety. He had a Masters Degree of Human Resource Management and Industrial Relations, and a Masters of Business Administration, and all of these degrees had units of study in occupational health and safety. He had also completed a five day training course.

97 Mr Watson provided a general reference addressed to 'To whom it may concern' about the defendant's performance of its cleaning contract. The reference was favourable and included a statement that the defendant had very clear training manuals that had been provided to and reviewed by Mr Watson. He based his opinion expressed in the reference on that review.

98 Mr Saunders absolutely would have remembered the soap spills had they happened two days running. He again said he had no recollection of attending the toilets and saying, 'Oh my' or, 'Oh God' and hearing Mrs Hudspeth say to him, 'It's going to take a while to clean this up', or, 'I'll do the best I can' and he didn't know if any action had been taken to identify the culprit or seek recompense for the damage. He could not recall any significant event relating to soap dispersed all over the male toilet in the I block in April of 2005. Mrs Hudspeth did not report to him that a soap dispenser had been damaged by fire. Had that occurred, he would have gone to one of the leadership groups at the school, and talked to Mark about it but he didn't recall doing any of that. He would have taken a report about fire extremely seriously because of the consequences.

99 He had no recollection of following up on a fire in that toilet block but he did say it wasn't a part of the school that he regularly visited. He couldn't recall that Mrs Hudspeth had told him that she had had a slip or a fall in the I block toilets and he didn't think that the degree of vandalism in the toilets was very high. Mr Saunders had been present at the meeting of the health and safety committee on 14 May 2003 and confirmed from the minute of that meeting that there was a request from students for refillable soap dispensers, which were later fitted.

100 Taken to the reference Mr Watson had provided for Scholastic, Mr Saunders agreed with Mr Watson's sentiments about Scholastic, although he said he himself had not seen the training manuals.

101 Mr Saunders left the school in May 2005 and was first asked to recall the events of April 2005 in about 2010. He accepted that it was appropriate for the plaintiff, upon discovery of such a mess, to go and seek out Mark, and that if he wasn't there, to speak to Mr Saunders. Mr Saunders saw the plaintiff in the office quite a bit, so she could have spoken to him, but he didn't recall being shown the soap on the floor.

102 Mr Saunders accepted if there was soap on the floor, it was going to be slippery. He didn't know when foaming soap was introduced and whether it was available in April 2005. He had never heard the suggestion that for the price of about $200 some lacquer could be put across the step to a make it more slip resistant.

103 He didn't recall a soap dispenser being in a bag in his office. He explained that ISS Hygiene managed the hygiene at the school. They serviced the toilets by maintaining the quality of the toilets; they looked after the qualities of the water tanks and the sanitary bins. They supplied and refilled the soap dispensers. He didn't have any training in hygiene products and neither did his staff. He said:

The school relied to the expertise of ISS in this regard.

104 He was shown an ISS document, an account deletion request for the removal of 14 soap dispensers. It was dated 1 November 2005 with the notation to reinstall the soap dispensers next year. Mr Siwek explained that this was to reduce the cost of the hygiene contract, as the unit cost of the dispensers was $75, so there was a total saving of $1,050.

105 The soap dispensers were no longer maintained or installed in the boys' toilet to stop the misbehaving by unidentified boys vandalising the soap dispensers and he said they had since been replaced without further problems to that extent. When Mr Madder asked Mr Siwek some questions, he agreed that ISS fills up the soap dispensers but he couldn't comment about the price of the soap dispensers. He said ISS would replace them as part of its contract and they were filled every four weeks, ISS being paid quarterly in advance. He couldn't comment on pre-2005 soap dispenser issues.

106 He said the contract with ISS was re-signed in May 2005 on the same terms as before. A further 32 soap dispensers were installed at some point after the contract was re-signed. Cleaning up a spill of liquid soap on the floor would be a risk and within his duties. He would want to know about it and he would want it rectified.

107 Mr Siwek said there was no allocated yard duty for the I block toilets after hours and the school had no system for detecting if there was vandalism, say involving a large soap spill in I block toilet, between 3.30 and 4.00 in the afternoon. Mr Siwek did not believe Russell spoke to him about a spill in the toilets on the 27th but it was possible this could have occurred and his recollection had failed with the passing of time. Mrs Hudspeth could have sought him out about the spill but on 27 April he was with the auditor. He didn't recall speaking to her on 28 April. If there was something dangerous, he would have remembered it. He can no longer remember any conversation with Mrs Hudspeth due to the effluxion of time. He did not accept there was a significant degree of vandalism throughout the college or that there was regular graffiti. He said on occasions there would be obstructions thrown into the toilets but he said this was very insignificant.

108 Taken to the message for Keith in the Red Book, 'Mark and I have discussed this', Mr Siwek did not remember this discussion. He said it was possible he may have forgotten.

109 Mr Jenner did not recall reading the relevant entry in the Red Book, but agreed he must have because he had answered it. He expected he would have read the note at about 7.40 am on 29 April. He would have gone into the toilets and run his feet over the floor to check that it wasn't slippery. He would have concluded that and returned to write, 'Seems okay' in the book. If he had found the floor covered in soap he would have put an out of order sign on the door so it could not be accessed and would have written, 'Still slippery, please address' in the Red Book for the cleaners and would not have left the toilet open to be used by the boys. If there had been an out of order sign on the toilet block when he had arrived to unlock it, he would have investigated the toilet and checked the Red Book.

110 Mr Jenner located a hose hanging in the cleaners' cupboard in the disabled toilet near I block that could have been used in the boys' toilet attached to the tap above the urinal.

111 Mr Jenner checked the Red Book every day and responded when he checked it. Looking again at the note, it was not significant.

He just saw it as a request from the cleaners that he check the floor and he did.

112 The defendant accepted that it owed the plaintiff a duty of care as her employer and that the standard of care required was to use such care as is reasonable in the circumstances to ensure that its employees were not injured. The contest at trial was whether there was any breach of that duty. The defendant contended that the plaintiff's case was based on three particulars of negligence; failing to provide a safe system of work, inadequate supervision, and failing to provide a safe place of work, although many more insignificant particulars had been given. The defendant sought to draw comfort from the absence of an allegation that that the plaintiff was inappropriately trained by the defendant. The defendant submitted that the plaintiff's account of the incident was too uncertain for the court to be satisfied that there was negligence.

113 The duty of an employer, recently restated by the High Court in Czatyrko v Edith Cowan University,[4] is:

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.

114 The defendant characterised the soap spill as extreme, because it fell outside the scope of its manuals and training programs. The defendant submitted that the plaintiff devised the method of cleaning up the spill without consulting her supervisors, who would have advised her to adopt a different method of cleaning. In Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd,[5] when applying the general statement of principle from Czatyrko, Ashley JA added an observation that is presently pertinent. Even in an extreme case, an employer's duty to provide a safe system of work is not discharged by leaving it up to its employee to devise the system.[6]

115 As Osborn JA explained in Pasqualotto v Pasqualotto,[7] in McLean v Tedman,[8] Mason, Wilson, Brennan and Dawson JJ said:

The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.

The duty of care that an employer owes to an employee may vary according to the particular susceptibility of an employee to injury. If the employer knows that the employee has a predisposition to injury then the employer must take special precautions to avoid that injury.

The latter issue of the defendant's knowledge of the plaintiff's predisposition to injury was in issue in the trial, but so too was the former issue. The defendant submitted that the plaintiff was negligent in taking up a mop and bucket to clean up the spill, but an employees' inadvertence in that respect was no answer. If there was a foreseeable and significantly inherent risk taking up a mop and bucket to clean up the spill, then, as the majority observed in McLean v Tedman:[9]

In such a situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence. The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.

More recently, in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872, the Court in its unanimous judgment said (at p 873):

The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task.[11]

116 The plaintiff submitted that the issue of negligence could also be approached in the manner suggested by the New South Wales Court of Appeal in Dib Group Pty Ltd t/as Hill & Co v Cole.[12] In that case, the worker was employed by a labour hire company and, in the proceeding, an occupier unsuccessfully sought contribution from the employer. The employer was in breach of its duty of care but the breach was not causative on the injury. Examining the scope of an employer's duty, Basten JA stated:[13]

The authorities ... suggest that matters relevant to the scope of an employer's duty to take reasonable care for the safety of its employee can often be identified by reference to the following questions:

(1) Did the circumstances which gave rise to the employee's injury require some antecedent conduct on the part of the employer which was not taken?

(2) If so, did the conduct fall within the scope of the obligation -

(a) to provide proper and adequate plant and equipment;

(b) to engage reasonably competent workers or contractors, and

(c) to provide a reasonably safe system of work?

(3) If so, and the circumstances were within the immediate control of the employer, did the employer fulfil those requirements, either itself, or through its employees, agents or contractors?

(4) If the circumstances were not within the immediate control of the employer, did the employer take such steps as were reasonable in all the circumstances, to provide reasonable protection to its employees?

117 It is convenient to deal firstly with the significant challenges to the plaintiff's credit at trial. The defendant contended that the reliability and credibility of the plaintiff as a witness was influential in the determination of the issues. In summary, the defendant submitted:

(a) the plaintiff's evidence was characterised by examples of her contradicting herself, particularly in relation to whether the Red Book entry was made on 27 or 28 June 2005, whether she spoke to Frances Harris on 27 April 2005, whether she spoke to her once, twice, or at all, bearing in mind what she told Mr Dohrmann. The plaintiff's viva voce evidence in this regard was equivocal and riddled with uncertainty.

(b) The sequence was improbable. The plaintiff observed the mess at 4 to 4.30 pm, went to seek out Mark, found Russell, who decided that it was her responsibility. The plaintiff said to Russell, that she would do the best she could and she went about it. She did not then call Frances Harris and was not told by her do the best you can. There were significant differences between the plaintiff's evidence and her 7 June 2005 statement. In particular, there was no mention of a phone call to Frances Harris before she started cleaning up the spill. That contemporaneous statement, together with the claim forms, was the reliable evidence of the sequence of what occurred.

(c) The plaintiff understood that a hose was the proper equipment and, as the Red Book entry shows, she used a hose. There was no mention of a mop and bucket in the Red Book. Her evidence that the only way that she knew how to do the clean-up was to mop it with a bucket and water, should not be accepted. In the Red Book entry, the plaintiff referred to hosing the toilet down again, supporting the inference that she hosed it down the first time.

(d) She continued to use the mop and bucket, when its unsuitability for the task was obvious. She did not seek advice from Scholastic or assistance from other employees of Scholastic at the school, or lock up the toilet block.

(e) She used the expression 'Do the best you can', in the Red Book as something that she said to Russell prior to the alleged phone call to Frances Harris. She made no mention in the Red Book of her injury. Further, the plaintiff could not properly identify the date when the entry was made, notwithstanding that it was dated 28 April 2005, and reads appropriately for that date.

(f) She was unable to honestly complete her employment application. When she was asked about her previous worker's compensation claim history in the last five years, her explanation was that Ms Steiner had told her to forget about it. She signed this document knowing full well that that the answer was clearly wrong. Similarly, in her claim form she stated in respect of the American surgery, incorrectly, that she had fully recovered.

(g) The court should accept that Mr Dohrmann was an accurate note taker and that the plaintiff was unreliable and should not be believed, because she gave Mr Dohrmann a comprehensive but significantly different history of the sequence of events when she met him at the school in 2010.

(h) Thus the plaintiff's version of events was not supported by the Red Book, other closely contemporaneous documents or her instructions to Mr Dohrmann. Her evidence should be rejected.

(i) The Plaintiff's evidence about when she would retire and why her statements about retirement age varied was opportunistic.

(j) The defendant submitted that the plaintiff failed to fully acknowledge the nature and extent of her previous American surgery and that her back was significantly symptomatic prior to her employment and the incident itself.

(k) The plaintiff had difficulty describing the mechanism of her slip and exactly what happened to her when she sustained the injury. There were no witnesses and the issue became important in the context of some medical evidence that there was no trauma that would explain the plaintiff's hip complaint.

118 The defendant contended that there was no instruction from Frances Harris, and the plaintiff, who had been properly trained by the defendant, saw the job as her responsibility as a cleaner and embarked upon the task without consultation with the defendant or any of its servants or agents, having only spoken to Russell, an employee of the school.

119 There was no reliable evidence that the plaintiff informed the defendant of the spill before she was injured. The plaintiff had been appropriately trained and had access to comprehensive safety and operating manuals and other documents that told her how to proceed in any number of situations, including spills. The plaintiff knew, even though it was not stated in documents, that the appropriate course was to hose out the spill. The plaintiff chose a cleaning method that was not in accordance with her training or the employer's manuals. Not having been informed of the extent of the hazard, the defendant was entitled to rely upon the plaintiff's training, experience as the site supervisor, and her common sense as to the manner in which she cleaned up the spill.

120 In those circumstances, the defendant submitted that it was not negligent. I reject this submission.

121 I largely accept the plaintiff's account of what happened. In giving her evidence from the witness box, the plaintiff faced a number of difficulties. First, she gave her evidence more than seven years after these events occurred. Secondly, for the past seven years she has endured high levels of pain and pain medication. I will say more about her medical condition later. For present purposes, I note that she faced three skilled cross-examiners while disadvantaged by her medical condition in two ways. It affected her capacities while in the witness box to think, concentrate, and endure the process that she was going through. Having carefully observed her evidence, I am satisfied that she did her best in this respect. Secondly, it also affected her ability to recall the detail of distant events when those events were subject to close forensic dissection in a foreign (to her) environment while under stress.

122 Thirdly, she was poorly served by an incompetent expert in Mr Dohrmann, who set out as the history she gave him, a significantly different account of the events of 27-29 April 2005. The plaintiff became obligated, without warning and through no fault of her own, to defend her recall of events against the apparently credible, yet significantly different, history of events recorded by Mr Dohrmann. As I explained earlier, this was a Herculean burden, essentially because I am satisfied that Mr Dohrmann did not take an accurate note of what he was told by the plaintiff. It was him, not her, that manufactured the significantly different version of events with which counsel confronted the plaintiff in the witness box.

123 Both parties emphasised contemporaneous documents and properly analysed, these documents to a large extent sweep away the confusion that characterised oral evidence. While the defendant suggested that significant conflict between the contemporaneous documents and the account given by the plaintiff to Mr Dohrmann demonstrated the unreliability of the plaintiff's evidence, the plaintiff submitted that the contemporaneous documents permitted a number of findings of fact to be made that could not be seriously challenged. The defendant's challenge rested on the cloak of confusion founded in the oral evidence. The defendant did not impugn the genuineness and accuracy of three of those documents, the cleaners' diary or 'Red Book', the Worker's Compensation Claim Form completed by the plaintiff, and the Employer Claim Form. Also contemporaneous, made some six weeks after the incident, in June 2005, were the WorkCover statements that were put to the plaintiff and Frances Harris. The defendant submitted that these statements were also an accurate account of what happened, made when recollections were fresh.

124 The first contemporaneous document was the plaintiff's entry in the Red Book. I am satisfied that this entry was made on the morning of 28 April 2005. The entry is genuine. The defendant did not suggest otherwise. Nor was it ever suggested that the incidence of a soap mess in the toilet was fabricated. No evidence suggested that a mess was first discovered other than on 27 April 2005. Russell Saunders could not remember that, according to the plaintiff, he observed the spill before it was cleaned up. More than 5 years passed before Mr Saunders, who left the school soon after this incident, was asked to recall it. Although Mr Saunders attempted to convince the court that he had no recollection of the incident because it did not occur, I was satisfied that he simply had no recollection. His lack of recollection does not cause me to reject the plaintiff's account as improbable.

125 The entry in the Red Book refers to 'Mark' not 'Russell.' Mark Siwek also had no recollection of these events. Both the plaintiff and Mr Siwek agreed that normally she would speak directly to him, not Russell, about a cleaning issue. His diary told him he was with the auditors on the afternoon of the 27th, which is consistent with the plaintiff's evidence that she could not find him and so she raised the matter with Russell. It is possible that the plaintiff spoke to Mark on the 28th before she completed the entry in the Red Book and then saw no need to mention Russell in the diary entry, which was, after all, a communication with maintenance. Nothing that Mr Siwek was able to recall caused me to question the plaintiff's account.

126 Frances Harris attended at the school at about 6.00 pm on the afternoon of 27 April 2005 and saw the aftermath of the clean-up. Her employer accepted her report of the incident as genuine and I will come to that evidence shortly.

127 A maintenance worker at the school acknowledged the Red Book entry. Keith Jenner added to the note, 'Seems okay'. That he did so on 29 April is consistent with the entry having been made later in the day on the 28th, because his evidence was that maintenance workers unlocked the school of a morning and usually checked the Red Book soon after they started work. He acknowledged his entry in the Red Book when giving evidence because he recognised his handwriting. He, too, had no recollection of the events.

128 I accept that what was recorded in the note, so far as it goes, was a true contemporaneous account of what happened. It was a communication from the cleaner to the maintenance man. It dealt with the relevant issues in that context and the defendant's suggestion, that the omission of any reference in the Red Book entry to her back injury was significant, was fatuous. I am persuaded that the event described in the Red Book did occur as the plaintiff there described it.

129 The plaintiff alleged in the proceeding that she 'suffered injury in the course of her employment at the premises on 27 April 2005 when she was cleaning up a liquid soap spill from the boys' washroom which emanated from a damaged dispenser and she slipped, coming into contact with a toilet cubicle and suffered injury'.[14] This allegation was not admitted but no facts were ever asserted contrary to what was alleged.

130 The note in the Red Book confirmed that the first clean-up happened on 27 April and placed an estimate on the quantity of soap spilt on the floor. The plaintiff wrote she cleaned it up the best she could. This statement was consistent with her evidence of the instruction she received from Frances Harris. The plaintiff was challenged about whether Frances Harris told her to 'do the best you can', but the plaintiff stood firm. In the note she adopted the same phrase the following morning.

