Schneider v State of New South Wales

(b) Mrs Barbara Coulthart, a former cleaner at the school and a work colleague and supervisor of the plaintiff;

(c) Mr Derek Garland, a general assistant and groundsman who was employed by the defendant to carry out maintenance work at the school;

(d) Mr Joseph Schneider, the father of the plaintiff;

(e) Mr Alan Andoni, the principal of the school at the time of the plaintiff's injury.

Bundles of medical reports were tendered as exhibits by each of the parties. No medical experts were called to give oral evidence. The parties also tendered photographs showing different perspectives of the scene where the plaintiff was injured.

In the ensuing paragraphs I have reviewed and set out the facts concerning the plaintiff's work history, her pre-injury health and her employment as a cleaner at the school as these matters provide a non-contentious and relevant background to the determination of the liability and damages issues.

The plaintiff was born in 1957. She was aged 48 years when she was injured and she was aged 51 years at the time of the hearing. She had left school when aged 16 years and shortly afterwards commenced full-time work as a receptionist for a pest control company. She later moved to New Zealand where she lived between 1989 and 1998. She had been married and she has two children who are now adults. Whilst in New Zealand she separated from her husband and following this she returned to Australia with her children to live near her parents on the central coast of NSW. Whilst in New Zealand she had trained as a diversional therapist working with the elderly and she pursued that line of work in a nursing home for about 5 years.

Shortly after her return to Australia the plaintiff undertook a TAFE course for 6 months as she wanted to continue to work in the care of the elderly. This gave her the qualification of assistant in nursing. She then obtained employment in a nursing home in Wyong where she worked for about a year until she left that employment because the work did not meet her expectations compared to her experience of such work in New Zealand. She then obtained full-time work as a receptionist for about one year at a local medical centre. She found the work in the medical centre stressful so she decided to leave in order to obtain work as a cleaner. At the beginning of 2005 she secured her pre-injury job as a school cleaner. She had been prompted to seek out that work because her father had worked as a cleaner at a local high school for many years.

Before her injury the plaintiff was in reasonably good physical health. She had however experienced significant periods of stress in her life. She found the experience of marital separation particularly stressful and difficult. In 1998 she underwent a tubal ligation which resulted in her experiencing a long period of adjustment to what proved to be a premature menopause at about age 41 years. She also experienced panic attacks in connection with her menopause and had a pre-injury tendency to anxiety and was vulnerable to the effects of stress. The plaintiff had a prior history of hand symptoms during pregnancy and later in menopause. On occasions she had experienced some episodes of numbness when she slept on her hands which did not cause lasting problems. She had no pre-existing problems with her hands that adversely affected her ability to work or to perform housework. The plaintiff was described by her work colleague Mrs Coulthart as being very friendly, easy to get along with and liking a laugh and a joke. That evidence was not challenged. The plaintiff's father said in evidence that the plaintiff enjoyed wellbeing and a good quality of life before her injury. His evidence left me with the impression that the plaintiff was a capable and independent person before her injury. That evidence was not challenged.

In January 2005, after the plaintiff had obtained work as a cleaner, she was initially assigned to work at a local high school. Later, after attending an afternoon induction seminar arranged by her employer in Newcastle, at which the plaintiff was taken through the employer's training manuals concerning the requirements of the work, she was assigned to work as a cleaner at the Toukley Public School. The seminar she attended dealt with the employer's requirements and procedures for the plaintiff to log on to work, the hours of work she was required to carry out and the nature of the cleaning duties she was required to perform. At that time she did not receive any particular training or orientation concerning the conditions that prevailed in the school grounds and the places within those grounds at which she was expected to carry out her duties.

The plaintiff's assigned working hours comprised a split shift arrangement to commence on weekdays at 5.00am and conclude at 8.30am and to then resume at 2.30pm and continue until 4.45pm. She was given a list of the duties she was expected to carry out. These duties included attending at the administration block of the school grounds first thing in the morning in order to sign on for work. She was then required to take her cleaning materials from a cleaner's cupboard or storeroom and to then proceed to work in various places from time to time assigned to her by her supervisor from within a group of buildings comprising the administration block and the classrooms of the school. The cleaning materials she was required to carry in the course of her work consisted of a vacuum cleaner back pack, a bucket, a mop, a broom as well as some cleaning materials and cleaning cloths. Her normal cleaning duties required that she carry out the tasks of vacuuming, dusting, wiping desks, mopping, cobwebbing and basic cleaning at the school.

The person assigned by the employer to supervise the plaintiff in the performance of her duties at the school was the senior cleaner on site, Mrs Barbara Coulthart, a co-employee. She showed the plaintiff around the site on the day she commenced work which was towards the end of the 2004/2005 school holidays. During the remainder of the January 2005 school holidays the plaintiff's cleaning duties at the school were initially carried out from 7.00am during daylight hours. However, once school term had commenced in February 2005, the plaintiff was required to start work at the designated time of 5.00am at which time it was still dark. The work system required, if the need arose, that the plaintiff should raise with her supervisor rather than with school authorities, any work-related issues of concern or that required repair or maintenance attention. The plaintiff was aware that there was a logbook for such matters to be recorded.

The plaintiff had no difficulties carrying out the work required of her before she was injured. The parties were agreed that the plaintiff's earnings for the period from 24 January 2005 until 30 June 2005 was at the rate of $400 net per week.

Description of the location where the plaintiff was injured

The location within the school grounds where the plaintiff was injured can be seen from the photographs that were tendered. Exhibit "B" shows both a general perspective and a close view of the drainage pit with the grate cover in situ. This was located in a concrete paved apron area adjacent to a small toilet block building. Exhibit "C" comprises two closer views of the drainage pit showing the covering grate having been removed - these two latter views provide a context and understanding to the plaintiff's description of how at the time of her injury, she stepped forward and fell into the uncovered drainage pit hole.

The defendant's Exhibit "3" reveals another view of the location of the drainage pit with the cover in situ. Relevantly, Exhibit "3" showed the location of a fluorescent light tube that was fitted under the eaves of the building comprising the toilet block. This was one of two such fittings on that building. I infer from the view of the building structure on which the fluorescent light was fitted as shown in Exhibit "B" and Exhibit "3" that the light fitting was above and to the left of the corner of the toilet block and, if it was illuminated during the hours of darkness, it was likely to project some light over the area where the drainage pit in question was located.

At about 5.10am on Thursday 24 February 2005 the plaintiff attended at the school premises in order to commence work on her usual early morning cleaning shift. After entering the grounds she went to the administration block to sign on for work. Shortly afterwards she picked up her work materials from where they had been stored and she then walked towards the classrooms in order to carry out her work. To do this, she described how she had to walk in darkness past the toilet block within the grounds. This was situated about 100m from the administration block. She said she was unaware of the location of the switches to illuminate the lighting in the area in question. She said she could not recall a light being on at the time of her injury. She recalled that in the year following her injury there was an automatic system which operated to turn on the lights in that area.

At about 5.15am on the day in question, shortly after she commenced work, the plaintiff walked past the area of the toilet block. The lights of the administration building had been previously switched on but at that time those lights were some distance away from the vicinity of where she was walking and where she came to be injured. I infer from her description this meant that the lights from the administration block did not project illumination into the area of the drainage pit so as to render the drainage pit visible. The plaintiff described how on the occasion in question she walked cautiously and without rushing. She said that she was afraid of the darkness and she said she was concerned about not being able to see in the darkness of the grounds.

She said she had walked in a normal manner across the paved area of the playground and she then proceeded to pass over the particular spot where she was injured. She said that as she did so she stepped forward and fell a short distance down and into an uncovered hole, finding herself knee-deep in leaves. She said that she had landed on her tailbone but that in the fall her arms had swung around and she had landed with her hands beside her in a backward position, having come into contact with the concrete surface surround of what I infer from her description was the concrete perimeter of the hole into which she had fallen. She said she found herself sitting on the ground with the vacuum cleaner back pack wedged into her neck. She described the fall as being a heavy one. She said she was aware that her hands were hurting.

When her evidence was tested on the issue of whether the area was lit, the plaintiff was adamant that at the time she was injured there was no lighting projected in the immediate vicinity of the toilet block area. She denied she could be mistaken about that issue. In cross-examination the plaintiff agreed that she did not ask her employer for a torch for use at this site before she was injured. She agreed that the employer had provided a torch for use at the site after she was injured. Significantly, the plaintiff agreed with the suggestion that if she had been provided with a torch and if it had been pointing in the right direction at the time it would have made a difference to her being injured. She agreed that her employer had required her to walk in the area where she was injured whilst that area was in darkness. She denied that she had been running at the time that she fell. No evidence was called to contradict her denial.

Survey of evidence concerning lighting and vandalism issues

The plaintiff's initial evidence on the lighting issue was that the area in which she fell was not lit and was in darkness. When the plaintiff's evidence on this issue was explored in cross-examination it became clear that whilst she was uncertain as to whether or not the lighting over the area she fell had been working during the short time she had been working at the school, she maintained that she was not mistaken in her own mind that the light in question was either not on or not working on the morning she fell into the uncovered drainage pit. She also recalled that when she returned to work several days after her injury the light in question was still not working. The plaintiff said that at the time she was injured she did not know that the covers of the drainage pit could come out of their locations. That evidence was not challenged in cross-examination.

Evidence of Mrs Coulthart - employed cleaner and plaintiff's work supervisor

Mrs Coulthart was employed by Tempo as a cleaner at Toukley Primary School between April 2004 until December 2005. In January 2005 the plaintiff was assigned to work with her at the school. She stated that at the time the plaintiff was injured the school was undergoing some renovations and access to the administration block was partly closed off as it had been condemned.

Mrs Coulthart's duties commenced at 4.45am when she accessed the temporary administration building in order to turn off the alarms. She recalled the plaintiff arriving for work at 5.00am. Mrs Coulthart described the existence of some external lights, some of which were not working. She described the area where the plaintiff was walking, and which was identified by other evidence to be a main thoroughfare within the school grounds. She described that area as having no external lights. She said that the plaintiff called out to her after she had fallen into the drainage pit. Mrs Coulthart then went and saw the open drain hole with the removed covering grate located beside it at the back of the toilet block as shown in the photographic exhibits.

Mrs Coulthart identified the light fitting shown in Exhibit "3" and stated that lighting was not working at the time of the plaintiff's injury. She was in no doubt that at the time of the plaintiff's injury those lights had never been activated, and had not been working for at least some months. She stated that this had been drawn to the attention of the deputy principal of the school and the general assistant employed at the school on a number of occasions from about the end of May 2004. She described being present at the school before the plaintiff's injury when a conversation took place on the subject of the lighting and on the subject of vandalism. The relevant conversation was between a relieving deputy principal and another employed cleaner in the following terms: "Q. What was said, do you know? A. He just said that it's really dark there and that I was worried about - you know, with the vandalism and the problems that we were happy (sic for having), what's the chances of getting it fixed and he said he'd look into it.

Q. What was the response? A. He'd look into it."

Mrs Coulthart gave evidence of other conversations about vandalism and the lighting that took place before the plaintiff's injury and in which attention was drawn to the state of the lighting: "Q. Did anything change after that? A. The GA had attempted on a number of occasions to get a few more lights to go but no. No, they never actually got fixed.

Q. Was it only one complaint that was made to this individual? A. I made a further complaint about four or five weeks later, that nothing had happened, they weren't fixed.

Q. To whom did you make that complaint? A. To Col, the deputy principal.

Q. And in what terms and what was said, to the best of your ability? A. I just said to him "Are we going to get anything done with those lights?" and he just said "Gee, that just reminds me." It was sort of like yeah, like he'd forgot.

Q. You didn't make an entry in a book at all? A. No, no.

Q. This individual, what was his status in the school did you understand? A. He was - he was a permanent teacher there but he was the relieving deputy principal at the time.

Q. Did you then with the passage of time speak to anybody else in a position of authority? A. Yes, then when he finished there was another teacher at the school, Murray, he then became the relieving deputy principal as well, took over the position and we mentioned it to him as well.

Q. When you say we, could you just tell me-- A. Chris - Chris and I.

Q. And were you present when that was done? A. Yes."

Mrs Coulthart's evidence was that despite such conversations nothing had been done to act upon the complaints concerning the lighting. She said that when Mr Andoni took over the position of deputy principal at the school in the last term of 2004 she also spoke to him about vandalism at the school and about the fact that the lights were not working. Her evidence in this regard was: "Q. Who do you understand Mr Andoni to be? A. He took over the deputy principal's position, it was at the end or the last term of 2004.

Q. And between that time and February 2005, did you ever speak to him yourself? A. Yes.

Q. On how many occasions? A. Quite a few, just on a regular basis whenever you could catch him in the playground or in a corridor, just wherever, just saying you know like "We have a lighting problem, we have a security problem here" and the school was at that stage in a terrible state with vandalism and it was very frightening.

Q. And what was his response when you said "We have a lighting problem"? A. He said "We'll get onto it."

Q. On how many occasions do you believe you would have spoken to him in that manner from the time he took over until February 2005? A. At least once - once a fortnight to once a month. Yeah, just depending on how - how much we could get hold of him, yeah.

Q. Sitting here today, is there any doubt in your mind as to the conversations you had with Mr Andoni? A. No, none whatsoever.

Q. And in addition to the lighting problem, you've spoken about vandalism. Was there ever a problem with the grates-- A. Always.

Q. What do you mean by that, madam? A. It was a constant problem that the children would come into the school grounds and remove the grates. They'd take them down to use them for skateboard ramps and all that sort of stuff. It was just something they'd take them out and sit them beside them. They'd take them out and stack them on top of one another or they'd take them down and sit them in the playground in the children's grass and playground area.

Q. In April 2004 to February 2005, from your own knowledge, can you tell the court on how many occasions grates would have been interfered with by means of being removed? A. I would say you'd have to say at least once a month. At least once a month."

Mrs Coulthart described how, at some time not long after the plaintiff's injury, a security representative of the Department of Education attended the school. Mrs Coulthart recalled being summoned by the principal to attend a meeting with the principal, the deputy principal and the teachers. At that meeting vandalism at the school was discussed and the suggestion was made to turn off the school lights at night to deter vandals. She stated that this suggestion was later implemented.

In cross-examination Mrs Coulthart stated that before the plaintiff's injury, that is from around May or June 2004, she had told her own supervisor from her employer's company of the problems with lighting and with vandalism at the Toukley Public School. She said she discussed with her supervisor the fact that all the lights, meaning the external lights at the school, were not working. She said she had raised these issues with her employer at least once if not twice before the plaintiff was injured. She stated that in response her employer took no action to deal with these hazards and gave no instructions as to how to deal with such hazards.

Mrs Coulthart agreed she had not made an entry in the general assistant's book before the plaintiff's injury concerning the removal of the drainage pit grate coverings by vandals. She agreed with the proposition that it was a highly hazardous activity to walk through the school grounds in darkness. She said that on several occasions before 24 February 2005 she had asked her employer, Tempo, for a torch but this had not been provided. In these circumstances she said that it was her own practice to open her mobile phone and to use it as a source of light so that she would not fall herself when she had to traverse the school grounds in darkness.

Mrs Coulthart stated that she used to speak to the principal Mr Andoni on various occasions about vandalism at the school in connection with clean up activity. Mrs Coulthart said that she had also spoken to the general assistant at the school, Mr Garland, about the effects of vandalism at the school and concerning the need to clean up the debris comprising smashed windows and doors.

Mrs Coulthart was unable to state whether the lighting in the area where the plaintiff fell was simply switched off or whether it was broken. She stated that when she saw the lights they appeared to be very dirty and dark and they looked old and disused. She could not say whether the power system to the building was inoperable or whether all that was needed was new light globes.

Mrs Coulthart emphatically denied the suggestion that she was mistaken in her evidence as to the state of the lighting in question. She denied the suggestion that those lights were in fact working at the time of the plaintiff's injury.

Mrs Coulthart stated that after the plaintiff's injury the lights were operated on a timing switch which was not accessible by her. Her evidence in this regard was: "WITNESS: It was a - a timing switch, I believe, that operated but you must remember that while we were at the school at that time, the school was under refurbishment construction and the main building that housed the electrical board was partially condemned with the exception of one section where you would walk in to turn the alarms off and the small section down one end which was used by the Aboriginal art. So that building was virtually out of bounds other than those two ends, to us anyway, because it was condemned for white ants."

Mrs Coulthart stated that subsequent to the plaintiff's fall she had herself suffered a fall at the school in darkness. In response to this fall her employer provided cleaners at the school with small penlight torches but these proved to be too difficult to use because the cleaners were required to carry too much other equipment.

Evidence of Mr Garland - general maintenance assistant and groundsman at the school

Mr Derek Garland was the general assistant and groundsman at the school. He had been employed at the school since 1995. His duties included working on the school grounds, carrying out minor maintenance work and providing general assistance as and when this was required. He described the system by which cleaners at the school communicated tasks to him that required attention. This was by writing in a book the details of tasks requiring attention. He said he could look at this book daily.

Mr Garland confirmed that there were problems with the drainage pit covers in the grounds in that these were at times removed by trespassers or vandals. He said it was his job to replace these drainage pit covers back into their correct position on such occasions. In answer to a question as to his knowledge of this problem occurring well before the plaintiff's injury, he agreed he was aware that this had occurred on about four or five occasions.

Mr Garland could not recall whether the lights outside the toilet block were working on the morning the plaintiff was injured. He could not recall Mrs Coulthart making general complaints to him about the lights in that area before the plaintiff was injured. He explained that the external lights were switched on and off by means of a sensor so that the lights came on when it was dark and went off when it became daylight. He also identified the existence of a master switch for the lights. He said this was located in a classroom block near where the plaintiff was injured. The settings on that master switch enabled the lights to be switched to either automatic or manual on or off operation. Mr Garland identified the possibility that the lights may not have worked for some time before the plaintiff's injury. He had no direct knowledge as to whether the lights had been coming on in the months before February 2005. He said he had no reason to attend the school after dark or before sunrise. His own working hours were between 7.00am and 3.30pm on weekdays. He said he checked the working of the lights by switching them on and off during the day on a haphazard basis. He said when this occurred the switch to the manual setting over-rode the sensors for the lights.

It was Mr Garland's job to replace light globes from time to time when they were out but the job of maintaining the lights and checking them to ascertain correct functioning was a task assigned to an independent maintenance contractor whose function was to attend the school on an annual basis. This was to inspect and to change all the lights that were not working. Mr Garland was unable to specifically indicate the time of the year when this maintenance activity occurred. Mr Garland conceded that his memory was poor as to whether Mrs Coulthart may or may not have made complaints to him. I infer from the context of his evidence that he was speaking about the state of operation of the external lights within the school grounds.

Mr Garland recalled that someone from the Department of Education had attended the school and had advised that the way to deal with vandalism at the school was to leave the lights off at night. He could not recall when that decision was made in relation to the timing of the plaintiff's injury in February 2005. The uncertainty of the timing of his recollection on the subject was summed up in the following extract from his evidence: "Q. After that event of the advice being given, were the lights then turned off at night? A. I don't think it ever happened. I'm not sure. I can't - I can't remember because the lights had to be on at night or at least in the morning for when the cleaners came in.

Q. And that was, as you understood it, to ensure the safety of the cleaners? A. So they could see where they were walking.

Q. Yes, because if the lights weren't working, obviously they would be exposed to serious risk of falling? A. Yes."

It appears from the foregoing answers that Mr Garland was unaware as to whether or not the playground lighting was in fact switched on in the mornings at the time when the plaintiff attended in darkness on the day the plaintiff was injured.

Mr Alan Andoni is the deputy principal of the Toukley Public School. He has held that position since October 2004. He stated that between October 2004 and 24 February 2005 nobody had reported to him that the light fittings on the eaves of the toilet block were not working. Similarly, he also stated that in that period nobody had reported to him that the covering grate of the drainage pit in Exhibit "C" had been removed. He said in the ordinary course, information concerning events such as the removal of the covering grates or the operation of the light fittings would not come to his attention as a matter of course. Mr Andoni also said that he would not know about day-to-day repairs carried out by the groundsman Mr Garland, however he said that if the repairs were major, they would have been carried out by contractors.

In contrast to Mrs Coulthart's evidence Mr Andoni said that in the period between October 2004 and 24 February 2005 he didn't receive any complaints that the lights in the area where the plaintiff fell were not functioning.

Mr Andoni described the toilet block as P block and identified another area as the RW toilet block situated about "6 metres, 5 metres from that area". From this evidence and from its context I infer "that area" to be a reference to the area where the plaintiff had fallen. In any event the distance of some 5 to 6 metres does not seem to be significant. Mr Andoni described the area where the plaintiff fell as being the main thoroughfare from the street to the school hall. Mr Andoni also acknowledged that at some time which was not identified in the evidence, he had been requested by the cleaners to leave the lights on. He said that after he was asked to do so he complied with that request, having previously been in the habit of turning the lights off manually as those lights were not on the automatic switch that affected the lighting fro the rest of the school. Presumably this was in order to save electricity costs.

Mr Andoni described the presence of about eight removable covering grates in the school grounds. He acknowledged that in the period October 2004 to February 2005 vandalism had occurred regularly within the school grounds. He described the targets of the vandals as being the breaking of windows and the removal of rails from garden fences for use in connection with skateboarding activities. He said that before 24 February 2005 he had never been informed, and did not know, that it was the practice of vandals to remove the covering grates of drainage pits of the kind shown in Exhibit "C". He acknowledged that if teachers or the groundsman had seen that such covering grates had been removed and needed to be replaced into position, he expected that they would have simply done so. He stated that the groundsman had overall responsibility for such matters.

Mr Andoni acknowledged that in the period leading up to the plaintiff's injury the school had a problem with vandalism on a very regular basis. He thought that this was more to do with the smashing of windows. He said no one had reported to him that there was a recurring problem concerning the removal of the covering grates of the drainage pits. He said that if this problem had occurred more than once he would have expected to have been informed about it. He made a distinction between the grates covering the drainage pits and a grille that was fitted to cover a disused sullage pit, the former being removable and the latter being welded down into position.

