Bartels v Bankstown City Council [1999] NSWCA 129

Brodie v Singleton Shire Council (2001) A Tort Rep 81-607

Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1

1 COMMISSIONER GREAVES: On 11 October 2000, the plaintiff suffered injury to her right ankle at the Fred Mann Oval in Mosman Park. The defendant is a municipality constituted under the Local Government Act 1995. The defendant was the occupier of the oval and the oval constituted "premises" for the purposes of the Occupiers' Liability Act 1985, while the plaintiff was at all material times a person entering on those premises within the meaning of s 4(1) of that Act.

2 On 11 October 2000, the plaintiff was assistant to the coach of the Claremont Police and Citizens Youth Club T-ball team. By par 3(b) of the amended statement of claim, the plaintiff alleges that at approximately 4.45 pm whilst running from first base to second base on the Fred Mann Oval the plaintiff stepped in a hole, as a result of which she suffered injury to her right ankle. By par 3 of the amended defence, the defendant denies the allegation that the plaintiff stepped in a hole and denies the existence of the hole. By par 7 of the amended defence, the defendant denies the plaintiff suffered injury as a result of its negligence or at all. The defendant alleges in par 8 of the amended statement of defence that if the plaintiff suffered injury, such injury and loss was contributed to by the plaintiff's own negligence.

3 In her statement (exhibit 3), the plaintiff explains she contacted the defendant to book the Fred Mann Oval for T-ball training for the 2000 - 2001 season on 22 September 2000 on behalf of the Claremont PCYC. She says by 11 October 2000 the PCYC had marked the T-ball diamonds on the oval. That day was the first training day of the season. There were 13 children at the session together with a number of parents assisting. The plaintiff explains how the T-ball diamond is marked with lines running directly between first and second base, along which lines the players are required to run. At par 81 of the exhibit 3, the plaintiff continues:

"81. I was running between first and second base within the line of play at full speed and being chased by a fielder who was trying to tag me.

82. Just over half way between the two bases my foot went down a hole, which gripped either side of my shoe.

83. I fell forward and my weight shifted from side to side as I fell to the ground in excruciating pain trying to get my foot loose.

84. I remember screaming from the pain to the point that it caused distress to the kids."

4 At T27, the plaintiff explained again what occurred on 11 October 2000 in this way:

"Yes. I was running flat out. I wasn't looking at the ground because I was actually teaching the children to what we call tag and when my foot went in the hole it was only not much wider than my shoe, so it actually gripped both sides of my shoe in the hole, so it caused me to go forward - because I was travelling forward - forward and a rocking side to side. My foot went down the hole to about up to my - past my ankle. It's actually just wider than my running shoe."

5 The plaintiff went on to say (T28) the hole was about 6 to 8 inches deep and continued:

"It was - you could see the top of the hole but it was slightly grassed over the edges, so it's sort of like a little bit of a volcanic look, in a dip."

6 The plaintiff was then asked whether she recalled seeing the hole before the accident and she replied:

"I was actually concentrating on the field of play. My eyes were up looking around, what was happening in the game. I wasn't looking down for a hole. I wouldn't think there would be a hole in play. No."

7 At par 94 of exhibit 3, the plaintiff says for five to six weeks after 11 October 2000 she and others had to fill the hole with sand prior to training sessions. She says eventually the defendant dug out around the hole, compacted the ground and repaired the turf completely. The two photographs, one taken on 14 October 2000 and one taken approximately six weeks later after the ground had been repaired became exhibit 4.

8 In cross-examination, the plaintiff said (T49):

"I was looking at the field of play. I was being tagged by a fielder. That was the initiation I had done with the training. I was running, someone was fielding the ball coming to tag me out, that's what we were doing. There was another parent on base. I was looking directly to get on base and watching the other people in play. I wasn't looking on the ground."

9 The plaintiff said (T50) the hole was grassed over the edges. She said (T51) the hole was visible when her foot had been in it because it had pulled up the grass. She said (T52) if the defendant's staff had inspected the diamond area "they may have found the hole".

10 Mr Dolph Zink gave evidence in exhibit 12 that as a member of the PCYC committee, he was responsible for line marking at the Fred Mann Oval. He said he measured and set out the diamonds after which contractors marked the lines. He did not see the hole prior to 11 October 2000. On that day, he observed a slightly raised area of about one square metre. He continued (par 31):

"There was a hole in the middle about the size of an adult foot and about 7 - 8 inches deep.

I can't be certain about the depth of the hole but it was definitely big enough for an adult foot with a sneaker type shoe to fit into.

As this hole was largely grassed over it was almost disguised with grass and was not apparent until after Di Tait's injury.

After the accident I contacted the council and advised them of this problem area.

I met with the Work's Supervisor the morning after Di's injury and he expressed the view that the hole in the surface was probably caused by work on the reticulation pipes underground where the soil had not been properly levelled off and compacted afterwards.

He went on to say he would get his people onto rectifying it.

This eventually happened after a few weeks and after further complaints from PCYC committee."

11 In cross-examination, Mr Zink said (T123) he observed "a broad mound with a hole in the top. He said the hole was not visible from a distance. He said (T125) it was not the practice of umpires and coaches to inspect the ground prior to training. He said:

"... the assumption was that the sports ground was in fit state for children sports' use."