131 I find that there was liquid soap on the floor of the boys' toilet from a vandalised soap dispenser on the afternoon of 27 April 2005, and the plaintiff cleaned it up that afternoon after she spoke to Russell, and before Frances Harris attended at the school around 6.00 pm.

132 On 16 May 2005, the plaintiff completed a Worker's Compensation Claim Form. In the 'Injury Details' section, she stated that she suffered back pain affecting her lower back and hips. She described the event that caused her injury, 'The boys pulled soap dispenser off the wall, poured soap everywhere. I was cleaning it up and slipped as I stepped up to the urinal'. She wrote that the injury occurred at 4.30 pm and she reported it at 6.00 pm. She stated that initially she thought she had just pulled a muscle. She described in evidence how her back symptoms worsened over the following week. This form is also relatively contemporaneous. Significantly, she stated at that time that she slipped as she stepped up to the urinal and that she stepped up when she was cleaning up the spill.

133 The attack on the plaintiff at trial was that she was unreliable, not that she was dishonest. A director of the employee, Mr Steffenson, endorsed on the claim form the statement 'Consider claim genuine ...'. His absence from the witness box was not explained. Mr Steffenson also completed the Employer Claim Form. He reported that the plaintiff's injuries were to her lower back and hips and that she sustained the injury when she 'slipped on liquid soap on floor whilst cleaning up floor'. From the paperwork, Mr Steffenson appeared to accept the plaintiff's account of what happened and when it happened as an honest and genuine account.

134 Although there was a challenge, mostly from the defendant's forensic medical witnesses, about whether the plaintiff's injuries could have been caused by the force of the trauma she described, the defendant put no alternative scenario for the plaintiff's injury in the sense of there having been an incident causing the injury occurring other than in the course of cleaning up the spill. I am satisfied that the plaintiff did attempt to clean up the spill with a bucket and a mop. Her evidence that she used a bucket and mop was not challenged. It was not suggested to her that she did not step up to the urinal to wash out the mop. It was not suggested that the tiled floor, covered with watered down soap, was not dangerously slippery. The precise mechanism of contact between the plaintiff's back and the cubicle partition, and in what physical activity the plaintiff was engaged, was closely examined during the trial, and I will return to that, but I accept as established, as did the defendant at the time, the broad proposition that the plaintiff slipped on the soapy floor and injured her back.

135 The critical fact in dispute on the question of breach was whether the plaintiff contacted Frances Harris before attempting to clean up the soap with the water and mop, informed her of what had happened, and was instructed to 'do the best you can'. I am satisfied that the plaintiff's evidence that she did was effectively corroborated by Frances Harris. This point brings me to the other relatively contemporaneous documents, statements made to WorkCover investigators in July 2005 by the plaintiff and Frances Harris.

136 The plaintiff was taken through her 7 June 2005 statement in some detail. Although her statement substantially corresponded with her evidence, she omitted from her statement any reference to any prior contact with Frances Harris before she herself tried to clean up the soap spill. She readily accepted the omission when cross-examined about it. She said that although the statement didn't refer to calling Mrs Harris before she started cleaning, she believed that she had because she always called her when there was a problem. The plaintiff maintained that she spoke with Frances Harris twice that evening. Initially, before she started cleaning, she called her:

WITNESS: ... I believe I did call her before I started cleaning to let her know what had taken place and to reconfirm with her that she was going to be coming by. I didn't tell the whole conversations that we had.

COUNSEL: No, but you don't say in this statement, do you - - -? --- No.

COUNSEL: That I called Frances, told her that there was a mess and that she told me to do the best I can? --- That's what I said in the statement but I believe I called her.

COUNSEL: Not in this statement? --- No, I meant - what I said that I called her after I had finished my duties but she was there that evening.

COUNSEL: She came after you called her? --- No, I called her earlier as well. I know it's not in the statement.

137 In expressing a belief, the plaintiff was attempting her best reconstruction of the order of events. I am persuaded that she did speak to Frances before starting the clean-up. Contemplating the confusion that developed when the plaintiff was cross-examined about this omission is unhelpful. Drawing on the plaintiff's confusion - about what had been said, when, and to who - obfuscated the probable course of events. I am persuaded that the plaintiff spoke to Mrs Harris because of what Mrs Harris herself said.

138 Like other witnesses, Frances Harris had no recollection of the events when first questioned about them. She stated that she had only vague memories, but, like the plaintiff, she accepted that she had a much better recall of events when she spoke to investigators in June 2005. Significantly, before that statement was put to her, when she was asked to do her best to recall the event, she said that she remembered there was an incident with a soap dispenser 'because Linda called me and told me there was a big spill'. She recalled a telephone call in the afternoon from Linda and she later attended at the school, because of that phone call at about 6.00 pm. The plaintiff had discovered the spill at about 4.30 pm and her evidence that she spent about an hour cleaning it up was not challenged. It is inherently more probable that the telephone conversation that Mrs Harris recalled with the plaintiff occurred in the period between discovery of the spill and commencing to clean it up when she had good reason to speak with Mrs Harris. It is improbable that she would summons Mrs Harris to the school simply to tell her that there was a big spill of soap that she had cleaned up.

139 When cross-examined for the school, Mrs Harris preferred to attribute her attendance at the school that day to the plaintiff's phone call. Mrs Harris could not recall her conversation with the plaintiff when she attended at the school, save that she did recall the plaintiff saying she felt a catch in her back. Counsel took her through the options for what she could have said in the phone call, but she could not recall advising the plaintiff 'on anything that particular night'. She most definitely thought the plaintiff could handle a situation like the spill and she did not think it important that she went to the school to take control of the clean-up.

140 Cross-examined for the plaintiff, Mrs Harris agreed that while she was unable to place the phone call in a precise sequence, she agreed that the plaintiff had told her that there was, not that there had been, a spill of liquid soap. The evidence that next followed was:

COUNSEL: Might you have said back to her that you would come around later but she should just do the best she could at the time to clean it, you told her just to best you can at the time to clean it? --- I don't recall what I said to her.

COUNSEL: That might have been what you said? --- It might have been.

COUNSEL: What she says she began to do after you said that to her was to begin to try and clean the mess using a mop and bucket? --- M'mm.

COUNSEL: Do you think that's a good way to go about it? --- Well, now I probably know different but as a first time thing, probably we did the best we thought at the time.

COUNSEL: She was left having to do the best she could at that time? --- Yes.

COUNSEL: We have had evidence from Mr Schadel that the way to deal with a spill of liquid soap is to hose it out so you are not walking on the soap, could that be the better way of doing it? --- I truly don't know. I've never had to do it so I don't know.

COUNSEL: ... The plaintiff says she was left to just do the best she could? --- M'mm.

COUNSEL: As the job was in front of her, might that be so? --- That is.

COUNSEL: She said the more that she used the mop and bucket to try and remove the liquid soap, the more it foamed up? --- With liquid soap it would.

COUNSEL: So it was not a good way of doing it? --- With soap and water together, I don't know if any way is really a perfect way.

141 When taken through the 7 June 2005 statement, the plaintiff agreed with what she had then said. Her evidence was:

COUNSEL: About the incident you say this: 'On the day of the incident, Wednesday, 27 April 2005, Linda called me in the afternoon to advise that there was a very big mess in the male toilets'? --- M'mm.

COUNSEL: Do you remember the words you used, 'there was a very big mess'. Can we conclude from that that when you agreed to this statement being true what you were saying was Linda advised you before she had cleaned up the mess? --- Yes.

COUNSEL: Then did you go on: 'She said there was liquid soap all over the floor and the soap container had been vandalised'? --- M'mm.

COUNSEL: 'Linda also told me that she informed Russell, assistant business manager, of the vandalism and showed him the mess'? --- Yes.

COUNSEL: So at the time she was ringing you she was saying that there was, in the present tense, a mess on the floor? --- M'mm.

COUNSEL: Can you answer yes? --- Yes, sorry.

COUNSEL: There was at the time she was ringing you, a mess on the floor? --- Yes.

COUNSEL: She had already told Russell, the assistant business manager, of the vandalism, of the fact there was a mess on the floor? --- Yes.

COUNSEL: That's when she was ringing you? --- Yes.

COUNSEL: That's when she says that you said to her, 'Do the best you can, I will be down later'? --- And I possibly did but I can't - - -

142 When counsel cut short this last answer, it was plain that the witness was about to say 'remember'. I accept Mrs Harris as an honest witness who had very little recollection of the event from the witness box but who accepted that she had a much better recollection when she made her 7 June 2005 statement. She adopted that statement in evidence when it was put to her. Her limited recall before that statement was put to her was not inconsistent with its content. No party sought to impeach Mrs Harris' credit. It was hardly surprising that in November 2012, Mrs Harris could not remember the detail of events of April 2005, in particular the sequence of some conversations.

143 I find as a fact that the plaintiff brought Russell Saunders to the toilet to see the mess and then, accepting that the clean-up was an issue for the defendant rather than the school, the plaintiff telephoned Frances Harris before she commenced to clean it up. Mrs Harris told the plaintiff to do her best and gave her no advice at all about the safe way to approach the task. At that time, Mrs Harris did not know how the plaintiff was going to go about doing her best. Mrs Harris had not dealt with a liquid soap spill cleaning problem before and conceded that she had not realised that the proper advice would have been to hose it out. In hindsight, she conceded that as the area supervisor she could have telephoned Mr Schadel to ask what could have been done in the situation.

144 In first speaking with Mr Saunders and then telephoning Mrs Harris to report the mess and seek advice, the plaintiff was following the protocol that was expected of her. It was not her responsibility to dictate either the school's or her employer's proper approach to cleaning up this spill. It was, however, the defendant's responsibility to ensure that the spill was cleaned up safely. Mrs Harris fell short of the standard of care expected of an employer in these circumstances in her response. These conclusions follows from Mr Schadel's evidence.

145 Mr Schadel agreed when cross-examined that on discovery of the liquid soap mess, the first thing that the plaintiff should have done would have been to contact the business manager at the school, who could step in and say what should have happened in relation to the spill. Mr Schadel agreed that it was the business manager's responsibility to make a judgment on whether he was going to get his maintenance people to clean it up or for the cleaners to continue to do it, because it might be excessive cleaning, attracting an extra charge. This is what happened. The plaintiff spoke with Mr Saunders because, as Mr Siwek himself explained, the business manager was not available at the school that afternoon. Mr Saunders left the task to the plaintiff, who, recognising the extent of the problem, contacted Mrs Harris.

146 Mr Schadel said the proper approach for Mrs Harris was to ask the plaintiff to explain the situation in detail, what was there and how bad it was, before making a judgment. Mrs Harris could have told the plaintiff to stop cleaning and lock up the toilet block until she had come and had a look at the problem if she could not properly assess the hazard from a telephone report or if she thought that the plaintiff couldn't handle the situation. It was Mrs Harris' responsibility to go out to the school and assist the plaintiff if that was the appropriate response. If there was a safety hazard, locking the toilet block until the job could be safely assessed or completed was the proper approach, as stated in the defendant's 'Working Safely for Scholastic Safety Information for all Employees'. That manual was available to both the plaintiff and Mrs Harris, and its content is discussed below.

147 I find that Mrs Harris failed to respond to the plaintiff's report of the soap spill in a reasonable manner and fell short of the response that Mr Schadel would have expected. The defendant's protocols were reasonable in the circumstances, but it was Mrs Harris, not the plaintiff, who fell short in following proper procedure. I am satisfied that Scholastic breached its duty of care to the plaintiff by the failure of Mrs Harris to respond to the plaintiff's call in the manner expected by Mr Schadel. He described the standard of care to which the defendant aspired and which he expected of his area supervisors. His description was measured, reasonable and prudent, and based in his experience.

148 The method adopted by the plaintiff to clean up the spill using a bucket and a mop was not a safe and appropriate response to the cleaning task. Mr Schadel gave that evidence. He said that adding water to the soap spill while working and walking in it was inappropriate because it increased the risk of injury through falls and slipping as in fact occurred. Foaming soap would clog the mop that would not be able to be rinsed out in the bucket.

149 It was unsurprising that the plaintiff stopped using the bucket and moved to using the tap in the urinal to rinse out the mop. That tap was the most convenient place to rinse out the mop, but the task of rinsing out the mop, which is essential to a mopping procedure, at the urinal tap introduced an additional element of risk. There was a tap in the hand trough but the water flow was controlled by a push-lever on the top of the tap designed to avoid continuous water flow unless the lever was held away from the vertical position. That was not a viable option. Accessing the urinal tap involved stepping up to the urinal. The task not only drew the plaintiff to move across the floor covered with the spilt soap, now mixed with water, but required her to negotiate a step up. It was not suggested during the trial that her footwear was inappropriate. Nor was it suggested that she slipped or lost her balance other than when she was stepping up to the urinal.

150 There was a hose available. The plaintiff knew where it was and used it at the end of the task when she had mostly mopped up the soap concentrate. Had the plaintiff been instructed to use the hose from the start and not use the mop at all, although she would still have likely walked on the slippery floor, the risks inherent in the task would have significantly reduced in two ways. She would not have been handling the mop and she would not have stepped up to the urinal tap on numerous occasions as it would only have been necessary to approach the tap to connect and disconnect the hose.

151 I am satisfied that but for the failure of the defendant to instruct the plaintiff not to use a mop and bucket but to use a hose instead, she would not have injured her back and hip on that day in the manner that she did. The defendant was negligent in breach of its duty of care and such breach was a cause of the plaintiff's injuries.

152 On this cause of action, the defendant sensibly changed tack from the case put to the jury and no longer disputed that r 12-15 of the Occupational Health and Safety Regulations 1999 applied. The defendant accepted that the plaintiff was engaged in an activity that involved manual handling. The defendant's own document 'Working Safely at Scholastic Safety Information for all Employees' stated that using a mop was a manual handling hazard. It also stated that 'slips, trips and falls are a common cause of injury for employees working in the cleaning industry' and that common hazards include 'wet or slippery steps', 'wet or slippery floor surfaces, especially around floors being cleaned' and 'spills not immediately contained or cleaned up'.

153 The plaintiff's case at trial was in part based on an artificial division of the task being undertaken by the plaintiff into the task of mopping and a separate task involving washing out the mop at the urinal tap. I am satisfied that the task in which the plaintiff was engaged involved manual handling[15] and was a simple sequence of activities. The mop was an object.[16] The task of mopping up the soap mess required the use of force, in lifting, pulling and moving an object, the mop. As the defendant now concedes, that activity of mopping up the soap mess extended to rinsing out the mop under the urinal tap. The manual handling was hazardous manual handling, because it had the following characteristics: repetitive or sustained application of force, repetitive or sustained awkward posture and repetitive or sustained movement.[17]

154 Regulation 13 required the defendant to have identified that activity as involving hazardous manual handling. The defendant did not identify the activity of cleaning up a liquid soap spill in a toilet as an activity involving hazardous manual handling, and breached the regulation. Although the defendant had identified slips and spills as hazards, it had not identified the activity undertaken by the plaintiff as involving hazardous manual handling. The defendant identified a spill as a hazard, and its Safety Manual instructed employees that spills should be 'wiped up' or the area barricaded and hazards should be reported to the supervisor. Because of that breach, the defendant's obligations under reg 14 were not engaged. It had not identified that the task of mopping when cleaning up an extraordinary and hazardous spill of liquid soap might be engaged in by employees, and ipso facto, could not identify the risk of a musculoskeletal disorder affecting an employee occurring as a result of undertaking that task.

155 The plaintiff contends that but for the breach of reg 13, the defendant would have discharged its obligation under reg 14, and made an assessment of the risk of a musculoskeletal disorder. The defendant had recognised the risk of a musculoskeletal disorder affecting an employee occurring as a result of mopping activities, but risk was identified in respect of mopping, not cleaning up spills. Mr Schadel's evidence supported an inference that an assessment of the risk of a musculoskeletal disorder when cleaning this spill would have concluded that there was a risk of such magnitude that a worker would be advised to avoid using a mop at all. Had the plaintiff been so advised, she would not have sustained her injury that day.

156 The plaintiff also relied on reg. 15, which requires an employer, 'to ensure that any risk of a musculoskeletal disorder is eliminated or reduced as far as is practicable.' There was a real possibility of a musculoskeletal disorder being sustained by an employee cleaning up a soap spill with a mop and bucket and there was a real chance of such an injury being sustained through exposure to the hazard created by the soap spill. As I have already observed, a prudent employer would anticipate that, without specific instruction, an employee could misjudge the proper and appropriate cleaning technique and attempt, as the plaintiff did, the cleaning task with a mop and bucket. The employer's statutory obligation was to ensure that any risk of a musculoskeletal disorder affecting an employee occurring is eliminated or, if it is not practical to eliminate the risk, it is reduced as far as is practicable. The evidence did not suggest that risk associated with cleaning up a hazardous spill could be eliminated altogether, even when a hose was used, but the risk could be substantially reduced by an instruction not to use a mop and bucket. Mr Schadel said that such an instruction should have been given to the plaintiff.

157 I am persuaded that the task of cleaning up the soap mess by an unaided person using a bucket and mop involved a risk of musculoskeletal disorder and that it was practicable to eliminate or reduce the risk by an appropriate instruction to the plaintiff when she reported the hazard. The defendant did not eliminate or reduce the risk so far as was practicable when Mrs Harris told the plaintiff to do the best that she could. The defendant's failure to eliminate the risk or reduce it as far as was practicable was a cause of the plaintiff's injuries. Had Frances Harris told the plaintiff not to clean up the mess but to barricade it off while she spoke with Mr Schadel, the plaintiff would never have embarked on the task with a mop and bucket, and would not have sustained her injury.

158 I am satisfied that the defendant breached its statutory duties under regs 13 and 15 of the Occupational Health and Safety Regulations 1999 and that such breaches were a cause of the plaintiff's injuries.

