Travers v Caringa Enterprises Ltd

District Court of NSW|2017-03-23

Judgment

The plaintiff by statement of claim filed on 20 November 2015 brings proceedings for damages arising out of the circumstances in which on 27 February 2012, in the course of the plaintiff's duties as a disability support worker, she was assisting another staff member to lower a person with disabilities onto a toilet. As a result of the negligence of the other support worker, the plaintiff was forced to take on too much weight, which resulted in the plaintiff suffering injuries to her back.
The plaintiff has provided particulars of ongoing disabilities as follows: 1. Injury to the lower back, requiring two level spinal fusion surgery with residual radiculopathy; 2. Surgical scarring; 3. Hypotonic neurogenic bladder caused by damage to the nerves in the cauda equina; 4. Pain in lower back and lower limbs; 5. Reactive anxiety, loss of self-esteem and depression; 6. Reduced ability to work; 7. Difficulty participating in pre-injury sporting, social and leisure time activities; 8. Dependency on others for activities of daily living.
The sole issue for determination by me is the quantum of past and future economic loss. Even that issue is a narrow one, in that the defendant has made concessions as to the impact of the injury on the plaintiff's capacity to earn, which is set out in more detail below.
There were unfortunately delays in the preparation of this judgment as the transcript had to be ordered following a substantial change of position by the plaintiff on the second day of the hearing.

An overview of the plaintiff's claim for past and future economic loss

The plaintiff's economic loss may be summarised as follows: 1. The plaintiff at the time of the injury was employed on a permanent basis as a disability support worker and received not less than $500.00 net per week for her work. She says that she was capable of working not less than 50 hours per week if offered to her, and claimed to have done so, apart from a period when her husband was undergoing knee surgery and her working hours were cut back to two days a week. The plaintiff claims her past economic loss on this basis. 2. The plaintiff was also qualified as a remedial massage therapist and equine therapist and had previously worked in retail and hospitality. She acknowledges never claiming income but seeks a small cushion for this past and future loss. 3. Since the accident, the plaintiff has not returned to her work as a disability support worker due to the nature of her injuries and has been unable to exercise her previous earning capacity. She claims future economic loss on the basis of five days a week, plus loss of potential for weekend and overtime work. 4. The plaintiff alternatively states that, as a result of her ongoing disabilities, she has been placed at a disadvantage on the open labour market. She cannot perform work which involves heavy lifting, constant bending or extending/flexing of the back, or sitting or standing in the one position for prolonged period of time. The plaintiff accordingly claims that she has sustained a severe, if not entire, diminution in her earning capacity. 5. The plaintiff alleges she has also suffered loss of opportunity to receive employer-sponsored entitlements to superannuation, presently 9.5% of gross salary, both past and future.

The circumstances of the plaintiff's accident

The plaintiff was allocated a special needs client named Ben, who was a two day a week visitor to the MyLife Centre at Orara Street. She was asked to train a young worker as part of this activity, and it was this young worker's errors which caused her accident.
On the date of the accident, the plaintiff had been rostered to work four days and on Monday was advised that she was to take another client, a Mr Condon, to a modified home in Grafton. He was severely disabled and required to be taken to a bathroom by the plaintiff and her apprentice. The trainee worker's error in helping Mr Condon led to a loaded and twisting injury to the plaintiff's back. She immediately felt back pain into her buttocks and a cold sensation in her foot.
The injury was reported to her supervisor. The plaintiff continued to attempt to work. However, on 22 March 2012, when the plaintiff was asked to work with Mr Condon again, she was unable to lift him, and she has been unable to return to work ever since.

The plaintiff's statement of 4 December 2015

I first note statements made by the plaintiff concerning the nature of her employment in a statement dated 4 December 2015 which was tendered. This statement described her as having "recent work", being employed as a "permanent" and of having been "put back" to two days a week because of her husband's knee injury: "13. In 2011, we were still not in a good financial position so I sought employment elsewhere to increase my income. 14. I heard that a local care facility was looking for workers and went in and applied for work with Caringa Enterprises Limited ("Caringa"). I started with several other workers, initially on a 5 day week training period. I gave them my resume when I applied, which set out my earlier qualifications and recent work. 15. After the training period, I was on call for permanent part-time employment. My weekly wage was used to keep the farm going. I still tried to keep my equine therapy going and also to bring horses up for sale. 16. Approximately four months after starting my employment with Caringa, Peter required knee replacement surgery. This was to be done by Dr Randall, an orthopaedic surgeon at John Flynn Hospital, Tugun QLD. His local GP is Dr Ray. 17. Before this occurred, I went in to see Deidre, at the office at Caringa and explained that I needed to reduce my availability for a period while Peter was recovering at home. She put me back to 2 days a week. This was only to last a few weeks. 18. After this time, I was given more specialised work on Tuesdays and Thursdays. I initially worked with Ben, as special needs client who weighed only 29 kilograms and was very compliant and gentle. I was asked to train a young worker called Fiona, during this work."
The plaintiff also set out, in her statement, how she continued working after the injury on 27 February 2012: "19. On 27 February 2012, I was instructed to work with Matt Condon, a different client. He was moody, unco-operative and would often throw his arms and legs about when he was being assisted. He weighed about 35 kilograms and was the same height as me. During this work, I was attempting a team lift with Fiona, who failed to properly lift with me. I was left supporting him, as I twisted to put him on the toilet. I tried the same lift again to put a nappy on Matt, with the same problem, as Fiona did not know how to lift properly. As I lifted him I felt severe pain in my lower back. 20. I told Fiona that I was sore. The next time I worked, I told my supervisor Dave Green, that I was sore from my previous shift and could not work with Matt again. 21. I tried to stay at work and kept going until 22 March 2012, but I could no longer handle any lifting and my back was getting worse. 22. I have not been able to return to work with Caringa since 22 March 2012. I have undergone major spinal surgery and have a painful and weak lower back. I suffer leg and bladder problems from the spinal nerve injury. I cannot do anything enduring paid physical work. I cannot manage my household duties, except for very light house work. Peter and I may have to move in with my son in Queensland and rent out the farm, as we cannot afford the mortgage. I am totally incapacitated for all forms of work on the open labour market."
This evidence is relevant to her expectations for work but for her injury: "23. If I was not hurt, I was expecting to return to more hours and duties and continue in my self-employment. I was available to work a full week within a few weeks of Peter's operation, but by then I was completely disabled. I was intending to increase my skills and hours of work as best I could to support Peter and the family, as well as pursue opportunities in equine therapy and rearing quarter horses on the farm. I am simply unable to pursue any of this now and I doubt that will ever change."
As is set out in her statement, she was expecting to receive increased hours and duties and to take advantage of promotional opportunities. Although she had been initially employed on an occasional basis, she considered it likely that she would have commenced to be employed full time and to receive promotions as well as having the opportunity of weekend work and Saturday work. She also lost the opportunities for self-employment.