12 He agreed (T126) the photographs (exhibit 4) do not reflect the raised area or broad mound. He said it was "low and broad". He continued:

"Larger than a human foot. In terms of length, probably the length of a human foot wide and in all terms more than 6 inches deep."

13 He believed the hole had not been filled in when he first saw it. He said it was filled in after the accident and he topped it up repeatedly for the next few weeks until the area was repaired. Mr Zink said (T128) in his opinion, it was clear the hole presented a hazard. He clarified his evidence in par 33 of exhibit 12, where he states the hole was largely grassed over, at T129 where he said:

"... what was grassed over was the mound, mounded area. The hole in the centre was open and bare, so when it says the hole was largely grassed over, it wasn't. It was open and bare. It was the surrounding area that was grassed and leading up to it, disguised it from view from a distance."

14 The evidence of Yvonne Gillett in exhibit 13 was admitted by consent without cross-examination. At par 14 et seq of exhibit 13, Ms Gillett states:

"14. While Di was running between first and second base I saw her foot go down into a deep hole.

15. This occurred a little over half way between the two bases.

16. I heard a noise, like something cracking, she then went down.

17. The hole was in the direct path of someone running between the two bases.

18. The hole was 6-8 inches deep, and about 12 inches wide."

15 Ms Gillett goes on to say the hole was filled with sand after the accident and thereafter was continually filled prior to training until the area was repaired. The evidence of Mr Richard Holmes was also admitted by consent without cross-examination in exhibit 14 where he states:

"7. We filled a standard plastic builder's bucket, with a capacity of approximately 10 litres, with sand in order to fill the hole and prevent further injury.

8. It took well over half the sand from the bucket to fill the hole.

9. The hole was approximately 8-10 inches deep, and 8-10 inches wide.

10. It was certainly deep enough for a persons foot to fit into.

11. The hole looked as though it was as a result of the removal of a sprinkler in the ground."

16 In relation to liability the defendant called its executive manager of technical services, Mr Martyn Glover, to give evidence. He said he would previously have been known as the shire engineer. He said the defendant occupies some 38 named parks (T133). He said the Mann Oval is the oldest oval in the Town of Mosman Park and is generally used for junior sports. He said (T134) the T-ball club pays the defendant about $880 a year for the use of the oval. He identified exhibit 10 (T135) as a page out of the defendant's maintenance manual. He said (T136) up to four staff and a specialist mower worked at Mann Oval. Their duties included those described in exhibit 10. He went on to describe the defendant's inspection procedures. He explained how the defendant's staff carried out repairs or arranged for contractors to carry out repairs where required. He also identified exhibit 15 as the defendant's monthly report about work carried out at the Fred Mann Oval. Finally, he referred to exhibit 16 which he said are computer printouts for activities conducted at the oval by the defendant's staff (T138). Mr Glover went on to explain that since October 2000, the defendant now engages contractors to carry out maintenance at the Fred Mann Oval. He described the duties of the senior works supervisor, Brian Bridge whose main activity he described as looking after parks and gardens (T140). He said he inspected the area quite some days after the accident. The hole had been filled with yellow sand.

17 In cross-examination, Mr Glover explained (T142) that council staff responsible for the Fred Mann Oval reported to a leading hand who reported to the senior works supervisor and ultimately to him. He said sprinkler heads frequently required replacement after damage through vandalism. Mr Glover stated there were no reticulation points near the hole. At T151 Mr Glover explained how the defendant's staff inspect the ground of the Fred Mann Oval visually (T151):

"All of the staff are directed. All the staff who are working on the site are directed to report any problems that are obvious on the ground and that's something they've done on a fairly regular basis. Examples are perhaps a build-up of the turf against the cricket pitch where through the winter years you put a rubber cover over the concrete cricket pitch, you get a build up of grass around the edges and the staff would report that that's above the concrete and we need to trim it off. If ever there's a sprinkler that's blown out then they would report that and we would repair that. Excessive wear in the goal squares - we would go and do repair work around that. Any number of issues they would report and they would report that back to their senior supervisor and the repairs would be carried out."

18 Mr Glover also stated that information provided to him suggested there was no reticulation line in the vicinity of the hole (T151).

19 The defendant called its senior works supervisor, Mr Brian Bridge. Mr Bridge referred to the report of the plaintiff's fall and continued (T157):

"I went down with the CEO and we had a look around and we couldn't find anything, couldn't find a problem."

20 Mr Bridge said on 12 October 2000 he visited the ground with Mr Zink who pointed out "a small indent in the ground". Mr Bridge said there were no reticulation pipes in the vicinity.

21 He said he had four men working in his crew. He gave evidence to the effect (T159) that the members of his crew knew their job and did not require direction. He said they carried out maintenance on the spot or reported repairs requiring attention to him. He said he saw an indent in the ground. He said it was not very big or very deep and was about the size of the base of the microphone. He continued (T160):

"Well, it wasn't very deep. It was just like a normal hole that you find on an oval, you know. Just an indent, that's all. It didn't seem to be anything significant, really but, I mean, you don't need anything significant to fall over at times. It didn't seem anything significant."