159 In Mayhew v Lewington's Transport Pty Ltd,[18] an appeal against a jury's finding of contributory negligence in an industrial accident, the Court of Appeal canvassed the authorities in relation to contributory negligence. The Court said:[19]

In personal injury in the course of employment cases, the law has long recognised the distinction between contributory negligence on the one hand and mere inadvertence, inattention or misjudgement on the other hand. In Podrebersek v Australian Iron and Steel Pty Ltd, the High Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said:

It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent [employer] had failed to discharge its obligations to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant [worker], the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant's conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence.

Whilst the facts of earlier cases cannot be determinative in this case of whether the appellant's actions on the day in question amounted to contributory negligence on the one hand or some mere inadvertence, inattention or misjudgement, some previous cases are instructive. For example, in McLean v Tedman, the High Court had to examine a finding that a garbage collector, who ran across a road from behind the garbage truck and who was struck by a motor vehicle travelling on its correct side of the road and which could have been observed by a person in the worker's position before he crossed the road for a distance of approximately 200 metres, was guilty of contributory negligence. The worker sued his employer and the driver of the motor vehicle. Both defendants were found liable. Consistently with authority, the Court held that the issue of contributory negligence had to be approached on the footing that the employer had failed to discharge its obligation to take reasonable care for the worker. In that case, it was the employer's failure to discharge its obligation to provide a safe system of work to take appropriate precautions against the risk of injury arising from the motorist's negligence and the worker's failure to observe an oncoming vehicle as he carried out his allotted task. Mason, Wilson, Brennan and Dawson JJ concluded that the worker's conduct amounted to mere inadvertence, inattention or misjudgement, and there was no contributory negligence.

In Davies v Adelaide Chemical and Fertiliser Company Limited, the High Court had to consider the case of a worker whose duty it was to lubricate a machine consisting of a slowly moving conveyor belt supported by rollers. It was the worker's practice to grease the rollers while the belt was in motion. This involved some risk, but was not highly dangerous. The worker was never instructed to have the machine stopped while he was greasing it, but it would have been stopped if he had so requested. On the day in question, the worker was reaching under the moving belt to grease a roller when his right arm became caught between the belt and the roller and he suffered injury. The worker sued his employer and established an entitlement to damages for breach of statutory duty. The case was decided at a time when contributory negligence was a complete defence. Latham CJ, Dixon and McTiernan JJ held that the evidence did not support a finding of contributory negligence that had been made below. Dixon J said;:

At all events, I think that in following such a practice at the time of the accident the plaintiff was not guilty of such negligence as to disentitle him to recover, because he was not acting contrary to any rule, instruction, advice or practice made, given or established by the defendant as his employer or in his own interest or for his own convenience but, on the contrary, was performing his duties according to his habitual and longstanding practice for which he had the apparent, and, as I think, actual approval of the factory management who treated it as part of his ordinary work.

In The Commissioner of Railways v Ruprecht, the High Court had to consider a case involving an employee who was hit by a moving railway wagon. The employee did not look along the railway line before he stepped on it because he did not expect the wagon (which was moving quietly) and he was preoccupied with his duties. By majority, the Court concluded there was no contributory negligence. Gibbs J said:

However, in deciding whether the respondent [employee] was guilty of contributory negligence, one may consider, as part of all the circumstances, such things as inattention borne of familiarity and repetition, and the man's preoccupation with the matter in hand, with a view to deciding "whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man": Sungravure Pty Ltd v Meani, per Windeyer J.

Finally, in Czatyrko v Edith Cowan University, the High Court had to consider the case of an employee who was required to load and stack boxes on the back of a truck. The truck was fitted with a mechanical lifting platform. When the employee stepped backwards from the tray of the truck to where he expected the platform to be, he fell approximately one metre to the ground and was injured. This occurred because one of the employee's co-workers had lowered the platform without informing the employee. The Court (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ) delivered a joint judgment in which their Honours stated that the appeal raised no question of general principle and depended on its own facts. However, in deciding the case, their Honours said:

In the present case, the appellant [worker] did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping onto it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent [employer]. This it failed to do in this case. The appellant's attempt to step onto the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than "mere inadvertence, inattention or misjudgement". It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made.

160 The particular way in which the defendant alleged contributory negligence was that the plaintiff failed to take any or any reasonable care for her own safety. First in relation to the cleaning task she failed to -

(d) watch where she placed her feet in the circumstances; and

(e) in stepping up to the urinal and in washing the mop at the urinal tap, she was doing something she was neither required nor instructed to do. She could have washed the mop in the trough, without having to step up onto a sloping (towards the urinal), soapy, slippery part of the floor.

161 Secondly, the plaintiff did not convey the magnitude of the task to the defendant and she did not seek assistance from the defendant's other employees at the school that afternoon. There were adequate protocols in place about how an employee ought to deal with an unusual hazard that the plaintiff failed to follow.

162 Thirdly, she failed to inform the defendant of her American surgery. The defendant in this respect relied on evidence given by Mr de la Harpe, one of her treating surgeons. Mr Harpe was absolutely of the view that the plaintiff should not have been working as a cleaner because of the risks following on from the American surgery. The defendant submitted that risk was sufficiently significant that a reasonable person in the plaintiff's position would have taken precautions against it, particularly by seeking assistance and by not taking up a mop. Alternatively, had it been informed of the American surgery, the defendant might have accommodated her limitations by employment in different activities.

163 The defendant had supported another defendant's submission that the jury ought to assess contributory negligence at 50%, but before me, without changing the basis for the submission, the claim to contributory negligence was moderated to the order of 25-30 per cent.

164 I find that the plaintiff was not guilty of contributory negligence for the following reasons. First, a number of these allegations are not established on the evidence. These is no evidence, either directly or by reasonable inference in the circumstances, that the plaintiff -

(a) was not concentrating. It can hardly be said that slipping in the circumstances permits an inference of a want of concentration;

(b) was not watching where she placed her feet. The evidence does not establish that she didn't know where her feet were or that she wasn't taking care in the conditions. This submission ignores the extremely slippery conditions in which the plaintiff found herself because Frances Harris did not know what advice she ought to have given;

(c) did not use her common sense or experience. I am satisfied that this hazard was a unique experience for both the plaintiff and Frances Harris. Neither had experience to draw on. Beyond that observation, this allegation suggests, contrary to established authority, that mere inadvertence, inattention or misjudgement can constitute contributory negligence. There is no content to the allegation of a want of application of common sense. The plaintiff was not pressed in cross-examination to admit that she acted stupidly or in an obviously careless way. The common sense solution in the circumstances was for Frances Harris to have taken charge, to have sought full details of the hazard and contacted Mr Schadel. Alternatively, she could have discussed the merits or risks of possible alternative approaches to the clean-up with the plaintiff. Not only would that approach accorded with common sense, it would have accorded with Scholastic's protocols. Those protocols did not include that in the case of a unique hazard, or one with which the worker had no experience, the worker should just use common sense. Left to do her best, the plaintiff misjudged the efficacy of a mop and bucket and found herself undertaking a difficult task. Possibly hosing out the soap would also have been quite difficult. There was no evidence about that approach other than that it minimised the risks arising from working in, as opposed to behind, extremely slippery conditions. Any failure to apply common sense, particularly in hindsight, cannot in these circumstances be elevated to a want of care for her own safety.

165 Other particulars are not established on the evidence. The plaintiff did seek assistance. She followed the protocols expected of her and which, presumably, were consistent with her training and contacted her area supervisor. I doubt that Mrs Harris failed to appreciate the magnitude of the task facing the plaintiff. The plaintiff said there was soap everywhere - 'We have got a big mess here'. Her response implies that she thought it was an extraordinary situation. The plaintiff did not seek assistance from the defendant's other employees at the school that afternoon because Mrs Harris didn't suggest it. The plaintiff stated that she was concerned that the school would not be cleaned if the other employees did not continue with their duties and cover hers while she dealt with the soap mess. An obvious response for the area supervisor would have been to have accepted responsibility either for the additional wages costs and directed that other workers be pulled away from their usual functions to assist with the clean-up before completing the usual cleaning tasks or to have directed that the toilet block not be cleaned that evening, pending evaluation of the hazard.

166 The employer did not have adequate protocols in place about how an employee ought to deal with an unusual hazard, which the plaintiff failed to follow. The manuals simply did not deal with when not to use a mop or when to use a hose. Rather, they dealt with how to use a mop correctly for both wet and dry mopping. The employer's protocol in the circumstance was to seek assistance from a supervisor and that is what the plaintiff did.

167 I reject the submission that in stepping up to the urinal and in washing the mop at the urinal tap, the plaintiff was doing something she was neither required nor instructed to do. She was, as instructed, doing her best. The submission that the plaintiff could have washed the mop in the trough, without having to step up onto a sloping, slippery part of the floor, was impractical. The tap in the urinal was continuous flow and much easier to use for the rinse out task than the controlled output push lever tap in the trough. There was no evidence that using the tap at the trough was safer than using the urinal tap.

168 Finally, there was the issue of whether the plaintiff was negligent in failing to tell her employer about the American surgery. There are a number of reasons why this submission fails. First, the evidence is that the plaintiff did tell Ms Cheryl Steiner. I accept the plaintiff's evidence in this respect. The plaintiff was inducted into the defendant company by Ms Steiner. The induction process included completing an employment application form. The form included a declaration: 'I declare that the information provided in this application is true and correct. If found to be false the company has the right to terminate my services without notice or compensation. As Scholastic Cleaning Services is involved in cleaning secure areas, we reserve the right to carry out a security check and require you to obtain a medical clearance if necessary.' To the question 'Have you had a WorkCover or worker's compensation claim in the past five years?', the plaintiff circled 'No'. There is no doubt that the plaintiff's correct answer to this question was 'yes'.

169 When challenged about her answer, the plaintiff said that she inquired of Ms Steiner how to answer this question, because the Texas workcover claim had been finalised in 2000. Ms Steiner said 'it didn't apply to here, that was in the US' and 'not to worry, it didn't apply here if everything was settled'. This explanation was volunteered by the plaintiff. Immediately the cross-examiner challenged the correctness of the answer, the falsity of which the plaintiff readily admitted. I saw no reason not to accept that answer as honestly given. The suggestion that an employee in a position such as that of Ms Steiner might make that response is not improbable, although such an employee would not be regarded as performing appropriately by her employer. Ms Steiner was not called to give evidence. There was evidence that the defendant terminated her employment. The defendant also contended that the plaintiff's answer was unexpected and there was no opportunity to find Ms Steiner. I do not accept this explanation because the defendant sought to use the form against the plaintiff, not just on credit but on liability and quantum issues. The answer was given on day 3 of a trial in which the evidence was taken over 10 days. There was ample opportunity to subpoena Ms Steiner or explain the failure to do so. All that the defendant did was lead evidence that Ms Steiner's services were terminated with no reason given.

170 I accept the plaintiff's explanation of the circumstances in which the form was completed. It follows that I find that the defendant was informed that the plaintiff had a workcover history in the USA. The operative breach of duty was not that of the plaintiff but that of the defendant's employee. Like the conduct of Mrs Harris, this is a matter for which the defendant must accept responsibility and it cannot maintain that the plaintiff failed, in this respect, to have regard for her own safety. In any event, there was no evidence as to what the defendant would have done had it known the true state of affairs beyond Mr Schadel stating that he would have made inquiries. The submission that the defendant might have accommodated the plaintiff's limitations by employment in different activities was not established.

171 The plaintiff did not know of Mr de la Harpe's opinion that she should not have engaged in manual labour, such as cleaning, with a failed lumbar arthrodesis. I accept the plaintiff's evidence that she believed that her back problems had been fixed by the American surgery about which I will say more when discussing damages. Although she had not heard Mr de la Harpe's opinion before the accident at work, three observations are relevant. First, other doctors, including orthopaedic specialists who gave evidence did not concur in that opinion, but then the plaintiff did not hear their views at the relevant time either. Secondly, the occasions of flare-up, when the plaintiff's lumbar spine became symptomatic, which in part informed the medical debate, did not lead the plaintiff herself to conclude that she was placing her back at risk by working as a cleaner. I will come to that evidence in due course. For present purposes, it is sufficient to say that the plaintiff's back was not symptomatic for most of the time that she worked for the defendant, including during a period of at least 6 months prior to the accident. She was not negligent in working as a cleaner. Thirdly, the plaintiff slipped because of the condition of the floor and the task that she was undertaking. Her slip had nothing to do with the condition of her lumbar spine.

172 The defendant has failed to persuade me that the plaintiff was negligent and contributed to the occurrence of her injury. The defence of contributory negligence fails.

174 In 1997, the plaintiff had a laminectomy, a partial fusion at the L4-L5 level and a decompression procedure. It wasn't a success and she continued to have back pain. The plaintiff had more surgery in July 1998 in Beaumont, Texas. Although it took a while, she ultimately improved significantly. The plaintiff's back was particularly difficult for her in the USA. She wore a back brace for a long time after each procedure and she was intermittently using first a wheelchair then later a walker for about 12 months. In the USA, her injury kept her out of employment. She was on WorkCover payments, and the claim was closed out before she left the USA.

175 In August 2000, when she separated from her first husband, she said she was feeling pretty good, like a new person, back on her feet, mowing and gardening. The plaintiff came to Australia on a three month tourist visa that didn't permit her to work. Her first job in Australia was her job with the defendant in August 2002. Although she didn't work until she obtained that job, I am not persuaded that she was medically unable to work consequent upon the surgery in Texas. Rather, she needed appropriate visa status that permitted her to work.

176 Soon after she emigrated to Australia, she enthusiastically adopted an outdoor lifestyle. The plaintiff went camping and four-wheel driving. Domestically, she was active with sewing, shopping, meeting friends for coffee and enjoying movies and meals. The plaintiff described herself as a keen gardener, especially with vegetables and fruit. She went to farmer's markets. She said she had a wonderful life with her husband Steve. Before the incident at the school, the plaintiff was fit from walking. She liked to dance at social occasions. She was about 70 kilos and about a size 12.

177 Dr Carter was the plaintiff's GP from 2001 until 2008. Her history of medical presentations before the accident was thoroughly dissected at trial. The plaintiff admitted that she continued occasionally to get back and leg pain that did not greatly concern her after she came to Australia. She had no hip pain before starting with Scholastic, apart from pain at the site where bone was harvested for the graft during the lumbar fusion.

178 She attended on Dr Al-Souffi, a colleague of Dr Carter on 19 July 2002 complaining of low backache for two weeks. He arranged a lumbar spine CT scan and prescribed Panadeine Forte. She attended again on 29 July 2002 with a complaint of sciatica. The records revealed discussion of whether she should see a neurosurgeon. Dr Al-Souffi referred her to Dr Carter for acupuncture. Dr Carter's prescribed Celebrex and Panadeine Forte.

179 There were further attendances with Dr Carter on about four occasions in August 2002, the last of which the day before she commenced work with Scholastic. I am satisfied that the plaintiff's back condition became symptomatic in July/August 2002 but it settled down with conservative treatment. She was clearly conscious of it when she started work with the defendant, which is one reason why I accept that she discussed her back and the surgery and workcover claim in the USA with Cheryl Steiner.

180 In October 2002, she attended her GP with a sore shoulder and a right hand problem and there were a number of attendances about that and a referral to a surgeon. In January 2003, heart palpitations were first raised with her GP and in July 2003 she first described a painful 'popping' in her right knee. She was referred to a specialist, Mr Churchill who was contemplating an arthroscopy of that knee but that was delayed and then didn't happen because of her back injury.

181 In February 2004, she saw Dr Carter with a flare up in her lower back symptoms. Later that month she twisted her ankle at work and saw Mr Pham about that. In mid-2004, she attended Dr Carter's clinic complaining of a sore back. This was when she also had a respiratory condition, a bad flu or something of that sort. Again, there is nothing to suggest that these attendances were any more that her lower back becoming symptomatic. That her lower back became symptomatic is unsurprising, given her history. In each case, she continued to work. In all, there was one incident lasting several months before she started work and two incidents when she was working that did not disable her from continuing to work. These incidences occurred more than a year before the accident. About a month before the incident she attended on Dr Carter about her right knee.

182 Over the weekend after the accident, she was really sore. On the Saturday she thought she would just keep moving but on the Sunday she couldn't get out of bed. On the Monday and Tuesday, her husband wouldn't let her go to work because she was in so much pain and she didn't get out of bed. The plaintiff went to work on Wednesday and tried to push through but after about two hours she had to leave and go to the doctor.

183 The plaintiff saw Dr Carter on 4 May 2005. Dr Carter's notes recorded: 'Flare up in low back pain and upper back pain. Occurred after mopping a floor at work. Panadeine Forte prescribed'. Five days later on 9 May, the doctor noted: 'Partial improvement, pain mainly confined to lower back and lower limbs now.' Asked why there was no complaint of hip pain, the plaintiff said:

I was seeing him because I thought it was a pulled muscle from the incident. I didn't know exactly where it was radiating from. I thought it was my back, low back, hip.

184 By 17 May 2005, on her third consultation after the incident, Dr Carter's notes recorded that she had decided to claim on WorkCover. She thought the pain was coming from her lower back. The plaintiff could not recall when she first complained to Dr Carter about her left hip, but it was noted on the worker's compensation claim form dated 16 May 2005, which was the day before this consultation. Dr Carter sent the plaintiff for x-rays and to see specialists. Conservative treatment was initially recommended, but the pain did not abate. On 15 July 2005, she saw Mr de la Harpe who arranged for an MRI. Pain relieving injections for a while didn't help and then she saw Mr Peter Turner for a second opinion. The pain was changing her routine and her daily activities. She could hardly get around. She had pain in her hip, down her knee, in her left leg, and a shooting pain, often not consistent, down the calf and into the foot.