He denied having conversations with Mrs Coulthart regarding lighting problems within the school but he acknowledged having general conversations with her regarding vandalism at the school. He later qualified that evidence by stating that he had no memory of discussions concerning the lighting. He acknowledged that he had periodic conversations with cleaning supervisors concerning cleaning issues but said that the subject of lighting of the premises was not discussed.

About 3 years after the plaintiff's fall Mr Andoni was interviewed by an investigator on behalf of the defendant. Subsequently, on 11 November 2008, on the first day of the trial, he signed a statement that was admitted into evidence as Exhibit "L". Some of the content of that statement was expressed to have been based on his own knowledge. Other parts of the statement were expressed to have been based on assumptions as to what he understood would have been the actions of another principal and other deputy principals. These persons were not called to give evidence on the matters which Mr Andoni had assumed in his statement.

Exhibit "9" comprises photocopies of selected portions of the school maintenance book which provided a means of recording the date and job description of maintenance problems to be communicated to the groundsman for his remedial attention. The setting out of the book also provided for a notation of the contact name of the person reporting the problem. A column in the book was also reserved for the insertion of a date or initials to signify that a designated task had been completed. The exhibit comprises a very poor photocopy of the original and it contains many entries that are barely legible.

Between 24 March 2003 and 8 February 2005 the book contains some 20 discernable entries which concern various lighting and light switch problems. Of those entries, those more contemporaneous to the plaintiff's injury were dated 31 January 2005, 2 February 2005 and 8 February 2005. These concerned problems with fluorescent tubes. There were two lighting problems reported by the plaintiff on 8 February 2005 concerning a flickering tube at H 13 and lights not working properly in the G 18 area. These areas were not identified in the evidence. Significantly, the entry in the maintenance book for 25 February 2005, which was the day after the plaintiff's injury, stated: "2 out of 4 lights not working in class room. Can we get new fluoro bulbs?". There were no discernable entries concerning the external lighting.

Analysis of the evidence on the external lighting issue reveals a division of views into three groups. The position of the first group, comprising the plaintiff and Mrs Coulthart, was that the area where the plaintiff fell was not externally lit on the morning when the plaintiff was injured. Another position was that of Mr Garland. He did not know whether the external lights were working on that day. Mr Garland also conceded that the lights may not have been working for some time before the plaintiff's injury. The third position concerning the external lighting issue was that of Mr Andoni who stated that nobody had reported to him that the lights were not working before the plaintiff was injured. Further, Mr Andoni denied that in the period October 2004 and February 2005 he had received any complaints from Mrs Coulthart to the effect that the external lighting was not functioning. There was some doubt in the evidence of Mr Andoni as to whether he had in mind the same area as the other witnesses. In his statement Mr Andoni said: "10. I have not ever received any complaints from cleaners regarding the amount of lighting at and around the location of Mrs Schneider's fall. This is not in the area where Mrs Schneider allegedly fell.

11. I have received complaints regarding the RW toilet block. We addressed this problem immediately. The toilet lights are permanently on now."

Having considered the whole of the evidence on the issues concerning the state of the external lighting in the school grounds on the morning of the plaintiff's injury I prefer the evidence of the plaintiff and Mrs Coulthart to that of Mr Andoni and I find that the external lights were not operating to illuminate the area where the plaintiff fell. I have come to this view for a number of reasons.

First, Mr Andoni's evidence on the lighting issue is based on an assumption that was not the subject of evidence. It is apparent from the wording of Exhibit "L' that Mr Andoni has assumed that the previous principal, Ms Ingram, whom he had relieved for a time during her illness, and the previous deputy principal, Mr Murray, "would have" informed him if there had been a history of complaints from cleaners at the school concerning the adequacy of the lighting on the site. I consider this evidence to have a flawed foundation rendering it to be of no probative value because the persons who could have validated the matters implicitly assumed by Mr Andoni were not called to give evidence along the lines of the matters that he had assumed.

Secondly, I consider that Mrs Coulthart's evidence on the issue of there having been previous complaints over the state of the lighting was inherently credible and not glaringly improbable. It was entirely reasonable that as the cleaning supervisor, she would have had occasion and justification for complaining to the school authorities about the state of the lighting as a safety issue and it was also reasonable that she would also be present when another cleaner voiced his similar complaints to the school concerning the lighting problems as she had described in her evidence.

Thirdly, I consider Mr Andoni has confused the lighting issue by reference to complaints about lighting in the vicinity of the RW block within the grounds as distinct from the P block. I consider this to be so because he was not present when the plaintiff fell and in the absence of evidence of him later being shown precisely where the plaintiff had fallen, it has not been demonstrated that he was in a position to authoritatively deny the factual assertion concerning the location where the plaintiff had sustained her injury. In any event I consider that the difference in location between P block and the RW block, described by Mr Andoni to be some 5 or 6 metres, to be of only limited significance given the surrounding conditions of darkness. I did not understand Mr Andoni's evidence to indicate that the lighting at one block illuminated the area of the other.

Fourthly, I consider that Mr Andoni has confused the connection between the history of acknowledged complaints from the cleaners concerning lighting as was made by Mrs Coulthart and his understanding of the place where the plaintiff fell. I consider that confusion has influenced and rendered incorrect his understanding of the location of the where the plaintiff fell. Accordingly, I prefer Mrs Coulthart's evidence about the complaints she made to the school authorities, including to Mr Andoni and to his predecessors over the absent lighting in the area where the plaintiff fell.

Fifthly, although in paragraph 21 of Exhibit "L" Mr Andoni has stated that it had never been the policy of the school to turn off the lights for the toilet blocks in the evening, particularly since the premises were let out to other organisations, including for dancing lessons and, as his evidence also explained, for karate lessons, I consider that his understanding of the lighting policy was not borne out by his oral evidence. In his oral evidence he explained that he had previously made a habit of turning the lights off manually and had ceased doing so when asked by the cleaners not to do so. In these circumstances I am inclined to accept the evidence of the plaintiff and Mrs Coulthart when they say the lights were not on in the area in question in preference to Mr Andoni's evidence on his understanding of the state of the lighting, such evidence being based on his understanding of the policy rather than the fact of whether or not the lights were working at the time of the plaintiff's injury. In the context of his evidence I interpret Mr Andoni's reference to this lighting as the external lighting. In view of Mr Andoni's evidence concerning the past practice of switching off the lights I consider it more probable than not that Mr Andoni had in fact switched the external lights off at some time before the plaintiff's injury, as was explained by his evidence on this topic. In my view this explains why the premises were in darkness on the morning of the plaintiff's injury.

Sixthly, I am reinforced in my views as to the absence of lighting on the morning of the plaintiff's injury because Mr Garland confirmed the possibility this may have been the case when he agreed that the lights may not have been working for some time before the plaintiff's injury. This indicates that Mr Garland's evidence was not contradictory of the evidence of the plaintiff and Mrs Coulthart when they said the lights were not switched on when the plaintiff fell. I do not regard Mr Garland's evidence concerning the haphazard nature of the process of testing of the lights to be contradictory of this proposition either because the fact of his tests and the method of his testing would not have been necessarily inconsistent with Mr Andoni's evidence of switching off the lights. The opportunity for Mr Andoni to switch off the lights would have arisen at any time including in the evenings after the school had been used for other activities particularly since Mr Andoni said in his evidence that he had been at the school on such occasions.

Seventhly, I do not regard Mr Andoni's evidence that he did not recall complaints about the lighting not functioning in the period between October 2004 to February 2005 as being definitive of the issue because, as he confirmed, there were some 82 lights in the school and no records were tendered or evidence called as to the maintenance history of these lights. Without such evidence, in my view it is unlikely that his evidence on the lighting issue was likely to be accurate, particularly since he was only asked about these matters by an investigator some three years after the incident and his statement on the matter, which I consider to be the basis of his evidence, was only made on the first day of the trial.

Eighthly, I do not consider that because the groundsman's book makes no mention of complaints about lighting, this means that the evidence of Mrs Coulthart and the plaintiff should be discounted or not accepted on the lighting issue. The evidence did not suggest the groundsman's book to be a definitive log or record, it was simply a record.

I therefore find that shortly after 5.15am on 24 February 2005 when the plaintiff fell into the uncovered opening of a drainage pit in the school playground, she did so because the external lights in the area of the drainage pit were not operational. This meant that the plaintiff was required to walk in that area in darkness, which in turn led her to fall and sustain injury.

Issue 2 - Removal of covering grates of drainage pits

Analysis of the issue concerning the history of removal of the covering grates of the drainage pits by vandals does not reveal the same degree of division of views within the evidence as does the lighting issue. The area of dispute concerning the grate was not whether the covering grate had been removed in the area where the plaintiff had fallen, but whether the school authorities knew that similar episodes of removal of covering grates had occurred in the past. The plaintiff's evidence on this issue was non-contributory as there was no real issue that the particular grate had been removed, thus permitting her to fall. The evidence in common to Mrs Coulthart, Mr Garland and Mr Andoni was that there had been a significant history of vandal activity at the school and that this had been a recurring problem for some time. The area of difference in the evidence was one of detail. On the specific issue of vandalism involving the history of the removal of drainage pit grate covers, the difference in the evidence was polarised between the evidence of Mr Andoni on the one hand and Mrs Coulthart and Mr Garland on the other.

Both Mrs Coulthart and Mr Garland stated that there had been intermittent past vandal activity at the school and that this had involved removal of the covering grates of the drainage pits. Mrs Coulthart described this practice as a continuing problem where vandals would remove the grates and stack them for use in connection with skateboard activity. She stated that this had occurred approximately monthly. Mr Garland was in general agreement with this evidence in the sense that he agreed there were problems with vandals removing the drainage pit covers although he said that this had occurred on about 4 or 5 occasions before the plaintiff's injury. In contrast Mr Andoni's position concerning the grates was that although he agreed there was a problem with recurring vandalism on a regular basis, no one had reported to him that there was a problem with the grates being removed. Earlier, in his statement he said: "… we had not experienced any drain covers being removed by vandals ."

Having considered the whole of the evidence on the issue of the history of vandalism concerning the removal of covering grates of the drainage pits, I prefer the evidence of Mrs Coulthart and Mr Garland to that of Mr Andoni. I have come to this view for a number of reasons.

First, I consider that Mr Andoni's own awareness of the activities of vandals at the school concerning the removal of the drainage pit covers was necessarily limited because, as he said, it was the responsibility of the groundsman to deal with such matters, meaning that such matters would not normally come to his attention. I consider this to be the reason why at paragraph 7 of Exhibit "L" Mr Andoni stated that the school had not experienced any drain covers being removed by vandals. In my view Mr Andoni most probably gave that evidence because when such incidents came to the notice of the groundsman and the teachers they were likely to have been considered to be relatively minor matters and were probably given remedial attention on an as need basis by the groundsman responsible or by teachers, without the need to trouble Mr Andoni or to require the engagement of outside contractors to effect repairs or to incur expense that required the approval of Mr Andoni.

Secondly, I infer from the stated weekday work starting times of the cleaners, namely at 5.00am, and the starting time for the groundsman, namely at 7.00am, that they would most probably have commenced their duties well before Mr Andoni would have arrived at the school and therefore these persons were most probably in a better position than Mr Andoni to have personal knowledge of the fact of, and the incidence of, the disruptive activities of vandals in the school grounds.

Thirdly, I consider that Mrs Coulthart was in a better position than Mr Andoni, and for that matter Mr Garland, to have an awareness of the fact of, and the incidence of vandals removing the covers of drainage pits in the school grounds. I consider this to be so because she and her colleagues whom she supervised were more immediately and more directly affected by those activities than Mr Andoni. As the cleaning supervisor, Mrs Coulthart also had an interest in knowing these matters and ensuring that they were appropriately dealt with. It is for this reason that I consider that Mrs Coulthart was able to more authoritatively describe a greater frequency of occurrence of such incidents than was the impression conveyed by Mr Garland in his evidence. That said, in substance, I consider that there was no real issue between the evidence of Mrs Coulthart and Mr Garland as to whether or not there was a relevant history of removal of the covering grates of drainage pits by vandals.

Fourthly, the description given by Mr Garland of the practice of skateboarders removing and stacking the grates in order to use them as an adjunct to their skateboarding activities seems to me to be more plausible than Mr Andoni's description of his understanding of the practice of skateboarders removing fence railings for use in those activities.

Fifthly, I consider that in his evidence Mr Andoni has confused the issue of the actual location of the pit where the plaintiff fell. He described a welded down metal grille over a disused sullage pit located some distance away from where the plaintiff and Mrs Coulthart identified the location where the plaintiff fell. Since there is no evidence that suggests that Mr Andoni was shown the precise location of the fall I consider that the plaintiff and Mrs Coulthart were in a better position to identify this location than was Mr Andoni. There is no evidence to suggest that Mr Andoni had first hand knowledge of the location of the fall. I therefore prefer the evidence of the plaintiff and Mrs Coulthart as to the location of the fall and therefore, the identification by them of the particular open drainage pit where the plaintiff fell.

Sixthly, in connection with the activities of skateboarders, as is evident from paragraph 8 of Exhibit "L", Mr Andoni's source of information concerning these persons was hearsay from staff in the context of the skateboarders being "pests and using bad language rather than them being a physical threat". The quoted portion of Mr Andoni's statement indicates to me that the staff who reported the skateboarder's activities to him most probably did not inform him of the removed covering grates of the drainage pits, which explains his unawareness on the issue compared with the evidence of Mrs Coulthart and Mr Garland.

I therefore find that in the months leading up to the plaintiff's injury on 24 February 2005 there was a problem with vandalism at the school in that vandals made a periodic practice of removing the covering grates of drainage pits in order to stack those removed grates for use as an adjunct to skateboarding activities within the school grounds.

I also find that the fact that vandals had removed the covers of drainage pits from time to time was known by Mr Garland whose job it was to be concerned with maintenance and repair of matters to do with the school grounds. As the employee at the school who had the responsibility for dealing with such matters he knew that the removal of such covering grates could be a hazard within the playground. Confirmation of this view is found in his evidence that whenever he observed the removed grates, in accordance with his allocated responsibilities as was described and confirmed by Mr Andoni, he replaced the removed covering grates back into the correct position. This was doubtless because he understood that if drainage pits in the school grounds were left open without grates covering them they would constitute a hazard to those using the school playground, whether those persons were schoolchildren, members of school staff or the employees of outside contractors such as the plaintiff. This is especially so where this latter category of entrants had a legitimate reason for entering upon the grounds in the hours of darkness in order to perform the work for which they were employed.

Issue 3 - The existence, nature and content of the duty of care owed

There can be no issue that as occupier of the premises the defendant owed a general duty of care to entrants onto the premises. The defendant did not argue a contrary proposition. The scope and burden of the duty owed was to take reasonable care to prevent damage from unusual danger of which the occupier either knew or ought to have known, having regard all the circumstances : Papatonakis v Australian Telecommunications Commission & Anor [1985] HCA 3; (1985) 156 CLR 7.

The law concerning the content of the duty owed by an occupier of premises is well settled and requires that reasonable care be taken in all the circumstances in the face of a foreseeable risk : Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7 per the majority at [11] to [12]; (1987) 162 CLR 479 at p 488 following Hackshaw v Shaw [1984] HCA 84 per Deane J at [26]; (1984) 155 CLR 614 per Deane J at pp 662 - 663.

The circumstances that are relevant in this case include the fact that the defendant asserted and maintained a measure of control over the manner and circumstances in which the plaintiff entered upon the defendant's premises. The plaintiff entered onto the premises by an arrangement between the defendant and her employer in circumstances where the defendant had the knowledge and the expectation that she would do so. In such circumstances there is no room for entertaining any argument over a lack of proximity.

Issue 4 - Was there a relevant breach of the duty of care owed?

Before analysing the question of whether there has been a breach of duty of care it is necessary to determine whether the plaintiff has satisfied the statutory requirements for establishing the foreseeability of the harm suffered by the plaintiff.

The general law principle is that a risk of injury is foreseeable, as long as it is not far-fetched or fanciful, notwithstanding that it is more probable than not that it will not occur : Wyong Shire Council v Shirt [1980] HCA 12 per Mason J at [13]; (1980) 146 CLR 40 at 40 - 49. That statement requires consideration within the context of s 5B of the Civil Liability Act 2002.

I consider that circumstances in which an occupier knew or ought to have known that the episodic activities of vandals in which drainage pit covers are removed to leave such pits open, in combination with the known use of premises where this occurs, including access by cleaners in the hours of darkness, gives rise to foreseeable risk of harm by falling into an open drainage pit : s 5B(1)(a) of the Act.

I consider that the presence of an open and uncovered drainage pit on premises left in darkness where the occupier knows cleaners will walk within those premises indicates that the risk of harm arising in such circumstances is not insignificant : s 5B(1)(c) of the Act.

Following on from the foregoing considerations, I consider that a reasonable person in the position of the responsible employee of the defendant would have taken precautions against the risk of harm arising from such circumstances : s 5B(1)(c) of the Act.

Given that cleaners on the premises were likely to walk through unlit areas between the buildings in the school grounds where darkness would conceal any drainage pits left uncovered due to removal of covering grates, I consider that there was a high degree of probability that persons such as the plaintiff would be harmed by falling into an uncovered drainage pit and suffer serious injury : s 5B(2)(a) and (b) of the Act.

I consider that in the circumstances described there was a reasonable social utility in allowing cleaners access to school grounds outside normal school hours : s 5B(2)(d) of the Act. I also consider that the precautionary step of ensuring that the premises were not left in darkness when the cleaners arrived on the premises to start their work was in reality no burden : s 5C of the Act, and would have involved insignificant cost : s 5B(2)(c) of the Act. This is not an issue on which expert evidence is required for proof.

The plaintiff has argued that the defendant was in breach of the duty of care it owed to her with respect to the provision of safe access to the workplace, the provision of external lighting in the darkened areas of the school grounds and the non-fixing into place of the covering grate of the drainage pit to prevent its removal. The plaintiff has also argued that she has established the foreseeability issue that she is obliged to prove as is required by the Civil Liability Act 2002.

In contrast, the defendant has argued that as occupier of the premises it did not have a duty to inspect the premises for the purpose of discovering the presence of unsuspected defects : Stannus v Graham (1994) Aust Torts Reports 81-293 at 61,564 to 61,565.

The defendant has further argued that it did not know and ought not be taken to have known that the lighting was not working in the area where the plaintiff fell. The defendant has also argued that it did not know that the grate in that area had been removed. The defendant has submitted that the plaintiff has failed to show that the defendant knew or ought to have known of the risk to her consequent upon the absence of the covering grate at about the time of her injury and therefore submits that the plaintiff has failed to establish the issue of foreseeability as is required by s 5B of the Act.

In addition, the defendant argued that, in any event, the plaintiff knew of the risk of walking about the premises in darkness and she nevertheless elected to proceed notwithstanding that the area in question was not illuminated. In this regard the defendant draws attention to the common ground between the parties namely that it did not actually know that the grate had been removed or, alternatively expressed, the plaintiff has been unable to show that the defendant actually knew that the grate had been removed. The defendant consequently asserts that the plaintiff sustained injury because she chose to continue to proceed in the area that she knew was inadequately lit, and where, co-incidentally, the covering grate in question had been removed where it has not been shown that such removal was due to negligence on the part of the defendant.

In the ensuing paragraphs I sequentially examine the defendant's submissions on the issue of breach of duty of care.

Argued absence of a duty to inspect for unsuspected defects

In my view the defendant's submission based on the decision in Stannus v Graham to the effect there is no duty to inspect for unsuspected defects is flawed in its application to the facts of this case. In my view that decision cannot be said to be of universal application and must be subject to a consideration of particular factual circumstances which includes an occupier's actual or imputed knowledge of what activities have occurred and are likely to recur on the premises.

In this case the particular factual circumstances were that the defendant was on notice of the occurrence of episodic vandalism in which the covers of drainage pits were removed so as to cause a potential hazard to pedestrian traffic within the premises. This was a specific matter of which the defendant knew and, by reason of episodic recurrences, ought to have reasonably anticipated might recur, albeit on an unpredictable basis. In this regard the condition of the premises did not remain static and the details of the potential hazards was known to the groundsman, if not to others in authority. Further, the deputy principal at least knew of the potentially hazardous misuse of fence railings and graffiti.

In these circumstances, I consider that it was not appropriate or safe to leave the premises unlit during the hours of darkness and at times when the defendant could reasonably expect that cleaners would enter onto the premises and would be the first persons to be confronted by the effect of any overnight vandalism activity. In such circumstances, given that it was not practicable for someone to attend to inspect the premises each day before the cleaners arrived to do their work, at the very least the defendant should have ensured that the premises were adequately lit by external lighting, when the cleaners arrived. This could have been done by an automatic timer switch or the cleaners could have been given access to a conveniently placed switch. This would have enabled the cleaners to see and assess the state of the premises and the result of any vandalism activity that had occurred overnight before being placed at risk of injury from the residual effects of such vandalism activity.

Claim of no actual or implied knowledge of lighting not working

The defendant has submitted that it did not know and ought not be taken to have known that the external lighting was not working at the time of the plaintiff's injury. I do not accept that submission as being reasonable in the circumstances of this case. I have come to this view for a number of reasons which follow.

First, I accept the evidence of both the plaintiff and Mrs Coulthart to the effect that the lights over the area where the plaintiff fell were not operating on the morning the plaintiff was injured.

Secondly, I consider that the evidence of Mr Andoni provides a reasonable explanation as to why the lights in question were not operating on the morning of the plaintiff's injury. In this regard I accept Mr Andoni's evidence in which he explained that the external lights around the toilet block area were not left on the automatic master switch that affected or controlled the rest of the lights at the school. In my view this provides a reasonable and probable explanation for why the lighting was not on at the time of the plaintiff's fall.

I also accept Mr Andoni's explanation that he had been in the habit of manually turning off the toilet block lights until the occasion arose when he was asked by the cleaners to leave the external lights on. I infer that this request was made of Mr Andoni after the plaintiff had experienced her fall. In this regard I accept the evidence of Mrs Coulthart that she had previously made lighting requests of a relieving principal before Mr Andoni had assumed that role. In those requests she had asked that the issue of the absence of lighting in the area be addressed and I accept her evidence that for whatever reason, her requests were not acted upon.