22 Mr Bridge said subsequently his staff levelled off the ground in the vicinity (T161).

23 In cross-examination, Mr Bridge said (T165) no member of staff had the specific task of inspecting the ground for holes amongst their duties. He denied holes developed in the surface of the ground from time to time, except in the vicinity of the reticulation system. He denied he told the plaintiff that otherwise such holes developed. In answer to my question (T168), Mr Bridge said Mr Zink's description of the hole did not fit with his recollection of an indent in the ground. He said (T171) it was not possible the hole had been filled in when he saw the indent in the ground. He said when he went back the next morning, he saw no yellow sand. He said he saw no hole 6 inches deep. He said there was no such hole.

24 Dr Ackland expressed the opinion at p 4 of exhibit 11 that there exists no Australian or International Standard that relates to the safe preparation and management of natural (turf) sporting surfaces. He adds:

"I believe that a safety audit ought to have been carried out by grounds staff prior to the start of the Tee-ball season in order to identify potential risks for the increased number of users of the oval. A close inspection of the playing surface and surrounding areas would have alerted grounds staff of the existence of this hole."

Did the plaintiff step in a hole on the Fred Mann Oval on 11 October 2000 as alleged?

25 The evidence of Mr Bridge was not put to the plaintiff and Mr Zink while the witnesses Gillett and Holmes were not required for cross-examination. On the evidence of the plaintiff and the witness Gillett, I find on the balance of probabilities the plaintiff stepped in a hole near the T-ball diamond on the Fred Mann Oval so that she fell and suffered injury as alleged. On the evidence of the plaintiff and the witnesses Zink, Gillett and Holmes I find the hole was 8 to 12 inches wide and 6 to 8 inches deep. I find the hole was located in a slightly raised mound of grassed turf and was clearly visible from above but not from a distance. I find the hole did not occur in the vicinity of the reticulation system. Otherwise, I find the evidence does not reveal the cause or causes of the hole, or when it first appeared.

Did the plaintiff and the defendant inspect the T-ball diamond on the Fred Mann Oval before play commenced on 11 October 2000?

26 On the evidence, I find the plaintiff did not inspect the ground in the vicinity of the T-ball diamond because she assumed the ground was safe for the purpose of junior sport.

27 I find the defendant at all material times exercised control over the Fred Mann Oval. I find the defendant knew at all material times the oval was used for junior sports including T-ball in which both children and adults were engaged. I find the plaintiff belonged to that class of persons. I find the defendant knew at all material times the plaintiff as a member of that class of persons would, while engaged in the activity of T-ball, from time to time run from one location to another on the T-ball diamond on the Fred Mann Oval, while the plaintiff was giving attention to the game. I find the hole was a potential danger to the plaintiff and the class of persons she belonged to.

28 I find the defendant did not inspect the ground in the vicinity of the T-ball diamond before play commenced on 11 October 2000. I find the defendant at all material times had a maintenance regime in place for the Fred Mann Oval. I find the maintenance regime did not expressly include regular inspection of the T-ball diamonds for the occurrence of holes in the ground surface. I find it would have been practical for the defendant's staff to carry out an inspection of the ground in the vicinity of the T-ball diamond on 11 October 2000 and at all material times in the course of undertaking their duties at the Fred Mann Oval. The defendant gave no evidence that such regular inspection was impractical or expensive. I find it is likely any additional cost of inspection was negligible in the context of the defendant's overall budget. Notwithstanding the evidence does not reveal the cause or causes of the hole, I have found it was clearly visible from above. There is no suggestion the hole was of recent origin, and I find it is very likely regular inspection of the ground in the vicinity of the T-ball diamond would have revealed the existence of the hole.

29 I turn to consider the liability of the defendant on the facts as I have found them in accordance with the authorities.

What was the duty of the defendant to the plaintiff?

30 In Brodie v Singleton Shire Council (2001) A Tort Rep 81-607, Gaudron, McHugh and Gummow JJ explain the duty of care of a public authority such as the defendant in this case at [102] of their joint judgment:

"The decisions of this Court in Sutherland Shire Council v Heyman, Pyrenees Shire Council v Day, Romeo v Conversation Commission (NT) and Crimmins v Stevedoring Industry Finance Committee are important for this litigation. Whatever may be the general significance today in tort law of the distinction between misfeasance and non-feasance, it has become more clearly understood that, on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance."

31 Thereafter their Honours considered the content and breach of such a duty at [150] and [151] of their joint judgment:

"The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent damages which might reasonably be suspected to exist.

The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case."

32 As Gleeson CJ observed in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 at [5] of his judgment, acceptance that a statutory authority, in the discharge of its functions, owed a duty of care to a person, or class of persons is only the first step in an evaluation of the authority's conduct for the purpose of determining tortious liability.

33 The ultimate issue for determination in the present case may be expressed as whether the defendant was in breach of its duty to the plaintiff. The determination of that issue requires the court to decide whether the defendant responded adequately to the risk of players such as the plaintiff being injured as the result of a hole in the surface of Fred Mann Oval like that the plaintiff fell into: see Bartels v Bankstown City Council [1999] NSWCA 129 at [50] per Sheppard AJA, with whom Priestley and Stein JJA agreed.

Was the defendant in breach of its duty to the plaintiff?

34 On the evidence and conclusions I have reached, in my opinion the magnitude of the risk the defendant exposed the plaintiff to on 11 October 2000 was such that it required the defendant to carry out regular inspection of the ground of the Fred Mann Oval and in particular the T-ball diamond prior thereto, which inspection, given the size of the hole in question would as I have found, very likely have revealed its existence. In my opinion, it was reasonably foreseeable in the circumstances as I have found them that if the defendant did not inspect the ground regularly, such a hole might result in injury to a player like the plaintiff. There being no other competing or conflicting consideration relevant on the evidence, I find the defendant was in breach of its duty to the plaintiff.