185 By the end of the 2005 the prospect of surgery was being discussed. The plaintiff thought the doctors were going to perform a similar procedure to that undertaken in Texas. She decided to have the surgery and it was performed on 11 March 2006. Mr Turner and Mr de la Harpe operated together and the plaintiff was in hospital for about four weeks. There were some complications. She described truly horrible back pain and with no change to her leg pain on her discharge from hospital. The plaintiff believed that the surgery had failed because her pain was pretty close to what it had been.

186 In December 2006, she was referred to Dr Mitchell. An MRI scan that he ordered revealed a tear in the hip joint and she was referred to a surgeon, Mr Jonathan Bare who performed a hip arthroscopy in July 2007. Mrs Hudspeth didn't think that the procedure had been successful as her hip had been 'horrible' since the surgery. In 2006 and 2007, her mobility was limited. For a short period after the back surgery and after the hip surgery she could only travel by ambulance and wasn't allowed to participate in any activities. She was spending most of the day on the recliner or in bed. She was on crutches or a walker. During the second half of 2007, Dr Mitchell suggested a spine stimulator.

187 In January 2008, Dr Mitchell fitted a spinal column stimulator for more effective pain management. It was adjustable and Dr Mitchell managed its operation. The spinal cord stimulator initially had unpleasant side effects. The plaintiff described it as like being tasered, as seen on TV. The stimulator settled down and was effective. She said it was mentally and physically wearing but assisted her ability to walk around inside her house. Outside she used crutches because of instability on unknown surfaces. When the stimulator was low in power or turned off, the plaintiff described a feeling of wearing a weight belt around her waist with increasing pain levels.

188 The plaintiff was continuing to see Dr Agaskar and Dr Mitchell for pain management. The plaintiff now takes OxyContin twice a day with Diazepam. She takes Panadeine Forte, two tablets four times a day for breakthrough pain when she really feels she needs it. She explained her breakthrough pain. She said:

It's excruciating, it's just when I walk, it's like I can feel the bones grating up and down and these, where they have the screws and stuff right in the low part of my back is so tender, sensitive. It's just - the pain is just - it's in your face, it's in your mind, it's in your body, it's in your veins. You breathe it, you sleep it, you eat it. Every aspect of your life is taken up with the pain and it never goes away, never.

In dealing with her pain, her mental state has been 'all over the place, 'real highs and real lows, really lows'. Her sex life had been affected by the injury and is now non-existent, but before the injury her sex life was wonderful. She had sought help from psychologists, Mr Charles Huson and an another psychologist in Drouin. At trial, her mood was low. She gets depressed, more so in winter because she wants to be able to do more. She said:

I have got no capacity to hold down any sort of regular employment because I can't lay down on the job. They are not going to let me lay down in a recliner or in bed and I can't see sitting even for a couple of hours. This just sitting here has been very hard.

189 The plaintiff was distressed that, after the injury, her weight just kept going up. Although she had tried all kinds of diets, she was unable to exercise. The plaintiff is now a size 22 and 105 kilos.

190 At the trial, she described her present routine:

I have a bit of a routine that I like to try and stick to, I find it helps me. When I get up, I try to tidy the kitchen, unload the dishwasher and then after tidying the kitchen I lay back down for a little while. I get dressed after I've rested and then if there's any laundry to be done, I try do at least a load a day so it doesn't accumulate. I have a cleaner that comes in and she does any mopping, any vacuuming. I can't do the vacuuming or mopping. I have a - I don't know what it's called, it's a broom and you slide it, you don't sweep with it, you just slide it and I can do that with the floorboards. Sometimes - I have good days and there's a few in there but I try to go to help Steve, take some pressure off him. I will try to go to the grocery store, I will try to get groceries. I have someone from in the store load them in the car. I go to the doctor's, the local doctor's. I don't have any social clubs or any of that, I just go to the doctors and I'm at home, that's it. I try to help Steve with picking up some groceries now and again. I would say probably about 80 per cent of lying down either on the recliner or in bed.

The plaintiff appeared to be in significant pain when sitting in the witness box and in the body of the court during the trial.

191 The plaintiff was isolated. She missed the companionship of work friends and been unable since the injury to return to the United States where she has grandchildren she hasn't seen. She feels like she's recluse. She had a garden at her present home in Drouin but is unable to work in it. She's been unable to consider returning to four-wheel driving because it's too hard on her back. She mainly plays games on a tablet, watches TV, and listens to music, that's about it. She has heart palpitations and a diagnosis of atrial fibulation, which is well controlled. In August 2012, she had surgery on her right knee and at the trial described her knee as a bit sore but coming good. At the Westfield shopping centre, she twisted her right foot and her right knee in an incident that occurred at an automatic glass door. She said that did not affect the level of back or hip pain, or left leg pain that she had. The plaintiff settled a claim from that incident for $30,000.

192 The plaintiff said she would still be working if it wasn't for her low back pain, her left hip and her left leg and she could manage her cleaner's duties but for that pain. She said she would have kept working until she was about 67 or 70 but for the injury. The plaintiff's solicitors instructed an actuary, Mr Plover, that her intention was to work until age 65. Moreover, her particulars of loss alleged her pecuniary loss to age 65. Asked to explain her evidence-in-chief about working to 67 or 70, she responded that situations change, times change. 'You change your mind about things. I would love to be able to work today but I can't. I thought that 65 was a mandatory retirement age at that time'. The plaintiff was uncertain if there was an actual mandatory time or age in Australia for retirement.

193 The plaintiff's tax returns showed she was working about 20 hours a week with Scholastic earning about $15 an hour. The plaintiff earned about $307 gross per week but was paid by the hour and that hours could vary. The plaintiff was invited to interview for three jobs, a teacher's assistant, a photo lab assistant and a dental technician, one in 2003 and two during 2004. These were for full-time jobs. She could not recall interviewing for a job during 2005. She had also applied for jobs online but without success. The plaintiff said that she was still continuing to apply for jobs as she saw them up to the time of her injury, particularly looking for work with children. In the USA, she had a job looking after drug and alcohol affected babies. The plaintiff stated that although she enjoyed the people that she worked with and was happy just to be working, she never thought or believed that she would be doing cleaning work for the rest of her life. She was happy working part-time and would have continued working with Scholastic and would have entertained a promotion had it been offered.

194 The plaintiff hasn't looked for work since April 2005, doesn't believe she could work. She disagreed with the suggestion of some surgeons that from the physical point of view there was no reason why she couldn't work. She said she felt pain 24 hours a day, seven days a week. Although there were days when she felt less pain, there was not a day when she had no pain. Her medication took the edge off the pain but she had not had recent physiotherapy or further acupuncture.

195 The plaintiff did not agree that she would have had back surgery if the incident had not occurred, because her symptoms were not bad enough. Although she experienced back symptoms, she worked two cleaning jobs and lived an active life, particularly from the perspective of her back. The plaintiff stated that in her active life her back only occasionally became symptomatic and she believed that the accident truly intensified the development of back pain symptoms.

196 The plaintiff's right knee had been problematic for some years, deteriorating gradually from about 2002. It progressed from initially being poppy or clunky, but not painful, in 2002 to swelling and pain reported to Dr Carter on 17 March 2005. The pain was on the inside of the right knee, and she had developed a limp. The pain was not debilitating and did not interfere with her work but it may have come to that stage without intervention. She had been told that it was a torn cartilage that would only get worse.

197 The plaintiff accepted the cross-examiner's suggestion that she was addicted to OxyContin use of 25 milligrams morning and evening and planned to continue to take OxyContin as prescribed. The plaintiff stated that she was significantly affected by OxyContin in combination with Panadeine Forte which she took as needed, but at least once a day, sometimes on a bad day, four times a day. The plaintiff explained that if she ceased to take these drugs, she suffered serious withdrawal symptoms. The plaintiff did not think that she could work while taking these drugs. She also takes anti-anxiety medication, Diazepam, and had taken other antidepressants in the past. She has bad days and good days and is moody, a reaction to her physical pain. She has permanent residency status so her ability to work is not restricted by law.

198 I accept that in the period from June 2002 to April 2005, the plaintiff wasn't having any significant problems with her back other than on the occasions when she consulted her GP. I accept that when the plaintiff's back was not symptomatic, she had no reason to suspect that her lumbar spine was susceptible to injury or that the surgical procedures undertaken in the UAS had not achieved their objective. The plaintiff reasonably believed that she was able to undertake the active lifestyle that she did. Further, the symptoms that she experienced in her left hip before the accident were not in her hip joint and were caused by bone being taken for grafts. I am persuaded that none of her other symptoms, the right ankle, the right knee, neck and shoulder issues, or the bone graft tenderness stopped her from working in that period. If she had not suffered from her present back and left hip problems, I am not persuaded that those other symptoms would have interfered with her capacity for work on an ongoing basis.

199 Stephen Hudspeth, the plaintiff's husband, was a 55 year old senior network administrator for the City of Casey. He corroborated the plaintiff's evidence of interest and participation in outdoor and physical activities prior to April 2005 such as four-wheel driving and camping in the Victorian countryside. He described his wife as a devotee of outdoor activity who was actively involved in packing and unpacking, setting up the camping, and loading equipment onto the roof rack of the four-wheel drive. Before she was allowed to work, the plaintiff occupied her time at home preparing meals and gardening. He said she had a bit of a green thumb and a keen interest in her veggie patch and fruit trees. She mowed the lawns and did all the physical labour associated with her gardening interests.

200 Mr Hudspeth was aware of her earlier injury and surgical procedures in the USA but saw no restriction whatsoever on her activities from them. He confirmed what the plaintiff said about their marriage and the legal impediment on the plaintiff's ability to seek work until 2002. He described them as soul mates who got on fantastically well together, but her work injuries had put a strain on their marriage, although the bond between them has become stronger. Because his was the sole income, they struggled a little financially. Mr Hudspeth was paying maintenance for his daughter. Initially, he understood that the plaintiff was going to look for work as a teacher or a teacher's aide.

201 Up until April 2005, the plaintiff worked and performed home duties normally and without restriction. In certain circumstances, the plaintiff complained about back pain if she had had a particularly tough day, mowing the lawn or working in the garden, but mostly it was muscular pain. Usually she would pay for it with restricted activity the following day. Since April 2005, the plaintiff has not been able to do any gardening, minimal house cleaning in between the cleaner coming and very little else; sometimes she would help a little around the kitchen. She had difficulty driving, couldn't sit for long periods, couldn't do much of anything.

202 Before April 2005, the plaintiff did not regularly take medication and was now taking OxyContin and other morphine based drugs. Mr Hudspeth did not think that she derived any benefit from the March 2006 surgery, but did benefit from Mr Huson's psychological counselling. The spinal cord stimulator produced a few problems when it was first implanted. He rejected the opinion that there was nothing wrong with her. He said:

It was totally the opposite. Physically everything was wrong with her back and hip. She wasn't the same person and she was suffering a great deal. I would say the pain has probably remained constant but she's just learned a bit better to deal with it through the help of the psychologists and through the pain management, but she still tends to overdo it on the good days and she suffers for it for three or four days after. Normally, to put it in perspective, I will go to work and when I come home I might prepare dinner, do some tidying up, but on her good days she will prepare the dinner, she will tidy up the kitchen and do things that she should not really do and the next day she will suffer for it. She's bed ridden and in a lot more pain again.

203 Mr Hudspeth stated that intimate relations, which were absolutely important for both of them, had ceased since March 2006 and they slept in separate bedrooms. The plaintiff could no longer participate in outdoor activities, four-wheel driving, and camping to any significant extent. Mr Hudspeth explained that, more recently, he took the plaintiff in the caravan on trips to Cann River, to provide an opportunity for a break and some quiet peaceful time out of the house because most of the time the plaintiff is in bed. She has 20 per cent good days and 80 per cent bad days. She uses the motorised scooter when they go shopping or she needs to get to places like Fountain Gate. At home, mostly she gets around on crutches or just holding on to walls supporting herself. She's been steady on the same medication regime for a few years now.

204 Mr Hudspeth said that if the plaintiff could work, she would. He but he did not think work was possible for her and that employers would consider her to be disabled and not suitable for employment. He could not see any distinct improvement in the plaintiff's life; if anything it was worsening, not improving. Mr Hudspeth said his wife missed the cleaning job, not so much the job itself but the people with whom she had worked. Despite the level of medication she takes, she functions mentally, but she couldn't set up a small business at home, although she can concentrate. She pays all the bills and organises the finances.

205 Mr Hudspeth explained that he contemplated retiring at 67, as he enjoyed work and liked his job. There is no mandatory retirement age at the City of Casey and some employees have worked to 72. He has not contemplated retiring before 65, and although he is due long service leave was not contemplating becoming a 'grey nomad'.

206 In 2002 the plaintiff consulted a general practitioner, Dr Al-Souffi, with a history of backache for two weeks. Celebrex and Panadeine Forte were prescribed. Dr Al-Souffi noted a past history about the US surgery on the plaintiff's file. A radiologist's report from a CT scan in July 2002 reported laminectomies at L4/L5, and a grade 1 spondylolisthesis at L4-L5. There were no abnormalities at L2-L3. A disc bulge at the L3-L4 level was not compressing nerve roots at that level and nothing as a result of the spondylolisthesis was relevantly compressing the spine at the L4-L5 level. A posterior minor disc protrusion was seen at L5-S1. The plaintiff's lower limb symptoms were attributed to the situation at L5-S1. She returned on 29 July 2002 with persistent back pain and was referred to physiotherapy. Dr Carter, who practised with Dr Al Souffi, mostly treated the plaintiff between 2002 and 2007. Dr Carter attributed this pain to the protrusion and the pinching of a nerve at L5-S1. He suggested a neurosurgeon but the plaintiff was not keen. Dr Carter accepted that this presentation suggested a symptomatic back that had not fully recovered from the US operations.

207 Dr Carter thought the grade 1 spondylolisthesis, indicated in July 2002, was an injury that could flare up depending on back use and he agreed there was a lower back vulnerability to episodes of further pain and restrictions of movement. It was not unusual for a person with these injuries to have lower back pain during ordinary activities. Dr Carter conceded that an unstable joint raised a potential for future problems. On 30 July 2002, still complaining of back pain, the plaintiff had acupuncture. Dr Carter did not treat the plaintiff's left hip and was not aware of any disability or impairment of function in the left hip prior to the accident. There were a number of attendances for acupuncture during early August 2002.

208 There were various other complaints, hand and shoulder issues, palpitations and sleep disturbance in January 2003 and a popping right knee in July 2003. On 2 February 2004, the plaintiff attended Dr Carter's clinic reporting a flare up in lower back pain, left sciatic pain and right low limb pain. Dr Carter suspected the L5-S1 disc protrusion was the cause. Dr Carter told a cross-examiner that the back surgery in the US could have been the cause of this flare up but he didn't recall the consultation. The plaintiff next consulted with him on 4 June 2004, but not specifically about lower back pain. She had the flu symptoms for which he prescribed appropriate treatment. He noted that she complained of a sore back but he thought this was connected with the chest infection. Dr Carter did not consider that her presentation in June 2004 was pathological of her previous problems at L5-S1 or the fusion at L4-L5.

209 After the incident, the plaintiff attended on Dr Carter on 4 May 2005. The notes read:

Flare up in low back pain and upper back pain. Occurred after mopping a floor at work.

He did not recall the consultation or any other information from the plaintiff. A cross-examiner inquired about the lack of detail in his clinical notes of her presentations immediately after the incident and Dr Carter said it was not clear there was going to be a WorkCover claim. Dr Carter thought the plaintiff was suffering a flare up of pain or aggravation that he saw as a recurrence of the events of 2002 and 2004. He made no note and had no recollection of a traumatic incident. It was quite possible the plaintiff told him what happened but he did not record it.

210 On 9 May 2005, Dr Carter referred the plaintiff to an orthopaedic surgeon, Mr de la Harpe, for an opinion. At a consultation on 13 May 2005 he noted: 'She is now claiming on WorkCover.' He doesn't recall taking an extensive history at this point. On 20 July 2005, Mr de la Harpe noted:

Most recently she's had an accident at work when she slipped on a wet floor stepping up to a urinal. She hyperextended her spine and fell backwards against a wall. She has increasing back pain and bilateral sciatica since.

Invited to compare his notes with those of Mr de la Harpe, he said:

Well, there are two possibilities, either the history wasn't given or else it was given and I didn't record it.

From that time, De Carter described difficulties in managing the plaintiff pain. By 17 May 2005, still unable to work as pain was limiting her daily activities, the plaintiff made a WorkCover claim.

211 Dr Carter noted on 3 January 2006 that the plaintiff 'had a fall yesterday, leg gave way due to pain. Severe pain, low back, left groin, all of left leg. Walking with great difficulty, distressed, tearful.' He saw the plaintiff regularly before and after her March 2006 surgery. He noted temporary improvement in low back pain but more pain in other areas and over following months, it became clear that, overall, pain and function had not improved. Mr Turner initiated OxyContin for her pain. By June 2006, she was taking 30 milligrams per day of OxyContin, in addition to Panadeine Forte, Diazepam, and Amitriptyline.

212 Dr Carter referred the plaintiff to Dr Mitchell, a pain management specialist, after she complained of abdominal pain that was later diagnosed as left groin pain caused by a labrum tear in her left hip. Dr Bare performed a hip arthroscopy and confirmed the tear. He found marked synovitis, an inflammation of the joint membrane. Dr Carter noted on 21 February 2007, when following up on the MRI showing the tear in the hip, that the plaintiff stated that she told Mr Turner and Mr de la Harpe about groin pain before her back surgery. Dr Carter confirmed that he had not heard a complaint from her about groin pain before the surgery. He noted that after the hip surgery, the plaintiff's groin pain fully resolved but her back pain remained. She was unable to return to work throughout and her daily activities were significantly reduced because of pain. She needed a walking frame or dual elbow walking sticks to ambulate. Both of the orthopaedic surgeons had reported that the surgery was successful, and while recognising that her pain was not improved, they could offer no further assistance. Dr Carter accepted the surgery was technically successful, but was unsurprised that his patient had pain control problems after technically successful surgery. Dr Carter had hoped to decrease the plaintiff's medication but found it difficult to do so. Dr Carter didn't conclude that the plaintiff was addicted but he did agree that OxyContin is a narcotic and an addictive drug. When Dr Carter last saw the plaintiff in late 2007 her level of back pain was of a high degree but at that stage he wasn't investigating the cause of the pain, just managing it.