The plaintiff's evidence

The plaintiff presented as an enthusiastic and outgoing woman who has had a traditional background as a wife and mother for most of her life, and who had to return to the workforce for economic reasons.
The plaintiff, who was born on 18 March 1963, is currently 54 years of age. She was employed as a bar waitress in a hotel for three to four days a week following her completion of Year 10 at Cessnock High School in 1979. She married in 1985 and gave birth to her first child in 1988.
The plaintiff's work history thereafter is of a limited nature. She worked for two days a week at the vineyards until the birth of her second child, in 1990, after which time she was at home caring for her children.
The plaintiff's husband was employed at that time with Juvenile Justice at Kariong Correctional Centre. He was the sole breadwinner until 1995, when the plaintiff obtained employment as a cleaner at North Gosford Private Hospital on weekends.
The plaintiff obtained a Diploma of Remedial Massage at Holistic Healing Therapies and commenced work part time as a remedial masseuse after her husband was made redundant from his employment with Juvenile Justice. The plaintiff acknowledges she received no real income while working as a remedial masseuse.
Unfortunately, the plaintiff's husband was severely injured at work, apparently in 1995 (there are errors in the plaintiff's chronology as to these dates). From 1995 onwards, the plaintiff remained at home, working occasionally as a remedial masseuse and attempting to obtain other employment by agricultural activities. These included purchasing a 100 acre flower farm in Grafton, which was unsuccessful, followed by a move to a small cattle farm, where the plaintiff began to work as a self-employed equine therapist, again without success. She also suffered a fracture to her left clavicle when she fell off a horse.
In 2007, the plaintiff's husband's workers' compensation settlement having been used up for household and family expenses, he began to receive a disability support pension. The plaintiff, who had been caring for him full time, now started to receive a carer's pension. Centrelink alone was not enough for the family to survive and the farm had to be mortgaged.
By 2011, the family's financial situation was very difficult. The plaintiff never declared any income over this period, but acknowledges that she never made a profit after expenses in any event from any of her activities.
It was in these circumstances that the plaintiff applied to work for the defendant. She had no relevant qualifications but received some full time training for one week, as well as having previous experience nursing her husband as his carer.