35 In my opinion, there is no evidence upon which the court should find that the plaintiff failed to take care of her own safety while participating in the T-ball event and no evidence the plaintiff failed to exercise that degree of care required of a prudent participant in the event, as pleaded.

36 Accordingly, I turn to the assessment of damages to which the plaintiff is entitled.

37 The particulars of the plaintiff's injuries and loss are pleaded at pars 6 - 12 of the amended statement of claim. By par 6 of the amended defence, the defendant denies the plaintiff suffered injury and loss as alleged and puts the plaintiff to proof of those injuries and loss.

38 I turn now to consider the evidence about the nature and extent of the plaintiff's injuries relevant to the assessment of damages for loss of amenities and loss of earning capacity. At par 6 of the amended statement of claim, it is pleaded that as a result of her fall, the plaintiff sustained the following injuries:

(a) Articular cartilage injury to lateral side of talar bone.

(b) Remnant of articular cartilage in her ankle joint.

39 On 15 March 2001 the sports physician, Dr Ken Fitch, reported in part (exhibit 1, p 5):

"The principal problems related to her right ankle are in her right talo-calcaneal (subtalar joint). This causes the ankle to remain unstable and will involve substantially different treatment including hydrotherapy, subtalar joint mobilisation and injection of the subtalar joint under Xray control. In addition, mobilisation of her ankle joint is necessary in an endeavour to restore the range of motion.

I am unable to predict how long such treatment will occupy or the likelihood of success."

40 The orthopaedic surgeon, Mr Greg Witherow, arthroscoped her ankle on 26 April 2001. He removed a loose piece of articular cartilage from the ankle joint. He reviewed the plaintiff on 6 August 2001. A repeat MRI showed there had been significant improvement in the surface of the plaintiff's ankle with decreased oedema within her talus. He expressed the opinion (exhibit 1, p 27) the plaintiff's ankle would improve and no further surgical intervention was necessary. He referred to the reflex sympathetic dystrophy secondary to the plaintiff's ankle injury and said it was extremely difficult to predict her future progress.

41 The evidence of the consultant physician in rheumatic diseases and sports medicine, Dr Ken Maguire (exhibit 1, pp 18 - 23) describes the development and history of the reflex sympathetic dystrophy of the right lower limb. In his report of 20 August 2003 Dr Maguire records he reviewed the plaintiff that day and says (exhibit 1, p 22):

"... She continues to have wasting of the right calf in comparison to the left. She still has pallor and coolness of her foot. Attempts to dorsiflex her foot are associated with severe pain over the anterior aspect of the ankle. There is still cutaneous tenderness. Range of motion for both inversion and eversion is reduced due to restriction in subtalar motion. She is (sic) still tends to walk with a limp. She continues to wear an ankle brace beneath her boots whilst walking and quite warm socks.

My concern is that she still has ongoing pain consistent with her sympathetic dystrophy and that consideration for more formal sympathetic surgical procedures needs to be considered in the form of a surgical lumbar sympathectomy. At present I have suggested repeating her bone scan to assess for overall activity in the various joints of the ankle and also a CT scan to assess for any progressive bony abnormalities. Thereafter consideration may need to be given for the surgical sympathectomy.

She is due to have her legal issues addressed early next month and hopefully this will resolved (sic) and enable her to proceed to further intervention."

42 Dr Jack Edelman reviewed the plaintiff prior to 4 June 2003 and reported on that day (exhibit 1 p 3):

"She obviously has marked problems with this right ankle and foot. She has had a previous arthroscopy on the ankle and has been seen by the Pain Specialists with a diagnosis of sympathetic dystrophy. She has also seen Ken Maguire.

She still has problems with this ankle, as I am sure she has related to you, with significant symptomatology. She also has been unable to undertake her normal occupation and appears to have lost a lot of income.

Added to this she is having problems with this right shoulder with problems in a painful arc distribution. This is from using the crutches. There is also discomfort in the mid thoracic area.

Her calf is indeed thinner on the right than the left. Her foot is cold. She lacks extension in that right ankle and has marked pain there. Inversion and eversion is decreased and she limps. She definitely has decreased shoulder abduction and internal rotation on the right today.

She still has significant problems related to this right ankle which is her major problem. I am sure we do have a regional pain syndrome there and I guess after 2 - 3 years there is probably very little that can be done. She is keeping herself as mobile as possible and using a TENS machine. I doubt really if she can do any more than this."

43 In his report of 12 March 2002 (exhibit 1, p 6), Dr Marcel Goodman expresses the opinion the plaintiff's history was more consistent with a diagnosis of post-traumatic sympathetic dystrophy. He did not contemplate intervention such as permanent sympathectomy. He said he supported the plaintiff's opinion she would obtain maximum benefit from therapy. He continues at p 2 of his report:

"Mrs Tait has restrictions related to discomfort and impaired movement of the right ankle which reduces her mobility, her ability to do housework as well as limiting her in sport and physical pursuits which were very much a part of her daily activity. She certainly is unable to coach T-ball as she was doing at the time of her injury. She was a netball player and the possibility of returning to this activity is extremely remote. I understand she was employed part time in sales and promotion and this contract was lost. Although this has been replaced to some extent she is limited at least for the present in a full ability to pursue a career, even one which does not involve complete physical fitness.