213 Dr Carter concluded that the injuries sustained by the plaintiff in the accident were disruption to the previous spinal fusion and tear of the labrum of the left hip leaving her incapacitated for the cleaning work. He added:

Although the patient did attend for episodes of low back prior to the injury in 2005 none of these presentations seemed severe enough to indicate the disruption of the spinal fusion that seemed to have happened with the incident in May 2005. As I am not a specialist in this area, I believe Mr de la Harpe or Mr Turner could answer this with more confidence. Regarding the hip injury, I have already noted I did not make any record of groin pain until after the back surgery. However, the patient assured me the left groin pain started after the accident and before the surgery which would indicate that the hip labrum was torn at the time of the accident. This seems more likely because I'm not sure how it could have occurred at any other time. Also, it is not uncommon for hip injuries like this to not be diagnosed initially in the presence of significant back problems. In any case, there was no mention of left groin pain prior to the accident. Besides, the hip problem had resolved when I last saw her.

214 Dr Carter explained the plaintiff's ongoing pain, which he accepted from the plaintiff as genuine, as chronic pain syndrome:

To me it's someone who has had a lot of chronic pain, who's had pain over a long period and it can imply someone who's having pain in spite of the original cause having been successfully treated. It's a syndrome because it doesn't have a physical explanation. I wouldn't necessarily imply there's no cause. In some situations it's used to describe a situation where pain has - the patient has ongoing pain after the original cause has been fully addressed.

215 Dr Doslo became the plaintiff's GP for the 2008 year after Dr Carter. He recalled his first consultation traversed multiple health issues and injuries. It was mainly her medications. She was then taking Celebrex, Antenex, Diazepam, Endep, OxyContin, a cholesterol tablet, Colofac and Movicol (for bowel irritation), Zantac (for the stomach) and a nasal spray, an HRT medication. He also prescribed Panadeine Forte. Dr Doslo recommended that the plaintiff use a mobility scooter because she complained she could not walk longer distances with the crutches. She was not fit for work or a back to work plan due to her level of pain. Dr Doslo made several referrals to a physiotherapist, a physician, a cardiologist and a pain specialist during his treatment. Dr Doslo was aware that the plaintiff had a successful anterior and posterior spinal fusion but regardless of this apparent surgical success, she reported to him widespread pain and he saw his role as managing her prescriptions and her recovery. He considered the plaintiff's case a complex one.

216 The plaintiff's current treating GP in Warragul since May 2009 is Dr Agaskar. He had a second-hand history about her. She presented with complex low back pain, persistent, hip pain and leg pains, since her spinal surgery. Dr Agaskar considered the plaintiff has a complex chronic pain syndrome, mainly low back pain, hip pain, and left leg pain, for which he treated her prescribing, OxyContin, 25 milligrams twice a day, Endone, Diazepam, Panadeine Forte and Amitriptyline. Dr Agaskar said the plaintiff is on this combination of painkillers because:

Linda is always in pain. She's always in constant pain so she's on long acting OxyContin but she does complain she gets a few flare ups. They may be related to her movements or sometimes there's no trigger, so in that case she's been given breakthrough pain relief in the form of Endone. If she can, sometimes she tries Panadeine Forte which keeps her comfortable for a certain length of time. She doesn't have any capacity for employment.

217 Dr Agaskar considered that the plaintiff will be on this pain medication for a long period of time, perhaps forever. She didn't appear to him to have any apparent difficulty or disability in performing cleaning tasks. He knew she went to Dr Carter for a variety of what he described as standard little niggles and pain. He said:

A lot of the time I to urge her to go and see the doctor myself because she didn't want to.

218 Mr de la Harpe is a specialist orthopaedic surgeon to whom Dr Carter referred the plaintiff. He noted that the 2002 scan showed a pseudoarthrosis at L4-L5 level, an incomplete fusion, but with a reasonable amount of bone mass in the spine. Regardless of incomplete fusion, fibrous union may have achieved reasonable stability that allowed the plaintiff to function, albeit with some exacerbation of back pain with particular activities. Mr de la Harpe did not know of the plaintiff's history of past back pain but he expected ongoing symptoms from the pseudoarthrosis. The plaintiff would not be aware that fusion was incomplete, and would experience intermittent back pain.

219 Her history of hyperextension in the accident would have affected the pseudarthrosis that was in the posterior section of the spine. On radiology investigation, there was evidence of the previous surgery, evidence of bone grafting and spondylolisthesis of L4-L5. Mr de la Harpe considered that L4 had slipped on L5, indicating instability. The US surgery had weakened or destroyed the stability in the bone, permitting later movement. The 2002 scan showed a grade 1 spondylolisthesis and the 2005 scan indicated a grade 1 to 2 spondylolisthesis. It was very difficult to say that increased slippage was connected to the April 2005 incident. The joints above L4-L5 were becoming arthritic. Adjacent segment disease was evident, a protrusion at the L5-S1 indicated some premature degeneration in this disc connected to the earlier L4-L5 fusion. Mr de la Harpe told the plaintiff that surgery was going to be very difficult and he recommended conservative forms of treatment.

220 By October 2005, when conservative management had failed, a CT scan confirmed the pseudoarthrosis at L4-L5. The only option was anterior and posterior lumbar fusion surgery. Mr de la Harpe referred the plaintiff to Mr Turner for a second opinion. The plaintiff decided to go ahead with the surgery, undertaken in March 2006. The surgeons worked together, with Mr de la Harpe completing the posterior fusion and Mr Turner completing the anterior fusion, using screws, plates, and cages. The bone growth stimulator device was removed.

221 Mr de la Harpe expected that the March 2006 fusion surgery could accelerate degeneration in the adjacent levels, as degeneration was present at L5-S1, and there was the chance of adjacent segment disease above, at L2-L3. In April 2006, some six weeks after the surgery, the plaintiff was overjoyed with the result but complained of abdominal pain, which Mr de la Harpe originally thought came from Mr Turner's surgical incision, and on 17 July 2006, she was doing well, much improved. In January 2007, the plaintiff was struggling with back pain, and had gained weight. She was by this stage consulting a pain specialist. X-rays showed that the fusion was knitting or incorporating well. In July 2007, Mr de la Harpe felt that the fusion was knitting well and the plaintiff was making slow progress with her chronic back pain.

222 Mr de la Harpe's opinion was that the accident had aggravated the plaintiff's previous incomplete union and her pre-existing degenerative condition causing her lumbar back to become symptomatic. His diagnosis was failed back surgery in the United States, aggravated by a fall/slip at work. On her prognosis:

Extremely guarded. I was far from confident she would make a full recovery to the point of being able to return to everyday activities and work. Work prospects: unlikely to ever have any significant employment capability in the future. She would never return to any form of manual labour. There was a likelihood her condition could deteriorate into a chronic pain syndrome.

223 When Mr de la Harpe reviewed the plaintiff on 17 September 2012, a CT scan showed a good solid fusion of L3 to L5. Technically, the surgery was successful. His opinion then was that the plaintiff's prognosis was guarded. She will always suffer back pain and her employment prospects were extremely poor. Commenting on the suggestion that there was not much wrong with her:

She has had, if you would like to think of it that way, four separate spinal operations on her lumbar spine. Two of these were less than successful and another two to fuse the entire mid lumbar spine. This is certainly going to have a significant impact on her ability to function physically and is likely to still require analgesic and pain management strategies to control ongoing low back pain.

Mr de la Harpe expected that the plaintiff would be limited in her mobility, in sitting, bending, standing, and walking.

224 Mr Peter Turner was the plaintiff's second treating orthopaedic surgeon, who assisted Mr de la Harpe in the successful fusion surgery in March 2006. The history of back pain complaints made to Dr Carter in the 2002 to 2005 period did not surprise Mr Turner. He did not see the 2002 scan. Mrs Hudspeth had told Mr Turner that the 1998 operation had relieved her symptoms of back pain. On assessment, Mr Turner thought Mrs Hudspeth's symptoms were likely related to either the pseudoarthrosis at L4-L5 level or, possibly, degenerative changes noted in the facet joints at L3-4 level. Her symptoms were significant and persistent and did not respond to a variety of conservative treatments, indicating that further surgery would be a reasonable proposition. The primary purpose of the surgery was to alleviate symptoms and enable the plaintiff to function physically as she had prior to her work injury. A secondary benefit sought was to enable her return to activities, including employment.

225 During the surgery, Mr Turner confirmed that the fusion was not solid and confirmed the presence of arthritic changes in the facet joints at L3-L4. Post-operative progress was generally satisfactory but post-operative pain was difficult to manage. CT scans showed that the bone grafts were healing satisfactorily and Mr Turner recommended a multidisciplinary pain management program.

226 Mr Turner last saw the plaintiff in early 2007. His opinion was:

When I first saw Mrs Hudspeth, I thought it likely her symptoms were associated with a pseudoarthrosis of the L4-L5 level with the degenerative facet joints at L3-L4 level being a contributing factor. These problems have largely been resolved by the surgery which the most recent imaging confirms has achieved a solid fusion from L3 to L5. I suspect the ongoing problems represent chronic pain syndrome. Prior to the work injury, Mrs Hudspeth had been known to have a spondylolisthesis at L4-L5 and had undergone surgical treatment that was not sound. Mrs Hudspeth's symptoms have been substantially improved. When last seen, she was still experiencing a lot of pain in relation to her lower back. This pain had been largely unimproved by the most recent surgery. Overall, I would be very guarded about Mrs Hudspeth's future prognosis. When last seen, she was clearly unable to work and any resumption of employment in the future would depend on an improvement in her pain. At the time of that review Mrs Hudspeth was clearly unemployable and I saw little prospect of that situation changing.

Technically, the operation was a success, rectifying the structural reasons for her pain. There was not a clear anatomical reason or a structural organic explanation for her ongoing pain. Initially there was real optimism about the success of the surgery, but the plaintiff deteriorated. Mr Turner considered the plaintiff had a chronic pain syndrome that chronic pain specialists should manage, at times involving psychiatric or psychological treatment.

227 Mr Turner did not think that surgery would have been necessary regardless of the accident. He said that surgery would likely have been recommended if the plaintiff was severely symptomatic, but if she had only intermittent issues, she may not have required further surgery. The purpose of the March 2006 operation was to fix the arthrodesis from the US operation, but there was no way of knowing whether this surgery would have been required absent the accident. There was no real certainty, simply a possibility, not a real prospect, that she could have required the surgery performed in March 2006. Asked whether the plaintiff needed the surgery even before the incident, Mr Turner considered that her history showed that she was able to manage her symptoms and was able to function. As long as she was functioning acceptably there was no indication for surgery. Treatment of a pseudoarthrosis was optional, not obligatory, and was dependent on the patient's ability to manage her symptoms. He said degeneration at L3-L4 would have progressed with activity over time but not necessarily from work activity.

228 Mr Turner was concerned about the plaintiff's ongoing use of OxyContin but disagreed that she took the medication simply because she was addicted. He explained that her pain had been the trigger for commencing OxyContin and an inability to control her pain through other means has required continuing its use.

229 Mr Khan was retained by the plaintiff's solicitors to provide a medico-legal opinion. He considered that the plaintiff presented with very complex, complicated, multifocal symptoms. She had been fit and able to carry on with her physically demanding work reasonably well until her injury on 27 April 2005 during the course of her employment. Due to the nature of the jarring, twisting strain she experienced, the plaintiff hyper-extended her spine as she tried to regain her balance, landing against the wall of the cubicle in the toilet section. She developed pain in her lumbar spine and left groin and thigh going down her leg.

230 Mr Khan considered that, following the US surgery, the plaintiff's symptoms had been alleviated and she had been able to lead a reasonably active, normal life continuing with normal social activities and recreational pursuits. He concluded that the plaintiff's diagnosis before her operation on 11 March 2006 was that she had sustained disruption of a pre-existing degenerative spondylolisthesis at L4-L5 level and flare up of facet joint arthropathy and pre-existing asymptomatic degenerative changes bilaterally at the L3-4 facet joints. She developed pain in the previous pseudoarthrosis associated with non-union of the bone graft at L4-L5. The plaintiff required an extensive fusion from L3 to L5 with the insertion of bone grafts. This treatment was consistent with the injury on 27 April 2005. The plaintiff later required left hip arthroscopic surgery to repair a tear of the labrum in the left hip, diagnosed as sustained in the injury on 27 April 2005.

231 In spite of the fairly extensive treatment, the plaintiff has been left with residual chronic pain with stiffness and disability in her back and pain down the left leg, more than the right, as well as residual pain and stiffness in the left hip. Her condition has stabilised. She has been unable to weight bear properly and has had to require the use of a scooter and elbow crutches. The arthroscopic surgery has helped but not completely alleviated her left hip symptoms. The plaintiff's long-term prognosis remains guarded. The condition of her left hip may deteriorate, eventually developing symptoms of degenerative arthritis in the joint. As she has developed diffuse persistent severe symptoms of residual pain, which has rendered her totally disabled for any work, both at home and at the place of employment, she has developed non-organic symptoms which have been termed by the psychologist as anxiety and depression.

232 Mr Khan concluded that the injury on 27 April 2005 caused the plaintiff to cease work and was a significant contributing factor to her surgery and current condition. The possibility of long-term deterioration of her condition could not be ruled out. The plaintiff was totally incapacitated for employment and unable to walk unaided, requiring the crutches or a scooter to get around as weight bearing exacerbated pain in her back going down her legs. She had permanent disability from her injury and her restrictions, disability, and incapacity for work were likely to remain into the foreseeable future.

233 Mr Khan acknowledged the plaintiff's history of attendances on Dr Carter before the accident was different to what he was told but said the main indicator was that the plaintiff was not showing ongoing ill effects from the US surgery and was carrying on an active life. The plaintiff did not see a doctor for a while before her fall.

234 In cross-examination, Mr Khan explained that the L4-L5 joint may have supported through a fibrous, rather than a bony union and that in his opinion, the plaintiff had a severe fall, because she jarred, hyperextended, her spine unnaturally and she snapped that fibrous union. In his opinion, it was likely that Mrs Hudspeth then experienced movement in the pseudoarthrosis, that is, after the accident. A grade 1 spondylolisthesis was noted in 2002 and a grade 1 to 2 spondylolisthesis was noted by Mr de la Harpe in 2005. He agreed that in evidence-in-chief he overstated the position when he said that she was completely pain free after the second American operation. Her pre-2005 condition was consistent with a woman who had had spinal surgery and was over 40. Degenerative changes were becoming symptomatic with fluctuating intensity leading to occasional attendances at the doctor.

235 Mr Khan agreed with Mr Dooley that the plaintiff suffered a soft tissue injury to the lumbar spine at the time of the accident, but he did not completely agree with Mr Dooley's opinion that it was impossible based on this injury alone to explain all of her ongoing symptoms in the lumbar spine five years on. Mr Khan considered that Mr Dooley's opinion - that one cannot explain the consistency and severity of the ongoing pain based on the organic injury alone - was only partly right. He did not accept that the consistency and intensity of the plaintiff's ongoing pain was unexpectedly disproportionate. Mr Khan also disagreed with Mr Dooley's suggestion that Mrs Hudspeth's hip condition in the labrum and the tendinopathy in the gluteal tendons of the buttock were naturally occurring degeneration. He maintained that the trauma in the April 2005 accident was a sufficient mechanism for the plaintiff's left hip injury. Mr Khan suggested that it was common to diagnose back and hip injuries in combination and the mechanism of the injury was consistent with these two separate injuries. He disagreed with Mr Dooley that her injury brought the pseudoarthrosis to the attention of doctors who ultimately recommended the revision surgery.

236 Mr Khan disagreed with Mr Brazenor's opinion that the need for further surgery proceeded from the failed fusion itself, not from the temporary exacerbation. Mr Khan regarded Mr Brazenor's opinion that it was highly likely that the revision surgery would have been needed anyway regardless of the incident as hypothetical.

237 Mr Khan would not have recommended that the plaintiff work as a cleaner. Carrying backpacks and vacuum cleaners on her back could have been dangerous for her back. The fibrous union had enabled the plaintiff to work before the accident. Mr Khan noted that the orthopaedic surgeons found that there was definite movement at the site of pseudoarthrosis, confirming instability but not when it developed. The key consideration for Mr Khan was the history of severe pain. The plaintiff did not have severe ongoing pain before the accident and developed such pain after the accident had happened, which never settled down. Mr Khan considered that disruption of the pseudoarthrosis by the force of the injury caused soft tissue injuries and also affected the spine at L3-L4 level. It may have affected her nerves by disrupting scarring from the previous operation.

238 Mr Dooley is a forensic orthopaedic surgeon who provided two reports to another defendant. His first report was prepared from a reading of the previous medical reports and the radiography materials and he didn't examine the plaintiff. Mr Dooley concluded that the plaintiff had a pseudoarthrosis at the L4-5 level of the spine that occurred as a natural complication of the original spinal surgery. The traumatic episode of 27April 2005 did not cause the revision spinal surgery, and the mechanism of the injury was not consistent with the plaintiff sustaining a hip injury, which was, he said, naturally occurring degeneration. Inflammation from a twist in Mrs Hudspeth's back should have resolved in normal circumstances in about three months because it is usually a temporary condition. In his opinion, a sprain type injury could have led to fibrous tissue being torn but not bone fracturing. Mr Dooley concluded that the plaintiff suffered a lumbar spine strain injury involving some musculoligamentous damage and probably some aggravation of the pre-existing pseudoarthrosis, accepting that symptoms from a pseudoarthrosis may come on after a sudden trauma.