The plaintiff's employment history prior to the accident

The plaintiff said she was a permanent member of staff. She gave evidence she worked more than the two days a week the roster appeared to show and tendered the salary pay for one particular week as proof: "Q. ‑‑did you ever work more than two rosters a week? A. Yes, more than 2 days you mean. Q. Yes. A. Yes. Q. And if I show you a bundle of documents, these were provided by the defendant. These are the pay records, your Honour. Now that's a pay record for Caringa and your employment that starts on the 12th of May, 2011. Do you see that? Right at the top on the left‑hand side you'll see‑‑ A. Right, pay period. Q. ‑‑a pay period ending. A. Okay, yep. Q. Sorry, I've got one that says 12 June, 2011, I beg your pardon. A. Yes, I've got that. Q. And then you accept that that would set out accurately the number of hours over the periods of time that you worked with Caringa up until the time you were injured which we know was on 22 February 2012. So as you go through the dates‑‑ A. Yes. Q. ‑‑27 February 2012, if you go over to page 6 of that bundle, probably where that flag is. A. Yes. Q. On the 19 January 2012, do you see that pay week, you actually worked 32 and a half hours, is that right? A. Yes, that'd be correct. HART: I tender a copy of that, your Honour. I've left a flag on it. Could I have that back now? WITNESS: Yes. HART: I can give a copy to my friend in due course but I'm assuming he's got that somewhere. EXHIBIT #D PAY RECORDS WITH TABBED PAGE TENDERED, ADMITTED WITHOUT OBJECTION HER HONOUR: Is there some reason why you've tabbed a particular page and put "period"? HART: Yes, your Honour. That is the period she was just referring to in the month prior to the injury that she worked 32 hours, your Honour. HER HONOUR: All right, okay. Have you produced a schedule setting out when and in what circumstances she worked more than 2 days a week? HART: Not in the form of a schedule, but that is the pay records. HER HONOUR: Well, how often did it happen? Mr Levick said it only happened a couple of times. HART: Well, your Honour, I don't take it any higher than that. HER HONOUR: Well, don't you think it - can't you do me a list of dates? HART: I could do that, your Honour, but it is there on the record. The schedule would probably be the same size. HER HONOUR: This is, what, 20 pages or something like - and you want me to go through and work out which days she's working more than 2 days a week? HART: No, I don't want you to do that, your Honour. HER HONOUR: All right, well it's a matter for you. HART: I'm just supporting the corroborating the evidence of the plaintiff that she worked 32 hours in a month before the accident."
As is set out below, the plaintiff's employment records up until shortly before her injury shows her working only two days a week and only very occasionally on additional days. Which is more accurate, the plaintiff's recollection or the roster?
While she acknowledged that the reason she did not work more hours was that this was not available was "occasionally" the case, the plaintiff's evidence was that "Deidre" (i.e. Mrs Deidre Jones), the relevant person in the office at Caringa Enterprises Limited (hereafter the defendant or "Caringa"), only put the plaintiff back to two days a week while the plaintiff's husband had knee surgery on the basis that this was only to last a few weeks: "Q. Now in the period prior to the time you were injured had you reduced your hours because Peter needed to have some surgery? A. Yes, I did. Q. Did you approach Deidre Jones and say, "Look, I'm going to need to drop back to no more than two days a week for a month or two while Peter goes off to Queensland to have his surgery and come home"? A. Yes, I did. Q. Was that meant to be a permanent arrangement? A. No, it wasn't." (T 18)
However, this is inconsistent with the records of the plaintiff's working days: "Q. And you see, what I'm putting to you is that first of all your husband's health condition wasn't the reason that you didn't work more hours. It was because the hours weren't available to you, isn't that right? A. Occasionally I'd agree with that. Q. And there is no point where you spoke to Mrs Jones and said to her, "Look, I can't do more hours because of my husband's health condition." A. Yes, I did speak to Deidre. Q. When did you do that? A. Before - later in the year when I - my husband was getting a knee reconstruction. Q. When did he have his knee reconstruction? A. I think it might have been around September or something, yeah. Q. September 2011‑‑ A. It's a long time ago. Q. But that was of course a month where you took an extra days work, wasn't it? A. Yes, well, I - I might not be accurate with that. But that's - I'm sorry. Q. And with respect, but wasn't the case that your husband always needed help, knee replacement or no knee replacement? A. I don't know about that. I can't completely agree because it mightn't have been the case for ever. Q. But the knee replacement meant he went to hospital, did it? Did he actually have the knee replacement? A. Yes. Q. And when did he recover from that so that he was mobile and getting around? A. It did take a couple of months. Q. Can I suggest to you in any event that you did work some extra time on 18 December‑‑ A. Okay. Q. ‑‑that week. A. Yes, okay." (T 28 - 29)
Having been shown these records, the plaintiff acknowledged that she only worked extra days to fill in for others and on request, such as an occasion in December 2011, and that the reason she was not paid during the Christmas vacation was because, contrary to her earlier evidence, she was still only employed as a casual: "Q. And can I suggest to you that the reason that you got an extra 7.5 hours in the week ending 18 December 2011 is because someone was on leave and you filled in for them. A. Yes. Q. And you were then set about doing more work in the New Year. Well in fact between 18 December 2011 until 15 January 2012 I suggest to you that you had about - you did not work the Christmas week, you did not work the Christmas to New Year and you did not work the first week of January. A. Yeah, because we had holidays because the centre closed on that holiday. Q. And you were a casual so you didn't get any pay for that period, correct? A. I might have - I might have been part‑time casual then because I did get paid. Q. Well, can I suggest to you that‑‑ A. I went part‑time. Q. At paragraph 15 of your statement you say, "After the training period, I was on‑call for permanent part‑time employment." In that period, you were in fact casual, weren't you? A. I would have been casual then. Q. Can I suggest to you that you in fact became permanent part‑time in about the week ending 15 January 2012. A. No, I'm sure it was before then, way sure. Q. Again, the fact of it is, is it not, that when you went on to part‑time employment, your hourly rate reduced. A. That would have been right. Q. The reason for that, as you well know, is that casual employment includes a loading to take into account holiday pay and sick pay that permanent employees get, you understand that? A. Yes. Q. You'd agree, would you not, that the time where you went from casual employment to part‑time employment would correspond with the time when your pay reduced because you became permanent, that would be right, wouldn't it? A. It would be more likely than right. Q. Can I suggest to you in all the pay periods up to 15 January 2012 you were not paid less than $23.56 per hour, but on 15 January 2012, your hourly rate dropped to $18.91. A. Okay. Q. I might suggest to you that Ms Jones might be wrong about this too, but the fact of it is, the records would demonstrate that you in fact went to part‑time employment in the early part of 2012. A. I'm sorry, I thought it was before that. Q. And that's the point. You can be mistaken about these things quite innocently, can't you? You're nodding. A. Yes." (T 29 - 30)
The plaintiff also acknowledged that her wage records did accurately reflect her status and work hours thereafter: "Q. Once you went on to part‑time work, on that week of 15 January 2012, you did indeed work 32.5 hours that week, didn't you? A. That'd be right. Q. And again, this was a period where there was leave and there were people away, is that right? A. More than likely, yes. Q. And can I suggest to you, that the reason you got more than your normal two days is because you were filling in for people on leave. A. More than likely. Q. You then, I suggest to you, go back to the pattern of 13 hours, 13 hours, 13 hours, 13 hours. And it's not until 4 March 2012 that you have a 26 hour week. A. Well, that's not right because I know the week of my injury, of the Monday, 27 February, I was working Monday, Tuesday, Wednesday, Thursday that week. I know that. Q. And with respect, that's consistent with what I'm putting to you. A. Okay. Q. I'm putting to you that in that week, you indeed worked 26 hours. A. Okay. Q. That's about four days. A. All right then, yes. Q. And again, can I suggest to you that you were being brought in to fill in for people who were on leave? A. I think they were just, probably, short staffed or, like, it was a - you know, I was just in and out all the time, so I don't - I can't swear that there was anyone on leave, sir. I can't. Q. All right. But they needed some more help and you were asked to do it and you did. A. I was - yes." (T 30 - 31)
However, in cross-examination, the plaintiff agreed that she had had one week of training (not four, as she had claimed in her evidence, which is also inconsistent with the statement referred to above), and that thereafter she had worked as follows: 1. 19 June 2011 - 13 hours; 2. 23 June 2011 - 14.75 hours; 3. 3 July 2011 - 13 hours; 4. 10 July 2011 - Not at all; 5. 17 July 2011 - Not at all; 6. 24 July 2011 - 13 hours; 7. 31 July 2011 - 13 hours; 8. 7 August 2011 - 18 hours.
She agreed that it was not until two months after she commenced work that she had been given an extra day. However, the same basic 13 plus hours could be seen in her roster thereafter. For example, in the week commencing 28 August 2011, she worked for 20 hours (four days), but that otherwise she worked two days every week until 18 December 2011, when she worked an extra day.
It was put to her that either work was not offered at all, or when it was offered, she had refused it. She denied this evidence, and said that she had an arrangement with Deidre (Mrs Jones) for two days a week only while her husband was ill and that she was willing to do more once he was better. I note however that the plaintiff's husband's knee operation occurred in September 2011 and that this was a month when she in fact took an extra day off work.
It was put to the plaintiff that her husband would always need help, whether he had a knee replacement or not, to which she answered "I can't agree".
I am satisfied from the above that the plaintiff did not become permanent until 15 January 2012, that she was employed for two days a week and only came in on other days if requested, and that there were times that she refused further work because of her husband's needs, not only during the period of the knee surgery (when she in fact worked an extra day) but on other occasions.
The plaintiff's work history as an employee of the defendant is thus of very short duration, and follows a long period of time during which she had not worked at all. This is confirmed by statements made by the plaintiff to medical practitioners and to the evidence of the defendant.

Contemporaneous statements by the plaintiff

In the Worker's Injury Claim Form filled out by the plaintiff and provided to WorkCover, the following details in relation to her primary earning details were provided: "4. WORKER'S PRIMARY EARNING DETAILS Please complete this section if you wish to claim for weekly payments How many standard hours did you work each week before being injured? Exclude overtime 15 hrs What were your usual working hours? For example, Monday to Friday, 8:30am to 5:30pm 2 days a week 8.45am - 3.15pm What was your usual pre-tax hourly rate? * Exclude overtime & shift allowances $18.91 What were your usual pre-tax weekly earnings? * Exclude overtime Exclude overtime & shift allowances * Please provide copies of any recent payslips (if available) $281 --> [Text illegible] $341"
This is consistent with the roster.

The statement of David Green

On the second day of the hearing, after Ms Jones had given evidence and both parties had closed their cases, the plaintiff also sought to rely upon a statement by David Green dated 17 November 2014, an employee who had started work with the defendant in a similar capacity to the plaintiff and who had progressed to a five day week as a Senior Program Facilitator. Mr Hart submits that this advancement by Mr Green demonstrates that it was possible for the plaintiff, whom Mr Hart described to me as a reliable and highly regarded employee, to advance in the same fashion.
Unfortunately, Mr Green's statement does not identify how he advanced. Mr Hart relied upon admissions made by Ms Jones in cross-examination but conceded that these were not in the context of Mr Green's statement. Essentially Mr Hart relied upon the fact that Mr Green advanced to the position he held in a period of four years and argued that the plaintiff would have done so as well.
At the time of being called upon to make a ruling, I did not have the transcript to see whether the circumstances of Mr Green's advancement had been put to Ms Jones in an appropriate fashion. I accepted Mr Levick's submissions that, this not having been put to Ms Jones in terms, it was unfair to permit the plaintiff to reopen his case and to tender that material now.
The real difficulty, however, is that Mr Green's statement is silent as to when and in what circumstances he was promoted at work. It relates solely to the circumstances of the plaintiff's work history. Even if tendered, it would tell me little or nothing.
I rejected the tender of Mr Green's statement and indicated that I would give reasons for doing so in my judgment.
The principles relevant to the reopening of a case are set out in Reid v Brett [2005] VSC 18 at [41] and Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266-267. I set those principles out in Leman v HV Operations Pty Limited [2017] NSWDC 113 and will not repeat them here.
I am satisfied that the proposed additional evidence was always in the possession of the plaintiff and could have been led, that the failure to tender it during the case is prejudicial to the defendant and that leave to reopen the case to tender the statement should not be granted.
I have, however, considered the revised case (as presented on the second day of the hearing) in relation to the asserted admissions made by Ms Jones, as well as the case as presented on the original basis on the first day of the hearing.

The plaintiff's work history as noted by her medical practitioners

The plaintiff's account of her injuries to medical practitioners show that she acknowledged she had not worked for many years (apart from her non-profitmaking activities) and had cared for her husband over that period.
Dr John Ashwell, orthopaedic surgeon, provided a repost on 29 October 2013 setting out the plaintiff's work history as follows: "WORK HISTORY (Level of training; past and present work) She states she has been a carer for her husband for many years. She apparently suffers from osteoarthritis and is presently not employed. She has also worked as a remedial sports therapist and in natural therapy. She has certificates in kinesiology and Pilates. She started working as a carer in early 2011. She states at present she is unable to do the work as she cannot bend or move to do the work properly. She has not returned to work since the injury and has a certificate stating she is unfit for work. She is presently receiving workers compensation payments." [Emphasis added]
On 7 November 2013, the plaintiff saw Dr Frank Breslin, consultant urologist, who noted the following in relation to the plaintiff's work history: "HISTORY OF THE INJURY Ms Travers said that she lived on a farm with cattle and horses. She has been caring for her husband there, who has arthritis in a severe way and some mental changes, for the past seven years. She has been working at Caringa Enterprises (MyLife Program), which is apparently a privately funded disability care service. She had been working there for twelve months when she was lifting a patient at work on 27 February 2012 and she developed severe low back pain. This eased a little bit but it was markedly exacerbated on 22 March 2012 when she was lifting again. The pain radiated from her low back into the left buttock and down as far as the foot. The pain was constant and was exacerbated by any movement, coughing or sneezing. She had been on some anti-inflammatory treatment and Pregabalin, which helped a little. The pain could be very severe at its worst. She was feeling depressed and debilitated by the pain." [Emphasis added]
On 25 June 2014, the plaintiff saw Dr Stuart Taylor, consultant urologist, who provided the following information relating to the plaintiff's social and work history: "8. SOCIAL HISTORY She is married and has two adult children. Previously she was extremely active, working on her 70 acre farm and doing a great deal of horse riding and quite vigorous work around the farm. She cannot do any of these activities now because of her back pain. She is now limited to only the lightest of household chores. 9. WORK HISTORY She had been working at Caringa Enterprises My Life Program for approximately a year when her back injury occurred. She has not been able to work since then. Prior to starting work at Caringa Enterprises she had done a full range of small farm jobs on her farm without any problems."
On 19 August 2016, Dr Chris Oates, consultant occupational physician, provided a report in which he sets out the plaintiff's work history as follows: "WORK HISTORY She was a carer for her husband at their home for 5-7 years and was on a carer's pension. She had previously done a Diploma in Remedial Massage and did remedial massage and also some kinesiology, although she was not formally certified in this. She lived on a nursery at home in a previous place and grew Kangaroo Paws for two seasons. These were exported overseas. She did Year 10 at school and then worked at KFC and after that did bar work and waitressing." [Emphasis added]
On 22 December 2014, Associate Professor Geoffrey Boyce provided a medical assessment certificate for the Workers Compensation Commission which noted the following: "- Details of any previous or subsequent accidents, injuries or condition: Previously, the lady has been in very good health. Her husband has a disability and they live on about 70 acres on the Clarence River near Grafton. She had been in the practice of doing active cattle work. She had been the president of the local Horse Cutting Group for some years but could not look after her horses or cattle and has had to dispose of most of these. She and her husband are considering selling the property, which neither of them can help with. Her children do provide some help. In the 12 months prior to her injury, she worked for caring agencies but had no other injuries and the lady has been interested in massage and has a Diploma in Massage but cannot carry out that type of work at the present time."
These references to other activities outside work are consistent with each other but the plaintiff acknowledged that she effectively earned no income from these activities.
The plaintiff told Dr James Bodel, orthopaedic surgeon, that she had been working five days a week at Caringa: "OCCUPATIONAL HISTORY Ms Travers indicates that she was employed at Caringa Enterprises Pty Ltd. I understand that this was a disability day care facility. She began work with the company in May 2011 and she worked five days a week. She later decreased to three days a week and then two days a week. She worked with clients who had a mixture of physical and mental disabilities." [Emphasis added]
As noted above, I do not accept that this description of the plaintiff's work history is correct.
Great caution must be exercised when considering information of this kind provided by a party to litigation to a medical practitioner, because the chance for error is high, even with medico-legal reports: Mason v Demasi [2009] NSWCA 227. However, the plaintiff's description of her working hours to Dr Bodel was consistent with her evidence, and inconsistent with the rostered hours she in fact worked.

The defendant's evidence

The defendant tendered two statements from Ms Deidre Jones, dated 17 November 2014 and 4 May 2016, who is the manager at the My Life Programs.
In her statement of 17 November 2014, Ms Jones sets out the following information regarding the plaintiff's employment at the defendant company, as well as the concerns she holds regarding the plaintiff's commitments outside of work: "8. Michelle TRAVERS was first employed as a casual on the 6 June 2011. She was employed on a casual basis until November 2011 when she was put on to permanent part time. Michelle was employed to work two days a week, Tuesday and Thursday from 9am to 3pm. On occasions Michelle may have come in to work at other times if we asked. Michelle was very busy outside of work and cared for her disabled husband. Michelle also worked as a horse chiropractor and ran and operated a farm. 9. I had Michelle specifically working with one client Ben GRENNSIL. Ben has quite severe Cerebral Palsy and only weighs about 20 kilograms. Michelle had a wonderful rapport with Ben. 10. We do not have a statement of duties relevant to Michelle TRAVERS however we do have a job description. Michelle was not employed under contract. She was employed under the SACS award. This has now been changed to the SHADS award. 11. I PRODUCE COPY OF JOB DESCRIPTION. 12. Michelle TRAVERS received $283.65 a week gross income for her employment. I have been asked to obtain a pay summary for the period of her employment. … 33. I also have concerns with respect to this claim as Michelle worked a second job as a horse chiropractor and operated a farm. Michelle was always complaining that she was tired. She would often come to work and talk about how much work she had done on the farm and it was clear that she worked physically hard. 34. Michelle also looks after her disabled husband. The impression that Michelle gave me was that the assistance provided to her husband was also quite physical."
In Ms Jones' affidavit dated 4 May 2016, she was asked to comment upon the plaintiff's statement: "7. I have been asked to comment on a number of issues raised in a statement of complaint made by Michelle TRAVERS. With respect to her complaint I would like to reiterate the facts that I reported in my original statement. That is, Michelle TRAVERS was employed originally as a casual before taking up a permanent part time position. She worked two days a week being Tuesday and Thursday, 9am to 3pm. 8. At no time was Michelle employed on a full time basis, nor was she ever offered full time employment. In my 18 years in Caringa, I have not had a single support staff member offered full time employment. There are no exceptions to this; we cannot offer full time employment to support staff workers in this industry. 9. At no time did I ever offer Michelle TRAVERS full time employment. If I was able to employ support staff in a full time position, I can honestly say that there would be about 15 other staff members that would have been offered full time employment before Michelle. 10. From the commencement of her employment Michelle TRAVERS was very up front about her outside commitments. She ran an equine business, and was also caring for her husband who I believe was claiming workers compensation. 11. I note in paragraph (17) of Michelle's complaint that she states that she was "Put back to two days a week." This statement is incorrect. She was never employed to work more than two days a week, except for occasional call ins, when she was available. I have previously produced pay records, which support this fact. 12. With respect to call ins, I would also like to state that Michelle was rarely available to attend when asked to come in outside of her two days. This was due to her external commitments. 13. In Paragraph [sic] (18), Michelle TRAVERS stated that she was training a support worker Fiona. I believe this person to be Fiona McNeven. Michelle was training Fiona due to the fact that we needed a back up for Michelle due to her unavailability."
In cross-examination, Ms Jones largely adhered to this statement. She described how the plaintiff was employed as follows: "Q. And in your statement, you make reference to having employed her on the basis that she would work principally two days per week, is that right? A. Yes. Q. And that you concede that there have been some weeks where she had worked for more than two days per week, when she's been asked to come in on call, is that right? A. Yes, that's correct. Q. In particular, the document which I took you to a moment ago, and that is the roster for the week ending something like 4 March 2012. A. That's correct, yes. Q. In fact, the plaintiff worked four days in that week, is that right? A. Yes, that's correct. Q. Do you have an explanation as to why the plaintiff worked for four days in that week? A. Yes. Four of the staff were actually on five days training. Also we had two staff that were on annual leave and we had an emergency respite that week, so we were very low on staff that week. Q. Clearly, the MyLife division employs a number of residential workers who assist with clients, is that right? A. No. MyLife does not employee any residential workers, we employee program facilitators. Residential workers work in another division, and that's the accommodation division. Q. What role, then, did the plaintiff have working with your division? A. She was a program facilitator. Q. In terms of program facilitators within your division, are they employed on specific arrangements to work certain days per week? A. No. We do try and keep core staff, but no. Q. Do you have staff who are employed to work more than two days a week? A. Yes, we do. Q. And what type of staff are they? A. They're staff - well, that's a difficult one to answer. They're staff that are available to work but also preferred staff to a particular client. Q. Are there program facilitators who work for more than two days per week? A. Yes, there are." (T 62)
She saw the plaintiff's future working role as follows: "Q. In terms of the plaintiff, what did you see as her continuing role with your division, had she not been injured? A. To continue working with a client that was a preferred client, Benjamin Greensel and fill in when - when needed. Q. Is your organisation government‑funded? A. We're government‑funded, and it is generated by client needs. Q. Do you work arrangements or needs change depending on when clients are assigned to your organisation or when they leave or the similar, is that how it works? A. Many, many different factors determine our funding, from client needs, preferred workers, transfers of clients to other services, changes in funding, illness or death. So that's, yeah. Q. If Ms Travers asserts that she was hopeful of getting more hours within your division, is that you consider would be a likelihood, had she remained in your employee uninjured? A. Not at that time, as she had other commitments that I was aware of. Q. If Ms Travers suggests that there were other divisions in relation to Caringa that she might have worked in, are there are other divisions that she potentially might have? A. There are three other divisions. We keep them very separate, so she would have to put in an expression of interest and there would then need to be a vacancy." (T 62 - 63)
She described the employment of Karen Metcalfe, a worker asserted to be comparable, as a former carer who now worked in the main office on a short-term contract, and David Green as permanent part-time, not full time, working 5 days a week but not full hours (T 63 - 64). The third comparable employee identified by the plaintiff, "Brendan", was unknown to her (T 64). She explained that "workers progress at different rates' (T 68). As to promotion opportunities, she said she had had the same staff in place for the last five years (T 73). Everything depended upon funding, and Ms Jones impressed as a careful manager who did her best to stretch funding to the maximum to suit client needs rather than employment opportunities for staff.
She was not prepared to agree that the plaintiff would have progressed: "Q. I'm sorry, I'll start again. Uninjured, Michelle would be a person that would be likely to have progressed. Do you agree or disagree? A. I'm unable to determine that, because all of our hours are based on client needs." (T 69)
She denied that the plaintiff was put back to less work because of her husband's knee replacement operation (T 69 - 70) and explained that the fact the plaintiff worked for 4 days during the week she was injured was due to special circumstances (T 70).
In relation to weekend work, she was emphatic that due to budgetary constraints, senior staff did not do weekend work (T 75).
Ms Jones was an impressive witness who made concessions where appropriate, such as agreeing the plaintiff was a good worker, but who made it plain that her first concern was the wellbeing of the disabled clients of the service and providing the best service available to them in circumstances of the constant tension between their needs and budgetary constraints.

Schedules of damages

The plaintiff provided a schedule of damages (Exhibit K) as follows: Past economic loss A.W.E's at D.O.I Level 2 Pay Point 1 Allow 4 shifts x 6.5 hours at $18.91 per hour $491.00 gross, $460.00 net per week A.W.E's at Pay Scale, Level 2 Pay Ppont 4 (Ex H) Allow 5 shifts x 8 hours per at $25.34 per hour Total past economic loss = $168,393.33 $1,013.00 gross, $830 net Average past AWE's $645.00 net From D.O.I to date Allow total incapacity $645.00 for 263 weeks = 169,635 Less net earnings between 27.02.12 and 25.03.12 = $1,241.67 Past superannuation (allow 11% of net past loss) $18,523.26 Fox v Wood $15,000 (agreed) Future economic loss Current 5 day roster at Level 2 Pay Point 1 5 x 6.5 hours at $25.34 $823.00 gross $710.00 net Current 5 day roster at Level 4 Pay Point 1 (Green/Rook) 5 x 6.5 x $29.16 $947.70 gross $790.00 net Allow average of these: 710 + 790/2 = 750 $ 247,634 Allow 70% loss of earning capacity, less vicissitudes 750 x 70% x 502.3 - 15% ($224,152) Add loss of opportunity for weekend work, one Saturday Allow additional $14.58 for 6.5 hours 14.58 x 6.5 $95 gross, say additional $55.00 net 55 x 502.3 - 15% ($23,482) Future superannuation (allow 13.08%) of net future loss $32,390 Loss of opportunity for self-employment (Past) $5,000 Loss of opportunity for self-employment (Future) $10,000

The "logic" of these submissions is explained by Mr Hart as follows. The plaintiff was well regarded by Ms Jones and by the parents of Ben, who chose her to be his carer. Everything pointed to the plaintiff being a highly regarded employee and I should disregard Ms Jones' reluctance to accept the proposition that the plaintiff could have worked up to five days a week as there was regular "on call" work available. In those circumstances, the likelihood was that the plaintiff would have quickly advanced to Level 2 Pay Point 4 on 5 shifts of 8 hours in residential work, or other higher paid positions in the Grafton region. There was also the prospect of weekend work and one shift of Saturday work (replacing one week day shift) would have been open to her. Mr Hart submitted that such a claim was "modest" (written submissions 15 March 2017, page 2) as she could probably have claimed five days a week plus Saturday work as well, making six days work a week, on occasions.
The defendant provided the following schedule of damages (Exhibit 3): Past economic loss $300 pw net $77,700 27.03.12 to 14.03.17 (259 weeks) Loss of superannuation $7,000 Total Past $84,700 Future economic loss $350 pw x 502.3 less 15% $149,435 Loss of superannuation (allow 10.98%) $16,400 $165,835 Fox v Wood $15,000 $180,835 $265,535

The defendant's submissions were simple. The plaintiff, who had recently returned to the work force after many years' absence, had been employed as a part-time worker for a short period and had been made permanent shortly before her accident. Her roster showed only occasional extra days, due to other staff being away. Her rostered days during the week before the accident were the exception that proved the rule. She had an active family life, a home and property to manage and a sick husband to care for. If the plaintiff had continued to work for the defendant, the likelihood was that she would work in the same pattern as she had done before the accident.
The defendant's estimate of past economic loss is asset out in the Fair Work guide and allows for a modest increase in wages to date. It is based on a two day week, but with allowance for additional days from time to time. Future economic loss is calculated on the same basis, but with the allowance for the future at $350 per week. The plaintiff having conceded a 30% residual earning capacity, these estimates represents the 70% future economic loss that has been compensated.
Mr Levick noted the plaintiff had indeed engaged in other work activities outside her employment with the defendant but submitted that there was "not a skerrick of evidence" (T 116) that she had ever earned any money from them. This was, in fact, her reason for seeking work with the defendant.

The relevant principles

The plaintiff was a homemaker who worked full time only briefly at the very beginning of her working career. Her injury affected both her ability to perform activities of a potentially remunerative nature outside the workplace as well as her capacity as an employee of the defendant.
The issues are: 1. The plaintiff's entitlement to a buffer for work for which she cannot demonstrate payment. 2. The plaintiff's employment with the defendant was for a short period, during most of which she was not on the permanent staff. This uncertainty about future earning capacity should be seen in accordance with the principles as set out in State of New South Wales v Moss (2000) 54 NSWLR 536 at [66] - [87].
I shall first consider the plaintiff's claim for a buffer for her non-employment activities as a masseuse and in horse-related services.

Allowance for the plaintiff's non-employment related activities

The plaintiff claims for loss of opportunity to perform massages and to provide horse-related services. She candidly admitted that she had never declared any earnings.
Economic loss is generally assessed "by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss": Graham v Baker (1961) 106 CLR 340 (at 346-347) per Dixon CJ, Kitto and Taylor JJ.
Difficulties arise where there is a discrepancy asserted to exist between the capacity that has been lost and the economic consequences which flow, such as where a plaintiff has not declared income tax, or is paid in cash: Morvatjou v Moradkhani [2013] NSWCA 157.
In Morvatjou v Moradkhani, the plaintiff claimed to have been paid in cash and admitted not declaring these payments for income tax purposes. In determining how to assess past and future economic loss McColl JA first noted the principles set out by Gleeson CJ, Gummow, Kirby and Hayne JJ in Husher v Husher (1999) 197 CLR 138 (at [7]), which her Honour set out at [52]: "But damages for both past loss and future loss are allowed to an injured plaintiff "because the diminution of his earning capacity is or may be productive of financial loss". Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained. (Emphasis added by McColl JA)"
Applying those principles to past and future economic loss where there was income which had not been declared, her Honour repeated the relevant principles in State of New South Wales v Moss: "[53] Furthermore, as Heydon JA (Mason P and Handley JA agreeing) said in New South Wales v Moss [2000] NSWCA 133 ; (2000) 54 NSWLR 536 (at [71]): "[S]trictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss … The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income … Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. (Emphasis added)"
These principles are relevant in relation to the two questions for determination, namely whether the plaintiff would have proceeded to promotions either in the position she held at the time of the accident or in some other position in the health care industry.

The failure to declare income on the plaintiff's tax returns

Courts traditionally took the view that a plaintiff who provided information to the Commissioner of Taxation inconsistent with the evidence later led in court could not expect the court to accept evidence inconsistent with those taxation records: Elias & Elias (1977) FLC 90-267. That is no longer the case, for the reasons explained by Loughnan J in Kartal & Dutsanee [2016] FAMCA 1158 at [44]: "[44] There is a decision of the High Court in Nelson v Nelson(1995) 184 CLR 538 which put an end to a concept from a decision in Elias & Elias(1977) FLC 90-267 by Goldstein J many years ago. The mere fact that a person has made a formal declaration and did so for financial advantage does not relieve a Court of the obligation to make a finding about the true position. These things are concerning, but the fact alone of a false declaration does not allow an automatic finding about the issue in question. The fact is that the wife has made a false declaration. It is just a question of which declaration was false. On her case, she will argue that she misled the lending authority in 2014 about her financial capacity to service a loan and she originally made an incorrect declaration in her income tax returns."
A similar approach is taken in personal injury claims. In Morvatjou v Moradkhani at [54] McColl JA stated: "[55] If a plaintiff does not adduce records of pre-accident earnings, leaving the evidence in a state of uncertainty, it "does not necessarily follow, as a matter of law or fact, that proof of the plaintiff's claim for lost earning capacity will fail [as] [t]he evidence may nevertheless establish, on the balance of probabilities, the likelihood of some substantial element of loss, and the court will take that into account in assessing general damages … However, the assessment is likely to be a modest one having regard to the uncertainties unnecessarily left open by the evidence. The plaintiff will usually not be heard to complain on appeal that the loss may have been greater": Giorginis v Kastrati (at 375). Thus, because "the information concerning economic loss and documents relevant to it are within the knowledge and possession of the plaintiff … the lack of clarity on such matters is primarily the responsibility of the plaintiff": AMP General Insurance Ltd v Kull [2005] NSWCA 442; (2005) 44 MVR 339 (at [75]) per Hodgson JA (with whom Santow JA agreed)."
The same applies to both past and future earnings. However, the evidence in the present case is scant.
The defendant denies that these opportunities existed in the plaintiff's job at the time of the accident and further argued that the plaintiff's obligations as her husband's carer and home commitments meant that she was unlikely ever to work more than two days a week unless she came in on a relieving shift to replace another worker, as had happened on about half a dozen occasions during her employment.
I make two preliminary observations. First, this would be a straightforward exercise if the plaintiff had a pre-existing physical injury affecting her earning capacity, as in those circumstances the question of the plaintiff's past and future earning capacity is best determined by assessing the plaintiff's earning capacity prior to and following the accident by having regard to the actual earnings of the plaintiff (Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117 at [139]): "[139] It follows that the defendant took the plaintiff as it found him and is liable in damages for the full extent of the incapacity caused by its negligence. It was not, however, responsible for such degree of incapacity as arose from pre-existing conditions: Commonwealth of Australia v Elliot [2004] NSWCA 360 at [78]-[79] (Giles JA, Hodgson and Tobias JJA agreeing). Such questions of causation are usually answered by assessing the plaintiff's earning capacity prior to and following the accident. In respect of the former, the best evidence is usually the actual earnings of the plaintiff in the year or years immediately preceding the injury. That is because, in order to assess loss flowing from the accident, it is neither necessary nor appropriate to undertake some abstract assessment of the plaintiff's abilities. Thus, in the present case, it may be thought that the plaintiff had abilities which were under-utilized prior to the accident. However, whether or not he was capable of earning more than he in fact did is only a relevant factor if there is reason to suppose that he would have exercised his capacities to a greater extent in the future. That would be a matter for the plaintiff to prove."
In the present case, the plaintiff did not have a pre-existing injury, but she did have a pre-existing commitment, namely the care of her husband, a position for which she had been paid by Centrelink and, prior to that, subject to her husband's damages award. Should a commitment of this kind be regarded as a brake on her earning capacity of the kind similar to a pre-existing injury?
Second, the onus of establishing the loss in these circumstances lies on the plaintiff, as McColl JA noted in at [54]: "[54] It is incumbent upon the plaintiff to prove the loss for which compensation is claimed (Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412) per Gibbs CJ and Wilson J) and the quantification in money that should be adopted in the sum awarded: Watts v Rake [1960] HCA 58 ; (1960) 108 CLR 158 per Dixon CJ (at 159). Accordingly, the plaintiff must prove the extent of his or her pre-accident earning capacity, the extent to which that capacity would have been productive of income had the accident not happened, and the extent to which the compensable injuries have diminished his or her ability to exercise the pre-accident earning capacity: Giorginis v Kastrati (1988) 49 SASR 371 (at 374) per von Doussa J (King CJ and Legoe J agreeing)."
Taking all of the above into account, I am satisfied that no allowance should be made for the loss of these activities. The plaintiff never nominated a customer or a particular transaction or even the kind of sums she received from time to time. Some of her services were asserted to have been provided on a "quid pro quo" basis, but I was not told what the services were worth or what she received in return. There is simply not enough information for me to come to any concluded view. I am not prepared to award even a very small buffer in the absence of such evidence in circumstances where, as Mr Levick reminded me (T 116) not only was there no evidence, but the burden lay on the plaintiff.

Loss of opportunities for advancement and future economic loss

The propositions put forward by Mr Levick on behalf of the defendant are a sensible reflection of the plaintiff's actual work history, with a small adjustment to future economic loss to allow for $350 a week (in lieu of the previously less generous figure). The propositions put forward on behalf of the plaintiff assumed a rapid advance as a skilled worker for which there was no factual basis. Although Ms Jones gave evidence of advancement opportunities, she did not resile from the views she gave in her statement concerning the plaintiff. In particular, I accept what she said about the unavailability of weekend work, which I see as an example of the plaintiff's claim being unrealistically inflated.
I propose to award future economic loss for the figure assessed by Mr Levick.

Interest

The plaintiff also brings a claim for interest under s 151M Workers Compensation Act 1987 (NSW). A schedule of interest rates was provided.
In Briggs v State of New South Wales (No 2) [2015] NSWDC 299, Levy SC DCJ set out the relevant principles as follows: "[13] The plaintiff's entitlement to interest on workplace injury damages is discretionary, and is governed by s 151M of the Act, which provides a limited statutory right to interest that only arises if the specified conditions are satisfied. [14]Relevant to these proceedings, those specified conditions are satisfied if first, the plaintiff can show that the damages awarded, before the addition of interest, is more than 20 per cent higher than the highest amount offered by the defendant, and secondly, the offer made by the defendant was unreasonable, having regard to the information available to the defendant when the offer was made: s 151M(4)(a)(iv) of the Act. [15] The plaintiff is not entitled to an award of interest if, at the time the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff's full entitlement to damages of any kind: s 151M(4)(b) of the Act. [16] In this case, the defendant's offer was in writing, thus also satisfying the requirements of s 151M(4)(c) of the Act."
These submissions are precipitate and should await the determination of the claim for damages, as occurred in Briggs, because otherwise I would be seeing offers and hearing about what occurred at mediation. As I noted when these matters were raised in court on the second day of the hearing, their early provision to me was unfortunate, and created real difficulties. Having now obtained the transcript and having reread all the evidence, I am satisfied that the correct step was to continue the hearing regardless, but it is not a step which should be encouraged.

Orders

Although the sum to be claimed is clearly identifiable as the sum set out in the defendant's schedule of damages, in view of the problems which occurred during the hearing (due in part to errors in the mathematics of the plaintiff), I have nevertheless made an order for the parties to bring in short minutes of order in relation to the sum to be entered for judgment. I have also granted liberty to apply in relation to costs and to interest pursuant to s 151M. 1. Judgment for the plaintiff. 2. The parties are to bring in short minutes of order reflecting the mathematically agreed judgment sum. 3. Defendant pay plaintiff's costs, with liberty to apply (including liberty to apply for interest pursuant to s 151M Workers Compensation Act 1987 (NSW)).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2017

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Judgment (21 paragraphs)

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Cases Cited (21)