Mrs Tait tells me that as a result of using crutches she developed a painful and frozen left shoulder which has been treated by Dr Holt. I will not comment further on this except to say that this reduces her ability to do housework as well as carry out physical activities. Although there is a significant improvement, she may have a residual deficit and you will no doubt obtain more accurate information in regard to the prognosis of her shoulder problems."

44 For the defendant, Dr Alan Home saw the plaintiff on 5 November 2002. In his report of that day he reviews the plaintiff's history and the plaintiff's report of her symptoms. Following examination of the plaintiff, the witness reports (exhibit 1, p 14):

"Mrs Tait is a 41 year-old. She presented to the examination wearing a flexible ankle support and a copper ankle brace. These were removed prior to the history, to avoid local effects.

To inspection there is no abnormality at the right ankle or foot. In particular, there is no evidence of local swelling, subcutaneous oedema, autonomic or dystrophic change. Muscle tone in the right thigh is excellent, with the circumference of the right thigh 1cm larger than the left. By contrast, the right calf musculature is reduced in tone, with the circumference of the calf 2cm smaller than the left.

At the right ankle there is mild stiffness of active joint movement with loss of 20º dorsiflextion, 5º plantar flexion, and 20º inversion, compared with the left side.

Tenderness is reported to palpation overlying the anterolateral aspect of the ankle joint. There is no subtalar tenderness.

The right plantar arch is well maintained and is a little higher than the left. There is no abnormality of gait.

There is no clinical evidence of ligament instability.

Assessment

Mrs Tait presents with a history of sprain-type injury to the right ankle. It appears that she sustained injury to the ankle joint surface, given the MRI scan findings of 29 November 2000 and 2 August 2001.

Despite arthroscopic debridement Mrs Tait reports residual intermittent symptoms of mild severity. She describes an intolerance for running. There is mild residual stiffness in the joint.

In answer to your specific questions:

1. The extent of Mrs Tait's disability is mild. There is objective evidence of mild disability, with mild restriction of movement at the ankle joint and moderate calf muscle wasting.

2. I would assess the extent of permanent impairment at Seven Percent (7%) of the lower extremity, reflecting mild residual stiffness at the left ankle joint.

3. There is no ongoing clinical evidence of sympathetic dystrophy (chronic regional pain syndrome). That is, it appears that Mrs Tait has recovered from any autonomic or sympathetic dysfunction that she may have suffered in 2000/2001. Specifically, there is no objective clinical evidence of sympathetic dystrophy (complex regional pain syndrome) and in particular there is no clinical evidence of vaso-motor changes, sudomotor changes or trophic changes. Careful review of the investigations including technetium bone scan and MRI scans reveals no changes consistent with CRPS.

4. It is my opinion that Mrs Tait will experience difficulty undertaking previous work as an outdoor recreational industry guide.

I consider her fit for full-time work as a sales representative, sales assistant, clerk and all other forms of sedentary, semi-sedentary or light manual work.

Provided that her work does not require her to walk over uneven surfaces throughout the course of the day, to climb frequently, transfer heavy weights, or to work at unprotected heights, she is fit for full-time work."

45 The plaintiff describes the nature and extent of her injuries at par 104 et seq of exhibit 3 in the following way:

"As mentioned, the initial pain of the accident was excruciating.

Since sustaining the injury to my ankle it has effected (sic) all areas of my life and all the hobbies previously mentioned ceased immediately.

Basically, all of life's enjoyment ceased.

At the worst I could not weight bear at all. I was on crutches on and off for about 5 months after the accident.

The use of crutches caused shoulder pain and injury and I ended up having to have injections for the pain this caused.

I could not perform my daily duties such as washing, mopping and vacuuming. It sounds very trivial but these were very important things in my life. These duties to me have to be performed to keep my house in order. I couldn't even carry a washing basket.

Once my shoulders were gone I was pretty much immobile. I couldn't use my crutches and had to rely on everyone in my family to help me out.

At Christmas 2000 I couldn't even shop for my children because I was unable to walk and could not carry goods because I was on crutches.

In general this, together with the fact that I could not even maintain my house left me with no feeling of self worth.

I came off crutches in approximately February/March 2001 and had to go back on them once afterwards when I had the operation performed by Dr Witherow.

I applied for and was granted ACROD for 12 months, being 2 consecutive periods of a 6 month permit. I did not apply straight away because I felt like a fraud and that other people needed it more.

Instead I would drive around for ages looking for a parking space close enough because I couldn't walk far or carry the shopping. If I couldn't find a spot I would just go home.

For a long time I could not bear my ankle to be touched. To treat with acupuncture they would have to go through my left ankle, which transformed through the top of my head and directed to my right ankle.

I found that the acupuncture helped but then it became a chore to drive into Perth so often so I bought myself a TENS machine so that I could administer my treatment from home.

Driving has been difficult since the accident even though I have changed to an automatic car. I have found that changing gear and steering aggravates my shoulders. My right ankle is used for accelerate and brake so there is now way that I can avoiding using it if I need to drive. (sic)

I also have reduced confidence when driving because I do not have the strength to apply to (sic) brakes in an emergency.