239 Mrs Hudspeth's pre-accident presentations were expected for a patient with a failed fusion, because sudden bending, sudden movement, stumbles, et cetera, would cause aggravation. Her presentations to Dr Carter were symptomatic of the underlying failed fusion. He said pseudoarthrosis can be painless, and he agreed with Mr Khan that where there is a bony non-union there can be a fibrous union that can allow the back to operate satisfactory with only low grade intermittent symptoms. Regardless of non-fusion, the symptomatic result for the patient may be very satisfactory. A patient's ongoing pain dictated revision of failed fusion surgery, which was a subjective assessment. In this case, the revision surgery was carried out because Mrs Hudspeth complained of severe ongoing pain. Double level fusions are notoriously unpredictable. Mr Dooley would not have recommended the surgery to the plaintiff in her pre-accident condition.

240 Mr Dooley considered that the accident did not alter the structure of her spine, but it caused her to complain of pain that in time steadily increased in constancy and intensity. Because the organic component of her symptomatology has been overwhelmed by her psychological condition, he could not estimate what sort of effect the April 2005 episode had organically. Since the surgery, much of the plaintiff's ongoing pain related to her psychological condition and not necessarily to the organic lumbar spine condition. In his opinion, it is possible that the plaintiff would have come to revision spinal surgery irrespective of the April 2005 episode, although that episode was the initiating factor for surgery in March 2006. From the orthopaedic point of view, the plaintiff should not require crutches or scooter for mobility, she should be able to walk normally and the need for a scooter or walking aids reflects her psychological condition. The constant severe low back pain, the spinal cord stimulator, lower limb pains, numbness in her left leg and ongoing left groin pain would potentially impact on her ability to walk normally over reasonable or long distances but he wouldn't expect the plaintiff to need crutches or scooters for normal every day walking. He believed this was a constant choice the plaintiff was making and she did not need such aids in everyday life.

241 Mr Dooley could not conceive mechanically how the plaintiff's injuries to the lumbar back and the left hip could occur in the reported accident. In his opinion, the hip was natural degeneration in a middle-aged person. Later problems with degeneration in her right hip and right knee supported that conclusion.

242 Mr Dooley expected that any patient would have intermittent aching pain at the site of a fusion operation, but he would expect a significant improvement in the pain after rectifying the physical problem. Mr Dooley explained, when cross-examined, that the invalid role or abnormal illness behaviour is seen when a significant trauma does not correlate to the patient's physical presentation and pain description. Chronic regional pain syndrome and reflex sympathetic dystrophy, basically the same condition, is a well described condition present where pain is beyond what is expected from an injury. It is thought to be connected to the sympathetic nervous system. In most people, it runs a natural course over several months until a normal healing reaction is re-established. Chronic pain syndrome is a psychological reaction where pain cannot be explained on an organic basis.

243 He agreed with Mr de la Harpe that in failed fusions adjacent segment disease is very common and over time may become symptomatic, although he estimated the timeframe at 15 to 20 years. If the plaintiff had not had the accident in April 2005 he would have expected her to have ongoing low back pain, some lower limb pain with short-term exacerbations. Mr Dooley could not say that she would have needed surgery regardless of the accident. It was not reasonably possible to predict, and he could not quantify in any real way the level of possibility of, revision surgery but he would not have been surprised if the plaintiff might have come to it.

244 Mr Dooley would not have counselled the plaintiff before the accident that she should not have been working as a cleaner. He would now advise against heavy lifting work but considered light clerical duties were within her capabilities. Of her injuries, the major influence on her ability to work was her psychological condition. Her knee and ankle injuries would make standing for long periods, kneeling, or squatting difficult and any return to work would have to be on a graduated and monitored basis, but Mr Dooley doubted that the plaintiff would be able to do full-time work.

245 Mr Dooley accepted the proposition that if the plaintiff feels pain relief from the spinal cord stimulator, her pain is neurologically based adding that he would also accept as valid that a spinal cord stimulator might produce a placebo response. When cross-examined, Mr Dooley accepted that as Mrs Hudspeth's pain symptoms deteriorated when the stimulator was turned off for a month, some pain was coming from the neurological structures. Mr Dooley's opinion was that the April 2005 injury and Mrs Hudspeth's psychological reaction to her situation influenced the subsequent clinical course. Psychological reactions to injury vary and some of Mrs Hudspeth's pain is psychological.

246 Mr Brazenor, a neurosurgeon, prepared two forensic reports for another defendant, the first after reviewing a range of medical reports and the second after he had examined the plaintiff. He concluded from his review of the other reports:

This lady has a failed fusion at L4-L5 at the time of the incident in April 2005. The question here would seem to be whether in the presence of a clearly failed fusion at L4-L5, the action of mopping floors or even a slip on a wet floor saving herself in mid-air, could have led to such a severe aggravation of her symptoms that she had to undergo front and back salvage lumbar surgery. On the balance of probabilities and on the basis of my 30 years experience as a spinal surgeon I would have to say that I do not believe that the incident as described was capable of severe and irreparable exacerbation of Mrs Hudspeth's condition to the degree where she had to undergo life threatening front and back surgery from which she has not emerged any better.

247 Mr Brazenor stated that a failed pseudoarthrosis, which are known to be painful, can suffer temporary exacerbation. In the absence of significant energy trauma, the need for further surgery proceeds directly from the failure of the fusion. It was highly likely that revision surgery would have to have been done notwithstanding the injury. In his view, on balance, the 27 April 2005 incident was incapable of permanent alteration to her clinical course. When cross-examined, Mr Brazenor acknowledged that not all pseudoarthrosis were very painful and agreed that the plaintiff may have had only low grade intermittent symptoms. He agreed that a fibrous union can provide a pseudoarthrosis with reasonable function. Mr Brazenor thought that a twist to the back would possibly cause pain, it would be an inflammatory process, a temporary condition that would resolve with rest.

248 Probably the plaintiff did exacerbate her symptoms by either mopping or falling with a pseudoarthrosis but surgery was coming down the track regardless. In the absence of trauma in April 2005, Mr Brazenor believed that the plaintiff because of chronic low back pain because of the pseudoarthrosis, would soon have been unable to do any sort of bending and lifting job and the ongoing pain would eventually have forced her to seek out an opinion about the possibility of salvage surgery. In her case, the salvage surgery, performed by Mr de la Harpe and Mr Turner, was very successful, judged on the solid fusion and a 'totally quiet' isotope bone scan. There was no detectable pain generator of any significance raising the question of just how much pain the plaintiff actually had. He considered the prescription of narcotic pain relief long-term for lumbar degenerative disease such as Mrs Hudspeth suffers was contraindicated.

249 In his second report in September 2010, Mr Brazenor commented on a whole body isotope bone scan in January 2010. He described the scan of the lumbar spine and hips as 'absolutely pristine showing no isotope uptake at any level.' Mr Brazenor concluded:

This lady is an enigma. I could find no physical reason why she was not fit for full-time employment with a simple caveat that she should not be asked to do a job involving repeated bending at the waist or accessing levels below her waste with a vigorous pushing and pulling of had heavy trollies. There's no reason for her crutches or motorised scooter unless her need for those is simply a result of her own disinclination to maintain her walking fitness. There was no evidence for a significant pain generator in lumbar hips or spine. In the context of a woman who had a well documented the failed fusion at L4-L5 at the time of the alleged incident, the incident as described could not have made a significant difference to this woman's future, that is to say, people with a failed lumbar fusion in general have to come to reoperation. There was now a huge gap between the pain and the disability alleged by Mrs Hudspeth on the one hand and on the other hand, a complete absence of objective physical findings or any pain generator on exhaustive radiological assessment.

250 Mr Brazenor would not have advised the plaintiff to do cleaning work which increased her pain, aggravated her condition and resulted in her eventually needing revision surgery. He did not think adjacent segment disease had any impact.

251 He denied that the fusion would put pressure on L5-S1. He explained that the fusion does not put additional pressure on the L5-S1 disc but it can lead to accelerated degeneration visible on a CT scan:

You will see loss of height of the disc, you will see marginal osteophytes and you will see degeneration of the facet joints but we don't see any of that on her post-operative CT. There's no evidence for any adjacent segment degenerative change in this lady yet.

252 Mr Brazenor described the cross-examiner's suggestion that ongoing increased pressure on the L5-S1 disc because of a fusion may give rise to pain generators in that disc, as absolute rubbish. He accepted Mr de la Harpe's statement that the fusion imposed extra strain at the L5-S1 disc which accelerated degeneration because of the extra forces across the disc, as unexceptional but his opinion was that the plaintiff's joint was 'scoping beautifully'. He was referring to the 21 June 2010 scan that showed the L5-S1 disc and its facet joints to be 'pristine' and he reviewed the film rather than the report. There was not a protrusion in the L5-S1 disc and with a two level fusion there will only be pain in the adjacent disc if the disc was damaged. Usually a successful technically perfect lumbar fusion, such as he believed the plaintiff had, gave pain relief. The surgery had to be technically perfect for there to be no pain. Degeneration at L5-S1 was best detected with a MRI, which the plaintiff had not undergone since 2008 due to the spinal cord stimulator. Regardless, he maintained that the disc was of a normal height and there was no protrusion. When Mr Brazenor was shown the radiologist's report of the July 2002 CT scan, which noted that the L5-S1 vertebrae had a protrusion, he said he had seen a normal MRI of L5-S1, the 2002 report was, in his opinion, wrong, noting that one in 10 reports are wrong.

253 Mr Brazenor stated that when medication is prescribed for pain relief for nerve generated pain, the doctor should be able to see the injury as the cause of the pain. The fact that the spinal cord stimulator helped somewhat to reduce pain did not necessarily indicate there was a pathology or activity in the nerves giving rise to the pain. He acknowledged that Mrs Hudspeth may be feeling back pain but glibly said this was the same pain as in his back:

If you sit all day and don't walk around and are overweight, you will feel pain. This doesn't mean there's anything wrong in your back.

He disagreed that the plaintiff's pain was partly physical and partly psychological. He thought it was 'all her own work'. In his opinion, any relief reported from the spinal cord stimulator was placebo effect. He said pain management specialists investigate nerve sensitisation matters, out of self-interest.

254 Mr Jonathan Bare was the orthopaedic surgeon who did the arthroscope on the plaintiff's left hip and his surgical report of 5 July 2007 had an operative note that:

A 51 year old presented with a long history of increasing groin pain precipitated by a fall at work. She had a combination of sciatic symptoms and left hip impingement symptoms. MRI scan had shown an anterior lateral labral tear. Operative findings: Partial detachment and degenerative tearing, anterolateral labrum, generalised synovitis, maximal at area of labral detachment, grade 1 rim lesion.

255 Dr Mitchell was the plaintiff's treating pain management specialist. His role was to manage the plaintiff's pain and seek to engender improved function. He considered the plaintiff's pain to be somatic pain. He said that the plaintiff had a grossly unstable pelvis lacking adequate compression force because of inadequate function in the ligaments at the back of the pelvis, the muscle at the front of the pelvis and in the pelvic floor. Pain caused that inadequate function.

256 When the plaintiff first consulted Dr Mitchell, she had multiple pathologies, the failed back surgery syndrome with a neuropathic pain and hip and pelvis issues. After a hip injection on 27 February 2007 gave relief, an MRI of her left hip showed a tear and Mr Bare operated in July 2007. Dr Mitchell then sought WorkCover approval to trial a spinal cord stimulator. The trial of the spinal cord stimulator was in early 2008 with excellent results. The spinal cord stimulator was put in permanently on 7 May 2008.

257 In July 2008, she complained about feeling tasered but the stimulator settled down. In December 2008, the plaintiff was not convinced she was getting relief from the stimulator so it was turned off for a month, which Dr Mitchell said was conclusive that the stimulator was making a marked difference to her pain and mobility. In May 2009, Dr Mitchell thought the plaintiff's mental state had deteriorated over the previous months. He told her that if she did not get out of the wheelchair, she would die there in the next few years. Later in August 2009, her stimulator was reprogrammed. In October 2009, she was complaining of bilateral leg pains and pains when standing and walking. He arranged an isotope bone scan. In June 2010, she presented with pain in sacroiliac joint, right greater than left. She had further x-rays.

258 Dr Mitchell described failed back surgery syndrome as a condition where surgical success hasn't changed the patient's pain possibly as scar tissue that forms around the lining of the epidural space and the lining of the nerve roots and the lining of the spinal cord causes damage to the structures and becomes a pain generator in its own right.

259 Dr Mitchell expressed this conclusion in September 2010:

Mrs Hudspeth is a lady with known hip joint pathology and failed back surgery syndrome with neuropathic back and leg pain and probably some secondary fibromyalgia from chronic pain. She has at various times been very distressed by this and very disabled but, pleasingly, she's much more mobile of recent times ... She continues to be highly disabled by her injuries. The medication is prescribed by her GP. She has no capacity for work, either now and her capacity in the future is dependent upon whether we can get her pain under control. The longevity of this lady's severe neuropathic pain and the longevity and level of disability she has suffered will go against us in getting her to the point where we will be able to undertake work in the future but one can never be 100 per cent sure about this.

260 Dr Thomas' expertise was in the control of pain and rehabilitation. He saw Mrs Hudspeth in October 2007 on referral from Dr Carter for the purpose of an assessment for rehabilitation by admission to the Dorset Rehabilitation Centre and the Victorian Rehabilitation Centre in Glen Waverley. Dr Thomas did not treat the plaintiff. The plaintiff wanted rehabilitation to get off narcotic medication and Dr Thomas considered that a steady state analgesic might achieve better pain control. However, she was not suited for admission and he strongly recommend that a psychiatrist assess her.

261 Mr Huson, a psychologist, described the life impact of the plaintiff's pain and disability in these terms:

Pain intensity: "Pain medication provides me with little relief from pain." Personal care: "It is painful to take care of myself and I am slow and careful." Lifting: "I can lift only very light weights." Walking: "I can only walk with crutches or a cane." Sitting: "Pain prevents me sitting for more than 10 to 30 minutes." Standing: "Pain prevents me from standing more than half an hour." Sleeping: "Even when I take pain medication, I sleep less than four hours." Social life: "Pain prevents me from going out very often and I hardly have an social life because of my pain." Travelling: "My pain restricts my travel over one hour." Employment/Homemaking: "I can perform most of my homemaking job duties but pain prevents me from performing more physically stressful activities like lifting or vacuuming and pain prevents me from doing anything but light duties."

The patient presented with chronic pain in several sites as a result of multiple injuries over the years and more recently a fall at work that broke her fused spine. She scored in the extreme range for all of the psychometrics, indicating that she's extremely anxious, moderately to severely depressed, experiencing a high level of pain and these factors have a significant impact on her life.

263 Mr Huson identified her anxiety generators to be inability to work, reduced income, financial difficulties, uncertainty of health and future prospects, high levels of pain, side effects of medication, difficulty sleeping, loss of libido, reduction in self-esteem and the onset of depression, difficulty with coping. Mr Huson found the plaintiff's response to treatment was always suboptimal and her levels of anxiety, depression, and pain were always in the high to extreme range. His diagnosis was that the plaintiff had:

Anxiety disorder due to orthopaedic injury and generalised anxiety, pain disorder due to multiple orthopaedic injuries and procedures, major depression, possible post-traumatic stress disorder.

264 Dr Kaplan, a psychiatrist, was asked by the plaintiff's solicitors in a forensic role to examine Mrs Hudspeth regarding her psychiatric condition. There were two reports in August 2010 and October 2012. He recorded in some detail how she presented, her history in relation to her back, her family history, her developmental history, her educational and occupational history, her marital history, and her past psychiatric history. Dr Kaplan noted that the plaintiff became depressed following her back injury and subsequent surgery in the US and gradually recovered from that as her back improved. He assessed her psychiatric condition and examined her mental state expressing his opinions in these terms:

She appears to have developed a depressive response following her initial back injury in 1996. She recovered from that injury and her depression. She has developed an adjustment disorder with mixed anxiety and depressed mood as a result of her injuries, her chronic pain and the physical limitations imposed upon her by her pain. She has become demoralised as a result of the loss of her independence and her self esteem has been further undermined by her substantial weight gain. She describes sleep disturbance, a lowered frustration tolerance, a loss of libido, social withdrawal, difficulties with her memory and concentration. She is fearful for the future and despite her husband's reassurances, fears that he may leave her. Mrs Hudspeth's psychiatric condition is unlikely to improve unless there is a significant improvement in her physical condition and unless she is able to resume her normal active lifestyle and regain her independence. If her physical condition deteriorates with the passage of time, or if her fears that her husband may leave her are realised, her depression is likely to intensify. Her psychiatric condition is likely to have some impact upon her capacity to engage in her pre-injury or any other work, although this capacity will largely be determined by her physical condition. Her eating pattern and consequent substantial weight gain is symptomatic of her underlying depression and anxiety.

Mrs Hudspeth continues to suffer from an adjustment disorder with mixed anxiety and depressed mood as a result of her injuries, her chronic pain and the physical limitations imposed on her by her pain. Self-esteem remains low and she leads a restricted lifestyle. She describes sleep and appetite disturbance and is socially withdrawn. The prognosis of Mrs Hudspeth's psychiatric condition and her capacity for employment remain as earlier described. The impact of her psychiatric condition upon her capacity to engage in her pre-injury or any other work is likely to persist as long as her physical condition persists.