I infer from the evidence of Mr Andoni that at the time he assumed the role of deputy principal, the practice in place at the school was to leave these lights manually switched off at night. I consider that such a practice was not a reasonable one in the circumstances because, as deputy principal at the time, Mr Andoni must have been aware or at least ought to have known about the starting times for cleaning roster times that were in operation at the school. Those rosters required that during school term the cleaning staff were contracted to start at 5.00am in the morning. In my view it must have been obvious to anyone in authority at the school, giving the matter reasonable consideration, that at the time the cleaners would arrive at the school in the early morning, a main thoroughfare within the school grounds would still be in darkness. In my view, in such circumstances, the decision to turn off the lighting in that area at night was not consistent with the exercise of reasonable care in the circumstances.

In my view it was also unreasonable for the occupier of the school, through the actions of the deputy principal, to permit a situation to arise whereby in order to gain access to the places at which they were required to work, the cleaning staff were required to walk through the school grounds in darkness. I consider this to be so because such circumstances could foreseeably give rise to a risk of injury from a number of potential causes, including bumping into obstacles left in the playground, whether due to the inadvertence of students or others, or due to the after hours activities of vandals. I consider this to be so especially where the school authorities, including Mr Andoni and the groundsman Mr Garland, were well aware of past disruptive and destructive activities of vandals on the premises over time and after normal school hours.

On the matter of the removal of the actual covering grate of the drainage pit into which the plaintiff fell, I accept the defendant's submission that it did not have any actual knowledge of the absence of that grate on this specific occasion before the plaintiff fell into the pit. I have come to this conclusion because no evidence has been adduced or any interrogatory tendered to suggest that the defendant had an actual awareness that this particular covering grate had been removed from its position of covering the pit over which it was normally housed.

Although I have found that the defendant had no actual knowledge that the grate in question had been removed, I reject the defendant's related submission that it should not be taken to have had imputed knowledge that a person in the position of the plaintiff would be at risk of injury caused by falling into an uncovered drainage pit left open by reason of the earlier removal of a covering grate. I have come to this conclusion for a number of reasons.

First, I find that there was a general awareness amongst those responsible for considering safety issues at the school, including the successive deputy principals and the groundsman, that there was a problem with vandalism at the school. There was common ground between Mrs Coulthart, Mr Garland and Mr Andoni concerning the fact that vandalism was a continuing problem at the school.

Secondly, it is clearly apparent from the entry at page 38 in the groundsman's book on 16 February 2005 some 7 days before the plaintiff's injury, that someone had written "Grill (sic) over big drain behind my demountable is missing … JOH". I infer from this entry that the persons responsible at the school were aware of the contemporaneous activities of vandals at the school.

Thirdly, I find that, in the months before the plaintiff's injury, Mrs Coulthart had drawn to the attention of the school authorities the issue of concern over vandalism at the school. I reject the defendant's argument to the effect that such a conclusion is not open on the evidence on account of the fact that the issue of vandalism was not relevantly noted in the groundsman's notebook, Exhibit "9". That submission takes no account of the entry in the book on 16 February 2005. In my view the groundsman's notebook was simply a means of communication with him. It was not the only means of communication with him. Also, I consider that it was not a definitive record of complaints. In my view it would be unreasonably onerous in this case to require proof of complaints by reference to corroboration in the groundsman's notebook. This is particularly so where the groundsman commenced his work duties in daylight hours at 7.00am at which time, when present, the evidence of vandalism would have been self evident on inspection of the school grounds and in such circumstances it was the duty of the groundsman to make inspections and to attend to any required remedial work. There was no evidence that the system of work required him to make a record of such matters either before or after remedying the situation. I consider that in such circumstances the requirement of corroboration of the fact that there had been vandalism by identifying confirmatory entries in the groundsman's notebook represents an unreasonably high counsel of perfection in this case.

Fourthly, the fact that Mr Andoni was unaware of the fact that there had been previous episodes of vandalism in the school grounds, at least 4 or 5 in number, in which the covering grates of drainage pits were removed so as to expose the pit openings below, does not mean that such events did not in fact occur. In this regard I accept the evidence of Mr Andoni that minor matters, which I find would include the removal and replacement of the covering grates of drainage pits, would not have necessarily have come to his attention. In arriving at this conclusion I accept Mr Andoni's evidence that the expectation at the school was that if a teacher or the groundsman had become aware of an uncovered drainage pit such staff members would have been expected to act prudently given the presence of primary school children and simply replace the grate into its correct position to cover the opened pit. I find this to be the case especially where the groundsman had overall responsibility concerning such matters. Whilst I accept as reasonable Mr Andoni's expectation that if the phenomenon of vandals removing the covering grates from drainage pits had occurred at the school on more numerous occasions than just once, this circumstance warranted that he be informed of the occurrences, the fact that Mr Andoni was not made aware of the occurrence of some 4 or 5 such instances does not necessarily indicate that removal of the drainage pit covers did not occur on more than one occasion. In this regard I accept the evidence of Mrs Coulthart and Mr Garland that such events occurred on multiple occasions, at least 4 or 5 in number, in the months before the plaintiff fell and suffered her injury.

In this regard, I find that the failure of school staff to communicate to Mr Andoni the fact of such multiple occurrences of removal of the covering grates by vandalism in itself represented a systemic failure to take reasonable care to ensure the safety of persons legitimately entering onto the premises in the hours of darkness. I find that Mr Andoni's expectation of wanting to be informed of such matters was a reasonable one and was obviously directed at the need for any such repeated occurrences to be considered and addressed in a prudent and preventive manner as would be required by proper risk management principles in order to anticipate and deal with the risk of injury to persons such as the plaintiff. The fact that he was not so informed does not detract from the argument that the school ought not be taken to have imputed knowledge of such matters, as I find it did.

I find that a simple and expedient way of managing the risk of injury due to the activities of vandals on the premises would have been to simply leave the external lights on in the areas of the school grounds where the cleaners were expected to walk when carrying out their duties. Alternatively, the lights could be set to switch on using a timer switch or the cleaners could have been given access to the manual switch. In either of those ways, in a systematic sense, if on arrival cleaners found the premises to be in darkness when they knew the lights were supposed to have been left on, they would then have been on notice that something was amiss and that it may be unsafe to proceed without first safely establishing a means of illuminating the intended pathway ahead. If the lights were found to have been left on or were capable of being switched on then there would be no true safety issue or at least no concealed danger because if the drainage pits had been left uncovered by vandals and the lights in the area were left on, the safety issue would have been self evident to the cleaners.

Conclusions on breach of duty of care and foreseeability

For the foregoing reasons I find that the defendant had relevantly breached the duty of care that it owed to the plaintiff as occupier of the school grounds. I also find that the plaintiff has satisfied the requirements for establishing the foreseeability of her injury within the meaning of s 5B of the Civil Liability Act 2002.

The general principles governing causation are set out in s 5D of the Act. The plaintiff bears the onus of establishing causation : s 5E of the Act.

The plaintiff has submitted that if the defendant had taken note of the longstanding risks and taken appropriate precautions the plaintiff's injury would not have occurred. The defendant's submissions did not engage with s 5D of the Act.

In my view the plaintiff has established factual causation within the terms of s 5D(1)(a) of the Act because I consider that it was most unlikely that the plaintiff would have been injured if the area where she fell had been illuminated. If the external lights had been on, whether they were left on overnight or placed on an automatic time switch set to turn on the lights shortly before 5.00am when the cleaners were due to arrive, matters not; if the area had been illuminated the plaintiff would have been in a position to see the uncovered drainage pit and she would most likely have avoided stepping forward into it to sustain the injuries she received. Alternatively, the same position would arise if the plaintiff or Mrs Coulthart had access to the manual switch that operated the external lights.

In these circumstances, foreseeability having been established according to the principles embodied in s 5B of the Act, I consider it to be appropriate that the scope of liability for the harm suffered by the plaintiff be extended to establish causation : s 5D(1)(b) of the Act. I came to this view because I consider that the plaintiff's injury could have been avoided if the school authorities had exercised reasonable care by ensuring the area in question was illuminated at the time the plaintiff was injured. The failure to take reasonable care has, in the relevant sense, caused the plaintiff's injury and it is therefore appropriate that the defendant should bear the responsibility for this event : s 5D(4) of the Act.

The defendant has submitted that the circumstances of the plaintiff's injury plainly indicate that there was a high degree of contributory negligence on her part because the plaintiff allegedly failed to take care for her own safety. In support of its submitted position the defendant points to the fact that the plaintiff knew that the area in which she was required to walk was in darkness and on her own understanding, it was inadequately illuminated. The defendant submitted that the fact that the plaintiff believed that a torch should have been provided to her and, notwithstanding this, she proceeded to walk through the area in question in darkness and claims this demonstrates a high degree of contributory negligence on her part.

The defence filed alleges contributory negligence on the plaintiff's part in the following respects: (a) Failing to maintain a proper lookout;

(b) Failing to have proper regard to her own safety;

(c) Failing to ensure the lighting was adequate in the area she was required to work or traverse to access her work;

(d) Failing to seek assistance from her fellow employees and supervisor;

(e) Failure to use portable lighting equipment such as a torch to access her place of work.

The defendant has submitted that particulars (c) and (d) of the pleaded particulars of contributory negligence have been made out.

The plaintiff submitted that a defence of contributory negligence had not been made out. In support of that position the plaintiff relied upon an analogy drawn from the decision in Tarabay v Liete [2008] NSWCA 259 at [49] to [55] per Basten JA where the lighting in that case was poor, far away and weak. It was submitted that the plaintiff was not contributorily negligent in adhering to the system of work that had been devised by her employer.

I do not accept the defendant's submission that there was contributory negligence on the part of the plaintiff for the following reasons.

First, although it is correct that the plaintiff knew she had to walk in darkness, apart from her evidence to the effect that she was frightened of the dark, she had no actual notice of anything being untoward or amiss within the premises that could have constituted a danger other than that the lights were not on in the area she was required to walk. In these circumstances, where she walked slowly and where she did not run, if there had been obstacles other than the uncovered drainage pit in front of her, such as a chair, a bench or other items concealed by darkness, I consider it likely that either she or the equipment she was carrying would have made some minor contact with any such obstacles in a low impact and non-injurious way.

Secondly, it has not been shown on the evidence that the plaintiff herself had any direct, or for that matter, imputed knowledge, of the presence of uncovered drainage pits in the playground. There was no evidence that suggested or tended to suggest that the plaintiff knew that such things were present in the playground and in the area over which she had to walk. Unlike the school authorities, the plaintiff was not shown to be in the position of being aware of the history of vandalism that made the presence of an open and uncovered drainage pit a reasonably foreseeable phenomenon.

Thirdly, in these circumstances, I consider that it could not be reasonably said that the plaintiff failed to maintain a proper lookout or that she failed to have due regard for her own safety, as has been alleged. This is so particularly since she was walking and not running. In my view, the activity of walking in the dark as required by her employer, of itself, does not amount to contributory negligence.

Fourthly, I consider the defendant's assertion that the plaintiff failed to ensure the provision of adequate lighting in the area in which she had to walk to be misplaced. This is because there was no evidence that the plaintiff was aware of the location and means of operation of the light switches for illuminating the area over which she had to walk. It may have been slightly different if the evidence disclosed that she had received instruction on such matters. Further, her employer had assigned to her the work task that required her to walk through the unlit area and this was something over which she could not assert any effective control by way of countermand or refusal. In these circumstances, in the work setting, she was entitled to assume, until the contrary was brought to her attention, that her employer had observed and had adequately discharged the non-delegable obligation it had to ensure that the plaintiff was provided with a safe system of work that was devised following an adequate assessment by the employer of the potential risks of injury that may have arisen from within the system of work adopted by the employer. The position might have been different if the evidence disclosed that the plaintiff had been informed and was aware of the location of the light switches that controlled the lights in the area in which she had to walk as well as being informed of the need to switch the external lights on before walking through the grounds.

Fifthly, when the plaintiff started walking to the area of the toilet block she walked from an area where there was some light into gradually increasing darkness as the projected lighting from the area from where she had set off had a diminishing field of projected illumination. In proceeding to walk forward in this manner, in the absence of notice of any problems ahead of her, I do not consider that the plaintiff had acted unreasonably in the circumstances, particularly in the absence of knowledge on her part of past problems with uncovered drainage pits.

Sixthly, I consider the suggestion that the plaintiff had failed to seek assistance from her fellow employee and supervisor, including by using a torch or portable lighting equipment, is untenable. I consider this to be so because there was no evidence that a torch was available to assist the plaintiff had she asked for such assistance. In fact the unchallenged evidence is to the opposite effect, namely that the plaintiff's supervisor, Mrs Coulthart had previously and fruitlessly requested of the employer that a torch be made available. Accordingly there is no indication that such a request to provide a torch, made by the plaintiff of her supervisor, would have been met with any different result to that obtained by Mrs Coulthart. Further, there is no evidence that the plaintiff had a mobile telephone available to her for use as a source of illumination in the manner that was described by Mrs Coulthart. Accordingly, I consider that there is no sound basis within the evidence to find that if the plaintiff had requested such assistance from Mrs Coulthart, that assistance in the form of portable lighting would have been forthcoming.

The defendant did not argue that the activity undertaken by the plaintiff involved "obvious risk" within the meaning of s 5F and s 5G of the Civil Liability Act 2002. In the absence of knowledge of the open drainage pit and in the absence of knowledge that such a phenomenon had occurred on the site in the past, I do not consider that it could be reasonably said that the plaintiff suffered harm due to an obvious risk within the meaning of those sections.

Following the above analysis, I have concluded that there has been no contributory negligence on the part of the plaintiff in this case. I have come to this view because the plaintiff was carrying out her work in the manner in which her employer instructed her to do so. She did not depart from those instructions and there was no scope for her, having regard to the equipment provided to her by her employer, to provide her own means of lighting the path by which she had to proceed within the grounds in order to carry out the work. Her options were either not to carry out the work because the employer had not provided her with a torch by which to light her path or to provide her own torch. The former proposition would have without doubt caused her problems with her continued employment. I find the latter proposition to be an unreasonable one in the industrial setting of an employer and employee relationship where the employee is required to from time to time access her workplace in darkness. Accordingly, I find that the defendant has failed to demonstrate contributory negligence on the part of the plaintiff. The plaintiff is therefore entitled to a verdict on the liability issues without discount for alleged contributory negligence.

Issue 7 - Employer's liability and s 151Z(2) issues

Defendant's submissions on employer's liability and s 151Z(2) issues

The defendant has highlighted the employer's non-delegable duty of care requiring it to take reasonable care for the safety of its employees to avoid exposing them to unnecessary risks of injury : Czatyrko v Edith Cowan University [2005] HCA 14 at [12]; (2005) 214 ALR 349 at p 353. The defendant has also pointed to the appropriately informed belief held by Mrs Coulthart that the area where the plaintiff was injured was inadequately lit and could be dangerous if the grates covering the drainage pits were displaced by vandals because the absence of lighting made the area hazardous in darkness. The defendant argued that in these circumstances the employer's obligation to devise an appropriate method by which to safeguard the plaintiff against exposure to unnecessary risks and to ensure that the plaintiff was provided with a safe system of work as well as a safe place at which to work also extended to the obligation to provide lighting if necessary. The defendant further argued that the employer had the obligation of dealing with any foreseeable risks of vandalism and claimed it was up to the employer and not the occupier to take steps to remedy the risk. In this regard the defendant relied upon an analogy drawn from the decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 where it was held that the liability of the occupier of land did not extend to taking reasonable care concerning an employee of a tenant of the occupier for the criminal behaviour of third parties on the land.

In reliance on s 151Z(2) of the Workers Compensation Act 1987 the defendant has argued that that if the plaintiff's employer had been sued it would have been found liable to the plaintiff because it: (a) failed to have proper regard for the safety of its employees;

(b) failed to provide adequate or proper supervision;

… (d) failed to provide adequate lighting for the plaintiff to perform her duties; (e) failed to provide safe means of access from and to the workplace; (f) failed to provide the plaintiff with adequate equipment to enable her to perform her work in the dark; (g) failed to carry out a proper site analysis of the work area.

The defendant has argued that all of these allegations have been made out on the evidence.

The defendant has submitted that since the plaintiff did not have the benefit of a certificate of whole person impairment of at least 15 per cent, by reason of s 151H of the Act this means that no contribution to the plaintiff's damages can be recovered from the employer. The defendant has therefore submitted that any award of damages due to the plaintiff must be reduced by the notional fault contribution of the employer. In this regard the defendant submits that had the employer properly discharged its duty of care the plaintiff would not have sustained her injury. Accordingly, the defendant has submitted that the employer's fault liability should be assessed at 100 per cent or, alternatively, the defendant's liability should be assessed at no more than 25 per cent.

Plaintiff's submissions on employer's liability and s 151Z(2) issues

In answer to the defendant's submissions concerning the nature and extent of fault on the part of the plaintiff's employer, the plaintiff has submitted that if the defendant had taken simple remedial measures to ensure that the area in question was adequately lit then the plaintiff would not have been injured. The plaintiff submits that the defendant maintained control over the lighting of the premises and was therefore in a position to easily take such measures. In this regard the plaintiff relies upon the decision in J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 per Campbell JA at [106] - [113] and argues that, where in that case reference was made by the Court of Appeal to the duty of care owed by the defendant, the present case has some similarities. In this regard the plaintiff argued that in apportioning responsibility for breaches by the occupier and by the employer, regard must be had to the inadequacy of the arrangements put in place by the occupier for the lighting of the premises when it was known to the occupier that the employer's cleaners would have to enter upon and traverse the school grounds in darkness.

The key allegations against the plaintiff's employer are the issues of adequate lighting, safe access, adequate equipment and appropriate site analysis. The general allegation concerning a claimed failure to have proper regard for the plaintiff's safety is subsumed in the other allegations and the allegation of inadequate supervision of the plaintiff is subsumed in the issue of site analysis. I will deal with these issues in the ensuing paragraphs.

The evidence does not permit a definitive view to be formed as to the extent to which the employer carried out a site analysis at the school or as to when such an analysis might have occurred in relation to the timing of the plaintiff's injury. I infer from the terms of Exhibit "8" being the agreement dated 27 January 1999 between the plaintiff's employer and the defendant that a site analysis was called for on the part of the employer and that some form of site analysis had in fact taken place because otherwise there would not have been a tender process leading to the agreement being executed.

The evidence discloses that the plaintiff's supervisor Mrs Coulthart was aware of the episodic activities of vandals on the premises in removing the covering grates of drainage pits. The evidence also discloses that the employer was also aware of inadequate lighting at the premises. Without avail, Mrs Coulthart had been requesting the employer to provide torches for use by the cleaners on the site. In view of this evidence and in the absence of expert evidence as to how a site analysis would have been conducted and with what result, it seems to me that from a lighting perspective there was little else the employer would have acquired in the form of information on safety issues of concern at the site by arranging a site analysis. Given that the vandalism on the premises occurred randomly rather than systemically, I consider that a site analysis would have contributed only limited information on how to best manage the risks posed by vandalism. Lighting was the key issue in this regard.

In my view it has been established through the evidence of Mrs Coulthart that there were serious safety issues of concern at the site regarding vandalism and lighting and that this was a matter that was known to the employer. I do not need to speculate on what else a site analysis would have achieved as it is clear that Mrs Coulthart had effectively communicated her safety concerns to the employer in sufficient detail to make the employer aware of the prevailing problems. On the evidence, it seems to me that a formal safety analysis, whatever that might have entailed, was unlikely to have achieved anything more of significance regarding employer awareness of employee safety issues.

I consider the defendant has made out the allegation that the plaintiff's employer failed to provide the plaintiff with adequate lighting for her to carry out her duties. I find that the defendant has established this allegation on several bases.

First, for some considerable time, it must have been clearly apparent to the employer through knowledge acquired by Mrs Coulthart, that the external lighting on the premises was inadequate and this required the plaintiff and other cleaners to walk in the grounds in darkness and to also transport cleaning equipment between buildings in darkness. This necessarily meant that because of the absence of illumination the area of the grounds which had to be walked over in this manner could not be adequately seen for the purpose of observing the presence of potential hazards to safety.

On any view this was an unsatisfactory arrangement and I consider that the employer adopted a system of work that was inherently unsafe in that it exposed the plaintiff to the unnecessary risk of injury from obstacles and hazards that were concealed by the surrounding darkness. I find this was particularly so since the employer, at least through Mrs Coulthart, knew of the past activities of vandals on the premises such that it was reasonably foreseeable to the employer that such removal of the covering grates of the drainage pits could recur at unpredictable times which made external lighting in the area an essential requirement for safety. In fact Mrs Coulthart had informed her own employment supervisor that the premises were a dangerous place to walk in the dark because of the history of removal of the grates, inadequate lighting and the further risk of being attacked in the dark. In my view such an arrangement was inherently unsafe and the employer's apparent inaction in the face of knowledge of the situation described by Mrs Coulthart amounted to a negligent failure to take reasonable care for the safety of its employees.

Secondly, assuming that there may have been a problem with leaving the external lights on overnight, or setting them to be switched on by an automatic timer before the cleaners started work, or even providing a movement sensor, I consider that the employer should have at least made arrangements with the defendant for the cleaning staff to have convenient and ready access to the appropriate light switches to ensure that external lighting within the grounds was readily available to be switched on as and when required.

In this regard I find that the defendant exercised control over these devices and their use - so much is apparent from clauses 13.2 and 13.3 of Exhibit "8" which comprises the access agreement. Those clauses provide: " 13.2 Economy The Contractor shall use no more power, water or gas than is reasonably necessary for the efficient cleaning of each Site and shall ensure that all electric lights, water and gas taps and appliances are turned off immediately after use.

(a) ensure that no thefts or unauthorised use of telephones, facsimile machines, modems, video recording equipment or any other equipment at any Site are carried out by Staff;

(b) ensure that any lost property found at any Site by Staff is delivered to the lost property section or Delegate at the Site where the property is found."

Clause 13.2 assumes that the contractor's employees would have access to the light switches. This turned out not to be the case in respect of the external lighting. Clause 13.3 is merely concerned with issues over security of items of property, not the provision of or adequacy of lighting. In my view, the evidence of Mr Andoni and the practice he had adopted in switching off the lighting at night, together with the terms of clause 13.2 of the agreement indicates the defendant retained a large measure of control over what happened on the premises.