Walking remains very difficult and I still cannot walk without pain.

I take pain killers to manage the pain when it becomes unbearable and I also need sleeping pills on occasion.

I take Reductil daily to control my weight because I need to keep this to a minimum to avoid pressure on my ankle. I have had to revert to taking weight control medicine as I am unable to exercise.

I have tried to exercise in the pool but even this aggravates my ankle from the kicking.

I wear an ankle brace permanently unless I am sitting for a long period. I have been wearing this since the accident.

I am in constant pain but some days are worse than others.

Mark has been working away on and off since we moved back to WA but moved away on a permanent placement in Dwellingup in Jan 2001.

I have had to rely heavily on my children and husband (when he is home) to maintain all the household chores.

Recently I have had to employ a cleaner who comes through once a fortnight and spends 3 hours doing the housework.

Emotional

I had Post-Natal Depression after the birth of Elizabeth but no other history of depression.

The post natal depression lasted for some time (I can't put a time on it) but it had definitely cleared up prior to accident.

I first discovered signs of depression in December 2000 when I was unable to shop for my kids for Christmas. This to me was the specific event in this regard.

My feelings were very low and I started to niggle at the children. I noticed that I became niggly and snappy at Mark also.

Everything seemed to be on top on me but I don't know how to explain it.

The love of life and everything that I enjoyed doing had gone so I felt quite vulnerable and low.

I didn't want to go out and didn't want to meet people.

Some days I didn't even want to get dressed.

Fortunately my business was from home as I do not feel I could have ever gone out into an office or the workforce and worked with other people.

It has directly effected (sic) my relationship with Mark because I feel ugly and useless. We have no sexual relationship and I have no sexual feeling toward him at all because of my view of myself.

We have talked about splitting up so this could also cost me my marriage.

I have felt that Mark has been happier with other people when he has been away on courses. People have tried to console me and tell me that it is not true, but I feel as though he would have a better life without me.

The children have noticed this as well which upsets me further.

I don't feel I can put the pressure on Mark to come home because he is irreplaceable to the school children. I don't feel that if he had the choice he would choose me over his work. I don't think it would be fair of me to put him in that position.

I am having to deal with raising the children and all the problems involved with this on my own and it is not easy when you are not in the best frame of mine (sic).

I have tried to put on a brave face for the whole time but it is getting too much.

In July 2003 I was on the verge of admitting myself to hospital as I felt that it was the only way out.

I have covered a lot up because I have always been seen as a strong person and everyone always comes to me for help.

I feel as though now I am in need no one is there for me.

There have been times when I thought that it would be easier not to be here, but I have never acted on these feelings.

There have been times when I just want to run away, give it all up and just say 'forget it'.

The only thing that I can compare it to is when I lost my parents, there is no other feeling like it. I have an overwhelming feeling of loss because of the way that this injury has effected (sic) my life.

The only thing that has kept me together has been my children, because I have to be there for them.

It is hard to explain what it is like going from a person who stands in front of a group teaching people how to nurture and feel better in themselves to being the person that I feel now.

I feel like a completely different person and I have lost the strength in my character.

I have always tried to think positive, that my ankle will get better and that there is a light at the end of the tunnel but now I just accept that this is how things are.

As time has gone on I feel my emotional state has got worse.

I tried to self-help for a long time by taking St Johns Wart and natural remedies but I found that these were not helping.

I am not taking Effexor daily which is an anti-depressant. I recently had a test which showed my quartsol (stress) levels were 485. My General Practitioner, Dr Pam Quartermass said that this was extremely high.

She even repeated the test because it was so high and she was worried that I could have had a tumour.

I have only consulted a psychologist for the first time in mid 2003 but could not go through opening up to another person.

However, I have disclosed all of this to my GP, Pam Quartermass, in length for the duration of my depression."

46 Counsel for the plaintiff asked her to compare herself to the woman she was in August - September 2000 and she replied: (T34)

"I have very low self-esteem. I don't feel I can face people as I used to within my work. I used to be a person who people could approach for help but, no, sometimes I don't feel like doing a lot and it's affected my family. I feel niggly at my children sometimes and it's because I just can't do the things that we used to do together."

47 The plaintiff was asked to describe the medication referred to at par 121 et seq of exhibit 3 at T38 and in exhibit 7. The plaintiff referred to par 128 of exhibit 3 she said she hired a cleaner about two months ago who works three to four hours once a fortnight at $27.50 per hour.

48 In cross-examination, the plaintiff said: (T57)

"Sympathetic dystrophy can come and go. One day it shows, another day it doesn't.

... I don't know whether I've still got it. It still does the discolouration but I couldn't say if I took my shoes off now it would be there, but maybe I've sat down tonight or tomorrow, it could be."

49 The plaintiff went on to say "everything" is wrong with her life at the moment (T58). She said she has had depression, she has family problems, walking remains difficult. She implied her relationship with her husband had deteriorated. She said he lives and works in Dwellingup.

50 In re-examination, the plaintiff said she had not made a full recovery from her ankle injury. She said it has got worse (T70). She said the range of movement in her ankle might satisfy the average person. She said she can no longer undertake exercise as a gymnast as she did prior to the accident (T70 - 71).