266 Dr Kaplan agreed that the adjustment disorder, anxiety and depressed mood was as a result of all of her injuries, not just the back injury. The injury to her back was the predominant injury. The other injuries are relevant to her condition but it was outside of his expertise to apportion the contribution of those injuries to her chronic pain. He made no comment about whether her condition arose out of the course of her employment but considered her psychiatric condition was a response to her physical condition.

267 Dr Kaplan explained that Mrs Hudspeth had a pre-occupation with her injuries and he wasn't surprised she was depressed or anxious given her injuries. He wasn't in a position to make a diagnosis of chronic pain disorder because there was no consensus between the authors of the reports that had been presented to him.

268 Mr Plover is an actuary and he gave evidence before the jury about two sets of calculations. First, he assumed that Mrs Hudspeth would work to 67 at the weekly earnings rate of $398.10 as a cleaner in April 2005 as adjusted over time. Under this scenario, adding in superannuation as well, the total loss was, rounding it up, $315,000. Past earnings was $126,600. Past superannuation was $11,900. Future loss was $158,400 and future superannuation was $18,000. Secondly, he assumed that six months after the incident, that is in October 2005, the plaintiff would have found alternative employment on conditions equating to average female earnings. He applied that earnings rate of $646.60 to a retirement age of 67. On that scenario, the total loss was $516,060. Past earnings was $207,100. Past superannuation was $20,960; Future loss was $258,000 and future superannuation was $29,000.

269 Mr Plover's instructions came from the solicitor. In his report prepared in 2010, he had assumed retirement at age 65 and calculated pecuniary loss based on the plaintiff's pre-injury wage, not a wage earned in some other job. Under the assumption of retirement at 65, working in cleaning jobs, past earnings loss was $88,700; past superannuation was $9,800; future loss was $142,373; future superannuation, $14,472; making a total, $255,400. The defendant in cross-examination at trial asked Mr Plover for the calculations to a retirement at age 60 applied to a cleaner's wages. Past earnings was $126,646, same as before; past superannuation, $11,900; future loss, $58,800; future superannuation, $6,500; total, $203,846.

270 The plaintiff tendered an updated report from Mr Plover at the remitted hearing that calculated past losses to October 2014 and future loses from that date, which I discuss below.

271 The plaintiff is entitled to damages for pain and suffering and loss of enjoyment of life as a result of the back injury and its effects. I have set out the lay and medical evidence in relation to the effects of her injury. I do not accept Mr Brazenor's evidence where it is in conflict with the evidence of Mr de la Harpe, Mr Turner, Mr Khan, Dr Mitchell, Dr Thomas, and Dr Kaplan. Mr Brazenor did not persuade me that the views of the treating specialists should not be preferred to his views. He made minor errors in his analysis that confirmed my preference for the thorough grasp of the plaintiff's complex medical condition demonstrated by the plaintiff's treating specialists and her GP. Mr Brazenor expressed rather extreme views about chronic pain syndrome, which I reject. No psychiatrist or pain management specialist or any witness other than Mr Dooley supported Mr Brazenor in his views. Mostly, Mr Dooley was part of a medical consensus about the plaintiff's condition and prognosis, although with important exceptions. Mr Dooley could not correlate the plaintiff's left hip injury with the descriptions of the accident and attributed it to degenerative changes. I do not accept his opining in this respect, preferring that of Mr Kahn. Otherwise, I largely accept Mr Dooley's opinions, which were generally consistent with those of Mr Kahn and the treating orthopaedic surgeons whose evidence I prefer.

272 The defendant strongly submitted that the plaintiff's damages must be considered in the context of the pre-existing American injury to the lumbar spine; an injury that, it submitted, saw the plaintiff out of work for years, in receipt of workers compensation payments and unable to obtain employment until she found work with the defendant. The defendant submitted that the American surgery continued to be productive of symptoms to a significant degree, which doctors, when apprised of those symptoms, described as serious.

273 The defendant submitted that two consequences flowed. First, it was inevitable that the plaintiff would have come to the lumbar surgery that she had in 2006 because her surgery in the USA had failed, a consequence for which the defendant was not liable. Secondly, the accident did no more than accelerate the plaintiff's complete disablement from the failed USA surgery.

274 That a negligent defendant must take its victim as it finds her and pay damages accordingly is well established. In Watts v Rake,[20] the appellant contended that larger damages should have been awarded for two reasons: first, that the trial judge was in error in assessing damages on the footing that the accident did no more than accelerate the appellant's complete disablement from a previously existing disease, namely, ankylosing spondylitis; secondly, that even on the footing that the appellant was suffering from a disease that would eventually completely incapacitate him, the evidence most adverse to him was that such incapacity would not take place until from ten to thirteen years after the accident, so that his general damages were inadequate. Menzies J delivered the leading judgment. His Honour stated the principle.

It was for the appellant as plaintiff to prove his damages, and merely to prove his present condition and his incapacity to work would not prove that these things resulted from the accident. It was not, however, for the plaintiff to disprove that his pre-accident ill health would eventually cripple and incapacitate him. Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, e.g., that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health. ... It should also be observed that a negligent defendant must take his victim as he finds him and pay damages accordingly. The fact that the person injured was peculiarly susceptible to ensuing complications that would not in a normal person have followed from the injuries received, or that the person injured already had a disability which made the injury the more disabling - e.g., the loss of an only eye - does not mean that damages are not to be assessed according to the circumstances of the particular case.[21]

In the present case a proper application of the principles by which courts are guided in handling proof of facts of such a kind goes a long way to meet its difficulties. The plaintiff showed satisfactorily that, although not without disabilities, he was before the accident able to lead an active life in work and in physical recreation and that his enjoyment of life was not impaired much, if at all. He proved further that the physical injuries he sustained in the accident had been a cause of the crippled condition in which he finds himself, a condition described in the judgment of Menzies J. If no more appeared it needs no argument to show that he should receive a full award of damages assessed on the footing of what he has suffered and what he will endure in the future... If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred.[22]

276 This principle is well established, and was further explained in Purkess v Crittenden.[23] The plaintiff suffered, pre-injury, from longstanding degenerative changes in the cervical spine. The defendant contended at trial that she probably would have become disabled, similarly to her condition after the accident, during the 10 years following. The medical evidence was she would be likely to expect trouble from her degenerative spine, although 'trouble' was not defined. Applying Watts v Rake, the trial judge assessed damages on the basis that her then present condition and resulting permanent disability were the result of the accident.

277 The majority[24] explained Watts v Rake, emphasising the distinct meanings of 'burden of proof'; the burden of establishing a case on the preponderance of evidence and the burden of introducing evidence. Watts v Rake applied that distinction. Where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. That onus must be discharged with some reasonable measure of precision about what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. In the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial.

... both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.

279 In Petkovski v Galletti,[25] the Appeal Division of this Court, held that this principle applied when the court was assessing damages under the Transport Accident Act 1986, noting that the defendant's evidence may sometimes be held to disclose no more than that there was a risk of later development of the condition. The plaintiff submitted that this description of what evidence may establish was apposite in the present case.

280 In Acir v Frossiter Pty Ltd,[26] J Forrest J assessed damages for a plaintiff who was gravely ill as a result of end-stage cirrhosis of the liver. The plaintiff suffered two discrete injuries, one to his back and one to his right shoulder that he contended caused excessive drinking, which accelerated or aggravated and rendered symptomatic his underlying cirrhotic liver condition. There were, in that case, similar contentions in issue in respect of the plaintiff's prior health and future prognosis. J Forrest J started from the well-known statement of principle in Malec v Hutton:[27]

When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place. (Citations omitted).

281 In Poseidon Ltd & Sellars v Adelaide Petroleum NL,[28] the High Court said:

In Malec v JC Hutton, this court drew a distinction between, on the one hand, proof of historical facts - what has happened - and, on the other hand, proof of future possibilities and past hypothetical situations. The civil standard of proof applies to the first category but not to the second, particularly when it is necessary to determine future possibilities and past hypothetical situations for the purpose of assessing damages.

282 In Seltsam Pty Ltd v Ghaleb,[29] Ipp JA (with whom Mason P agreed) held that Malec required the application of the following principles:

(a) In the assessment of damages the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.

(b) The Court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.

(c) The Court must form an estimate of the likelihood of the possibility of alleged future events occurring.

(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.[30]

283 Ipp JA explained the interaction of the Malec and Watts v Rake principles. His Honour said:[31]

What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the 'disentangling' evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.

Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of 'disentanglement' discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities.

Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition.

Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.

As was pointed out in Newell v Lucas, the court must determine whether a comparison may be made between the plaintiff's condition prior to the injuries sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.

284 There is a close relationship between this issue of proof of a relevant pre-existing injury and evidence that forms the basis for an allowance for the vicissitudes of life. The distinction was explained by the Court of Appeal in Smith v Gellibrand Support Services Inc.[32] The appeal concerned the adequacy of a Watts v Rake charge to the jury. The Court of Appeal was satisfied that the evidence did not establish with a reasonable measure of precision what the pre-existing condition was at the time of injury and what was its probable future development and progression. Accordingly, the plaintiff's pre-existing back condition was put to the jury as one of a series of conditions bearing on the risk of vicissitudes affecting the plaintiff's future earning capacity. Each of the conditions that the defendant contended ought to be taken into account as relevant vicissitudes were sufficiently established on the evidence for this purpose. It was then a matter for the jury to determine what if any account should be taken of these matters. The court analysed the authorities that I have already referred to.[33]

285 The defendant adduced no medical evidence in chief at trial. It admitted before the jury that it had evidence from an occupational physician, a neurosurgeon, an orthopaedic surgeon, and a psychiatrist. None of these witnesses were called and no explanation was proffered for why they were not called. The plaintiff submitted that I should draw a Jones v Dunkel inference that these doctors would not support the defendant's submissions on quantum, particularly its submission based upon Watts v Rake principles.

286 I am satisfied that the plaintiff could not work because of her American injury between 1996 and 2000, but there is no evidence supporting the submission that she was unable to work due to the consequences of the American injury after she emigrated in August 2000. I accept the plaintiff's evidence that her workers compensation claim had 'closed out' and that her back was no longer symptomatic. Although she did not work, she was not able to do so because of her immigration status. She only obtained permanent residency and the right to work after she re-married and before she started with Scholastic. Although the medical evidence was to the effect that the arthrodesis in the USA failed to achieve a sound bony union, the surgery had achieved a resolution of her 1996 injury. The critical issue was whether that unsound partly fused lumbar arthrodesis was bound to fail.

287 The defendant submitted that although the plaintiff claimed to have 'come good' the medical evidence was otherwise. In particular, the defendant relied on the attendances on Dr Carter in 2002 and 2004, described above. The CT scan in 2002 reported:

laminectomies at L4/5, grade 1 spondylolisthesis at L4/5 and sciatic and lower limb symptoms which would be attributable to the L4/5, L5/S1 discs... [he would attribute the pain] to the protrusion and pressure on the nerve.

The flare up in symptoms was significant, described as 'a flare up of lower back pain, left sciatic pain, right lower limb pain which could be coming from the protrusion pressing on the nerve from before'.

288 I accept the opinion of Mr de la Harpe that there was a significant issue with the plaintiff's lumbar spine that was independent of the injury suffered in April 2005. The orthopaedic specialists described her lumbar spine as supported by a fibrous union that lacked the structural strength that a proper fusion should have provided and which was ultimately provided by the surgery in 2006. The CT scan in 2002 showed a reasonable amount of bone mass from the American surgery but also that it was incomplete. The CT scan in July 2005 revealed adjacent segment disease at L5/S1. The consensus of orthopaedic opinion was that American surgery failed of its own accord and did not achieve the desired outcome of a solid bony fusion of the plaintiff's lumbar spine, which, in that condition was aggravated by the trauma of 27 April 2005. I accept that the evidence established with an appropriate measure of precision what the plaintiff's pre-injury condition was.

289 However I do not accept that the defendant established that the plaintiff's poorly fused lumbar spine was bound to fail or when that might have occurred. I was not persuaded that the consensus of the orthopaedic evidence was that the pseudoarthrosis would necessarily fail. The defendant relied firstly on the evidence of Mr de la Harpe who opined that the effect of the trauma on 27 April 2005 was that the injury had aggravated her pre-existing degenerative condition and her pre-existing incomplete union and caused it to become more symptomatic. He accepted that adjacent segment disease in the lumbar spine of a person with a failed fusion may come to a degenerative state, rejecting the cross-examiner's suggestion that it was a likely development. Such deterioration is seen over the long term but whether a lumbar spine becomes symptomatic or whether something needs to be done was a different question. Counsel put the proposition directly.

COUNSEL: Is it likely that it would have become symptomatic in time having regard to the state of that arthritic change that observed in the MRI scan? --- With or without the injury you mean?

COUNSEL: Yes? --- It's very difficult to say whether it would become symptomatic or not...

COUNSEL: Given the failed nature of the surgery on the first occasion and what I think you express is a failed union on the second occasion, it would likely become symptomatic with the passage of time? --- Not necessarily. We would certainly see degenerative changes on serial scans, if you like. Whether it becomes symptomatic or not, we don't know why some of them do become and why some don't. Often there's been a traumatic trigger.

290 Counsel returned to the issue, but Mr de la Harpe did not necessarily agree that it was only a matter of time before the plaintiff would become symptomatic. In his view increased degeneration did not necessarily translate into symptoms. He declined to translate the prospect that the plaintiff would have come to the surgery in the absence of any incident on 27 April 2005 into a percentage. The surgery on 11 March 2006 was not undertaken because it was inevitable, but in the context of the plaintiff's presentation and history, to try and improve her quality of life. Mr de la Harpe resisted counsel's attempt to pin him to a numerical assessment of the risk that the plaintiff would have found herself in the like position absent the trauma on 27 April 2005. All he would say was that there was a risk that adjacent segment disease may have become symptomatic in the future. He would not give a percentage risk or ascribe any number.

291 Mr de la Harpe did agree that cleaning was an inappropriate vocation for a person with a failed lumbar fusion. Doing physical work increased the risk of having further surgery but he had no history that physical work escalated her back pain. Mr de la Harpe did not regard the history given by Dr Carter as evidence of escalating risk. He emphasised that the occurrence of the accident on top of the type of physical work that the plaintiff was doing increased her chance of needing revision surgery. It was the injury that significantly increased her risk of further surgery, emphasising that she fell, hyperextending her spine, which dramatically escalated her symptoms that failed to settle with conservative management.

We confirmed that the fusion wasn't solid. We confirmed that there were a lot of arthritic changes in the facets joints at the L3-L4 level and part of the laminectomy was partly to ensure that we could identify where the screws were going to make sure that they ended up in the right spot, but also to confirm that none of the nerves were actually being pinched.

These problems have been largely resolved by the surgery and the ongoing problems represent chronic pain syndrome.

294 Mr Turner did not necessarily think the surgery would have had to be done regardless of the operation. If she was severely symptomatic, then yes, but if she had only intermittent issues, she may not have required further surgery. In his opinion, the joint was not fused before the accident and the purpose of the March 2006 operation was to fix what had gone wrong with the US operation. However, Mr Turner said there is no way of knowing whether this surgery was required without the accident and there was no real certainty that it was required, simply a possibility that she could have required it, not a real prospect.

295 Mr Khan said that the diagnosis before Mrs Hudspeth's March 2006 operation was that the accident at work had disrupted the pre-existing degenerative spondylolisthesis at L4-L5 level and caused flare up in the facet joint arthropathy and pre-existing asymptomatic degenerative changes bilaterally at the L3-L4 facet joints. The need to have the fusion at L3-L4-L5 in March 2006 was consistent with the disruption and flare up from the accident.

296 The injury in April 2005 caused the tear of the acetabular labrum in the left hip. Mr Khan disagreed with Mr Brazenor's opinion that the need for further surgery proceeded from the failed fusion itself, not from the temporary exacerbation. Mr Khan rejected as a hypothetical statement Mr Brazenor's opinion that revision surgery was highly likely regardless of the incident.

297 Mr Dooley said that Mrs Hudspeth sustained a lumbar spine strain involving some musculo-ligamentous damage and probably some aggravation of a pre-existing pseudoarthrosis at L4-L5 of her spine in April 2005 but all of her ongoing symptoms in the lumbar spine cannot be explained. The severity of her ongoing pain symptoms is not consistent with the degree of organic injury. She did not suffer any alteration in the spine structure in April 2005. She did not sustain a labral tear in her left hip in the accident, which was normal degenerative change.

298 Mr Brazenor did not believe that the incident as described was capable of severe and irreparable exacerbation of Mrs Hudspeth's condition that would require the double front and rear fusion that she had. The need for the surgery and the consequent symptoms proceeded directly from the failed US fusion.

299 I am not persuaded that if the plaintiff had not suffered the injury in April 2005 there is evidence with some reasonable measure of precision of the future consequences for the plaintiff of her pseudoarthrosis, both in terms of the nature of those consequences and of the prospect of their development. The defendant has not discharged this evidentiary obligation, and based on the evidence as a whole in assessing the plaintiff's damages, I make no specific allowance by a discount for any prospect of the plaintiff requiring the surgery that she had in March 2006 because of her pseudarthrosis, independently of the April 2005 accident.

300 The possibility of revision surgery absent the accident was largely hypothetical. The plaintiff had enjoyed an active lifestyle for nearly 5 years following her recovery from the US surgery, and for half of that time she was working as a cleaner. In the absence of a more specific assessment than that provided by Mr de la Harpe, Mr Turner and Mr Khan, the possibility of symptomatic adjacent segment disease or the need for revision surgery for her pseudarthrosis must properly be assessed as bearing on the risk of vicissitudes affecting the plaintiff's future prospects.[34]

301 For these reasons, I do not accept the defendant's submission that the failed US surgery was to a significant degree productive of the symptoms of which the plaintiff has complained since April 2005. Not only is it not inevitable that the plaintiff would have required the surgery she underwent in 2006 but the evidence does not persuade me that the prospect of revision surgery was more than a hypothetical possibility. Further, I am not persuaded that the accident simply accelerated the plaintiff's complete disablement from the US surgery. At its highest, all that the defendant established was that in considering the vicissitudes of life, this plaintiff faced a possibility that she may have developed back pain symptoms from her pseudarthrosis that became unmanageable and indicated revision surgery.