Thirdly, in my view the evidence overwhelmingly establishes that in the circumstances where no adequate lighting was available to the cleaners, Mrs Coulthart had prudently and persistently requested of her employer that the cleaners be provided with torches to enable them to see where they were walking in the darkness yet these requests were not met with success or a satisfactory response. I consider that this amounted to an unreasonable failure on the employer's part to take care for the safety of employees such as to amount to a breach of duty of care on the part of the employer.

The question of whether or not the employer provided the plaintiff with a safe means of access to and from her workplace requires an analysis of what constituted her workplace.

The plaintiff was already at work at the time of her injury. This is clear from the fact that she had signed on to work and had collected the materials with which she had to carry out her work. Her supervisor had assigned to her a place at which she was to carry out her work, namely the classrooms at the lower end of the school grounds. She was on her way there when she was injured. It necessarily follows that when the plaintiff walked to the area that she had been assigned to clean she was gaining access to her workplace : J Blackwood & Son Steel & Metals Pty Ltd v Nichols & Anor [2007] NSWCA 157 per Tobias JA at [82] citing Australian Iron & Steel Pty Ltd v Luna [1969] HCA 66; (1969) 123 CLR 305.

When the plaintiff carried cleaning materials through the school playground in darkness, in circumstances where her employer knew there was a problem over inadequate external lighting and the ever-present risk of interference by vandals with the correct and safe placement of the drainage pit covers, this in my view indicates that she did not have safe access to her workplace. For this reason I consider that the allegation of unsafe access has been made out as against the employer.

Apportionment of responsibility between the occupier and the employer : s 151Z(2)

Since the plaintiff has not met the assessment threshold requirement of establishing she has been assessed as having a 15 per cent whole person impairment as specified by s 151H of the Act, s 151Z(2) requires that the extent of the employer's notional liability for the plaintiff's damages should be apportioned as between the defendant and the employer in order to form the basis for a commensurate reduction in the plaintiff's damages. In assessing the appropriate percentage to reflect the degree of culpability that should be sheeted home to the plaintiff's employer there are a number of matters that require consideration.

Notwithstanding the defendant's submissions, I consider that in Modbury Triangle the factual circumstances were somewhat different to the present case. In Modbury Triangle there was a criminal assault on a tenant of the occupier. Here the plaintiff was injured because of an unsafe condition of the premises due to the illicit activities of vandals co-extensive with the absence of lighting. It was the combination of these factors in this case that created the hazard to the plaintiff. The only similarity between the present case and Modbury Triangle is that each case involved injury to lawful entrants onto the premises. In this case the plaintiff does not seek to impose on the occupier a responsibility for the actions of third parties. Instead, liability is argued to arise from the failure of the defendant as occupier to have regard to the foreseeable risk of injury from potentially hazardous circumstances in conjunction with the state of lighting on the premises.

As has been submitted by the plaintiff, there are broad similarities between the relevant considerations in this case and the considerations outlined by Campbell JA in J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 at [106] - [113].

First, the direct cause of the plaintiff's fall was the fundamentally inadequate lighting arrangements which were controlled by the defendant whereby the external lights were switched off at night notwithstanding that it was known that the cleaning staff would arrive at the premises in darkness and would not have access to the switches that controlled the external lighting on the premises.

Secondly, although the absence of external lighting on the premises was known to the employer, as is plain from the repeated requests made by Mrs Coulthart for torches to be provided to the cleaners, it would appear from Mrs Coulthart's evidence that because of the need for the cleaners to carry their cleaning equipment in darkness, a hand held torch was not all that practical where the cleaning equipment had to be carried in addition to a torch. The convenience or appropriateness or otherwise of a device such as a miner's light was not explored in the evidence.

Thirdly, it follows that even if a torch had been made available to the plaintiff, this would not necessarily have alleviated the problem of the concealed hazard posed by the uncovered drainage pit because, as was alluded to by the plaintiff, the open drainage pit would only have been seen by her if the torch had been pointing at it specifically so as to reveal its presence. It must be remembered that a torch would not have provided generalised lighting over a wide area. Given Mrs Coulthart's description of the need to carry other equipment, I infer that it would have been uncertain as to whether the beam of illumination from a torch, if provided, would have necessarily revealed the hazard. This uncertainty would arise because of the inherent difficulty of maintaining the beam of light in a steady position whilst walking and at the same time carrying other awkward equipment.

Fourthly, the defendant, as occupier of the premises, already had the readily available means of avoiding the problem by having the external lights set on a timer switch or even on a manual switch that could easily have been made accessible to the cleaners. In this regard it is noteworthy that the defendant occupier had retained the relevant degree of control of the premises in order to be able to implement such an arrangement : Stevens v Broddribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16.

Since the plaintiff has established that the defendant was negligent, and the defendant has established that the employer, if sued, would have been likely to have been found to have been negligent, it remains to make an assessment of the respective responsibilities.

In the context of both sets of breaches of duty of care being causally significant to the plaintiff suffering injury by falling into the hole, I do not regard the respective culpabilities to be equal in their causative significance. In my view the defendant occupier should bear the greater share of responsibility because it ought to have been aware of the randomly episodic activities of vandals on the premises and ought to have been aware of the related phenomena of the removal of the drainage pit covers, and more importantly, because it had control over how the light switches for the external lights could be set or operated.

This, in combination with the decision to have the lights switched off manually at night set the scene for the plaintiff's injury. The simple step of having the lights on a timer switch would have effectively and largely diminished the risk of the plaintiff's injury and would not have been unduly burdensome or expensive for the defendant occupier. Had the area been illuminated by external lighting, the plaintiff would have been able to keep a proper lookout in the area where she fell, and she would have been able to readily detect and avoid the hazard.

Balanced against these failures by the defendant, the culpability of the employer was to fail to provide the plaintiff with a torch or to successfully exhort the defendant occupier to remedy the problem of absence of lighting. The provision of a torch may or may not have lowered the risk depending on whether the plaintiff had been able to hold it in such a way as to maintain illumination of the way ahead whilst at the same time safely holding and carrying the cleaning equipment she had to transport from one place to another within the grounds. The failure of the employer to obtain the co-operation of the defendant occupier to do something about the lighting is, in my view, of lesser significance in a culpability analysis because, ultimately, the employer could not have forced the occupier to make the desired safety decisions and implement solutions to the problem.

The state of the evidence does not permit a fuller analysis of the content and significance of any discussions that might have taken place between the employer and the defendant concerning the absence of external lighting on the premises with regard to the safety of the cleaning staff following the employer being made aware by Mrs Coulthart of the problems on the site.

In the circumstances I consider the relative causal culpability of the defendant occupier to be in the range 30 to 40 per cent. I therefore consider the appropriate apportionment of culpability with the employer to be in the mid-point of that range in the ratio of 35 per cent as against the plaintiff's employer to 65 per cent as against the defendant occupier.

Accordingly, giving effect to the foregoing fault calculation required by s 151Z(2) of the Act, this means that any assessment of the plaintiff's damages must be reduced by 35 per cent on account of the negligence of the plaintiff's employer who, if sued, would have been likely to have been held to have been liable to the plaintiff for her injuries.

When the plaintiff fell into the drainage pit she dropped the cleaning equipment she was carrying. She fell backwards heavily and as she did so her hands went behind her. In the course of these events she sustained gravel abrasions to both of her hands. She later experienced painful hands and wrists. As she landed into the drainage pit she landed on her tailbone and her back. She said she felt jarred and jolted. She injured her shoulders in the fall. She described her back as being quite sore, having sustained strains to the thoracic and lumbar spines. When she fell she felt the vacuum cleaner backpack that she was wearing had been wedged into her neck. She described herself as being quite shaken and she said she was shaking at the time. She found she could not complete her shift. Mrs Coulthart stated that after the plaintiff was injured an injury report book was filled out. She described having observed the plaintiff after her injury and saw that she had very red, rough grazed hands with a gravel rash type appearance. 160. On the day following the fall the plaintiff said she felt very sore, she had difficulty sitting because of back discomfort, she described neck pain and bruising developed in her wrists. She initially treated herself with rest and Panadol tablets. After seeing her general practitioner she returned to work after only one week of absence.

161. The plaintiff initially sought assistance from a general practitioner, Dr R Cooray at the Wyoming Medical Centre. The plaintiff saw Dr Cooray on 24 February 2005 and he certified her to be unfit to return to work until after 26 February 2005. He diagnosed lumbo-sacral contusion and thoraco-lumbar strain. He did not send her for x-rays or provide any active treatment or investigations. The plaintiff said she felt compelled to return to her work because she was in a new job. Although she continued to work, she continued to experience pain. She described ongoing pain in her neck and difficulty with using the vacuum cleaner.

162. The plaintiff took about a week off work. After returning to work in early March 2005 after a week of absence she experienced pain at the top of her neck, a feeling of pins and needles in her hands, numbness in her arms and pains in her elbows. She said that between March and September 2005 she experienced gradually increasing symptoms in her hands. These became swollen and numb. These symptoms were quite different to the occasional pre-injury experience the plaintiff had of pins and needles in her hands on waking after having slept on them, as those symptoms resolved on waking. She experienced a burning sensation in her neck. She said she was not handling her work well. At one stage the plaintiff thought she was having heart problems. These were investigated in a hospital admission on 30 May 2005 and were thought to be due to her anxiety. The plaintiff periodically consulted the Wyoming Medial Centre for these problems and was eventually sent for nerve conduction tests, which revealed her to be suffering from bilateral carpal tunnel syndrome. Her symptoms comprised numbness in both hands with decreased grip strength due to pain in the base of both thumbs. She also had pain in the region of both biceps muscles. Despite these difficulties the plaintiff continued on with her work until 20 November 2005.

163. In May 2005 the plaintiff suffered a further injury at work when she fell down 2 steps at the school. She said that in this incident she fell and landed on her left side and this resulted in severe bruising to the top of her left leg. She had no time off work in respect of this injury and continued to carry out her normal duties as a cleaner. There is no evidence that suggests this further injury had any lasting residual effects upon the plaintiff. There is no evidence that this fall had any lasting deleterious effect on the plaintiff or any aggravating effect on the injuries she sustained in the fall on 24 February 2005.

164. On 3 May 2005, at the request of her general practitioner Dr Cooray, the plaintiff was examined by Dr Bernard Bourke, a consultant vascular surgeon. Dr Bourke obtained a history as follows: " As you know, over the last month or so she has been experiencing a feeling of numbness and paraesthesia in her feet, particularly when she lies down or after she sits for any lengthy of time. She will also occasionally experience paresthesia in her hands but that is amore longstanding symptom. She is subject to some back pain but does not describe sciatica."

165. Dr Bourke did not find any abnormalities within his own area of expertise and suggested some nerve conduction studies or a formal neurological opinion. It appears that following this, the plaintiff was next assessed by Dr Morton.

166. On 2 November 2005, at the request of her then treating general practitioner Dr Soh, the plaintiff underwent an x-ray of the wrists which did not reveal any abnormality. Dr Soh then referred her to Dr John Morton, an orthopaedic surgeon. On 21 November 2005 the plaintiff saw Dr Morton. He had access to nerve conduction studies which were strongly positive for carpal tunnel syndrome. Dr Morton, confirmed the presence of carpal tunnel syndrome of acute onset after the fall and historically related the onset of that syndrome to the fall. He recommended surgical treatment.

167. On 29 November 2005 Dr Morton performed an operation for bilateral carpal tunnel decompression. At the 4 week post-operative review on 4 January 2006 he noted satisfactory progress but also noted some residual hand symptoms. After the operation the plaintiff no longer had total numbness in her hands. Dr Morton prescribed physiotherapy and continued the plaintiff's certification for unfitness for her work. The plaintiff stated she was not coping well emotionally after this operation. Dr Morton reviewed the plaintiff again on 27 March 2006 and noted that the plaintiff was worried about deteriorating bilateral arm symptoms and thought this was due to the lasting effects of pre-operative compression damage to the median nerves. He noted that anxiety had increased her symptoms. He arranged for further investigations including an MRI scan of the neck.

168. On 10 May 2006 an MRI scan was carried out at the request of Dr Morton and this was reported to be within normal limits as were the other exclusionary tests he had arranged. Dr Morton then arranged for the plaintiff to have further neurological investigations. In this regard the plaintiff saw Dr Denis Crimmins, a consultant neurologist.

169. On 26 June 2006 Dr Crimmins took a history of persistent and debilitating arm pains extending from the shoulder to the elbows accompanied by a lot of anxiety and depression and a history of numerous hospital visits with a concern that there may be an underlying cardiac condition. Dr Crimmins noted that on a comparison of neurophysiological tests performed in November 2005 and June 2006 that there had been a definite improvement following surgery. Dr Crimmins investigated the plaintiff for possible brachial plexus pathology. His further neurophysiological testing revealed some minor chronic partial denervation of the right triceps and biceps muscles. Dr Crimmins was of the view that the plaintiff's right arm symptoms were due to either a right brachial plexus injury or a C6, 7, 8 cervical nerve root injury. He postulated that this injury occurred at the time of the plaintiff's fall and was chronic and was the cause of the plaintiff's inability to return to work. He also thought that it was a contributing cause of her anxiety and depression. Dr Crimmins thought that there were no surgical options for treatment but suggested that physiotherapy may be a source of partial relief from symptoms. She persevered with physiotherapy for several months and was then referred to a psychologist for pain management.

170. On 13 October 2006 Dr Crimmins wrote to the plaintiff's solicitor stating that the prognosis for the plaintiff's condition was difficult to predict, noting the potential for her condition to become chronic. He confirmed the plaintiff's continuing unfitness for work and noted that the injury contributed to her depression and anxiety.

171. On 18 October 2006, Dr Singh-Panwar, the plaintiff's then treating general practitioner, expressed the view that a referral to a pain clinic may be required. Dr Singh-Panwar noted that the plaintiff was still anxious and depressed and encouraged the continuation of the muscle strengthening programme at the gym. The continuing upper arm paraesthesia was noted as was some ongoing work restrictions. There is no evidence that the plaintiff was actually sent to a pain clinic. Evidently the workers' compensation insurer, Allianz, closed the plaintiff's rehabilitation file on or about August 2006.

172. On 16 February 2006 the plaintiff saw Ms Ana Grant, a clinical psychologist at the referral of one of the plaintiff's treating general practitioners. Ms Grant prepared two reports, the first was dated 16 February 2006 and was addressed to Allianz Insurance Australia Ltd and the second report was dated 28 August 2006 and was addressed to the plaintiff's solicitor.

173. Ms Grant assessed the plaintiff as being a normally well-adjusted person who developed symptoms of stress and depression following a work injury. She noted the plaintiff's considerable pre-occupations with her health and her future due to the injury. She also noted the symptoms of anhedonia, mood swings, decreased energy and motivation, feelings of worthlessness and the like. Ms Grant diagnosed a reactive depression mainly due to the injury and the resultant disabilities. She noted the presence of a self reinforcing cycle for these problems and identified the risk of the plaintiff undergoing psychological decompensation with consequent negative prognosis. She recommended a course of therapy sessions aimed at ameliorating the problem. Ms Grant stated: "I do stress that Mrs Schneider has a complex, organic physical injury which is probably being exacerbated to some degree by psychological stress. Although the above intervention should ameliorate her stress, the problem of her injury and pain will remain and if there is not significant improvement, re-training may need to be considered. Again, Dr Soh will no doubt want to continue to monitor her condition closely."

174. On 3 July 2006 Ms Grant forwarded a progress report to Allianz Australia Insurance Ltd in which she reported on the 5 progress treatment sessions that had been convened to that time. At that time the focus of the treatment was the anxiety the plaintiff experienced in relation to her illness and the effects on her life. The treatment described related to stress management, relaxation training, pain management, counselling and advice. Part of the focus for the treatment provided by Ms Grant centred around stresses caused by the plaintiff being laid off work due to restructuring in which she was laid off because she was on Workcover benefits. This operated as a stressor exacerbating her depression, anxiety and mental distress. Ms Grant suggested that if suitable light work could be found for the plaintiff this would be of some help to her condition. She presumably made this recommendation because on 12 May 2006 the light suitable duties employment the plaintiff had been given by her employer had been withdrawn.

175. On 28 August 2006 Ms Grant forwarded a report to the plaintiff's solicitor concerning the treatment she had been giving the plaintiff. She described the plaintiff's problem as being a combination of physical and psychological symptoms, including pain, anxiety and depression.

176. On 3 March 2007 Ms Grant provided the plaintiff's solicitor with an updated report on progress after a total of 14 psychological treatment sessions. She noted that the plaintiff had made limited progress psychologically but had become more accepting of the injury and its consequences to her, thus reducing her stress levels. She noted that the plaintiff was still quite fragile and that her complains of pain persisted at relatively severe levels. Her final opinion was that the plaintiff's work injury precipitated her current anxiety and dysthymia. She noted that the plaintiff had an underlying predisposition to anxiety and a lack of confidence. She was guarded in her opinion as to the prognosis.

177. On 23 April 2007, at the request of a new general practitioner, Dr De Kock, the plaintiff was examined by Dr David Butler, a consultant psychiatrist. Dr Butler thought that the plaintiff was suffering from a Chronic Adjustment Disorder with Depression and Anxiety as a reaction to her injuries. Dr Butler described an antidepressant drug and recommended 10 sessions of supportive psychotherapy. By this time the plaintiff was having relationship difficulties. On 18 June 2007, when Dr Butler last saw the plaintiff, he noted that despite increasing the dose of her daily antidepressant medication, and despite episodes when the plaintiff's mood of depression and her anxiety might improve for a few days, these symptoms worsened when she became preoccupied with her continuing pain.

178. Dr Butler thought that the plaintiff had a guarded prognosis for recovery from her psychiatric condition, particularly because she continued to suffer from chronic pain which reminded her of the injury she sustained at work and the subsequent loss of her job as a cleaner. Dr Butler's opinion was that the plaintiff was not well enough to be doing any kind of work, either part-time or full-time. In his opinion the plaintiff was in continued need of regular psychiatric treatment with supportive psychotherapy and prescriptions of the antidepressant, Zoloft.

Dr Anthony Ciardi - current treating general practitioner

179. The plaintiff's current treating general practitioner, Dr Anthony Ciardi, prepared a report dated 30 October 2008 which was addressed to the solicitor for the plaintiff. In that report he reviewed the treatment received by the plaintiff in the preceding 12 months.
180. On 22 August 2007 a bone scan revealed degenerative changes in the right C 2/3 facet joint. Injections were administered for this but there was no improvement in the plaintiff's complaint of neck pain. On 21 December 2007 Dr Ciardi noted that the plaintiff was quite depressed and was crying. The precipitating event for those observations seemed to be a cooking incident in which she sustained splash burns after her right wrist gave way whilst lifting a container of hot oil. Dr Ciardi prescribed anxiolytic medication because he felt that the plaintiff was very upset and was severely agitated.

On 16 January 2008 Dr Ciardi prepared a Mental Health Care Plan to assist the plaintiff to obtain free counselling. On 18 January 2008 the plaintiff presented to Dr Ciardi with symptoms of numbness and pins and needles on the dorsum of both hands which he felt was suggestive of a T4 syndrome or possible compression of the brachial plexus. At that time Dr Ciardi formulated a general care plan which involved five chiropractic visits.

On 8 May 2008 Dr Ciardi noted that the plaintiff had been under the care of the mental health team who had changed the prescription and dosage of her antidepressant medication. When Dr Ciardi re-examined the plaintiff on 26 June 2008 he noted her continuing complaints of tingling in both hands and the plaintiff's reported problem of continuing to drop objects. On 8 September 2008 Dr Ciardi arranged for further CT scans of the neck and lower back. These showed spondylitic or degenerative changes. When he last saw the plaintiff he provided her with a prescription for the psychotropic medication Avanza, 45mg to be taken at night.

Dr Ciardi expressed the view that the plaintiff was totally unfit to work as a cleaner on account of both her physical disabilities as well as her mental state. He was asked to comment upon the opinions of Ms Davidson and Dr Virgona. He felt Ms Davidson's report was accurate, comprehensive and he agreed with its content. He thought that Dr Virgona's report was fair and accurate and felt he could not add to it or subtract from it. In his opinion the prognosis for the plaintiff to return to work was very poor. He felt that had the plaintiff not been injured, it was conceivable that she could have continued to work until the age of 70 years if that was her wish. He qualified that view by reference to matters of possible progressive health deterioration and the assumption that there would be no further deterioration of her physical or emotional state that would interfere with her work capacity.

Assessments arranged at the request of the plaintiff's solicitors

On 22 August 2006, at the request of her solicitors, the plaintiff was seen by a clinical psychologist, Ms Louise Morrow, who prepared a report dated 28 August 2006. After taking a history of relevant events and the details of treatment received, Ms Morrow noted there had been a history of deterioration in the plaintiff's mood after her employment had been terminated. On psychological testing of the plaintiff, Ms Morrow thought that the plaintiff's responses for anxiety, depression and somatic concern were all significantly above average. Ms Morrow thought the plaintiff presented with significant symptoms of depression and cognitive symptoms of anxiety consistent with a DSM IV diagnosis of Adjustment Disorder with Major Depression. She thought the plaintiff's depression and anxiety were secondary to her injuries and that these psychological symptoms were exacerbated by the employer's decision to terminate the plaintiff's employment.

In Ms Morrow's opinion, there was no evidence that the plaintiff was suffering from a pre-existing psychological condition. Significantly, she noted that for some eight years previously, the plaintiff had been free from the depression that had followed her earlier marital breakdown.

Ms Morrow recommended a vocational assessment in order to determine the plaintiff's suitability for alternative employment. She thought that although the plaintiff was not totally incapacitated from a psychological perspective, her continuing unemployment was an exacerbating factor that undermined her sense of efficacy.

As to the prognosis of the plaintiff's psychological condition, Ms Morrow noted that the plaintiff's presentation was consistent with chronic pain. She expressed the opinion that the plaintiff's future mood state is likely to reflect the intensity of the physical symptoms and her consequential functional impairments. She felt that there was some scope for possible improvement if the plaintiff could obtain suitable employment.

On 24 November 2006, at the request of her solicitor, the plaintiff was assessed by Dr W G D Patrick, a consultant surgeon. He noted restricted cervical spine movements and muscle guarding of the mid and lower paravertebral muscles of the cervical spine. He noted some alteration in the sensation of the upper arms in the distribution of C5 bilaterally and reduced grip strength. Dr Patrick's review of the plaintiff's neck x-rays indicated some disc space narrowing at C5/6 with posterior spurring spondylitis.

Dr Patrick considered the mechanism of the injury and concluded that the plaintiff sustained significant wrist strain injury due to dorsiflexion injury which led to median nerve entrapment and carpal tunnel syndrome He thought that the plaintiff had sacro-coccygeal trauma and cervical and thoracic injury as well as transmitted injury to both shoulders. Dr Patrick assessed the plaintiff's injuries as being work related and he found no inconsistencies in the history and examination of the plaintiff and offered the view that she was genuine in her complaints. He also considered the plaintiff was permanently incapacitated for the full range of her pre-injury duties as a cleaner at the school.

On 27 March 2007 Dr Patrick re-examined the plaintiff and prepared an updated report for her solicitors in which he reviewed his earlier opinion, and, after reviewing relevant x-rays and MRI scans, re-examining the plaintiff and noting some improvement in her thoracic symptoms, he reiterated his earlier opinion that the plaintiff was incapacitated for her former employment.

Dr Patrick noted that the plaintiff's major complaint was of discomfort and stiffness at the neck and shoulders and some left upper limb and hand discomfort. He also noted that she experienced fatigue in her arms if outstretched or if required to do something overhead. He noted the plaintiff's difficulties with the heavier tasks of housework.

Dr Patrick noted that there was restriction in the range of neck and shoulder movements and there was still guarding of the muscles of the cervical spine with altered sensation at the top of the left shoulder an upper left arm laterally. He stated that he saw no reason to significantly alter his earlier opinion except for some improvement in the thoracic spine symptoms. He thought her complaints were genuine and accepted that the carpal tunnel problem was injury related. His opinions concerning her work fitness remained unchanged.

On 25 September 2008 Dr Patrick re-examined the plaintiff at the request of her solicitor and then provided an updated report dated 10 November 2008. Dr Patrick reviewed the updated history and re-examined the plaintiff. He found that there had been a weight loss of 6kgs since the last examination. He noted the plaintiff's presentation as being very tremulous, somewhat depressed, and evidencing a considerable anxiety disorder, possibly bordering upon decompensation. He felt that the plaintiff was genuine and that there was no embellishment in her presentation. He stated that his re-examination did not lead him to change or significantly alter his earlier opinion.

He reviewed the updated imaging, being the bone scan of the cervical spine taken on 22 August 2007 and the CT scan of the neck and back taken on 10 September 2008. He stated that there was some significant likely post-traumatic facet joint arthrosis at the right C 2/3 level and a left para-central disc protrusion at the level L5/S1. He expressed his agreement with the conclusions and recommendations by Ms Davidson.

He concluded by stating his view that the plaintiff was permanently incapacitated for physical work involving heavy lifting/carrying, frequent bending, prolonged stooping or working in awkward situations, or activities which might result in a significant jolting/jarring to the spine, or activities involving heavy use of either arm or significant use of either arm outstretched or overhead. He felt her employment options and opportunities were significantly curtailed and concluded that she was essentially unemployable. Dr Patrick stated that were it not for the injury in question, the plaintiff could have expected to have worked in her chosen occupation until the age of 65 years but alluded to other factors, such as personal/psychological factors may have prevented her from working, for example, until the age of 70 years.

Dr Patrick stated that the plaintiff's work-related injuries and disabilities significantly contributed to her mental state as well as her physical state and in view of this he supported the need for ongoing psychological/psychiatric assistance.

Ms Judith Davidson - consultant occupational and hand therapist

On 31 March 2007, at the request of her solicitors, the plaintiff was examined by Ms Judith Davidson, an occupational therapist and hand therapist. After taking a relevant history of injury, treatment, current complaints, social history and assisting the plaintiff to complete some detailed pain questionnaires, Ms Davidson offered her opinions on the plaintiff's need for assistance with domestic activities, equipment, care and assistance. I will deal with these matters when dealing with the particular heads of damage to which this evidence relates.

Assessments arranged at the request of the workers' compensation insurer

On 18 October 2005, apparently at the request of the employer's workers' compensation insurer, the plaintiff was assessed by Dr Hari Kapilla, a specialist hand surgeon. He confirmed that the plaintiff had a positive Phalen's sign for bilateral carpal tunnel syndrome and confirmed that diagnosis, indicating that because that condition is normally constitutional and because she fell on both hands and hit the front of her wrists, the condition could have been caused by the trauma or at least the trauma could be considered to be a substantially contributing factor responsible for her carpal tunnel syndrome. The confirmed that surgery would be indicated if conservative treatment did not help. He confirmed, as at the time of his examination, that the plaintiff was not fit for her pre-injury duties but was fit for light repetitive work until her definitive treatment had been carried out.

On 20 December 2005, at the request of the employer's workers' compensation insurer, the plaintiff underwent an initial rehabilitation assessment by Rehab Management. The first report from that organisation was dated 3 January 2006. Further reports from that organisation were dated 24 January 2006, 9 February 2006 and 20 February 2006. It appears that these latter 3 reports that were not based on any further examinations of the plaintiff.

On 16 May 2005 (sic for 6) Rehab Management prepared a functional capacity assessment of the plaintiff and prepared a related report dated 22 May 2006 which was addressed to the workers' compensation insurer. The author of the report, a Mr Ken MacKenzie, did not state his qualifications.

On 1 August 2006 Rehab Management prepared a report described as a rehabilitation case closure report. That report was prepared by Mr Shannon Smith-Eckman, an occupational therapist. The report revealed that Rehab Management had been directed by the workers' compensation insurer, Allianz, to close the plaintiff's rehabilitation file. In closing the file the case manager noted that the plaintiff may obtain benefit from referral to a rehabilitation provider to assist with redeployment and job seeking, in addition to needing ongoing work conditioning to ensure overall fitness for work as well as needing psychological counselling review to ensure that the plaintiff had adequate coping strategies for job seeking and for returning to the workplace.

On 14 July 2006, at the request of the employer's workers' compensation insurer the plaintiff underwent a physiotherapy assessment by Mr Ryan Stanton. On that occasion she reported symptoms of pins and needles bilaterally in the upper arms and in the thoracic region, sharp bilateral pain in the upper arms, dull bilateral pain in the upper limbs and a burning sensation in the upper thoracic region. Mr Stanton reported the plaintiff had significant levels of pain responses on an evaluation on the pain scale he set out in his report. After carrying out his detailed examinations, Mr Stanton concluded that the plaintiff had a very painful and chronic condition which merited a programme of rehabilitation to try and address her strength deficit and to focus upon improving her condition and overall fitness and strength as a precursor to improving her ability to return to work when this was possible. The areas with which he was most concerned were the upper limbs and spine.

On 27 October 2006, at the request of the employer's workers' compensation insurer, the plaintiff was examined by Dr M Assem, a consultant in rehabilitation medicine. Dr Assem's report was dated 26 October 2006 and did not contain an acknowledgement of the expert witness code embodied in Schedule 7 of the Uniform Civil Procedure Rules 2005. There was no objection to the tender of the report on account of that omission.

After reviewing the background history, the history of the injury and the plaintiff's current situation he set out his findings on examination. He noted that the plaintiff had a depressed affect and was overly anxious. He elicited a full range of movements in the cervical spine, both shoulders and upper limbs. He then addressed a number of questions it had been asked to consider he stated that the plaintiff had continuing subjective complaints of numbness affecting her upper limbs in a non-anatomical distribution.

Dr Assem gave a diagnosis of consistency with medial (sic for median) nerve compression secondary to carpal tunnel syndrome that was successfully surgically decompressed. He stated that the plaintiff could have experienced an aggravation of an underlying condition since she had experienced similar symptoms during her pregnancy. He stated that the work-related injury would have been a substantial contributing factor to her depression. He referred to her subjective complaints that could not be explained on an organic basis. In this regard he stated that she had "vague symptoms in her upper extremities in (sic) with out any specific anatomical distribution that appears to limits (sic) her ability to perform repetitive sustained activities above shoulder height."

Dr Assem expressed the view that the plaintiff's incapacity was predominantly due to her subjective symptoms and her underlying anxiety, depression and abnormal illness behaviour. He suggested medication to relieve the symptoms and referred to the need for her to develop self management strategies to deal with her psychological issues and physical limitations. In Dr Assem's opinion the plaintiff's prognosis was guarded due to persistence of symptoms without any organic basis and the duration of her complaints taken together with the failure to progress, as well as the presence of abnormal illness behaviour.

On 30 April 2007, at the request of the employer's workers' compensation insurer, the plaintiff was examined by Ms Alana Dallen, a rehabilitation consultant. The report did not contain any acknowledgement of the expert witness code embodied in Schedule 7 of the Uniform Civil Procedure Rules 2005. There was no objection to the tender of the report on account of that omission.

Ms Dallen reviewed the plaintiff's work history, she noted a medical certificate that certified the plaintiff fit for suitable duties for three hours per day for three days per week with a 3kg lifting restriction. She reviewed psychosocial factors, including identified fear avoidance indicators in the plaintiff, which were barriers to task completion. She noted tearfulness, panic attacks, depression, feelings of bitterness over the loss of employment as well as some difficulties. She reviewed the plaintiff's psychological, educational and medical barriers to re-employment and assessed the plaintiff being capable of immediately starting in work in the classifications "light retail", "medical receptionist", and "general clerk". The basis of these opinions was not entirely apparent.

Ms Dallen stated that the plaintiff's mood difficulties and reduced functional capacity were the primary factors affecting the plaintiff's return to work. In this regard she noted to be the plaintiff's complaints of difficulty leaving the house on some days, as well as tearfulness. She stated that provided the plaintiff was assisted to improve the symptoms associated with mood difficulties, Ms Dallen's organisation, called AW Workwise, would then develop a return to work plan and commenced an assisting the plaintiff with intensive job seeking assistance.

Associate Professor Robert Oakeshott - consultant surgeon and rehabilitation specialist

On 17 May 2007, at the request of the employer's workers compensation insurer, the plaintiff was examined by Professor Robert Oakeshott, a consultant surgeon and rehabilitation specialist. This report was tendered by the defendant. After taking a history from the plaintiff and analysing the various medical reports provided to him he noted the plaintiff's medication intake and the fact that she continued to see a consultant psychiatrist. He then reviewed her symptoms which were predominantly intermittent neck discomfort, an occasional feeling of pins and needles in either hand after repetitive activity, sleep disturbance due to symptoms, being easily upset and crying at times.

Associate Professor Oakeshott stated that on his examination the plaintiff did not give him the impression that pain was a significant issue for her at the consultation. He elicited a full range of movements, he detected no neurological abnormality in either arm, he thought she demonstrated a strong grip with both hands and generally he found no abnormality. He then proceeded to answer a number of questions which the insurer had posed in order for him to address.

In answer to these questions Associate Professor Oakeshott stated that in his opinion the plaintiff had made a complete permanent recovery from her injury and there was no objective clinical evidence on examination that could be related to the injury in question. He also stated his view that at the time of his examination her employment was not a substantial contributing factor to any of her present symptoms. It is not entirely clear as to precisely what was meant by that expression because at the time of the report, the plaintiff was not in employment. He went on to state his view that the carpal tunnel syndrome of both wrists was not related in any way to the fall at work and was a constitutional condition. He thought that the plaintiff had no objective evidence of any physical injury or underlying pathology that would prevent her from working full-time, without restrictions, indefinitely in any job that she desired. However, he acknowledged that there were other factors that operated as barriers to her achieving such work. His view of the prognosis was that the plaintiff had made a complete and permanent recovery from any alleged physical injury and he assessed zero per cent whole person impairment under the applicable assessment guidelines.

Assessments arranged at request of the defendant's solicitors

The defendant tendered and relied upon the abovementioned reports provided to the employer's workers' compensation insurer and in addition, tendered the reports that I have summarised in the paragraphs that follow.

On 15 July 2008, at the request of the solicitor for the defendant, the plaintiff was examined by Dr William Bye, a consultant orthopaedic surgeon. After reviewing the plaintiff's history, including the details of past treatment, he reviewed the presenting symptoms and then carried out a physical examination. Dr Bye stated that the plaintiff's injuries had compromised her ability to perform her pre-accident activities. He felt she could only perform self-care activities but not home duties. He did not feel able to provide an estimate of the number of hours that she required by way of domestic assistance but anticipated that this would at least four hours per day. He felt that all of her complaints related to the plaintiff's work injury under consideration.

Dr Bye diagnosed the plaintiff to have had soft tissue injuries to the neck in the nature of a musculo-ligamentous strain, soft tissue injuries to both wrists, probably resulting in post-traumatic capsulitis, and soft tissue injuries of the shoulders suggestive of a rotator cuff impingement, especially the right shoulder, rather than having referred neck pain. He also found evidence of soft tissue injury to the thoracic spine in the nature of musculo-ligamentous sprain but found no ongoing problems from the injury to the coccyx. He noted the presence of a non-physical component to her presentation which he described as a reactive depression, anxiety and panic attacks but made no comment on this as it was outside his area of expertise.

Dr Bye thought that and prognosis for the plaintiff's physical state remained uncertain but felt it was important that she continue with a home program of therapeutic measures. He foreshadowed that the plaintiff would continue to experience aching and restriction of movement in the neck and back for the foreseeable future in proportion to the physical activities that she might undertake. He felt that the plaintiff's complaints of restriction in the wrists and shoulders were unlikely to undergo substantive change. He thought it was important that the plaintiff continue with her home programme of movement and strengthening exercises for the spine, shoulders and wrists. He also felt she also needed attention to posture as well as practicing pain avoidance measures.

On 15 July 2008, at the request of the solicitor for the defendant, the plaintiff was examined by Dr John O'Neill, a consultant neurologist. After reviewing the plaintiff's history, noting her complaints of symptoms, reviewing his findings on examination and the results of investigations Dr O'Neill stated his opinion that the plaintiff certainly developed symptoms suggestive of a diagnosis of bilateral carpal tunnel syndrome. He noted that there had been intervening surgery and stated that at his examination there were no sensory findings indicative of persisting impairment of median nerve function involving either hand. He stated that he could not exclude the possibility that the plaintiff had some degree of genuine neck pain as the MRI scan raised the possibility of some constitutional degenerative disease of the right C2/3 facet joint which might conceivably act as a substrate for some neck pain.

Dr O'Neill was in no doubt that there was a major psychosomatic component to the plaintiff's continuing complaints and he believed that the plaintiff exhibited abnormal illness behaviour. He stated that he could not comment on a possible psychiatric illness. He stated that he could not find a physical cause which would prevent the plaintiff from returning to the workforce in some capacity, including cleaning duties or as a medical receptionist. He did not state any detail of what he thought such duties might entail. In his view any physical symptoms that may have arisen as a consequence of the fall, being neck pain and tailbone pain, had been appropriately treated. He stated that the bilateral carpal tunnel problems had also been appropriately treated. He felt the plaintiff's prognosis appeared to be poor on account of the psychosomatic component of the continuing complaints.

On 29 April 2008, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Seamus Dalton, a rehabilitation specialist. After reviewing the plaintiff's history, including her work history and past medical history, Dr Dalton noted that the plaintiff's current complaints and then set out his findings on examination. He noted that she was quite tearful and agitated at times, that she was quite shaky and guarded in her lumbar movements. Her neck examination was hampered by muscle tension and a tendency to hunch her shoulders. The rest of her movements were in the normal range. Dr Dalton had no reports available to him from the plaintiff's treating doctors and said he felt reliant on the history provided to him by the plaintiff.

Dr Dalton acknowledged that it was entirely conceivable that the mechanism of injury had precipitated or aggravated an underlying median nerve lesion in both wrists. However, he stated that persistent upper limb symptoms were not consistent with the diagnosis. He noted that some of her symptoms may reflect cervico-brachial pain and thoracic outlet dysfunction which could conceivably be related to the mechanism of the injury and her subsequent work duties although he thought the apparent deterioration in her condition following cessation of work is not consistent with that circumstance being the primary or sole contributing factor for the current complaints. He thought there was a significant non-organic component to the plaintiff's presentation. He thought it more likely than not that a significant proportion of the plaintiff's physical complaints were being psychologically maintained.

Dr Dalton thought that the plaintiff's subjective complaints were disproportionate to the clinical findings he had elicited on examination. He thought the plaintiff would benefit from an exercise program to improve her posture, upper body strength and core stability which he thought should see a reduction in back pain, increased tolerance of prolonged stationary postures and upper limb tasks in general. Dr Dalton said it was not within his field of expertise to give an opinion on whether psychological factors resulted in any ongoing capacity for work. He did not support a claim for the ongoing need for domestic care and assistance nor did he feel that the plaintiff's condition warranted medical intervention other than a home exercise programme. He deferred to psychiatric opinion on the psychological factors.

On 7 July 2008 at the request of the solicitor for the defendant, the plaintiff was examined by Dr Angelo Virgona, a consultant psychiatrist. After taking a history of the precipitating events and the ensuing course of treatment Dr Virgona observed that the plaintiff was mildly anxious at the beginning of the interview. He diagnosed her as suffering from a Chronic Adjustment Disorder with Depression and Anxiety. He based that diagnosis on a range of symptoms including dysphoric mood, irritability, episodic anxiety, fluctuating concentration, sleep disturbance, appetite and weight disturbance, the latter relating to a distressing medico-legal assessment carried out at the request of the defendant that occurred some six weeks beforehand. After noting the background of her personal situation he summarised the plaintiff's position as having adopted the "sick role" and as exhibiting features of pain disorder in that pain has become the predominant focus of her clinical presentation, causing her to suffer significant distress and impairment in her functioning. The symptoms were not, in his view, intentionally produced or feigned.

Dr Virgona thought that the plaintiff had received appropriate treatment for her psychological condition. He felt that as a result of the pain disorder and the deterioration in her personal circumstances she had developed a chronic pain disorder and chronic adjustment disorder. He noted that the plaintiff had become helpless, dependent upon others for support and felt that she would benefit from a longer term consistent psychological therapy to assist her in adapting to a life where she must learn to cope with the pain and to gradually increase the range of activities and build up her confidence.

On reviewing the plaintiff's personal history Dr Virgona said he was not aware of significant pre-existing complaints other than the history of treatment for depression after the break-up of her marriage. He noted that there was a suggestion from within her history that her premorbid personal style was somewhat passive, dependent and self-defeating. He hypothesised that this had rendered her vulnerable to the development of a chronic pain syndrome. He noted that the prognosis for her psychological condition was poor but he supported a programme of future treatment.

Analysis of the array of medical evidence tendered and a review of the cross-examination of the plaintiff reveals the following issues arising from the medical evidence which requires resolution: (a) Whether in fact the plaintiff injured her hands or wrists when she fell;

(b) Whether the plaintiff's carpal tunnel problems were either caused by or materially contributed to by the injury in question;

(c) Whether the injury was responsible for the plaintiff's psychological or psychiatric problems;

(d) The nature, extent and cause of the plaintiff's incapacity for work;

I find that the plaintiff injured both hands and wrists when she fell into the drainage pit. I base this finding on my acceptance of the plaintiff's descriptions of the events of the fall and her descriptions of her injuries, both in her evidence and as confirmed by the historical descriptions summarised by the various medical and allied examiners made of the plaintiff's account of how she came to be injured. I also base this finding on my acceptance of Mrs Coulthart's account of having contemporaneously seen redness, roughness, grazing and a gravel rash appearance over both of the plaintiff's hands. In my view the plaintiff's description of experiencing a falling motion in which her hands went behind her is a credible one and is not improbable. I therefore find that when the plaintiff fell into the open drainage pit her hands and wrists became injured, probably as a result of having come into contact with the concrete surrounds of the drainage pit.

The cause of the plaintiff's bilateral carpal tunnel syndrome

On 21 November 2005, after obtaining neuropsychological testing, Dr Morton clinically confirmed the presence of bilateral carpal tunnel syndrome. On 29 November 2005 Dr Morton operated upon the plaintiff to carry out a procedure for bilateral carpal tunnel decompression at which time his operative findings confirmed his earlier diagnosis. Otherwise there would have been no need for decompression surgery. I accept Dr Morton's clinical and operative findings confirming that the plaintiff had bilateral carpal tunnel syndrome.

The defendant has submitted that the plaintiff did not sustain injury to the hands resulting in carpal tunnel syndrome and consequently asserts the need for the operation performed by Dr Morton on 29 November 2005 was not due to the fall. In the alternative, the defendant has submitted that if the carpal tunnel syndrome developed as a consequence of the fall on 24 February 2005, the condition was cured by Dr Morton's surgery. I have already outlined my reasons for accepting that the plaintiff did in fact injure her hands. For the reasons that follow, I do not accept the defendant's submission that the plaintiff did not sustain carpal tunnel syndrome, or, alternatively, if she did, the condition has been cured by the surgery.

The defendant's submissions rely on the proposition that the plaintiff did not complain of the sensation of pins and needles in her hands until she saw Dr Cooray three days after her injury. The complaint of the pins and needles sensation was obviously elicited by Dr Cooray on clinical examination and after taking a history from the plaintiff. The fact that the complaint of pins and needles sensation was not elicited from the plaintiff or reported by the plaintiff earlier could have been for a number of legitimate reasons, including the primary focus of the plaintiff's complaints at the time of first consultation being primarily a back contusion and strain. The plaintiff's hand injuries were obviously superficial, as was observed by Mrs Coulthart, and in the ordinary course, these would have been expected to resolve. In these circumstances, and in the absence of appropriately reasoned expert evidence explaining the basis for suggesting the argued absence of a causal connection between the plaintiff's hand injuries and the subsequent development of carpal tunnel syndrome, I do not regard the absence of earliest point in time complaint of pins and needles in the plaintiff's hands as undermining the causal connection between the plaintiff's fall and the development of carpal tunnel syndrome : Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR538 and Commissioner of Police v Rea [2008] NSWCA 199.

Further, the connection between the fall in which the plaintiff's hands sustained injury, followed by the development of carpal tunnel syndrome has not been shown to be improbable or implausible. Dr Kapilla's opinion allowed for the possibility of a connection between the condition and the earlier trauma, at least as a substantially contributing factor. Although Dr Kapilla noted that carpal tunnel syndrome is normally of constitutional origin, and although the plaintiff conceded that she had experienced carpal tunnel symptoms in pregnancy many years earlier as well as during her premature menopause, also many years earlier, in the absence of evidence showing the plaintiff was affected by this condition in the period immediately before her injury I consider that I should place great weight on Dr Kapilla's opinion that "work", which I read as trauma, was a substantially contributing cause to the plaintiff having that condition. In this regard I also consider that I should place great weight upon the clinical findings of Dr Morton.

It is noteworthy that Dr Bye considered the soft tissue injuries to the plaintiff's wrists to have probably resulted in the condition of post-traumatic capsulitis. It is also noteworthy that Dr O'Neill's opinion was that the plaintiff's symptoms suggested a diagnosis of bilateral carpal tunnel syndrome.

I prefer the foregoing opinions on causation of carpal tunnel syndrome to that of Associate Professor Oakeshott who thought that the plaintiff's carpal tunnel syndrome was not in any way related to the fall. I find Associate Professor Oakeshott opinion unpersuasive on this issue because he did not entertain, mention or even consider the possibility of the post-traumatic capsulitis as a causative mechanism as was explained by Dr Bye. Nor did he consider the possibility of precipitation or aggravation of an underlying median nerve lesion in both wrists, as was considered by Dr Dalton. He simply dismissed the condition as being of constitutional origin which leads me to the view that gave the issue only limited and therefore insufficient consideration.

In its submissions the defendant has focussed upon the historical comment by the plaintiff as recorded by Dr Bourke following his consultation on 3 May 2005 that the plaintiff had been occasionally experiencing paraesthesia in her hands, this being "a more longstanding symptom". This begs the question more longstanding than what? In the context in which Dr Bourke made his comment concerning the longstanding symptom, I interpret it to mean longer than "the last month or so" which was a reference to the plaintiff feeling numbness and paraesthesia in the feet. The injury on 24 February 2005 and the consultation on 3 May 2005 were some 5 weeks and 2 days apart. I allow for the possibility that Dr Bourke may have used the term "longstanding" to refer to earlier symptoms that the plaintiff acknowledged were present in pregnancy and in menopause but this does not mean they were current and continuing at the time just before injury. I do not accept that Dr Bourke's reference to "longstanding" in reference to the plaintiff's hand symptoms was a reference to those symptoms pre-dating the fall on 24 February 2005 in the sense that the plaintiff was affected by a pre-existing and continuing carpal tunnel problem at the time of her fall. To find to the contrary in circumstances where Dr Bourke was not called to give evidence or where the plaintiff's evidence on this issue was not the subject of detailed examination would be unreasonable in the circumstances : Mason v Demasi [2009] NSWCA 227; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320.

I do not accept Dr Assem's view that the plaintiff's carpal tunnel injuries comprised aggravation of an underlying condition. That opinion was based on the plaintiff having had similar symptoms including during pregnancy many years earlier. Assuming for the purpose of analysis that the theory had some credence, it would still lead to a finding that the injury was the material contributing cause of the plaintiff's carpal tunnel symptoms, the need for surgery and the cause of the ongoing hand problems.

I therefore find that when she fell, the plaintiff injured her upper limbs in such a way that injury was occasioned to both hands and wrists so as to cause bilateral compression of her median nerves. In this regard I also accept Dr Patrick's opinion that the plaintiff probably sustained significant wrist strain injury due to dorsiflexion at the time of the fall which led to median nerve injury or entrapment and ensuing carpal tunnel syndrome which was injury related.

I do not accept the defendant's submission that the plaintiff has obtained complete resolution or cure of her carpal tunnel symptoms without ongoing sequelae.

In June 2006 Dr Crimmins found neurophysiological evidence of continuing median nerve compromise notwithstanding the earlier operations for nerve decompression. On 16 January 2008 Dr Ciardi noted the plaintiff to have numbness and pins and needles on the back of both hands. Whilst Dr Ciardi felt that some of the plaintiff's problems were on this occasion possibly due to a thoracic problem or a brachial plexus problem he did not exclude a residual carpal tunnel condition. On 17 May 2007 Dr Oakeshott recorded a history of occasional feelings of pins and needles in the hands after repetitive activity. On 26 June 2008 Dr Ciardi noted the history that she had continuing tingling in both hands and continued to drop objects she was holding. On 15 July 2008 Dr O'Neill found no evidence of sensory findings indicating a persistent impairment of median nerve function. By its terms, that finding did not exclude an ongoing problem of an intermittent nature which is different to one that is persistent. On 15 July 2008 Dr Bye noted ongoing complaints of stabbing pains over the volar aspects of both wrists and periodically dropping things. He also noted complaints of pins and needles and numbness in both hands and fingers when in certain positions. It is noteworthy that these items of history, particularly the complaints of paraesthesia, are keeping with Dr Morton's diagnosis of carpal tunnel syndrome. Further, the defendant's submission takes no account of the opinion of Dr Crimmins which demonstrates an ongoing problem. Additionally, the defendant's submission takes no account of the opinion of Dr Morton that the plaintiff has suffered median nerve compression that still produces symptoms because the damage pre-dated the operation that alleviated some of the problems. I accept the opinions of Dr Morton and Dr Crimmins in this regard.

In my view the evidence does not support the defendant's submission that the plaintiff has had a complete cure of her carpal tunnel syndrome and I therefore reject that submission.

Defendant's responsibility for plaintiff's psychological problems

The defendant has submitted that the plaintiff's psychiatric reaction to her pain is not causally attributable to the events of 24 February 2005. In support of that submission the defendant points to the plaintiff having had a significant history of psychological dysfunction associated with the stresses of life. The defendant argues that the plaintiff's psychological problems are a reaction to the injuries she sustained in the fall. The defendant argues that as the plaintiff's pain "is not attributable to the carpal tunnel injury at work" it "follows the psychiatric condition of which she now complains is not causally related to the injury at work."

In my view the defendant's submissions in that regard are flawed for the reasons that follow.

First, the fact that the plaintiff has had an earlier history of psychological dysfunction, whilst relevant, has to be considered in context. The unchallenged context is that following the plaintiff's separation and divorce she experienced some depression and psychological problems however these had not been factors which had affected her for some 8 years or more prior to her injury which in my view indicates that the earlier history is not relevant other than as evidence of a pre-injury vulnerability in the plaintiff for developing psychological problems in conjunction with traumatic events.

Secondly, insofar as there may have been a pre-disposition for the plaintiff to develop an adverse psychiatric reaction to her injury the defendant must take the plaintiff as she is found : Watts v Rake [1960] HCA 58; (1960) 108 CLR 158.

Thirdly, insofar as the plaintiff's psychiatric reaction or psychiatric presentation may be as a result of some predisposition to develop such a condition, the onus is on the defendant to establish that the matters under consideration and of which the plaintiff now complains were due to such earlier pre-disposition and not due to the injury as suggested by Dr Butler, Ms Grant, Ms Morrow, Dr Virgona and others : Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. The defendant cannot point to any expert evidence from a psychiatrist or psychologist that would discharge that onus.

Fourthly, the hypothesis put forward by Dr Virgona that the plaintiff may have had a pre-injury personal style that was somewhat passive, dependent and self-defeating, thereby rendering her vulnerable to the development of a chronic pain syndrome is one that I find persuasive and I accept it. It follows that the defendant must be found to be responsible for the plaintiff's post-injury psychological problems : Watts v Rake. Consequently, I reject the defendant's submission that the plaintiff's psychiatric or psychological reaction to her pain is not causally attributed to her injury.

Incapacity for work and the need for domestic assistance

I will analyse the conflicting opinions on the plaintiff's incapacity for work and on the plaintiff's need for domestic assistance when outlining my reasons for assessing those heads of damage.

I find that the plaintiff has been left with permanent ongoing physical and emotional problems that are due to her fall. These fall into the categories of physical and psychological disabilities.

The plaintiff's physical problems include pain and discomfort in the neck, thoracic and low back. She has pain and discomfort in both shoulders and upper arms. She suffers from a right brachial plexus injury. She has partial denervation in her right biceps and triceps muscles. She has occasional radiation of pain from her thoracic region to her chest. She has paraesthesia in her arms and hands. She occasionally drops objects. She experiences a burning sensation in her neck. She experiences pins and needles sensation and weakness in both hands and occasional numbness. She has a weakened grip. She has lasting bilateral median nerve compromise due to the pre-operative compression of those nerves. She has difficulty performing repeated tasks with her hands or with her hands outstretched or above shoulder height. These ongoing problems cause the plaintiff significant pain, discomfort and distress and they have a poor prognosis. She has work and domestic activity restrictions imposed upon her which have caused her to significantly change her lifestyle.

The plaintiff's injuries and the effect that these have had on her independence and her lifestyle, together with the effects of her ongoing experience of pain and limitations have had a very significant and adverse psychological impact upon her. She has had an underlying pre-disposition to anxiety which has been affected or stirred up or exacerbated by her ongoing problems so that she now suffers from chronic reactive depression. She has been diagnosed to have a chronic adjustment disorder with anxiety and depression. She experiences mood swings, decreased energy, reduced motivation, tearfulness and feelings of worthlessness. She experiences irritability, she has fluctuating concentration, disturbed sleep and low appetite, she has had significant weight loss and does not like to leave the house. She has also somatosised her symptoms and now has abnormal illness behaviour with somatic concerns. Significantly, her complaints have been medically assessed as genuine. She has chronic pain disorder. She is easily fatigued. I accept the opinion of Dr Virgona that the plaintiff's underlying vulnerability to develop chronic pain syndrome has been enlivened by her injuries so that the plaintiff experiences these very distressing psychological problems. The prognosis for improvement of these problems is very poor. Whilst it is true that she experienced significant psychological and coping problems associated with her relationship breakdown in early 2007, that has to be seen in the light of the considerable coping problems, including psychological problems, which she developed following her injury. In my view the psychological effects of her injuries are reflected by the relationship breakdown.

Following her injury on 24 February 2005 the plaintiff said she remained off work for about one week. She said that despite experiencing ongoing symptoms and difficulties with her work she continued in her pre-injury employment carrying out light duties until 20 November 2005 when she ceased work in order to undergo surgical treatment for bilateral carpal tunnel syndrome decompression as was arranged by Dr Morton.

Following these operations the plaintiff said she returned to work in about January 2006 and continued in her employment on restricted duties until 12 May 2006 at which time light duties were no longer available to her. On 15 November 2006 Transfield Services (Australia) Pty Ltd, the successor to her original employer, terminated her employment on account of her continuing incapacity to resume full-time duties : Exhibit "F".

Apart from deriving earnings of $370 on an occasion on which she did some electoral work on the polling day of an election, the plaintiff has not worked or derived any income following her injury, other than from the income she obtained whilst on light duties and from the payments of workers' compensation in respect of her injury.

The evidence discloses that the plaintiff has acted reasonably to try and mitigate the effects of her injuries. She has sought out medical, surgical and psychological treatment and has followed through with rehabilitation recommendations including exercises and physiotherapy. There is no suggestion that the plaintiff has unreasonably failed to mitigate her damages by failing to seek out suitable alternative employment. I consider that the plaintiff's absence from the workforce since the termination of her employment has been due to her ongoing inability to work and not due to any lack of motivation or otherwise on her part.

Having regard to the current prospective or projected life tables, at age 51, this being the plaintiff's age at trial, I assess the plaintiff's life expectancy, which is by definition a statistical estimate or average, to be in a rounded down figure of a remaining 37 years: Golden Eagle International Trading Pty Ltd & Anor v Zhang & Anor : [2007] HCA 15; (2007) 229 CLR 498.

I now turn to the consideration and assessment of the heads of damage that are claimed by the plaintiff.

I find that the plaintiff's life and her ability to enjoy the amenity of her life has been significantly and adversely affected by her injuries. Following the initial shock of her injuries she experienced neck pain, upper back and coccyx pain, pain and associated pins and needles with numbness in both wrists, hands, arms and elbows. She then developed increasing hand symptoms with swelling and developed a burning sensation in her neck. She found she had reduced grip in both of her hands and she experienced pain in her arm muscles. Following investigations she was diagnosed with and surgically treated for the condition of bilateral carpal tunnel syndrome.

After undergoing surgery for bilateral carpal tunnel decompression the plaintiff found that she still experienced residual hand problems comprising upper arm paraesthesia and bilateral reduced and weakened grip. The paraesthesia causes her to drop objects. Her treating surgeon thought that her residual problems were due to the pre-operative compression damage that had occurred to the median nerves.

The plaintiff found that the surgery failed to completely ameliorate her symptoms, she did not react well psychologically to the continuing problems and she has and continues to experience considerable anxiety. Further medical investigations revealed a problem of a possible brachial plexus injury or a C6/7/8 nerve root injury due to the fall. The continuing problems of pain and altered sensation experienced by the plaintiff led to her suffering increasing anxiety and depression. Her treating neurologist, Dr Crimmins, predicted the plaintiff's condition would become chronic and this prognosis ultimately proved to be a reality. When the plaintiff's pre-injury employment was terminated by her employer for the stated reason that light duties could not be made available to her, she experienced a worsening of her psychological condition in the form of exacerbated depression, anxiety and mental distress.

The plaintiff has been left with a chronic anxiety and depression. She has also been diagnosed with a chronic adjustment disorder. She requires psychotropic medication to treat her depression and anxiety. She also has to take painkilling medication. She has also had to call upon the assistance of the mental health team in her locality. Rehabilitation exercises, physiotherapy and psychological counselling as well as psychiatric treatment, whilst helpful, have not alleviated her problems. She will continue to require medical treatment and supervision, most probably for the foreseeable future.

The plaintiff's ability to work has been adversely affected. Her general practitioner considers her to be unfit to return to work as a cleaner on account of her physical disabilities and on account of her mental state. She has lost a considerable amount of weight in association with her anxiety. She has been assessed as having a major depression. The prognosis is for the plaintiff's chronic pain condition to continue to adversely affect her mood. She has experienced episodes of tearfulness. She has experienced difficulty in leaving the house, she has suffered panic attacks of increased intensity to the pre-injury tendency she had to panic in situations.

In my assessment the plaintiff's pain, discomfort, stiffness and restriction of movement of the neck, shoulders and her upper limb discomforts constitute significant physical restrictions for her. She has been assessed as being unfit for physical work involving heavy lifting, carrying, frequent bending, prolonged steeping and working in awkward situations or engaging in activities that might cause significant jolting/jarring of the spine. She has also been advised not to undertake any work involving heavy use of her arms either in the outstretched or overhead positions. Effectively, I consider these restrictions render her unemployable. Superadded to these matters are the significant psychological problems that burden the plaintiff and adversely affect her earning capacity.

The plaintiff's ability to carry out housework and to engage in her pre-injury activities has been adversely affected and she has and will continue to require domestic assistance. The plaintiff has ceased being able to live independently and in addition to requiring ongoing domestic assistance she has had to move her residence to live in less than satisfactory accommodation, living in a garage annexed to the home of her parents.

The plaintiff's post-injury situation and circumstances have led to her having a miserable existence characterised by a chronic pain syndrome and an adjustment disorder with depression and anxiety. The prognosis for the plaintiff's ongoing physical and psychological problems remains guarded. I consider that her post-injury circumstances warrant a significant award of damages for pain, suffering and the loss of enjoyment and the loss of the amenity of her life.

The defendant has submitted that an appropriate award of damages to compensate the plaintiff for non-economic loss would be 20 per cent of a most extreme case within the scheme of s 16 of the Civil Liability Act 2002. This is the equivalent to $16,000. In contrast the plaintiff has submitted that an appropriate award for this head of damage would be of the order of $180,000 which is the equivalent of 40 per cent of a most extreme case according to the maximum amount prescribed by s 16 of the Act. Given the seriousness of the matters I have reviewed and given the significant impact those matters have had on the plaintiff's day to day existence as I have found to be the case, I accept that the plaintiff's submission covering non-economic loss represents fair, reasonable and appropriate compensation for her pain, suffering and the loss of the enjoyment and amenity of her life. I therefore assess the plaintiff's entitlement to damages for non-economic loss as being the equivalent of 40 per cent of a most extreme case, namely the amount of $180,000.

The plaintiff submits that the claim for past loss of earnings should be assessed on the basis of 2 years loss if income between November 2006 and November 2008 at the rate of $460 per week net plus the value of the workers' plus the value of the weekly workers' compensation payments that she received for her absences from work until November 2006 when her employment was terminated.

Exhibit "E" comprises the plaintiff's PAYG payment summary for the period 24 January 2005 to 30 June 2005, which is 18.42 weeks. In that period the plaintiff was paid $10,460 gross, from which was deducted the sum of $1766 in tax leaving a net figure of $8694 which is the equivalent of $471.98 per week net. This analysis shows the plaintiff's method of calculation of past loss of earnings to be reasonable if not slightly understated. The calculation of 104 weeks loss of earnings at $460 per week net between 15 November 2006 and 11 November 2008 plus the value of weekly payments of workers' compensation until 15 November 2006 in the agreed amount of $9946 yields the sum of $57,786.

In contrast the defendant submits that the plaintiff's claim for past loss of earnings should be restricted to the value of the workers' compensation payments of $9,946 plus the sum of $11,200 being 28 weeks lost earnings at $400 per week net between 6 October 2005 and 31 May 2006 and $12,700 being 127 weeks at $100 per week between 31 May 2006 and the conclusion of the trial on 19 November 2008. These sums lead to a total of $33,846.

I consider the defendant's approach to quantification of past loss of earnings is flawed in two principal respects. First, in selecting the figure of $400 per week to represent the basis for calculation of past loss of income up to the time of the trial, no allowance has been made to the more recent higher rate that would have been more applicable as this would represent an average rate rather than a lower flat rate which was based on the pre-injury level of earnings. Secondly, I consider that the assumption that the plaintiff has lost only $100 in the period up to the trial to be erroneous. The plaintiff's employment was finally terminated by her employer on 15 November 2006. I consider that from that time the plaintiff should be compensated for the loss of earning capacity that she suffered in this period of unemployment.

An overview of the medical evidence supports the plaintiff's claim for past loss of earnings. I consider the most appropriate insight to the plaintiff's past incapacity for work is provided by the evidence comprising the reports of her treating doctors and the reports of Dr Patrick.

In October 2006 Dr Patrick expressed his opinion that from a physical point of view the plaintiff was permanently incapacitated for the full range of her pre-injury duties as a cleaner. Although he certified her as being fit for limited light duties her employer did not make this work available to her. This was at a time when she had reached her state of maximal medical improvement. On 30 October 2008 Dr Ciardi stated that the prognosis for the plaintiff to return to her pre-injury work was poor. On 10 November 2008 Dr Patrick noted that he had not significantly changed his opinions but noted the plaintiff had undergone some deterioration in her mental state. He also stated that at that time the plaintiff was totally incapacitated for work. I prefer these opinions to those of the assessing doctors who have expressed contrary views because I consider that Dr Ciardi has had more frequent contact with the plaintiff over time, and as an assessing doctor who has seen the plaintiff on more than just one occasion, so has Dr Patrick. I consider that in those circumstances these doctors are in a more advantageous and reliable position than those assessing doctors who only saw the plaintiff on a single assessment occasion and who then formed contrary opinions on the plaintiff's unfitness for work in the period up to the commencement of the trial. That view is reinforced when the psychiatric and psychological factors are taken into account. In this regard I accept Dr Virgona's opinion of 7 July 2008 that the combination of the plaintiff's pain and her psychological symptoms renders her unable to perform her pre-injury duties.

In these circumstances I consider the appropriate method of assessing the plaintiff's past loss of earnings to be as was submitted on behalf of the plaintiff. This comprises the elements of $9,946 in past workers' compensation payments, which were taxed, together with the sum of $47,849 for the 104 weeks of loss of income in the two years leading up to the commencement of the hearing. These elements total $57,786. I do not consider the defendant should be given a credit by way of offset of the sum of $370 which the plaintiff derived doing electoral work as this was income the plaintiff would have derived in any event and I do not consider that sum to represent mitigatory earnings for which the defendant should be given a credit. I therefore assess the plaintiff's damages for past loss of earnings in the amount of $57,786.

The plaintiff was paid workers' compensation payments. Exhibit "M", which comprises the insurer's payment schedule, shows that from the time of her injury on 24 February 2005 until 27 August 2007, Allianz, the workers' compensation insurer, deducted tax from those payments in the total amount of $3359.01. The parties have agreed that the Fox v Wood component of the plaintiff's damages is $3359 and I therefore assess the plaintiff's entitlement to Fox v Wood damages in the amount of $3359.

The plaintiff claims damages for future loss of earning capacity in the amount of $600 per week gross or $518 per week net to be projected at 5 per cent over the remainder of her working life at age 65 years on the basis that she is and will remain completely unable to exercise her pre-injury earning capacity and because of the combination of her physical and psychological disabilities she has been left without any significant residual earning capacity. The rate of earnings claimed for projection of this claimed loss is not disputed however the defendant disputes the plaintiff's claim to entitlement to such damages.

The defendant submits that since 31 May 2006 the plaintiff has been fit for suitable light work duties involving lifting more than 10 kg and not involving repetitive or sustained upper limb activities above shoulder height. The defendant submits that the plaintiff has recovered and no allowance should be made for any future impairment in her earning capacity as she has not lost any of her pre-injury earning capacity.

The defence submissions proceed upon the basis that the plaintiff has been fit for suitable work duties when Dr Assem saw her on 27 October 2006. The defendant also relies upon report of Dr Dalton dated 4 July 2008 in which the plaintiff was assessed as being fit to return to work with the restriction of not performing repetitive or forceful gripping of the right-hand. The defendant also relies upon the opinion of Dr O'Neill dated 15 July 2008 in which it was stated that there was no physical reason why the plaintiff should not return to work performing cleaning duties or from working as a medical receptionist. The defendant further submits that the rehabilitation reports indicate a clear capacity for employment, including in the specified areas of light retail sales, medical receptionist and general clerical duties, categories which would produce earnings of the order of $550 per week gross.

For the reasons that follow, I consider that each of the defendants submissions are flawed and I do not accept them. I will deal with each submission in turn.

The submission that the plaintiff has been shown to have an earning capacity as at May 2006 based on the assessment of Dr Assem as at 27 October 2006 is problematic for a number of reasons.

First, Dr Assem's opinion has been expressed on the basis of the limited information available to him at his examination on 27 October 2006 and does not take into account the very significant psychological reaction the plaintiff had to the termination of her employment on 15 November 2006.

Secondly, Dr Assem appears to have based his opinion in part on his assessment that the plaintiff's complaints of symptoms in the upper extremities are subjective and cannot be explained on an organic basis. That analysis does not take into account the plaintiff's thoracic problem and the brachial plexus symptoms, and as such, in my view it represents an incomplete and therefore an insufficient analysis of the cause of the limitations on the plaintiff's ability to work.

Thirdly, in estimating the period of incapacity Dr Assem has acknowledged that the incapacity of the plaintiff (for work) is predominantly due to the subjective symptoms of which she complains, together with psychological symptoms and abnormal illness behaviour. In my view, insofar as there are non-physical contributing causes for the plaintiff's incapacity, the work inhibiting effects of such other causes cannot be dismissed, as appears to have been the case with Dr Assem's opinion.

Fourthly, the defendant's submission ignores the guarded prognosis that was identified by Dr Assem.

Fifthly, the basis of Dr Assem's opinion is not entirely clear to analysis because he has been provided with a number of work-cover medical certificates issued by the plaintiff's treating doctors between 24 February 2005 and 21 June 2006. Those certificates are not in evidence and it is therefore not possible to properly or fully analyse the basis of Dr Assem's opinions. That factor, together with the fact that Dr Assem's report does not contain an acknowledgement of the expert witness code embodied in Schedule 7 of the Uniform Procedure Rules leads me to the view that I should place little if any reliance on his opinions in this case : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

It is necessary to consider the other medical opinions concerning the plaintiff's asserted fitness for work. Associate Professor Oakeshott recognised that there were non-physical factors that impacted upon the plaintiff's fitness to return to work notwithstanding his view that from a purely physical point of view he thought the plaintiff could work full time. In my view the qualification concerning non-physical factors that he has identified renders the remainder his opinion to be unpersuasive and of limited if any probative value.

The defendant's alternative submission that the plaintiff was fit to return to work with the restriction of not performing repetitive or forceful gripping of the right-hand is also problematic because I consider that it is not fair, reasonable or appropriate to have regard to the physical assessment alone in order to determine whether the plaintiff had an earning capacity as at May 2006. I consider that a balanced view is required which takes into account the post-injury psychological factors affecting the plaintiff. I conclude that the effect of the plaintiff's ongoing physical complaints and her ongoing and chronic psychological problems indicate that any such suggested earning capacity would be most unlikely to be productive of an ability to derive income because of the nature of the restrictions inherent in the asserted earning capacity.

The submission based on Dr O'Neill's assessment dated 15 July 2008 to the effect there was no physical reason why the plaintiff should not return to work carrying out cleaning duties or to work as a medical receptionist is artificially constructed and is flawed for multiple reasons.

First, Dr O'Neill's assessment of the plaintiff's capacity to return to the workforce "in some capacity" based on a purely physical assessment is therefore a necessarily incomplete analysis. This is so because it does not take into account the psychological and psychiatric factors associated with his view that the plaintiff has abnormal illness behaviour. Dr O'Neill specifically excluded such factors from his consideration as he stated that they were outside his area of expertise.

Secondly, the suggestions made by Dr O'Neill as to there being no physical reason to prevent the plaintiff returning to work in cleaning duties and as a medical receptionist involve a skewed and therefore inadequate assessment, insofar as these opinions specifically exclude psychological factors that prevent a return to work.

Thirdly, the plaintiff has not worked as a medical receptionist for many years and when she did so she found the work to be too stressful. She has no experience or ability to use a typewriter or a computer which is a commonplace piece of office equipment in these modern times. She has difficulty with written expression. She has problems being around people and has feelings of inferiority. She also has difficulty coping with day-to-day life. These matters, which I accept, must be seen as significant qualifications to the appropriateness of the opinion of Dr O'Neill. It is also noteworthy that Dr O'Neill's opinion dos not co-relate the duties of a medical receptionist to the plaintiff's symptoms which I consider reduces the probative value of his opinion.

Fourthly, the plaintiff has ongoing neck and upper limb problems, she has ongoing problems of upper limb pins and needles and numbness and she drops objects on occasions. In my view a commonsense analysis of these conditions would preclude a return to manual work. I therefore reject the defendant's submission that the plaintiff could return to work as a cleaner or as a medical receptionist.

The defendant's submission that the rehabilitation assessments of the plaintiff indicate a clear capacity for employment are in my view based on invalid assumptions.

With regard to the opinion of the rehabilitation specialist, Dr Dalton, firstly, his report was prepared without the benefit of him having reports from the plaintiff's treating doctors. I consider this to be a significant limiting factor to the utility of his opinion. Secondly, as I read Dr Dalton's report, his opinion concerning the plaintiff's ability to resume full-time work was based on physical factors alone without due regard to his view that "a significant proportion of (the plaintiff's) physical complaints are being psychologically maintained". His opinions as to work fitness were based on the exclusion of considerations of the work limiting effects of the psychological issues. In my view this significantly undermines Dr Dalton's view as to the plaintiff's work fitness.

With regard to the opinion of Associate Professor Oakeshott, I consider his "opinion that (the plaintiff's) symptoms are arising from factors other than physical injuries" provides an insufficiently detailed discussion on the likely impact of those other factors because it only identifies the factors, without more. This is particularly evident when he concluded there was no evidence of injury or "pathology in any part of her body including her neck, shoulders, either arm or lower back … that would prevent (the plaintiff) from working full time, without restrictions, indefinitely, in any job that she so desired." That opinion is in part opaque to analysis because the solicitor's letter of instruction dated 20 March 2007, which was sent to Associate Professor Oakeshott "with attachments" was not in evidence. In my view the absence of such supporting material renders the report and the opinions within it unpersuasive.

With regard to the opinion of the rehabilitation consultant, Ms Dallen, I attach little if any weight to her report for a number of reasons. First, her report did not acknowledge the expert witness code embodied in Schedule 7 of the Uniform Civil Procedure Rules 2005. Secondly, it is not clear as to what range of information concerning the plaintiff's work fitness was provided to Ms Dallen to base her opinions. She has stated an assumption which she apparently obtained from a medical certification that the plaintiff was fit, as at 30 April 2007, "for suitable duties 3 hrs a day for 3 days a week with a 3 kilogram lifting restriction". I have already stated that I do not accept the validity of that assumption for the reasons given. Furthermore, Ms Dallen's report "cited" (sic for sighted) a Rehab Management evaluation of the plaintiff undertaken in May 2006 but she apparently had no regard to a subsequent report from that organisation in which it was stated that on 12 May 2006 the "suitable duties" referred to above "had been withdrawn". It appears that report, which was not considered by her, also referred to the plaintiff's need for further rehabilitation assistance which suggests an ongoing work incapacity at that time.

The work capacity opinions of Associate Professor Oakeshott, Dr O'Neill and Dr Dalton do not sit well with the opinion of Dr Bye who acknowledged that the plaintiff's injuries have compromised her ability to perform her pre-injury activities to the extent that she cannot even perform her home duties. I prefer the opinion of Dr Bye as it seems to me to be more realistic and in keeping with the plaintiff's own self-assessment which I accept.

When the psychiatric factors are taken into account, as is the case with the opinion of Dr Virgona, it is quite clear that from a purely psychiatric perspective, the plaintiff remains unable to perform her pre-injury activities. That opinion demonstrates the limited nature of the analysis undertaken by Associate Professor Oakeshott, Dr O'Neill and Dr Dalton. I therefore do not accept their opinions on the plaintiff's ability to work.

On the foregoing considerations I reject the submission that the plaintiff was shown to have an earning capacity as at May 2006.

In my assessment, in view of the foregoing, the defendant's suggested classifications for the plaintiff to pursue work as a light retail sales assistant, medical receptionist and general clerk are misplaced and inapplicable, especially in view of her ongoing physical and psychological symptoms.

In making an assessment of the plaintiff's claim for future loss of earning capacity I am required to form an assessment of what would have been the plaintiff's most likely circumstances but for the advent of her injury : s 13(1) Civil Liability Act 2002.

In this regard I consider that despite her prior history of psychological problems years earlier, including the stress of working as a medical receptionist, and despite the prior history of hand symptoms before her injury, the plaintiff had found a vocation that suited her psychological make-up and which did not cause her problems with work. The cleaning job clearly suited her and was not outside of her range of abilities. In fact she gained satisfaction from that employment. I find that but for her injury the plaintiff would have continued to work as a cleaner at Toukley Public School or in similar employment. I consider that in such employment she would most probably have continued to derive income at her pre-injury rates, with applicable increments in those rates over time and I consider that such earnings would most probably have continued until the plaintiff had reached the age of 65 years. It is clear that the plaintiff had a need to continue to work in order to support herself.

I therefore conclude that I should accept the plaintiff's submission and assumptions concerning the quantification of her claim for future loss of earning capacity. In this regard, as is evident from the medical opinions I have accepted, I find that the plaintiff has for all practical purposes the plaintiff is unemployable and has no residual capacity for any future employment : s 13(3) of the Act. I find that the plaintiff's future loss of earnings should be assessed at the rate of $518 per week net as has been submitted. That loss requires projection over the ensuing 14 years of the plaintiff's working life until she reaches the age of 65 years. A projection of this sum on the 5 per cent tables (x 529) yields the amount of $274,022.

Having assessed the plaintiff's most likely future circumstances that would have prevailed but for her injury I am required to identify any adjustments in my award to reflect the percentage possibility of the plaintiff suffering an impairment in her earning capacity despite her injury : s 13(2) of the Act. Having regard to the plaintiff's age and relative proximity to retirement and having regard to her financial need to work as well as the absence of other adverse health factors that may have adversely impacted on the plaintiff's future earning capacity but for her injury, other than making a discount for conventional vicissitudes, I consider that I should make a zero discount concerning the considerations contemplated by s 13(2) of the Act.

In this case I do not see any basis upon which to apply a discount on account of vicissitudes by a factor greater than the conventional 15 per cent discount. I take this view because before her injury the plaintiff was in reasonably good physical health, she was without any current emotional difficulties and she was coping well with her life and her work. There were no indications that any previous or underlying health problems would have had a deleterious impact on her future earning capacity. She had long since recovered from her psychological problems that resulted from her marital separation which led to divorce in 1998. She was otherwise healthy so I consider that 15 per cent is an appropriate discount in such circumstances. Accordingly, in applying a conventional 15 per cent discount for vicissitudes to the sum of $274,022 this yields the sum of $232,918. I therefore assess the plaintiff's damages for future loss of earning capacity in the amount of $232,918.

The value of past loss of employer funded superannuation contributions can conveniently be identified by use of a rule of thumb calculation by applying a factor of 11 per cent to past net loss of earnings to reflect the value of past superannuation losses : Ghunaim v Bart [2004] NSWCA 28. Accordingly, applying my finding that the assessed value of the plaintiff's claim for past net loss of earnings is in the amount of $57,786 and applying a factor of 11 per cent to represent the value of lost superannuation contributions, I assess the value of the plaintiff's past employer funded superannuation losses to be in the sum of $6356.

Consistent with my assessment of the value of past lost employer funded superannuation benefits I find that the plaintiff's losses should include the value of future employer funded superannuation benefits. Given that I have assessed the plaintiff's future loss of earning capacity at $232,918, applying the same method of calculation employed to assess the loss of past superannuation, namely a factor of 11 per cent on the net loss, I assess the value of the plaintiff's future employer funded superannuation losses to be in the sum of $25,621.

Submissions of the parties concerning the past care claim

The plaintiff makes a claim for the value of past domestic assistance provided to her on a gratuitous basis by members of her family from the time of her injury on 24 February 2005 injury until the commencement of the trial. The plaintiff has submitted that this claim should be quantified in the sum of $64,778.

The defendant disputes the extent of the plaintiff's entitlement to damages for past domestic care services and does so on a number of bases. The defendant has firstly submitted that the claim ought to be limited to the period between 29 November 2005 and 9 May 2006, a period of 23 weeks which does not meet the statutory threshold provided by s 15(3) of the Civil Liability Act 2002. If that submission is correct, the plaintiff's claim for past care does not warrant monetary assessment in damages. Secondly, the defendant has submitted that the plaintiff has had no need for such services.

Analysis and assessment of the claim for past domestic services

The plaintiff and her father each gave evidence of the nature of the services that were provided to her following her injuries. In broad terms, the plaintiff's evidence was that she had been provided with a range of past services. The plaintiff also gave accounts of those services to the experts who examined her.

Whereas before her injury the plaintiff had no difficulty coping with her hands or coping with the running of her household this ability to cope did not continue after her injury. The very nature of the injuries to her hands, the disabilities that flowed from those injuries and the physical nature of the work of running a household meant that her need for domestic assistance was readily understandable. Given that the plaintiff's work as a cleaner was the subject of medical opinions as to recommended restrictions on her work fitness, I consider it is reasonable to infer from that medical evidence that such restrictions also applied to the domestic tasks and activities of running a household. Before her injury the plaintiff had a very tidy home and was houseproud. This was without doubt due to applied effort on her part which she was no longer able to fully continue and this work needed to be undertaken by others lending assistance to her. That assistance was variously provided by the plaintiff's parents, her two daughters and, until early 2007, her partner.

The assistance that was provided extended to meal preparation and cooking, washing up, washing of laundry, ironing, bed making, moving mattresses, moving things around, vacuuming, cleaning the bathroom and kitchen, cleaning the house generally, tidying up, dusting surfaces, some gardening/lawnmowing, shopping, driving the plaintiff to various appointments for treatments and the like. As would be expected with the running of the household, these tasks and activities would require attention and time on an as need basis not always in accordance with a regime or entirely predictable timetable. Nevertheless, there is no doubt that these tasks required time and I accept that the plaintiff needed assistance for these tasks to be given the required attention for completion.

The plaintiff's evidence was that domestic services had been provided to her in respect of four separate periods. The first period was in the immediate aftermath of her injury on 24 February 2005 and which continued up until the time when she had her carpal tunnel surgery on 29 November 2005. The second period was immediately after that surgery and until she returned to work on 29 January 2006. The third period was from 29 January 2006 until when the plaintiff moved out of her home in about June of 2007 and when she commenced to live in the garage that was an annexe to her parents' home. The fourth period was from June 2007 and which continued until the commencement of the trial.

In giving consideration to the quantification of this component of the plaintiff's claim for damages it must be recognised that claims for damages of this type are almost always difficult to assess with precision because such assessments are rarely accurately reconstructed from diaries or records. Instead, as is evident in this case, the detail of the claim is reconstructed from recollection and this requires that the claim be assessed, including in the light of the expert evidence, taking into account considerations of reasonableness.

Of the expert opinions that touched upon the issue of past domestic services I consider that the report dated 20 April 2007 from the occupational therapist Ms Davidson provides the most detailed, useful and analytical insight into the plaintiff's need for such assistance. I consider that Ms Davidson has appropriately analysed the detail and extent of the care and assistance provided to the plaintiff into five separate periods between the date of the plaintiff's injury until the date on which she issued her report. I propose to slightly modify Ms Davidson's division of the time periods for her analysis to first avoid a minor potential for overlap in the dates that delineate the periods and secondly, to reflect the fact that in June 2007, the regime summarised by Ms Davidson necessarily changed when the plaintiff moved out of her own home in order to live in a garage situated at the home of her parents.

In my view the five periods analysed by Ms Davidson broadly and sufficiently equate with the four separate periods identified in the plaintiff's evidence. This is not surprising since Ms Davidson obtained the basis for her analysis from interview, observation and testing of the plaintiff at her home on 31 March 2007.

In analysing Ms Davidson's tabulation of the estimated hours of domestic assistance provided to the plaintiff I propose to round down the hours of assistance that she has estimated in order to allow for possible overlap as well as in recognition of the fact that in this case the exercise is not capable of precise assessment. For the purpose of my analysis I also propose to combine two of the contiguous periods that were identified by Ms Davidson as they are not materially different. I also propose to add a modification within the overall framework in respect of an additional period of analysis between June 2007 to the date of the trial. I consider that in this latter period there would have been a reduction in the number of hours of assistance required by the plaintiff following her move to live at the home of her parents. That modification is required in order to fairly reflect the events that have occurred after Ms Davidson had prepared her report.

Accordingly, the periods for estimation of domestic care services as identified by Ms Davidson, and as modified by me to reflect an additional period between June 2007 and the trial as outlined above are: (a) Between 24 February 2005, which was the date of the plaintiff's injury, and 20 November 2005, which is just nine days before the plaintiff underwent carpal tunnel surgery; in this time Ms Davidson estimated the time required by the plaintiff for domestic assistance at an average of 16.78 hours per week;

(b) Between 20 November 2005 to 20 December 2005, during which time the plaintiff was waiting for her operation at a time when the condition of her wrists was acute and she needed a greater level of care (9 days) and then recuperating from the surgery (3 weeks); in this time Ms Davidson estimated the plaintiff's domestic assistance needs at 22.03 hours per week;

(c) Between 20 December 2005 to 15 March 2006; in this time Ms Davidson estimated the plaintiff's domestic assistance needs at 17.28 hours per week;

(d) Between 15 March 2006 and 27 December 2006; in this time Ms Davidson estimated the plaintiff's domestic assistance needs at 17.03 hours per week;

(e) Between 27 December 2006 to say 1 June 2007; in this time Ms Davidson estimated the plaintiff's domestic assistance needs at 12.28 hours per week. I have selected the date of 1 June 2007 to reflect the probable date the plaintiff moved to live at her parents' home, this date being the assumption that is most favourable to the defendant;

(f) Between 1 June 2007 and the commencement of the trial on 11 November 2008 I consider that the 12.28 hours per week in period (e) above would in all likelihood have been reduced but the care and assistance to the plaintiff would have continued as in that time her condition had not improved. Doing the best I can to reflect these circumstances for the purposes of assessment I have adjusted the hours estimated by Ms Davidson from 12.28 hours per week to an allowance of 7 hours per week. This is the equivalent of 1 hour per day which I consider to be reasonable, having regard to the plaintiff's own evidence of her restrictions and the medical evidence I have accepted concerning such restrictions. Although there is no precise evidence on which to calculate such reduced hours I consider that the evidence justifies that an estimate be undertaken despite that lack of evidence : State of New South Wales v Moss [2000] NSWCA 133.

Whilst I find that Ms Davidson's estimates of the hours required for domestic assistance to be reasonable having regard to the tasks she described, and whilst I accept that her estimates form a reasonable and proper basis for assessing the monetary value of this head of damage, I also recognise that her estimates should be adjusted and rounded down by a small measure to allow for the possibility of overlap of estimated times and in order to recognise the inherent imprecision of the assessment process. I therefore adjust Ms Davidson's estimates into 5 periods for assessment as follows: (i) Between 24 February 2005 to 20 November 2005 - 16 hours per week; (ii) Between 21 November 2005 to 20 December 2005 - 22 hours per week; (iii) Between 21 December 2005 to 27 December 2006, which combines periods (c) and (d) above - 17 hours per week; (iv) Between 27 December 2006 to 1 June 2007 - 12 hours per week; (v) Between 2 June 2007 to 11 November 2008 - 7 hours per week

Using the rates for assessment of the value of gratuitous domestic care services as is from time to time prescribed by s 15(4) of the Civil Liability Act 2002, I have undertaken the required calculations in respect of the 5 periods as listed in (i) to (v) above. These calculations appear in Tables 1, 2, 3, 4 and 5 which are annexed to these reasons.

The effect of those calculations is summarised in the following tabulation:

Period Hours per week Quantum Quantification source 1. 24.02.2005 to 20.11.2005 16 Table 1 $12,931 2. 21.11.2005 to 20.12.2005 22 Table 2 $1,973 3. 21.12.2005 to 27.12.2006 17 Table 3 $19,375 4. 28.12.2006 to 01.06.2007 12 Table 4 $5,932 5. 02.06.2007 to 11.11.2008 7 Table 5 $11,895 $52,106

Again, recognising this process of assessment has its imperfections but also recognising that a reasoned and reasonable approach to the task is required, I round the foregoing calculation of $52,106 down to $50,000. I therefore assess the plaintiff's damages for past domestic assistance in the sum of $50,000.

Submissions of the parties concerning future care claim

The plaintiff has submitted that an allowance should be made for 20 hours per week for future paid domestic care services at the rate of $35 per hour.

The defendant has submitted that the plaintiff's future care claim is exaggerated and submits that no allowance should be made for this item as the plaintiff's needs do not meet the threshold required by s 15(3) of the Act.

Analysis and assessment of the claim for future domestic services

In the context of a consideration of the defendant's submission that Ms Davidson's estimation of the plaintiff's claim for future domestic care services was exaggerated, it is pertinent to have regard to the unchallenged evidence of Dr William Bye, the orthopaedic surgeon whose report was tendered by the defendant as Exhibit "J". It is plain from page 8 of Exhibit "J" that the solicitor for the defendant requested that Dr Bye make three very specific enquiries of the plaintiff concerning her claim for damages for gratuitous care at the time he conducted his examination of her on 15 July 2008.

The first question the solicitor for the defendant asked of Dr Bye was that he investigate who had provided the plaintiff with such assistance. Dr Bye recorded the result of his enquiry in this regard as being that until the end of 2006 these services were provided by the plaintiff's daughter and since the end of 2006 the services were provided by the plaintiff's parents.

The second question the solicitor for the defendant asked of Dr Bye was as to the nature of the assistance that had been provided to the plaintiff. Dr Bye recorded the result of his enquiry in this regard as being that the services provided to the plaintiff were mainly in terms of domestic assistance activities such as carrying out the washing, hanging the washing, providing meals, shopping and vacuuming.

The third question the solicitor for the defendant asked of Dr Bye concerned his opinion on the number of hours and duration of that assistance. Whilst Dr Bye stated that in this regard he was not able to provide an opinion on the number of hours required by the plaintiff I nevertheless find it relevant and instructive that he stated he anticipated that this assistance would be at least four hours on a daily basis. On that formulation the provision of 4 hours of care per day is the equivalent of 28 hours per week.

The starting point for the analysis of the plaintiff's claim for damages for future domestic assistance is the plaintiff's evidence that before her injury she was completely independent in all tasks involving self-care concerning the activities of daily living and was able to attend to any domestic tasks that were required of her. This evidence was supported by the evidence of her father, Mr Joseph Schneider. His evidence was not challenged or contradicted and I accept it. Although before the plaintiff's injury the domestic tasks required to be done in her household involved a division of labour between herself and her partner at the time, that was an arrangement by choice rather than of necessity and it no longer applied because that relationship broke down following the plaintiff's injury and she presently resides in much more limited accommodation at the home of her parents.

I consider that the plaintiff's future domestic assistance needs should not be assessed on the basis of her present and rather limited living circumstances. I consider this to be the case because the plaintiff will not always live in such straitened and undignified circumstances. On the contrary, I consider it highly probable that very soon after she receives the damages that will be awarded to her in these proceedings she is likely to take steps to re-establish her former independent lifestyle rather than to continue to live with her elderly parents who are themselves not in the best of health, one of them already being in need of assistance with day-to-day tasks due to disability. For these reasons I consider it to be unreasonable to make an assessment of the plaintiff's future domestic assistance needs on the basis of her present living arrangements. When she does resume independent living, I consider that she will need a greater allowance of hours per week than the 7 hours per week that have been allowed in respect of the past care she has received in the 17 months immediately before the trial

In assessing the plaintiff's future domestic care needs it is necessary to review the medical opinions that deal with her capacity to carry out physical tasks. In this respect there is some degree of overlap or an inter-relationship between the plaintiff's inability to carry out work activities and her inability to carry out domestic tasks, particularly since she was working as a cleaner when she was injured.

On 15 July 2008 the defendant's orthopaedic consultant Dr Bye expressed the opinion that the plaintiff could only perform self-care activities but was not able to perform her home duties. With the qualification that could not prescribe the number of hours required, he anticipated that the plaintiff would need at least 4 hours of assistance on a daily basis.

On 30 October 2008 her current general practitioner Dr Ciardi expressed the view that the plaintiff was totally unfit to work as a cleaner. I infer from the nature of cleaning work that this opinion would apply to significantly limit the plaintiff's fitness and ability to perform domestic activities. Dr Ciardi based that view on the plaintiff's physical disabilities as well as a consideration of her mental state.

On 10 November 2008 the consultant surgeon Dr Patrick reviewed and updated his comprehensive list of the plaintiff's presenting symptoms including problems with back pain, frequent pins and needles and a burning sensation, neck pain and stiffness, some residual shoulder stiffness, difficulty using her arms overhead, becoming easily tired and difficulty with heavier categories of tasks both inside and outside of her home. In Dr Patrick's opinion the plaintiff was totally incapacitated for all work and was essentially unemployable. I infer from the terms of this opinion that it also extended to the limits on the advisability of the plaintiff performing domestic activities. Importantly, Dr Patrick agreed with the conclusions and recommendations of Ms Davidson, the occupational therapist who assessed the plaintiff's home situation and set out her recommendations for domestic care assistance for the past as appears between pages 8 to 11 of her report.

Those recommendations included commonplace activities such as meal preparation, clearing up and washing up afterwards, washing of clothes, shopping, mopping floors, cleaning the bathroom, vacuuming, gardening, some home maintenance, window washing, minor repairs such as the curtains and assistance with transport. The list was not comprehensive. For example, it did not include matters such as attending to the making of beds, washing and changing bed linen, ironing, folding, stacking and storing of other items of washing, dusting, spring cleaning, decorating, moving furniture, lawnmowing, sweeping and car washing to name but a few additional items that arise for consideration on a common sense analysis of what goes on in the running of a household. The plaintiff said that she tries not to do anything that causes pain. I infer from the tasks listed above that they all have the capacity to cause her pain and this is a matter that is relevant to an assessment of her need for future domestic assistance.

I reject the defendant's submission that Ms Davidson's estimates in respect of time spent on the plaintiff's past care needs was exaggerated. I do so for two reasons. First, the detail of the described tasks seem to me to be reasonably estimated and I consider the estimated times allowed for the tasks to be generally and inherently reasonable. Secondly, I consider that the endorsed approval by Dr Ciardi of Ms Davidson's recommendations is an important indicator because Dr Ciardi, as the plaintiff's treating general practitioner familiar with her circumstances, is in a good position to gauge those needs. I therefore consider his endorsement of Ms Davidson's recommendations to be most significant.

It is also relevant to note that on 27 October 2006 the rehabilitation consultant Dr Assem recorded a history pins and needles sensation that was aggravated by repetitive upper limit activities. In particular the aggravation was described as occurring when changing bed sheets, cooking, cleaning or vacuuming, and when weeding the garden which required that this be limited for three minutes at a time. Dr Assem stated that the plaintiff's work capacity at that time was limited to work involving heavy lifting more than 10 kg, repetitive or sustained upper limb activities above shoulder height.

On 4 July 2008, and amongst other complaints of difficulties, Dr Dalton noted a history of wrist, arm and chest symptoms provoked by writing and gripping with the right-hand and also being triggered by gripping tightly, peeling vegetables and pegging clothes on the line. He also noted a history of symptoms of neck, shoulder and back symptoms on reaching with right arm. Notably, Dr Dalton specifically excluded from his analysis of the effect of psychological factors and on the basis of his findings of normal motion, strength and upper limb function. On this limited and incomplete analytical premise he stated that the plaintiff had no ongoing need for domestic care assistance resulting from her injury.

On 15 July 2008 Dr O'Neill accorded a history of continuing inability to work "from around the time of the fall" and experiencing "stabbing pains in the biceps" with simple tasks such as pegging out the washing. He recorded a complaint of pain in the wrists up into the arms and chest on trying to perform repetitive tasks with her hands such as when peeling potatoes. He also recorded a history of knife dropping. Although Dr O'Neill noted a history of the plaintiff's reliance on her parents for day-to-day living and stated that he found no reason as to why the plaintiff needed domestic assistance. Significantly, he also acknowledged that he did not ask her specifically about domestic assistance.

The defendant placed great reliance upon the latter comments from Dr O'Neill to support its argument that the plaintiff did not need domestic assistance.

On reviewing the medical opinions relevant to the issue of domestic assistance I find that Dr O'Neill's opinion upon which the defendant relies lacks probative value because that opinion was not based on an appropriate factual foundation as would be expected where the opinion giver had beforehand taken the time and opportunity to inform himself on the issue under consideration by asking the plaintiff relevant and detailed questions in order to obtain a relevant insight and to place himself in a reasonable position to be able to give an informed opinion on an important issue such as future domestic assistance. Since Dr O'Neill did not do so, I consider that I should reject his opinion on the issue of future domestic assistance.

Faced with competing bodies of expert opinion on the issue of whether or not the plaintiff requires future domestic assistance in circumstances where neither party called any medical witnesses to give oral evidence to explain the basis of their various opinions, I must do the best I can to evaluate the opinions in report form. Having considered the array of the medical evidence I prefer the reasoned opinions of Dr Bye, Dr Ciardi and Dr Patrick to those of Dr Dalton and Dr O'Neill. In the case of the report of Dr Dalton, I have come to this view because his opinion has not included an evaluation of the significance of the plaintiff's accident related psychological problems. In that sense I consider that the opinion lacks appropriate balance in dealing with the psychological matters relevant to forming a probative opinion on the plaintiff's domestic care needs. In the case of Dr O'Neill's report, I have already indicated that I have rejected his views because he has not relevantly questioned the plaintiff on the issue of her domestic care needs and I therefore consider his report to lack probative value on the issue.

This then leaves me to consider the opinions of Dr Ciardi, Dr Patrick and Dr Bye, all of whom have in my view expressed inherently reasonable views which I prefer and accept compared to the opinions of Dr Dalton and Dr O'Neill.

Turning then to the issue of quantification of the claim for future domestic assistance I consider the estimate of 20 hours per week as was submitted on behalf of the plaintiff to be a reasonable allowance for this need. I have come to this view not only because of my impression of the inherent overall reasonableness of those estimated hours for those tasks that have been identified, but also having regard to the medical evidence and opinions that I have cited and which I have reviewed in the foregoing paragraphs.

In considering the reasonableness of the claim for 20 hours per week domestic assistance I have tested it for reasonableness against the stated views of Dr Bye who considered the plaintiff would need "at least four hours on a daily basis" which is the equivalent of 28 hours per week. On the plaintiff's approach, namely 20 hours per week, the amount for projection is $700 per week. On an alternative approach adopting the views of Dr Bye, the amount for projection would be at least $980 per week. This process of comparative analysis reinforces me in my view that the amount claimed by the plaintiff is reasonable. I therefore assess the plaintiff's need for future domestic assistance to be 20 hours per week over her remaining lifespan. This is a little under an average of 3 hours per day. Given the nature of the tasks I have reviewed I consider this allowance to be reasonable.

In coming to that view I am satisfied that the plaintiff would not have needed such services to be provided for her had she not been injured. I base this finding on my acceptance of the evidence of Mr Schneider who stated that the plaintiff' functioned well before her injury and she had no need for such assistance before her fall. I also accept Mr Schneider's observation that from what he has seen of the plaintiff's functioning following her injury, she could not live independently because she cannot do everything that needs to be done in the domestic setting. I therefore find that the plaintiff has acquired an injury caused need for domestic services as claimed, such need arising solely because of the injury upon which this claim is based. I am also satisfied that such services would not otherwise have been required or provided to the plaintiff had she not been injured : s 15(2) of the Civil Liability Act 2002.

Assessment calculation for future at the domestic services claim

The assessment of 20 hours per week at $35 per hour is the equivalent of $700 per week. The projection of $700 per week at 5 per cent over the plaintiff's remaining life span of 37 years (x 893) yields the sum of $625,100. I consider that this sum should be discounted by 15 per cent for vicissitudes in this case. The resultant discounted sum is $531,355. I therefore assess the plaintiff's damages for future domestic care services in the amount of $531,355.

The plaintiff makes a claim for the cost of future treatment in the sum of $55 per week projected over 37 years at 5 per cent (x 893). This yields the sum of $49,115. The basis upon which that submission was made is that the plaintiff has been taking medication, namely, Panadol and Avanza daily and she has received medical treatment in the past and the need for that treatment is likely to continue into the future. Excluding the cost of surgery, the plaintiff submits that in the past, the cost of her treatment has been identified to have been incurred at an average rate of $55 per week.

The defendant submitted that the plaintiff should be awarded a buffer of the order of $5,000 on account of future out-of-pocket expenses.

A review of the evidence is required concerning the plaintiff's need for future treatment.

The plaintiff takes an average of about 45 Panadol tablets per week, which, when costed at the full rate of $15 per packet rather than at the $5 rate she pays on her parents' health care card, amounts to a cost of about $6 per week. The plaintiff presently takes one 45mg Avanza tablet daily but there is no direct evidence as to its cost. Although Exhibit "M" shows that up until 21 November 2007 the workers' compensation insurer paid the sum of $250.30 for pharmaceutical expenses this provides no insight as to how the historical weekly or monthly expenditure for pharmaceutical expenses has been incurred by the plaintiff.

The medical evidence in support of the plaintiff's claim for future treatment does not reveal much in the way of detail of the need or its cost. The plaintiff's treating general practitioner, Dr Ciardi considered Dr Virgona's report addressed to the solicitor for the defendant to be fair and accurate. Dr Virgona considered that the plaintiff's chronic pain disorder and sense of helplessness would benefit from long-term consistent psychological therapy to assist her to adapt to a life where she must learn to cope with pain. Dr Virgona identified the cost of a session of such treatment to be $200 but he did not elaborate on a suggested pattern of such consultations. In contrast, to the sessional cost identified by Dr Virgona Ms Davidson identified the cost to be $250 per session.

The reports of Dr Butler show that between 23 April 2007 and 26 June 2007, a period of some nine weeks, the cost of psychiatric treatment sessions incurred by the plaintiff was $1241 which is an average of $137 per week in that period. Apart from identifying the need for the plaintiff to continue to have regular psychiatric treatment with supportive psychotherapy along with antidepressant medication, in his last report Dr Butler did not define the recommended regularity of that treatment. 350. In his report dated 30 October 2008, Dr Ciardi gave consideration to Ms Davidson's report. His opinion was that her report was accurate, comprehensive and complete. On turning to Ms Davidson's report dated 20 April 2007 it is apparent that she referred to the need for at least 16 sessions with a psychiatrist at $250 per session totalling $4000. Because her estimate of the need for 16 sessions predates Dr Butler's recommendation I do not regard her report as being a necessarily reliable guide to frequency, particularly since Dr Butler's last recommendation, which refers to the need for regular treatment, rather than a fixed term of treatment or a fixed number of treatments, suggests that the plaintiff's need for such treatment is ongoing rather than limited to a fixed number of consultations as was the case with his first report in which he suggested 10 sessions at intervals of 1 to 2 weeks.

351. The state of the evidence does not permit any accurate insight into the plaintiff's future need to consult a general practitioner or treatment for pain relief concerning her injury related treatment needs. Given her ongoing complaints of a physical nature, the relationship of those complaints to the psychiatric diagnosis of pain disorder and the need for her to continue to see a psychiatrist it is clear that the plaintiff will probably need to see a general practitioner with some regularity if not to oversee and manage her medications then to at least refer her for specialist assessment and/or treatment as and when required, including at times of anticipated flare-ups and setbacks of her psychiatric symptoms, as was predicted by Ms Morrow.

352. On reviewing the reports of the clinical psychologist Ms Grant, her report of 28 August 2006 identified the fact that, as at the date she last saw the plaintiff, the plaintiff had received a total of five treatment sessions from her and had incurred fees for this treatment in the sum of $995.59 or $199 per session. In her report dated 3 March 2007, Ms Grant noted that between April 2006 and March 2007 the plaintiff had received 14 sessions of psychological treatment from her. This is the equivalent of an average of one session per month at $199 per session or approximately $50 per week for that period. Ms Grant noted that these sessions involved a number of elements including psycho-education and advice, pain and stress management training, sleep management and supportive psychotherapy. She also noted that the plaintiff had made limited progress psychologically, which suggested that the treatment was not complete. That comment, together with Ms Grant's opinion that the psychological prognosis was guarded, suggests that her need for such treatment will be ongoing and indefinite.

353. I am satisfied that the plaintiff will need the future treatment input from a general practitioner, from a psychiatrist and from a psychologist for a considerable period into the future, probably over the remainder of her life expectancy for the purpose of managing and assisting her to deal with the adjustment disorder, depression and her pain disorder. At present the plaintiff sees her general practitioner Dr Ciardi on a weekly basis. Once she settles into amore structure treatment and maintenance regime that frequency will probably lessen as the load is shared with other practitioners. In addition to treatment expenses the plaintiff will probably incur some travelling and pharmaceutical expenses. Exhibit "M" shows that in the period up to 27 August 2007 the plaintiff had already incurred some $4,266.88 in respect of travelling expenses which were reimbursed to her by the workers compensation insurer. I infer from such expenditure that it is likely that she will incur similar expenditure of that nature in the future.

354. I must make an attempt to estimate a reasonable allowance to cover such likely for future treatment notwithstanding that the evidence does not deal with the prescriptive detail of the plaintiff's needs in that regard : State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536. At the same time when attempting to estimate the incidence and cost of meeting that need I must take care not to be prescriptive without evidence : Stretenovic v Reed [2009] NSWCA 280 following Strinic v Singh [2009] NSWCA 15. Doing the best I can to identify a reasonable sum to cover the likely cost of future treatment that is fair to both the plaintiff and also to the defendant I consider that a lump sum buffer should be allowed for such expenditure in the global sum of $70,000.

355. I test the reasonableness of this sum by noting that it is the equivalent of about $80 per week over the plaintiff's future lifespan of a further 37 years. Although when assessing a buffer of this kind it is not strictly necessary to break-up the individual costing components, I foreshadow that the buffer should include allowances that would cover continuing medication costs of the order of $20 per week, travelling costs of the order of between $10 or $20 per week, and the balance allowing for the cost of unpredictable patterns of necessary consultations and treatment with general practitioners, psychiatrists, psychologists and other specialists at intervals at frequencies to be determined by the plaintiff's medical advisors.

356. To this sum I would make an additional allowance of $5,000 to cover the cost of installing a ramp and handrails at the place where the plaintiff will live, as is suggested by Ms Davidson. I do not propose to discount this additional allowance as I expected that the plaintiff will move back into her own premises within the a relatively short period after receiving her lump sum compensation or if not, I consider that as an alternative, it is it very likely that she would remain living at her parents home. In either case she will need to have these items installed for reasons of safety as suggested by Ms Davidson.

357. I therefore assess the plaintiff's damages for future treatment and allied expenses in the amount of $75,000.

358. The parties are agreed that out-of-pocket expenses comprising some $39,499 have been paid by the workers' compensation insurer, Allianz and the sum of $2477 has been paid by Medicare. The total of these two amounts is $41,976. I therefore assess the plaintiff's damages for past out-of-pocket expenses in the amount of $41,976.

359. My assessment of the plaintiff's damages is summarised as follows:

(a) Non-economic loss $180,000 (b) Past loss of earnings $57,786 (c) Fox -v- Wood $3,359 (d) Future loss of earning capacity $232,918 (e) Past loss of superannuation benefits $6,356 (f) Future loss superannuation benefits $25,621 (g) Past domestic care services $50,000 (h) Future domestic care services $531,355 (i) Future treatment $75,000 (j) Past out-of-pocket expenses $41,976 Total $1,204,371

360. I have found that the plaintiff has succeeded on the issue of whether the defendant was in breach of its duty of care it owed to the plaintiff and was therefore negligent. I have found that such negligence was the cause of the plaintiff's injury. I have found that there that there was no contributory negligence on the part of the plaintiff. I have assessed the plaintiff's damages in the sum of $1,204,371.

361. My assessment of the culpability of the plaintiff's employer, if sued, is 35 per cent. Applying the effect of s 151Z(2) of the Act, the plaintiff's verdict of $1,204,371 must be reduced by that percentage to the amount of $782,841 which is an amount in excess of the ordinary jurisdiction of the Court. In the absence of the filing of a memorandum of consent to the unlimited jurisdiction of the court pursuant to s 51(2) of the District Court Act 1973, any judgment in favour of the plaintiff must be limited to the amount of $750,000.

362. I make the following orders:- (a) Verdict for the plaintiff; (b) Damages are assessed in the sum of $1,204,371; (c) After applying a discount of 35 per cent to reflect the findings made pursuant to s 151Z(2) of the Workers' Compensation Act 1987 I adjust the plaintiff's verdict to the sum of $782,841; (d) I direct the entry of judgment for the plaintiff in the amount of $750,000; (e) The defendant is to pay the plaintiff's costs; (f) The exhibits may be returned; (g) Liberty to apply on 7 days notice if further orders are required, including any application by the plaintiff to have the amount of the judgment varied to an amount beyond $750,000, pursuant to s 51(2)(b) of the District Court Act 1973 by reason of s 51(4) of that Act.

WEEKLY HOURLY HOURS PERIOD WEEKS s 15(4) s 15(4) PER WEEK AMOUNT RATE RATE

1. 24.02.2005 to 20.05.2005 12.14 $836.10 $20.90 16 $4,059.61
2. 21.05.2005 to 19.08.2005 12.85 $862.70 $21.56 16 $4,432.73
3. 20.08.2005 to 20.11.2005 12.85 $863.80 $21.59 16 $4,438.90 $12,931.24

WEEKLY HOURLY HOURS PERIOD WEEKS s 15(4) s 15(4) PER WEEK AMOUNT RATE RATE

1. 21.11.2005 to 20.12.2006 4.14 $867.00 $21.67 22 $1,973.70 $1,973.70

WEEKLY HOURLY HOURS PERIOD WEEKS s 15(4) s 15(4) PER WEEK AMOUNT RATE RATE

1. 21.12.2005 to 17.02.2006 8.28 $867.00 $21.67 17 $3,050.26
2. 18.02.2006 to 15.03.2006 3.57 $856.30 $21.40 17 $1,298.76
3. 16.03.2006 to 19.05.2006 9.14 $856.30 $21.40 17 $3,325.13
4. 20.05.2006 to 18.08.2006 12.85 $872.20 $21.80 17 $4,762.21
5. 19.08.2006 to 17.11.2006 12.85 $879.50 $21.98 17 $4,801.53
6. 18.11.2006 to 27.12.2006 5.57 $903.40 $22.58 17 $2,138.10 $19,375.99

WEEKLY HOURLY HOURS PERIOD WEEKS s 15(4) s 15(4) PER WEEK AMOUNT RATE RATE

1. 28.12.2006 to 17.02.2007 7.28 $903.40 $22.58 12 $1,972.58
2. 18.02.2007 to 18.05.2007 12.71 $905.50 $22.63 12 $3,451.52
3. 19.05.2007 to 01.06.2007 1.85 $916.20 $22.90 12 $508.38 $5,932.48

WEEKLY HOURLY HOURS PERIOD WEEKS s 15(4) s 15(4) PER WEEK AMOUNT RATE RATE

1. 02.06.2007 to 17.08.2007 10.85 $916.20 $22.90 7 $1,739.25
2. 18.08.2007 to 16.11.2007 12.85 $912.60 $22.81 7 $2,051.75
3. 17.11.2007 to 15.02.2008 12.85 $920.60 $23.01 7 $2,069.74
4. 16.02.2008 to 16.05.2008 12.71 $904.70 $22.61 7 $2,011.61
5. 17.05.2008 to 11.11.2008 25.42 $904.70 $22.61 7 $4,023.22 $11,895.57

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