51 On the plaintiff's evidence and the medical evidence to which I have referred, it is difficult to determine the prognosis generally of the plaintiff's ankle injury. The evidence of the plaintiff in cross-examination suggests her symptoms of sympathetic dystrophy have improved to the extent that she was able to say she does not know whether she still has it. She continues to experience discolouration and tingling. Such improvement is consistent with the evidence of Dr Goodman who in March 2002 considered the plaintiff had post-traumatic sympathetic dystrophy. It is also consistent with the plaintiff's own assessment of the range of movement in her ankle joint which she considered might satisfy the average person but continued to prevent the plaintiff from undertaking the strenuous physical tasks of a gymnast and outdoor enthusiast. Finally, it is consistent with the evidence of Dr Home that there is no ongoing clinical evidence of sympathetic dystrophy (chronic regional pain syndrome). Dr Home expressed the opinion to which I have referred that the plaintiff's "mild stiffness of active joint movement" would result in her experiencing difficulty undertaking work as an outdoor recreational industry guide. While this opinion is relevant to the assessment of the extent to which the plaintiff's injury will or may be likely to truncate or compromise her earning capacity, it is also helpful in considering the prognosis generally of the plaintiff's injury. Given the emotional overlay for which the plaintiff's injury seems more likely than not to have been the catalyst, I think it is very likely the plaintiff will experience considerable improvement in her symptoms in the foreseeable future within the next five years to the extent that she will slowly increase her levels of physical activity.

52 I turn to consider the plaintiff's pre-accident capacity for employment and its likely duration prior to the injury. The plaintiff was born on 19 July 1961. She was 39 years of age on 11 October 2000. She was educated in the United Kingdom to the equivalent of year 12. She worked more or less continually on either a part-time or full-time basis, either in employment or self-employed in the years that followed. She worked in banking for nine years and as a flight attendant for three years prior to migrating to Australia. She has worked in a range of employment in Australia mainly, but not exclusively, linked to her background in sporting and outdoor activities. Subsequent to the birth of her two children, the plaintiff has rearranged her work activities to incorporate family and domestic responsibilities. Her employment history is set out at pars 4 - 52 of exhibit 3. Between 1993 and 1998, the plaintiff worked part-time three days for Wilderness Equipment. Part-time employment allowed her to attend to her domestic responsibilities and occasionally to facilitate outdoor programmes in the field. It appears the plaintiff ceased employment with Wilderness Equipment in 1998 to start her own business as Perth Outdoor Pursuits. She says at par 34 of exhibit 3 the business provided flexible hours and more importantly, allowed her to continue working in the outdoor industry. At par 37 she describes two large contracts she undertook. At par 40 of exhibit 3 the plaintiff continues:

"The programs paid anywhere from $550 day for overnight trips to $250 for day trips. I would choose about 10 programs a year from which I would receive approximately $35,000 net per annum.

I continued working in the Outdoor industry through Perth Outdoor Pursuits and I started working for Sunshades in May 2000. Sunshades line of business was sales of major sunglasses brands to retail outlets.

At Sunshades I worked as a Sales representative. I was running 11 sunglass ranges throughout all the Myers stores in Perth on a monthly refill and restocking basis.

I also had a series of self-generated accounts where my responsibilities were visiting the stores to establish new business, showing samples and generating sales.

I was paid by cheque on a monthly basis from Sunshades for both the self-generated and Myer business.

My income from Sunshades leading up to the accident are as follows:

(ii) August 2000 - $446.16 from Myer and $663.27 self-generated for work May to July.

(iii) September 2000 - $1,502.74 from Myer and $451.73 for self-generated work in August.

(iv) October 2000 - $2,214.58 from Myer and $28.95 self-generated work in September.

(v) November 2000 - $2,586.23 from Myer and $351.60 for self-generated work in October.

(vi) December 2000 - $849.00 for self-generated work in November.

All the above figures were over the busiest period for sunglasses.

My yearly projected income at Sunshades for the year following the accident is as per the projections outlined in Philip Mathews letter dated 11 March 2002.

With Sunshades I had control over my working hours as long as I fulfilled all of my responsibilities each month.

Importantly this gave me flexibility in my working hours and allowed me to maintain my outdoor activities and other working commitments through Perth Outdoor Pursuits.

At the same time as starting with Sunshades I also commenced employment as an Agent for Sherpa & Activ8. This involved attending outdoor retail shops and swim centres, surf clubs etc supplying them with equipment through Perth Outdoor Pursuits.

Therefore at October 2000 I had active employment in the following positions:

(a) An Outdoor Facilitator/Instructor running 7 and 10 day camps in the Kimberley and Victoria. The last trip I did prior to October 2000 was in August 2000 to the Kimberley.

(b) Running my business Perth Outdoor Pursuits, including agent work for Activ8 and Sherpa;

(c) Working for Sunshades as a Sales Representative.

To me, my largest source of income was the Outdoor Facilitating."

53 In evidence before me, the plaintiff referred to par 40 of exhibit 3 and said: (T20)

"No, that was my plan. It was the time in my life where I could actually keep going with what I'd done before because my children were old enough then to be left with a nanny and so my choice was that length of programs. There were obviously more available but that's as much as I wanted to do at the time."