302 The defendant submitted that when the plaintiff before the jury sought pain and suffering damages in the range $350,00-$450,000, she amalgamated all of the consequences of the failed surgery and her other injuries to her knees and shoulders. Making proper allowance for the injuries for which the defendant could be held responsible and the exigencies, particularly the inevitable prospect of revision surgery the appropriate sum for pain and suffering damages was no more than $150,000. On the other hand, the plaintiff submitted that the proper assessment for pain and suffering damages was $400,000.

303 I reject the defendant's contention that the plaintiff's submission must include all of the plaintiff's pain and suffering arising from all her injuries and conditions. The plaintiff tendered an updated report from Dr Mitchell at the remitted hearing. Following a consultation in November 2013, Dr Mitchell reported that the plaintiff presented with severe pain in both shoulder joints but worse on the right, which he considered a frozen shoulder. She complained of pain and swelling in her right knee and pain in both hips, much worse on the left side. Dr Mitchell concluded that degenerative changes in her hips were secondary to her original injuries and her knee was possibly a separate issue. The incidence of frozen shoulder could be related to diabetic neuropathy, an unconfirmed diagnosis noted by others. Dr Mitchell also reported that the plaintiff was doing relatively well with her stimulator, undertaking a pain management program and having intermittent injections in various joints. Subsequent assessment ruled out inflammatory arthritis, her stimulator was reprogrammed in search of a better result for her left hip, and she submitted to further radio-frequency treatment.

304 Dr Mitchell confirmed that the plaintiff is suffering from widespread neuropathic pain, sacroiliac joint pain and bilateral hip joint pain, with some articular cartilage damage and subcortical cysts in the left hip. It is probable that she will require some form of definitive treatment of her hip joint at some stage. It will require ongoing radio frequency neurotomies of her sacroiliac joints. Dr Mitchell confirmed his opinion that the accident in April 2005 remained the source of these injuries. He also confirmed that the plaintiff continues to be unable to work and struggles to look after herself. The plaintiff's lack of mobility significantly affected her capacity to do household chores, self-care and enjoy any recreational and social activities.

305 The defendant submitted that Dr Mitchell's report evidenced the natural progression of the degenerative process from the plaintiff's original injuries in the US. No proposition was put to Dr Mitchell in cross-examination to support this submission and I do not accept it. The defendant contended that the bulk of the injuries now referred to by Dr Mitchell are outside the scope of the pleading. However, the plaintiff pleaded the injuries on which she relied. Save for Mr Brazenor, the unanimous medical opinion was that there had been a lower back injury of significance on 27 April 2005. That is the first of the plaintiff's pleaded injuries. I am satisfied that the accident on 27 April 2005 caused the second pleaded injury to the plaintiff's left hip. The plaintiff gave evidence of pain extending into the left hip joint on a number of occasions and I prefer the evidence of Mr Khan that there was an explanation of sufficient trauma to cause such an injury in the plaintiff's description of her slipping and twisting action to that of Mr Dooley. Further, I accept the evidence that widespread neuropathic pain emanating from a significant lower back injury can complicate the diagnosis of a hip injury. The evidence of Dr Kaplan well supported the third category of injury, the plaintiff's psychological reaction to her injury. I have set out the evidence of the pain and suffering consequences of these injuries and it is on that evidence that my assessment is made.

306 Having regard to the totality of the medical evidence and in particular to the evidence of the plaintiff and her husband, I assess the plaintiff's pain and suffering damages in the sum of $350,000. In reaching that assessment, I have taken particular regard of the following matters. First, I am persuaded that the plaintiff made a good recovery from the initial injury in the USA and the subsequent surgery that was performed. While I accept that the plaintiff was disabled and suffered significant pain for a considerable time, she ultimately made a good recovery and became asymptomatic. The active lifestyle that she pursued once she immigrated to Australia reinforced that conclusion. I am persuaded that the plaintiff did not initially work in Australia because of her immigration status and that her attendances on her general practitioner between 2004 and the accident are consistent with a successful recovery, in terms of symptoms and function, from that surgery. Although the plaintiff experienced episodes of symptoms, these episodes were infrequent and appropriately managed. The plaintiff was pain free and not taking any drugs for at least six months prior to the accident.

307 The plaintiff underwent an unusual procedure, being operated on consecutively by two specialist orthopaedic surgeons performing a posterior and anterior fusion. I am satisfied that the plaintiff suffered complications and difficulties post-operatively. Her condition had developed into high levels of pain and lack of mobility following the accident, which precipitated the advice to her that she has this surgery. Notwithstanding that the surgery was technically successful, her pain levels have remained. The plaintiff had left hip surgery in July 2007 and is likely to need further surgery for that injury in the future.

308 As I stated when discussing Watts v Rake, in assessing damages for pain and suffering I have considered the possibility of later deterioration in her pseudarthrosis and to the possibility of degenerative adjacent segment disease.

309 The plaintiff is substantially medicated and I have already described her medication regime. It is reasonable to infer from this regime utilising morphine-based medications that the plaintiff suffers a high degree of debilitating pain and has now done so for approximately 9½ years since the accident. Further, the plaintiff has had to endure repeated radio frequency neurotomies, joint injections, the spinal stimulator, and other procedures. The plaintiff's evidence, that of her husband and of her current GP, Dr Agaskar, all confirm that the plaintiff continues to experience a very high degree of debilitating pain.

310 I have set out above the evidence of the impact on the plaintiff's life of her injury and her pain levels, which I accept. She has lost the capacity for employment, the ability to derive enjoyment from social interaction with co-workers. Her mobility is significantly constrained. She has lost her capacity for sexual relations. She no longer can engage in social and recreational activities that she particularly enjoyed such as an outdoor lifestyle and an interest in gardening. The plaintiff spends large periods in bed and uses crutches or a walking stick for mobility. Her weight has increased by more than 30%.

311 The defendant challenged none of these pain and suffering consequences in cross-examination. I am persuaded that these pain and suffering consequences are directly attributable to the injuries that the plaintiff sustained on 27 April 2005. The defendant submitted that there was no clear anatomical explanation for the continuance of the plaintiff's pain. However, the preponderance of the medical evidence, which I prefer, is that the plaintiff's pain is real and genuinely experienced by her as a chronic pain syndrome. The onset of the plaintiff's chronic pain syndrome followed the surgery of March 2006 and was caused by the accident.

312 Although the plaintiff recently complained of pain and swelling in her right knee, which may in all the circumstances, be discounted, there is no suggestion that the arthroscopy of her right knee was unsuccessful. I am unpersuaded that the defendant has established any alternative cause for other injuries. The suspicion of inflammatory arthritis has been rejected and there is no evidence confirming the possible diagnosis of diabetic neuropathy. The defendant failed to discharge an evidentiary onus to show that any of these other conditions beyond the plaintiff's pleaded injuries can be attributed to some other cause. Moreover, the defendant has not demonstrated the plaintiff's prognosis in respect of such conditions. At its highest, the issue of further non-compensable injuries was not demonstrated to be a matter of distinct possibility although I will consider those matters when assessing the vicissitudes and future exigencies that the plaintiff faces.

313 The principal issues in respect of pecuniary loss damages were retirement age, whether the plaintiff could have obtained better employment and the proper allowance for exigencies. Before turning to those issues, I state my finding that the plaintiff has been incapable of working at all since the accident in April 2005 and remains wholly incapacitated. I bear in mind that some orthopaedic surgeons assessed her as capable of light clerical duties on a part-time basis achieved by a graduated and monitored return to work. I do not accept such assessments as anything more than a reflection of their views that the plaintiff should not be in pain or on narcotic painkillers following technically successful surgery. As I have stated, I accept that the plaintiff suffers a high degree of debilitating pain appropriately medicated. Mr Hudspeth accurately assessed the plaintiff's employment prospects. She will not work again.

314 The defendant submitted that realistically the plaintiff would not have worked beyond 60 and she turns 59 on 14 December 2014. The defendant submitted that I should reject the notion that the plaintiff may have worked to 67 or beyond or found other more remunerative employment as was reflected by adjusted instructions given to Mr Plover. It may be that the solicitor's original instructions to Mr Plover to assume retirement at 65 and continuing employment as a cleaner were not based on specific instructions from the plaintiff and were given before the plaintiff's instructions about her intentions and her efforts to find alternative employment were taken. In all but exceptional cases, I would not be inclined to draw that inference. Notwithstanding that there were exceptional features in the performance of the plaintiff's original legal practitioners in this case; I do not draw that inference.

315 Mr Plover's first report was dated 16 September 2010 and correlated with updated particulars of loss dated 20 September 2010. The trial of the proceeding was set for 14 October 2010. It is inconceivable that her solicitors a month out from the trial would not have taken the plaintiff's instructions concerning pecuniary loss. The plaintiff changed her mind about her employment and retirement options since the first trial. I accept that the plaintiff may have been uncertain about Australian practices. I also accept that the plaintiff wanted to work and enjoyed working. There was no reason for her to give up work. Mr Hudspeth rejected the suggestion that he was about to retire, to become a 'grey nomad'. He intends to work until his late 60's and his employer has no policy of a compulsory retirement age. The plaintiff submitted that the trend, in policy terms is, towards encouraging employees to work to a later age, but that submission was not based in evidence. I am unable to find that policy to be applicable in cleaning or similar work. I do not accept that such a policy is the reason that Mr Plover altered his calculations. The plaintiff's solicitors instructed Mr Plover to alter his calculations.

316 I remain unpersuaded that the plaintiff was likely to continue in employment beyond the age of 65, even if her husband had continued to work. The plaintiff's life prior to the accident was active, with many interests, and she was likely to have moved to an active retirement. By age 65, her local friendship group would have grown, reducing the social attraction of working and possibly introducing peer pressure in favour of retirement. She has children and grandchildren in the USA. However, I am also unpersuaded by the defendant's submission that the plaintiff would have retired at 60. The pressure to retire before 65 would most likely have come from the plaintiff's lower back, but that, for reasons already given, is a matter warranting a greater discount for contingencies and will be taken into account in that way. I find that the plaintiff, but for the accident, would have worked to her 65th birthday.

317 The plaintiff's evidence about seeking alternative employment does not persuade me that it is probable that she would have found another job in a different field, although I accept that it is possible. There was a prospect of advancement in her employment with the defendant but the evidence about that prospect was vague. The plaintiff was a site supervisor, well regarded by her employer and by Mrs Harris. The evidence will not support a specific finding and in accordance with the principles in Malec v Hutton and I am unable to quantify that possibility. However, I am persuaded that the plaintiff's enthusiasm for work and for improvement in her employment support a possibility of advancement to higher remuneration with less manual labour. As such, this possibility is a positive countervailing consideration to the negative prospect of deterioration in her pseudoarthrosis that I will take into account in assessing a proper discount for exigencies.

318 Mostly, possible calculations of the plaintiff's economic loss expressed by Mr Plover in his updated reports of September 2014 were based on assumptions that were not established, namely retirement at 67 and improvement in her employment conditions after six months, that is, by October 2005.

319 Working from her tax assessments, the defendant contended that her taxable income at 30 June 2005 was $14,716 per annum or $253 net of tax per week. Her weekly statutory superannuation entitlement was $27.63 per week. The evidence of Mr Plover, the actuary was that her wage at 30 July 2012 would have been $371 net. The defendant increased the gross wage by 3% per year to bring the figures to 30 July 2014, contending that her present net weekly loss was $406. At 30 July 2014, her weekly statutory superannuation entitlement was $40. The defendant submitted that these amount be averaged and multiplied by 492, the number of weeks from the accident to the date of the remitted hearing. Wages ranged from $253 to $406 (average $330) and superannuation entitlements from $27.63 to $40 (average $33.81). Thus before vicissitudes, the past lost wages was $162,360 and the lost superannuation entitlements was $16,634.52.

320 This submission may be compared with Mr Plover's evidence at trial and with part of his updated September 2014 report. In September 2014, Mr Plover estimated the plaintiff's past lost earnings and superannuation to 13 October 2014 at $189,000. This assessment excludes any allowance for residual earnings. I find that the plaintiff has not received any earnings since the accident, apart from WorkCover payments that are disregarded. I prefer Mr Plover's evidence to the defendant's submission and I assess the plaintiff's past economic loss at $189,000.

321 Mr Plover assessed the adjusted net weekly earnings that the plaintiff would have been receiving as a cleaner on 13 October 2014 at $417.80. Discounted by 6% from age 58 to retirement at 65, future loss of earnings (exclusive of superannuation contributions) was $125,300, before exigencies. Mr Plover did not calculate the plaintiff's future loss of superannuation contributions from October 2014 to age 65. His calculation to retirement at age 67 was $14,100. In October 2012, his calculation to retirement at age 65 was $14,750 and to age 67 was $18,000. Taking all of these figures into account, I assess the plaintiff's future pecuniary loss at $136,500.

322 These assessment exclude exigencies to which I now turn.

323 In Club Italia (Geelong) Inc v Ritchie[35] the Court of Appeal accepted that, in Victoria, as a rule of thumb, the discount for vicissitudes of life in personal injury cases is usually of the order of 15% while emphasising that each case depended on its own facts.

324 In assessing the extent to which damages are to be discounted, the court is required to take into account a range of possible future occurrences both adverse and favourable to the plaintiff, having regard to the evidence. The contingencies that are usually considered include sickness and accident, loss of, or improvement in employment prospects, or the chance of some other misfortune (or fortune) that may appear in the circumstances. Further, a long prospective period for an assessment, or where the plaintiff's future prospects are not illuminated by evidence of opportunities past and present, may warrant a larger contingency.

325 The evidence in respect of relevant considerations has been noted above. The plaintiff accepted that a greater discount was warranted in the circumstances and suggested 20% for future loss only, with no discount for past loss. The defendant contended for 30% at trial but at the remitted hearing submitted a sliding scale for discounting future pecuniary loss starting at 5% if loss was calculated to retirement at age 60 through to 40% at aged 65.

326 Beyond the issue of the susceptibility of the plaintiff's pseudarthrosis and adjacent segment disease to aggravation or deterioration other than due to the accident, the evidence in respect of the vicissitudes affecting her past loss was scant. In August 2012, the plaintiff had a right knee operation but whether she would have lost time off work beyond her sick leave entitlement was speculative. Before the jury, the plaintiff submitted that a discount for vicissitudes was appropriate but, on remitter, counsel contended that there was no evidence to conclude that the plaintiff would not have continued in employment through to retirement. While that conclusion might be open in relation to the plaintiff's right knee operation, the other factors that I have referred to justify the submission originally made to the jury. I reject the plaintiff's submission that past loss should not be discounted for exigencies.

327 In the circumstances, I am not persuaded either by the plaintiff that there should be no discount applied to past economic loss or by the defendant that the discount rate should be greater than 20%. Past loss is not a certain calculation. While it is appropriate to apply a greater than standard discount for vicissitudes principally due to the plaintiff's pre-existing condition, the evidence does not support the defendant's contentions in this respect. I am satisfied that a discount for vicissitudes should be made and I will apply a discount factor of 20%.

328 I assess the plaintiff's damages in the following sums:

329 I will hear from counsel in respect of interest, costs, and appropriate orders.

[1] Linda Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd and The Roman Catholic Trust Corporation for the Archdiocese of Melbourne [2014] VSCA 3.

[2] Who was another senior counsel, not senior counsel appearing before me on the remitted proceeding.

[3] Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Anor [2014] VSCA 3, [87]-109], [112]-[146].

[4] [2005] HCA 14; (2005) 79 ALJR 839 at 842-3, [12].

[5] [2006] VSCA 63.

[7] [2013] VSCA 21, [18]-[19] (citations omitted).

[8] [1984] HCA 60; (1984) 155 CLR 306.

[11] See also Kiriwellage v Best & Less Pty Ltd [2013] VSCA 355.

[12] [2009] NSWCA 210

1. [15] Manual handling means any activity requiring the use of force exerted by a person to lift, push, carry or otherwise move, hold or restrain any object.

[16] Reg. 5, Occupational Health and Safety (manual Handling) Regulations 1999.

[17] Reg. 13(2), Occupational Health and Safety (manual Handling) Regulations 1999.

[18] [2010] VSCA 202, followed in Kiriwellage v Best & Less Pty Ltd [2013] VSCA 355.

[20] [1960] HCA 58; (1960) 108 CLR 158.

[23] [1965] HCA 34; (1965) 114 CLR 164

[24] Barwick CJ, Kitto and Taylor JJ, Windeyer J agreeing in separate reasons.

[25] [1994] VicRp 32; [1994] 1 VR 436, 443.

[26] [2009] VSC 454.

[27] [1990] HCA 20; (1990) 169 CLR 638, 642-643.

[28] [1994] HCA 4; (1994) 179 CLR 332, 350.

[29] [2005] NSWCA 208 [103].

[30] See also Crown Insurance Services Pty Ltd v National Mutual Life Association of Australasia Ltd (2005) 13 ANZ Ins Cas 61-659; [2005] VSCA 218.

[31] [2005] NSWCA 208 [104]-[108] (citations omitted). Followed in NSW in Varga v Galea [2011] NSWCA 76 and Ridolfi v Hammond [2012] NSWCA 3 and in Victoria in Smith v Gellibrand Support Services Inc [2013] VSCA 368.

[33] See also Winston v Roach [2003] NSWCA 310.

[34] Malec v Hutton [1990] HCA 20; (1990) 169 CLR 638, 645.

[35] [2001] VSCA 180; (2001) 3 VR 447, 464 [57].