54 The plaintiff went on to say she expected to undertake five or six trips of seven to 10 days duration each year. In relation to par 47, the plaintiff said (T23) her income from Sunshades was growing prior to the accident. On the evidence of the plaintiff it seems reasonable to conclude that she hoped to increase her business as an outdoor instructor and as a sales person. It seems reasonable to conclude that, since the plaintiff had already undertaken two contracts as an outdoor instructor and was self-employed in the sale of sunglasses prior to October 2000, the plaintiff would have continued to work on a part-time basis, depending upon her domestic commitments and those of her husband. In view of the nature of the work involved, it also seems reasonable to conclude, so far as it is relevant, the plaintiff may have continued to undertake such work at least until the age of 55.

55 I accept the opinion of Dr Home for the defendant that the plaintiff will experience difficulty undertaking work as an outdoor recreational industry guide, but is otherwise fit for work as a sales representative or light duties. In view of the conclusions I have reached about the prognosis of her injuries, I think it is very likely, as I have said, the plaintiff will slowly increase her levels of physical activity in the foreseeable future. It seems to me reasonable to conclude that within five years the plaintiff could expect to return to a level of fitness which will allow her to undertake her pre-accident occupation so that her earning capacity will no longer be compromised.

56 I turn, therefore, to consider the calculation of the award of damages to which the plaintiff is entitled under each head.

57 The evidence is the plaintiff opened her own business as Perth Outdoor Pursuits in 1998. In the assessment of past loss of earnings until trial, it is necessary to determine what the plaintiff would have earned if she had not been injured over and above that which she was able to earn following the accident. The evidence of the plaintiff was that she had expected to undertake five or six trips as an outdoor instructor of seven to ten days duration each year and several shorter trips. The plaintiff said she expected to receive about $35,000 net income from these trips. She said she hoped the new business would increase. It is plain from the plaintiff's evidence, to which I have already referred, that this projection was only the plaintiff's plan. She had in fact undertaken only two longer trips up to the date of the accident.

58 In this context, it is relevant that in May 2000 the plaintiff began to undertake work as a sales representative. It is reasonable to infer she undertook this work in circumstances where the outdoor trips were either not available or otherwise not convenient to her from a domestic point of view. I conclude, therefore, it is unlikely the plaintiff would have undertaken more than two such longer grips in each of the years 2001, 2002 and 2003. She may or may not have undertaken shorter trips. I estimate the plaintiff might have received $5,000 net per trip or a total of $10,000 net per annum as an outdoor instructor. I assess her loss of income as an outdoor instructor in the sum of $10,000 net per annum.

59 The plaintiff is also entitled to damages for past loss of income as a sales representative over and above her actual income. This loss is even more difficult to assess on the evidence. The plaintiff suggests she may have earned total commissions in the range of $15,000 in the 12 months prior to the accident. It is most relevant in this context to have regard to the fact that the plaintiff's capacity to work as a sales representative has slowly increased over the past three years to the extent that I have found she is now able to undertake such work. In these circumstances, I consider it is reasonable to conclude the plaintiff's loss in this regard should be assessed at $5,000 net per year. The plaintiff's total loss over and above what she has earned in each of the three years since the accident is therefore $15,000 net and a total of $45,000 up to the date of trial. The plaintiff is also entitled to interest on this past loss calculated as $45,000 x 0.03 x 3 = $4,050. Accordingly, the plaintiff is entitled to an award under this head of $49,050.

60 I have found the plaintiff is now able to undertake work as a sales representative and in light duties, and that after a further five years her earning capacity in the outdoor recreational industry will no longer be compromised by her injuries. I have found the plaintiff's past loss of earning capacity in the outdoor industry should be quantified in the sum of $10,000 per annum net. On the evidence, no mathematical assessment of future loss of earning capacity is possible in this case, so that counsel for the plaintiff suggested a global sum.

61 Given that I have found the plaintiff will return to her pre-accident earning capacity over the next five years, I would assess her future loss of earning capacity as an outdoor instructor in the sum of $200 per week and, applying the 6 per cent multiplier, allow the sum of $45,000 under this head. I make no further deduction for contingencies.

62 Damages under this head were agreed in the sum of $14,000.

63 I accept the plaintiff will require continued review and medication over the next five years but that requirement will slowly diminish. Counsel for the plaintiff submitted she has been in receipt of approximately $100 per week up to trial for past medical expenses. Applying the six per cent multiplier over five years this loss may be quantified as $22,000 but I consider it should be reduced by 50 per cent given the likelihood of the plaintiff's continued improvement. I consider $10,000 to be a reasonable award under this head.

64 The evidence is that the plaintiff's children have assisted her with heavier household duties. She has also employed a cleaner three or four hours per fortnight. I accept the plaintiff will require the same assistance on a reducing basis for the next five years. I would allow a total sum of $10,000for past and future gratuitous services.

65 I would allow $1,000 under this head in the absence of evidence of the distances travelled.

66 The evidence of and for the plaintiff to which I have referred establishes on the balance of probabilities she has suffered a moderate degree of pain, discomfort and inconvenience as a result of her injuries over three years. That will likely continue for the next four years. She has also plainly suffered some emotional distress although it is not open to conclude that she has suffered a psychological injury. I have found it is likely the plaintiff will regain her prior earning capacity over the next five years. As this occurs, I find it is likely the physical and emotional effects of her injuries will also diminish. In my opinion, the plaintiff should be awarded a sum of $25,000 under this head.

67 Accordingly, the plaintiff is entitled to judgment as follows: