Trudy Olsen v Identix Australia Pty Limited - [2002] NSWSC 157 - NSWSC 2002 case summary — Zoe

NSWNSWSC

Trudy Olsen v Identix Australia Pty Limited

[2002] NSWSC 157

Supreme Court of NSW|2002-03-15|Before: Einstein J, Mr J, Hunt J

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Source facts

Court

Supreme Court of NSW

Decision date

2002-03-15

Before

Einstein J, Mr J, Hunt J

Source

Original judgment source is linked above.

Judgment (284 paragraphs)

[1]

CITATION : Trudy Olsen v Identix Australia Pty Limited [2002] NSWSC 157 FILE NUMBER(S) : SC 12855/00 HEARING DATE(S) : 25/02/02, 26/02/02, 27/02/02, 28/02/02, 29/02/02, 4/03/02 JUDGMENT DATE : 15 March 2002

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PARTIES : Trudy Olsen (Plaintiff) Identix Australia Pty Limited (Defendant) JUDGMENT OF : Einstein J

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COUNSEL : Mr M Maxwell, Mr J de Greenlaw (Plaintiff) Mr M B Williams (Defendant) SOLICITORS : Gerard Malouf & Partners (Plaintiff) A O Ellison & Co (Defendant) CATCHWORDS : Claim to damages regulated under Workers Compensation Act 1987, section 151 Z (2) - Personal Injury - Liability of employer - Alleged injuries sustained by plaintiff employee after fall down stairs at work - Medical reports and other evidence inconsistent with plaintiff's evidence of fall - Whether plaintiff fell on date alleged - Whether plaintiff fell on prior occasion - Contributory negligence - Plaintiff employed as office manager - Damages not litigated - Assessment of damages LEGISLATION CITED : Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Fox v Wood (1981) 148 CLR 438 Griffiths v Kerkemeyer (1977) 139 CLR 161 Heuston v Yore Contractors Pty Ltd (unreported, Supreme Court of New South Wales, Hunt J, 9 March 1992) CASES CITED : Jones v Dunkel (1959) 101 CLR 298 Kondis v State Transit Authority (1984) 154 CLR 672 Sullivan v Gordon (1999) 47 NSWLR 319 Wyong Shire Council v Shirt (1980) 146 CLR 40 DECISION : Short minutes of order to be brought in by the defendant providing for a verdict for the defendant. Submissions as to costs invited.

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JUDGMENT 1 The plaintiff claims damages in respect of injuries which she claims to have sustained on 4 August 1998 when in the course of her employment and whilst walking down stairs in the premises of her employer, the first defendant, she is said to have slipped on the top step falling heavily to the ground. 2 The claim requires to be determined under the regime provided for in section 151z (2) Workers Compensation Act 1987. 3 The plaintiff had joined as second defendants the registered proprietors of the property in which the accident was to have taken place. The second defendants had in turn cross-claimed against the first defendant and against the managing agent retained by the second defendants apparently under a written agreement. Soon after the commencement of the final hearing terms of settlement were handed up resulting in the dismissal of the proceedings as against the second defendants and resulting in the dismissal of the cross-claims. In those circumstances it is convenient to refer to the employer, Identix Australia Pty Ltd, as "the defendant". The plaintiff's employment 4 The defendant at all material times carried on a business at 765 Pacific Highway, Chatswood. The business concerned the manufacture of a biometric device which verified the identity of persons by the use of a three-dimensional picture of a fingerprint which was scanned. 5 The plaintiff had commenced working at the subject premises in 1996, with her employer then being Fingerscan Pty Ltd. Fingerscan was taken over by the defendant in March 1998. At the time when she commenced employment with Fingerscan her position had been as personal assistant to the Managing Director and Chief Operating Officer of the company 6 In about March 1998, at the time when she became aware of the takeover by the defendant, the plaintiff was offered a different position, namely the position of Senior Office Manager at the Chatswood office which entailed a change of salary. Her then duties, as described by her in giving evidence, were as follows: "Managing the staff that were present in Australia; arranging for staff we did employ.. in Australia who were in the United States to be found a home, for them to bring their wives and children there, to make sure they were comfortable in their new environment; take care of all the administrative duties in the office such as overseeing the payments of creditors, debtors; doing some company secretarial work; making sure the PR part of the job - human relations part of the job with the staff was fulfilled; make sure the staff were happy, and that included taking care of the environment they worked in so whether they had a problem with their car park or whether they had a problem with their particular job, ensuring they were kept happy in the best way possible; the maintenance of their work environment, ensuring they had everything within their means to work efficiently; stock ordering from Identix in the United States; client or customer contact; liaison; repairs and ensuring that the repairs were done on board and in the office efficiently; customers were charged or not charged depending on the relationship we had with them." [transcript page 25] 7 The plaintiff's evidence was that from March 1998 she reported to Mr John Bruce-Smith, the chief financial officer who at that stage was situate in California, and that she also reported to another person in the United States whose name she could not recall. 8 The way in which she communicated with Mr Bruce-Smith was by e-mail and by telephone. On her evidence, if she needed to spend some money on the office she would deal with Mr Bruce-Smith in this regard. 9 A letter of appointment from the defendant to the plaintiff dated 10 March 1998 became exhibit P2. This makes plain that the position which she was offered was the position of Senior Office Manager reporting to the Managing Director. The description of duties includes the following: · Unofficial secretarial responsibilities for the Corporation.. including such items as: · Building Maintenance and Management · Human Resources · Staff Management in the absence of appropriate executives" 10 The plaintiff's evidence was that her salary was increased with the letter of appointment. That salary was to be $57,500 per annum.

[155]

Early 2000 44 In early 2000 the plaintiff saw Dr Blum, a consultant neurosurgeon. On the first occasion when she saw Dr Blum she was in a lot of pain. In due course and after he recommended that she undertake treatment with a muscle relaxant Baclafin and had discussed with her the prospect of using an epidural stimulator, this procedure was undertaken. 45 Before Dr Blum was prepared to undertake the procedure it was necessary for the plaintiff to see other doctors. At about the same time she was seeing Dr Shand, a psychiatrist organised by the defendant's insurer. In March 2000 she saw Ms Jacqueline Kalmar, occupational therapist, about rehabilitation treatment. In April 2000 she saw Dr Mahoney an orthopaedic surgeon. She also undertook a number of tests with Mr Henry Luiker. 46 She also saw Dr Ireland on behalf of the defendant on 13 March 2000 and Dr Billet on 16 October 2001. 47 Dr Blum carried out the procedure on 19 March 2001. 48 Dr Blum described the procedure in evidence as follows: "... Basically the patient is placed on the operating theatre face down. A local anaesthetic is put into the skin where the stimulator is to be located, then the patient is given quite heavy sedation, to make it relatively pain free, and a small hole is made in the spinal column bone, and the stimulator, which is about the size of a small Paddle Pop stick with a wire coming out of it; is fed between the face of the spinal cord and the bone on the outside of the covering of the spinal cord with the dura. The patient is then woken and an external stimulus is applied to the electrode, to check that the electrode is in the correct position, one leg or the other leg or both legs and the back. Then the patient is put back to sleep and is sown up and returned to the ward. The procedure is about an hour's procedure and then the rest of that - usually a week it is trialled, with the metronics technician -- M ED to get the best sort of stimulation, and then the patient is seen daily, to determine whether this works or doesn't. If it doesn't, the patient is returned to theatre, the wound is opened and it is extracted out. If it does then the patient is put to sleep, this time and the electrode bugs are tunnelled under the skin to an abdominal pocket which is under the skin, which is outside the abdominal cavity just in the fat of most people, or outside the muscle and the two are connected up. The patient then uses the stimulator by an external remote control which is put on the skin, which switches the machine on and off and you can change the parameters of the stimulation." "MAXWELL: Q. Just briefly, Doctor, in this instance the insertion took place in the thoracic spine in T7 A. Yes it's inserted by x-ray at the time.

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Q. And the battery I think is on the left-hand side of the abdomen? A. It doesn't - we usually put it - if the patients have not had their appendix out, we put it on the left side. If they have had her appendix out it's on the right side." [transcript page 83-84] 49 The plaintiff gave evidence that after the stimulator was permanently implanted she noticed "very slight benefit" and that over the next couple of months the benefit did not increase. She had been hoping for better. Using the stimulator gave her a slightly reduced pain level, but it was not as much benefit as she had thought or had hoped for. That had remained the case right up until the present time. Over time the benefit had decreased and the plaintiff is currently taking pain medication in the form of Voltarin, Valium, Mersyndol, and Toradol. 50 The plaintiff is still presently on Oroxine. There has not been any change in her problems associated with the hyperthyroidism which has been continually monitored. She does not propose to continue with the stimulator. The incontinence problems have continued and remained the same. 51 The plaintiff's evidence was that she was in extreme pain at the moment on the outside of both of her legs and in terms of her lower back, which pain was with her all the time although there are times when it was better than at other times. There were no times when she had no pain. On a level of 1 to 10 (1 being the least painful, and 10 being the most painful) in relation to her back the most painful would be at 8 and the least painful would be at 4; in relation to her right leg, the most painful would be 8 and the least painful would be 3; in relation to her left leg the most painful would be 6 and the least painful would be 3. 52 Her evidence was that at no time since the accident had she felt like she was capable of working. Her evidence included evidence as to her normal day in the following terms: "A. A normal day. A normal day is waking about 4am because I need pain medication. Waiting until the pain is bad enough that I can't stand it any more and then taking the medication. If the pain killers have kicked in enough I will attempt to get out of bed to get breakfast for the children or to at least see them off to school. Most often back to bed and by that time it would be time to take another pill, I guess, depending on the pain levels.

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The contemporaneous medical records 56 An important consideration of high significance in terms of the findings of fact in this case concerns the documented histories to be found in the medical records which went into evidence and which include hospital records. 57 A transcription of the medical records of Dr Kucera was admitted into evidence. 58 Importantly the entry for 4 or 6 August 1998 [it is difficult to decipher which date appears from the original] commences: "Sudden onset of lower back pain 2 days ago, no precipitating factor…" [emphasis added] 59 Dr Kucera was not called by the plaintiff to explain this entry. 60 The plaintiff denied that she had told Dr Kucera (whether on 4 or 6 August) that she had had a sudden onset of lower back pain two days before [transcript 115]. Her evidence was that it was on 4 August that the attendance took place. She denied that she had told Dr Kucera that there had been no precipitating factor [transcript 115]. She was not able to offer any explanation as to how this note could have come to read as it did. 61 The Hornsby Hospital records are also violently at odds with the plaintiff's version of what had actually happened. The admission record of 22 August 1998 under the name Dr Koo commencing section dealing "History of Present illness" is as follows: "35 -year-old female. 3 weeks ago sudden onset of lower back pain - cause unknown/woke up with it . Seen by local medical officer…" [emphasis added] 62 The same hospital records, again with the date 22 August 1998 but this time under the name Kuoh who was presumably a doctor, although this is not clear, include the following: "3 weeks history of lower back pain with right buttock pain and anterior leg pain down to toe. Much worse now. Unable to mobilise. No sphincter disturbance. No history of injury. Onset while getting out of bed ". [emphasis added] 63 The plaintiff gave evidence to the following effect: "Q. Well, certainly do you agree that you told neither Dr Koo, who seems to have seen you at adult admission or Dr Kuoh that you had an injury falling downstairs? A. I can't be absolutely sure" [transcript page 118] 64 A later reference in the Hornsby Hospital records which appears to be a record of notes by a physiotherapist is dated 27 August 1998 and commences: "1610 Physiotherapist-35 -year-old woman admitted with sciatica. Sciatic pain began three weeks ago - no specific incident …" [emphasis added] 65 The plaintiff was unable to be certain as to whether she could agree that when asked by the physiotherapist, she had made no mention of any specific incident, her evidence being that she was on such morphine that she did not know what was going on. [transcript page 118] 66 The same entry of 27 August 1998, part of which has been extracted above, continues after some further information about inability to do extension exercises and some other matters as follows: "Nil previous episodes of back pain, ok with both pregnancies. Had a fall on stairs at work three to four months ago - only bruising in back, nil problems". [emphasis added] 67 The plaintiff steadfastly denied that she had had a fall down some stairs at work earlier in the year [than the early August alleged fall]. [transcript page 120] 68 The same hospital records include what appears to be a referral or note from Dr Brooks to Dr Cook which does not mention any event, accident or precipitating incident. Likewise a consultant's report apparently from Dr Cook in neurology reads inter alia : "Acute back pain referred down anterior aspect right to lower leg to knee, shin and right groin. Symptoms now three weeks, nil relevant past history, onset acute, no event …" [emphasis added] 69 The plaintiff could give no explanation as to how this could have been in the history. She could not recall telling Dr Cook matters consistent with what he had written. She could not suggest anything which she told him that might have led him to write "no event". [transcript page 120] 70 The physiotherapist Ms Yong had written [see page 8 of the medical record transcription notes] inter alia: "She reports no previous back problems; and a fall down stairs three to four months ago with no ill effects." [emphasis added] 71 The plaintiff could not recall having said this to the physiotherapist. 72 Also placed into evidence were the San medical records (by transcription, exhibit P6; originals P16A). 73 The first entry appears to have been taken by Dr Singer and commences: "35 year-old female. 3 week history of back pain - lower lumbar severe, radiates down right thigh to shin. Fell down stairs at work 3 months ago - no immediate problems… Pain became very severe at home 6 days ago…". [emphasis added] 74 The plaintiff gave evidence to the following effect: "Q. … it is clear is it not that on 28 August when you went to the Sydney Adventist Hospital you appear to have told a Dr Singer that you fell down the stairs at work not on 4 August but some three months prior to 28 August?

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Evidence given by Mr Olsen 86 The plaintiff's husband, Mr Olsen gave evidence. 87 Mr Olsen is currently unemployed. From 1990 until 1996 he lived in New York with his wife, they having been married in 1987. He worked on Wall Street. Upon the families later return to Australia he sought employment with Tullett and Tokyo, the company with whom he had been employed in the United States. In answer to the question as to what his role was that company in Australia was he said: "Just consulting, I was not…full on, trying to find a position for me and I was basically helping out with whatever I could fit in as far as trading or broking". [transcript page 150] 88 He remained with the same company until late 1988 or around then and his position had remained the same as a consultant right through. 89 His evidence was that prior to 4 August 1998 his wife had excellent health. Although he knew that she had hypothyroidism, that had never become a problem the whole of the time he had been with her. 90 Mr Olsen gave evidence to the following effect: "Q. Prior to the 4 August 1998 to your knowledge had your wife been involved in any accident ? A. Nothing that I can remember ." [transcript 151] 91 On his evidence his wife had not prior to 4 August 1998 made any complaint to him whatsoever in relation to any back problems. 92 Mr Olsen gave evidence that on 4 August 1998 he was at home entertaining his parents-in-law and at about 10.00 or 11.00 am he received a telephone call from his wife who said she had had an accident and asked him to make a doctor's appointment for her with Dr Kucera. He made that appointment. He received another telephone call from Mr John arselle.Parselle. He informed Mr Olsen that there had been a problem in the office and that his wife had had a fall. He said that he believed that Mrs Olsen had contacted Mr Olsen and was on her way home. He said that he was a bit concerned as to how she was and that she did not look too good. He asked Mr Olsen to keep in touch and let him know how Mrs Olsen fared as soon as he could. 93 Mr Olsen's evidence was that his wife then arrived home and he drove her to see Dr Kucera. He was present during the examination. He heard the conversation which occurred in relation to the examination and history. His wife had told Dr Kucera that she had fallen down a flight of stairs and landed on her back. His wife had pointed to the spot on her back. She had said that she had been carrying some stock in her hands and slipped and landed on her back. He did not recall Dr Kucera writing notes. Dr Kucera examined his wife and he stayed during the whole examination. He knows that the notes of Dr Kucera record that there was no incident mentioned at the time, or something to that effect, and found out about that quite some time down the track he thought when they had attended the arbitration hearing. 94 Dr Kucera gave him the certificate of inability to work exhibit P14. 95 Mr Olsen gave further evidence that every morning thereafter the plaintiff had complained of a pain in the lower portion of her back. He noticed that it was getting worse over the first week and it deteriorated over the fortnight, becoming drastically worse. [transcript page 156] 96 Towards the end of August he was watching television on Saturday morning with his children when the plaintiff came crawling through the door crying. She said that she could not move and was in pain and he drove her to Hornsby Hospital. When they arrived he was there with his children and a history was taken. He believed that he had given the history to the junior nurse in casualty. His wife was flat down on her face at the time. His children were all over the place and he was endeavouring to watch his children as well as his wife as well as to give the history. He gave evidence to the following effect: " Q. What did you tell them in relation to the history? A. Well there is not much I could tell them about what would (sic) happen. She had come through the door, and I had to give them a description of the sudden onset of what the problem was. I just gave it to the best of my ability. They said do you know why it happened and I said yes I did. It was very, she had a fall in the office a couple of weeks ago and as far as I know they would have written that down." [transcript 157] 97 He had not seen anything being written down at the time as he was too busy holding his wife and endeavouring to attend to his children, particularly his son who was so much out of control at that age that he took 100 percent of Mr Olsen's attention. 98 Mr Olsen gave further evidence of having continued to visit his wife while she remained at Hornsby Hospital and having been there for very long periods. His evidence was that his wife was heavily sedated with morphine. He gave the following further evidence: "Q. Over a period of time did you speak anyone else about the circumstances of the accident at the hospital? A. At the hospital, do you mean how it happened? Q. Yes? A. At Hornsby Hospital nobody came to visit so I didn't speak to anybody about that as far as, a couple of doctors would turn up which were on duty I think and they would ask me, I think Cook brings a bell. Dr Cook, I told him she had a fall down the stairs. Everyone wanted to know the full story but I cannot recollect.

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Q. Do you recall Trudy speaking to anyone about the circumstances of her accident? A. No I don't remember it. She was just in ga ga land on a morphine trip. She was in a lot of pain." [transcript page 158] 99 Mr Olsen gave evidence that he accompanied his wife when she was admitted to the San. He was asked whether he or his wife had a conversation about the circumstances of the accident [on or about arrival]. His answer was "No not to my recollection." 100 On the day when his wife had been transferred to the San he had stayed with her the whole of that day and that night. Mr Olsen gave evidence to the following effect: "Q. In relation to all of that day and all of that night do you recall yourself or Trudy giving any history to anyone? A. No, the history came with us I believe. [transcript 159] Q. When you say that did you have a file with you? A. I never saw one but as far as I was aware I didn't do anything at all, everything was prearranged by the doctor at Hornsby Hospital to the casualty at the Sanitarium when we arrived. Basically they had done everything. The only thing I had to do before they would let us leave from Hornsby was to get the compensation form filled out and sent back to the company. Q. As far as the compensation form was concerned were you present at the time that it was completed and signed by Trudy? A. There were staggered portions of it. I could not say I was or was not. There were conditions where she could not be competent, coherent while she was on the morphine. It was actually done over two days. The last thing I did was pass it on to a Joanne Lovett to pass it to the boss. She was the one who delivered it anyway…" [transcript page 159] 101 His relationship with his wife since August 1998 had had its ups and downs and had been a rocky road "sort of thing". He gets along extremely well with her. 102 Broadly his evidence was that his wife had grave difficulties in generally looking after herself. He had cared for her in whatever way he could at all material times and had at the same time, looked after the children and the household duties. Naturally the nursing assistance which the plaintiff had had over a period of time would have lessened the burden upon him. However that burden had remained very heavy throughout and was continuing.

[230]

Evidence given by Mr Bruce-Smith 113 Mr Bruce-Smith commenced as finance controller with the defendant in November 1997 and in May 1998 took up an offer to transfer to the United States with Identix Incorporated, the parent company of the defendant. He remained the finance controller even whilst he was in the United States. From May 1998 up to August 1998 he was more often in United States and primarily there until October 1998. 114 He recalled that the plaintiff had been provided with a petty cash float in terms of her job as office manager and believed the sum at which the float was maintained was $500 or thereabouts. 115 He did not think that as office manager in 1998 the plaintiff would have been obliged to seek authority from him in the United States for expenditure of an amount of $100 on an office repair. He gave evidence to the following effect: "Q. What do you say after that when you went to [the defendant] as regards your probable reaction had any matters such as [faulty] stair treads or faulty lighting been brought to your attention? A. I would have, for a hundred dollars, I would have said repair it" [transcript 190] 116 In relation to any request for repairs from the plaintiff in relation to the lighting in the stairwell and the stair tread his evidence was that he had no recollection. He could not positively say that there was no request by the plaintiff but simply did not have any recollection. 117 Mr Bruce-Smith gave evidence that at the end of August 1998 or thereabouts Mr Parselle who had been the managing director, left the company. Mr Bruce-Smith had been overseeing some of the duties which Mr Parselle would normally have had as at 30 August 1998. 118 Mr Bruce-Smith had signed the Employer Declaration which had been dated 26 August 1998 [Exhibit P6] at the time he was in the United States. He had not been present when the accident occurred. His evidence was that he would have filled the document out on the basis of information given to him. He spoke to Ms Lovett as he recalled it. No one had telephoned him and told him that there had been an accident. His sole information about the matter had come to him some three or four weeks thereafter when he had been asked to sign. He had been acting on behalf of the company where to the best of his knowledge others had told him that there had been an accident and he had been alerting the insurer to that fact. He did not believe that he had spoken to Mr Parselle at any time about the accident on 4 August 1998. 119 His evidence was that in early 1998 and up to August 1998 he was generally aware of the condition of the office as he came back to Australia at times during that period. The basement lighting was sufficient for the purposes of it being used as a garage and for storage. The lighting was poor on the internal staircase from the basement to the reception area in terms of being dimly lit. It was sufficient to walk up and down the stairs but he would not like to think that it was sufficient to read a book by. 120 It had been his practice to speak with the plaintiff on a weekly basis if not more, in keeping in touch with the Sydney office. The plaintiff would have telephoned him about a whole host of things. He was not in a position to deny the proposition that the plaintiff sent him an e-mail in the period leading up to 4 August in relation to repairs to the stairs and the lighting. He could not call the plaintiff telephoning him to the effect that she needed to get some issues sorted out in relation to repairs, lighting, stairwell-repairs to the stairs. 121 Mr Bruce-Smith was asked what he said in answer to the proposition that takeover issues in relation to group affairs at the time had the effect of, in any way, straining the company's resources to the degree that they could not replace fluorescent bulbs or a stair strip in Sydney. His evidence was that he did not believe the matter would have come into question. On his evidence the plaintiff did not need to get authority from him in the United States for the expenditure on that sort of thing of an amount of in the order of $100.

[231]

Evidence given by Ms Joanne Lovett 122 Between 1998 and early 1999 Ms Lovett had been marketing communications manager for the Asia-Pacific region of the defendant. She knew the plaintiff as a workmate and friend and had a good relationship with her. That relationship had never changed. 123 Ms Lovett as at 4 August 1998 was in California. She was there for a sales conference being away from Sydney for about 10 days. 124 Her evidence was that a "couple of months" prior to August 1998 the plaintiff had had a conversation with her concerning a fall. On her evidence the plaintiff was obviously then in pain. Her evidence was: "I don't remember the exact words, but I do recall Trudy clutching her back at times as if she was in pain and we spoke about the fact that it was in relation to her slipping on the stairs previously". 125 On Ms Lovett being asked which stairs she was referring to, her evidence was that she thought it was the stairs leading down to the basement to the car park. [transcript page 207] 126 As a result of the plaintiff telling her this she suggested that the plaintiff see a doctor and have a report filed about it in case there were problems down the track. [transcript 207] Under cross-examination in relation to her recommendation that the plaintiff see a doctor, her evidence was that the plaintiff said to her "I will be okay" and that she had said to the plaintiff "Well you don't look okay, you should see somebody about it." [transcript 216] 127 Ms Lovett gave evidence to the following effect: "Q. Just reiterate for us, if you would, what you said to her about the fall she described and the injuries she was exhibiting? A. What I said, exactly what I said to her? Q. Yes. A. I said that she looked like she was in pain, she should see a doctor and we discussed the fact that the stairs were slippery" [transcript page 208] 128 Months after this when Ms Lovett was in the United States she made a telephone call to the plaintiff to see how things were going in the office. The plaintiff told Ms Lovett that she had fallen on the stairs. She thought that she asked the plaintiff if she had seen a doctor or was going to see a doctor. She thought that the telephone call had taken place on about the 11th August. [transcript page 209] 129 When she returned from the United States she saw the plaintiff who appeared to be in a lot of pain and was close to tears on a number of occasions and was walking awkwardly. She saw the plaintiff both at Hornsby hospital and at the San. 130 Under cross-examination she was closely tested as to whether the plaintiff had said to her that there was an accident in early 1998. Her evidence was that she was quite confident of this fact. From memory the occasion when the plaintiff had spoken with her earlier in 1998 was probably closer to April or May. 131 Under cross-examination it was suggested to Ms Lovett that she was mistaken about any conversation with the plaintiff in relation to a fall in the early part of 1998. She did not think that she was mistaken. She was first asked to recall any fall the plaintiff may have had in early 1999 and had given a statement by tape-recorded interview to Commercial and Private Investigations by telephone. 132 Ms Lovett agreed that the stairs as at August 1998 were slippery, that the lighting was poor and that there was a tread missing on one of the stairs. She had herself slipped but not fallen on those stairs. 133 Ms Lovett's evidence was that she had probably taken the claim form exhibit P6 to the hospital. She couldn't remember whether she had retrieved it or whether Mr Olsen had brought it back to the office. On 27 August she had sent a copy of it by facsimile to Indemnity Corporation. [exhibit P17] She could not recall the forms very well. She could not recall whether she was the one who arranged for Mr Bruce-Smith to sign the document before it was sent off. Insofar as the document included the question "To whom was the accident reported?", it was probably her own handwriting where it had been completed "John Parselle". 134 She could not recall whether before these words had been written in, she had spoken to Mr Parselle. She would have taken the plaintiff's word for the information on the document and would have looked at it. 135 She was not certain as to when Mr Parselle had left the company although she recall that he was not involved in the sales conference in the United States. Ms Lovett gave evidence to the following effect: "Q: Are you sure about that? A: Not 100 per cent sure, no, but I don't think he was. I think he left a couple of months prior to that. Q: A couple of months prior to August? A: I think so. I can't recall, I'm sorry. I know that he wasn't involved in the sales conference that we had in the US. Q: Before you went to the sales conference, were you aware of the fact that he was to leave the company? A: Yes, I think he had left the company before I left. Q: Can I suggest to you in fact the he was still there? A: Oh, okay. Q: As at August 1998? A: He may have been. Q: And still there up until the end of August 1998? A: Okay, he may have been. Q: You just don't have a recollection? A: I don't, I'm sorry. [Exhibit P17 document from Ms Lovett to Indemnity Corporation dated 27/8/96, together with annexure comprising four pages, tendered, admitted without objection] His Honour: Q: Miss Lovett, in relation to the evidence that you've given, as I understand the position, you seem not to be very clear about Mr Parselle in terms of when he was and was not a person that actually left, it being suggested to you that he was there until late August, whereas a few minutes before you thought he had already left and so forth. I don't know in your average day in Sydney when, if he would be there, you would see him or if he wouldn't be there, whether you would know of his whereabouts or not. As between that circumstance of your state of knowing or being unsure about him, as I understand your evidence you've said you were quite sure that Mrs Olsen told you some months before about this fall on those stairs. Are you able to help me, firstly, in relation to the Mr Parselle side of the exercise? Why would you perhaps be not certain or clear about his position at about August or late August and on the other hand, be quite clear of what Mrs Olsen had told you about the earlier fall she had? A: Well, we knew a while before John left that he was going to be leaving and he had a property south of Sydney and he would often work from there and then come into the office a couple of days. So he wasn't there full-time. So there was a transition period with John leaving the company. Now, I can't recall exactly when he stopped working with us full-time and how long that transition went on for. It was a year where I had I think three bosses in one year, so the management turnover was quite high at that point. There were changes going on with the takeover of the company in America. John was involved in that to a degree, I guess. So the transition was over a couple of months period, so when you ask me whether he was still with the company, he was probably still with the company as a consultant, but not as managing director because the company in the states had taken over. So the transition was a couple of months long. Q: Is there any reason that you can put forward as to why you feel so confident about Mrs Olsen having told you some months before about the other fall ? A: Because I was concerned for her. She appeared to be in pain. It wasn't constant pain, but she did appear to be in pain and I was concerned for her . Q: Can you just tell me where you were standing when she spoke to you first about that and that sort of thing, the details as you recall them? A: I don't remember the exact spot I was when she first told me, but it would have been on the ground floor of our office, that is where my office was and it was probably on that level. Q: In relation to the concern that you've said you had, I know you may have told us about this before in your evidence today, I just want to understand it clearly again, what exactly, as far as you can remember, led you to having that concern about her at that time? A: What led me to my concern? Q: Something she said, something you saw? A: She appeared to be in pain and I asked her what was wrong and she told me that it was her back, relating to the slip on the stairs that she'd had . Q: When you say "she appeared to be in pain", I know that may suggest a clear impression of what one means when one says "X appeared to be in pain", but there are probably lots of ways in which one could interpret that statement or those words. What do you mean, as best you can now recall, when you tell me that she appeared to you to be in pain? A: It was flinching in certain positions , it was the fact that she wasn't as bubbly and happy around the office as she usually - as she had previously been. She seemed depressed at times. This is just my observation. But it was the flinching every now and then with movements with her back ." [transcript page 214.17 to 216.9] [emphasis added] 136 It was put to Ms Lovett under cross-examination that she having been asked in March 1999 about the fall, was probably confusing the August 1998 fall with her evidence as to the earlier fall. In answer to this proposition she steadfastly maintained that she was not confused. 137 Sections of the typed transcript of Ms Lovett's tape-recorded telephone call of 17 March 1999 with Commercial and Private Investigations were admitted into evidence in re- examination. This interview included the following: "Q. Did you ever witness Trudy Olsen falling down the stairs at Identix? A. I didn't actually see it with my own eyes, in fact there were two falls that she had, and the first fall was a couple of months previous to the August fall and I saw her not long after the accident. I think I was the one, along with one of the other guys who told her to go to the doctor to have herself checked out. The August fall that she had, I was here in the states, but I heard about it. I wasn't actually there for the second one, but I was there for the first one. Q. The first fall, you would say that it was possibly in about June or July 1998? A. It was prior to that, to be honest I can't give you the exact date, but possibly in the first three months of that year. Q. So in January, February or possibly March? A. Yes. Q. What did you witness? A. I just witnessed the way she was walking. She was also holding her back. It was obvious that she was in a lot of pain. Q. Did she mention to you which flight of stairs she fell down? A. She said to me the stairs leading to the car park. Q. So the stairs leading down to the basement? A. I assumed that was the flight of stairs she meant. Q. So she didn't specifically take you to the stairs and show you where she had fallen? A. No. Q. After the accident you said she was walking around clutching her back, do you recall which side of the back she was holding? A. No, I don't. I would only be guessing." [Pages 4 and 5 from the transcript of the interview with Ms Lovett] 138 In re-examination Ms Lovett was asked whether on the occasion in August when she had learned, whilst in the United States, of the plaintiff's second fall, anything had gone through her mind. Her answer was: "When I heard that she had fallen I thought ' Oh no, not again' and I thought to myself that maybe she had a problem with balance, a middle ear thing and that's what had caused the two falls". [transcript page 220] 139 Ms Lovett also gave evidence in re-examination that at the time she had the telephone call whilst she was in the United States she was with another employee Ms Monaghan, who was much shorter than the plaintiff, and that Ms Monaghan, in relation to the matter had, referring to the plaintiff, jokingly said to Ms Lovett: "That's what happens when you've got lovely long legs".

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Evidence given by Mr Kosyfas 140 Mr Kosyfas was in the late 1990s employed by the defendant. His job included handling stock principally compromising the touch lock. One of his functions was to carry out quality control checks before the touch locks were despatched from the premises. He would bring the touch locks up from the basement to an office on the ground floor where he would perform all quality control and they would be despatched from the ground floor. 141 On occasion, but only rarely, he would have to transport these goods downwards. If he found a faulty unit there would usually not be enough space on the ground floor for those touch locks to be stored, and so, on occasions, some would be taken back down into the basement. However most movement was upwards from the basement. For that purpose in taking the goods from the cage area in the basement up to the ground floor, he used a tilt trolley which had 2 pneumatic wheels. Using a trolley he would go up at a step at a time, lifting the trolley as necessary. 142 On occasion he received assistance from the plaintiff who would help him. She would carry the items up manually. 143 He had never witnessed the plaintiff falling whilst engaged in that work. He gave evidence to the following effect: " Q. Do you have any recollection of ever seeing her sitting on the stairs during the course of one of those operations, can you remember any occasion when you saw that? A. To say a hundred percent no, I can't remember her sitting on the steps. The day it happened I was never told about it and only weeks after that I was told what had happened and I was told that I had seen her on the steps but I can't say a hundred percent that I remember that. Q. Well, at the time you were told some months after the event, did you have any independent recollection of seeing her? A. I don't. .. I can't say a hundred percent that I saw her sitting on the step. Q. Do you have any independent recollection of seeing her sitting on a step as opposed to being told the suggestion? A. No." [transcript page 225] 144 It was put to Mr Kosyfas that there were occasions when stock was delivered to the ground floor because the truck was not able to get access to the garage. He disagreed. On his evidence there were steps and it was the highway at the front so that there was no place for a truck to stop. On his evidence units were always unloaded at the back on pallets. 145 Mr Kosyfas gave evidence to the following effect: "Q: On that day can I suggest that you were asked by Trudy Olsen to carry some of this stock down and put it in the caged area below, do you recall that? A: I can't recall her telling me that particular day but I had been told on numerous occasions to move stock so that is possible. Q: In relation to the stock that was being moved, can I just point out a box over here? See this JEC box? A: Yes. Q: It is the same? That has been identified previously. I am not suggesting - can I suggest that the type of boxes that you were transporting on that particular day were very similar to that box? A: Approximate size, yes. Q: And in relation to that, the normal practice and what took place on this particular day was Trudy Olsen would pick up a couple of boxes and then take them downstairs? A: Yes, I guess so but-- Q: In any event, just in relation to that box, that was the size or style of box you were using in the Finger Scan business? A: Yes very similar. Q: And in relation to the stairs that moved from the reception area into the basement, would you agree there are about 6 stairs to start with, then a landing and then another 6 or so stairs? A: Yes. Q: And that stairwell turns in on itself, goes back the opposite direction after the landing? A: Yes. Q: And that at least at 4 August 1998 you knew in relation to those stairs that there was a slip tread missing? A: It was pointed out to me after the time Trudy had stopped coming to work, yes. Q: The slip tread trade we were talking about that you were shown after the event was replaced some time later in that year, is that so? A: Yes. Q: And will you agree with me that round about August 1998 the lighting in that stairwell was very dim? A: Coming from the garage it was no dimmer than the garage. It was not brightly lit, I can say that. Q: Now whilst you do not have a recollection of seeing Trudy Olsen on the stairs, is it fair to say you cannot deny emphatically that you saw her sitting on the bottom of the stairs in the early part of August 1998. A: Yes I cannot deny it. Q: See, what Mrs Olsen says is that you were coming down the stairs after her and she was sitting at the bottom of the stairs and you said something like, "What happened to you?" She said, "I fell down." You said, "Are you alright?" And she said, "Yeah, I think so." You cannot deny that conversation, emphatically deny that conversation took place, can you? A: I have no recollection of her ever stating to me she had fallen on that day and, no, I can't emphatically deny that conversation did not take place. Q: She was not known to you as a person that complains was she? A: No. We didn't work that closely together.

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A: Yes. [transcript page 226.55 - 228.25] Evidence of Mr Abraham 146 Mr Abraham is a solicitor practising with the plaintiff's firm of solicitors and currently has the conduct of the proceedings. His evidence in chief principally comprised identifying certain communications between the plaintiff or the plaintiff's solicitor's and Dr Kucera referred to immediately hereunder. 147 On 14 June 1999 the plaintiff had written to Dr Kucera asking her to forward all medical information relating to injuries to her back sustained in August 1998 to the plaintiff's solicitors and giving their address. She also requested that the information include medical documentation which Dr Kucera may have accumulated from the plaintiff's hospital stays at the San handicap wanted the Public Hospital. 148 The plaintiff's solicitors had later written to Dr Kucera on 20 July 1999 enclosing the plaintiff's signed authority and requesting her to forward to them copies of any reports which she had prepared and forwarded to the plaintiff's Workers Compensation Insurer. Their instructions, so this letter indicated, were that the plaintiff had been attending upon Dr Kucera for a period of two years before the accident and the plaintiff's solicitors sought a short report from Dr Kucera commenting on whether the plaintiff had any history of pre-accident complaints relating to her back and her inability to work. 149 By letter dated 21 July 1999 Dr Kucera had written to the plaintiff responding to her letter of 14 June 1999 and apparently attaching copies of notes from her file in Dr Kucera's surgery dated since August 1998, including copies of reports of X-Ray and CT scans which she had ordered. 150 A handwritten note from Dr Kucera to the plaintiff dated 27 June 1999 was admitted into evidence confirming that as discussed over the telephone on that day, Dr Kucera enclosed copies of certain remaining notes from her surgery. 151 Under cross-examination Mr Abraham gave evidence that he had taken over the conduct of the file approximately two weeks prior to the hearing. As a result of his reviewing the file it became apparent to him that there was absent any report from the treating general practitioner. He knew that one had been requested but this did not trouble him. Between that time and the hearing he became aware of the fact that the letter from the plaintiff's solicitors to Dr Kucera of 20 July 1999 had not produced a report as requested. No steps were taken by him from that time up until the hearing to obtain a report from Dr Kucera in response to the July 1999 letter. 152 Mr Abraham was asked if there was any reason, forensic or other, why the matter of a general practitioners report was not pursued after he had been put in charge of the file. His answer was that firstly he did not believe that it warranted the cost and secondly, there was the time difficulty and thirdly, they had these subpoenaed documents. He accepted that he was alive to the implications of the entry in Dr Kucera's notes for 4 August 1998. By this he was being referred to the notes insofar as they recorded "Sudden onset of lower back pain two days ago. No precipitating factor". 153 He became aware of this on Sunday 10 February and had also read the preceding entries as he recalled and this caused him no concern. Mr Abraham gave evidence to the following effect: "Q. What do you say were the reasons for not seeking to address the problems raised by that entry between the time you first became apprised of them and this present moment? A. Firstly, the expense, first and foremost - I did not believe it warranted; secondly, the subpoenaed evidence, which I did have; and, thirdly, the subpoenaed documents, and that entry spoke for itself." [transcript 28 February 2002 page 9]

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Evidence of Mr Young and Mr Rooney 154 Part of the plaintiff's case seeks to rely upon the conduct of the defendant in continuing to make payments of benefits in accordance with the Workers Compensation Act as an admission of the fact of the accident, the date of the accident, the nature of the accident, the fact that the accident took place during the course of employment and of the medical condition of the plaintiff suffered thereby. 155 The defendant seeks to explain this conduct and in this regard called two witnesses: Mr Young, an associate in the defendant's solicitors firm who had had the carriage of the current matter since its inception and Mr Rooney, a technical officer with Allianz Workers Compensation Insurance, who gave instructions to the insurer's solicitors in the matter, having general conduct of giving this type of instruction on areas of strategic conduct of cases. Mr Rooney did not have the day-to-day management in any 'hands on' fashion of individual files. 156 The evidence given by both of these witnesses was consistent. It was to the effect that a forensic decision had been taken to continue the making of the subject payments notwithstanding that in about June 2000 the defendant's solicitors had been able to and had inspected documents produced on subpoenae particularly by Dr Kucera and by the Hornsby hospital. The evidence was that this material was inspected shortly before an arbitration hearing had taken place. By that time approximately $150,000 by way of payments had been made to the plaintiff under the Workers Compensation Act. Mr Rooney had advised the insurer that notwithstanding the significance of the treatment records of Dr Kucera which showed that the plaintiff had not mentioned the alleged incident but rather that she suffered an onset of pain with no precipitating factor, a refusal to pay furthers workers compensation benefits would in his view have resulted in an application in the Workers Compensation Court by the plaintiff. Mr Rooney's advice was that the probability was then that the Workers Compensation Court proceedings would be determined before the common law action such that the possibility of adverse findings of fact before the Workers Compensation Court would mean an estoppel in relation to the accident by a likely finding to that effect by the Workers Compensation Court. 157 Mr Rooney gave clear evidence that the advice which he had been given by the insurer's solicitors was generally to this effect. In making, as he had, the decision to permit the payments to continue, he took into account the advice and his experience in the Workers Compensation field that if weekly benefits had been declined and proceedings had been commenced in the Compensation Court, would likely have been an estoppel which would operate and foreclose these issues being able to be litigated before this Court. This evidence is supported by the written advices which went into evidence as exhibit P35.

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Evidentiary Issues reserved for decision 158 During the hearing the plaintiff submitted that by reason of admissions said to have been made and said to bind the defendant [see exhibits P6 and P7], the plaintiff should be barred from litigating the cause or occurrence of the accident on the date claimed, the fact that the accident occurred in the course of the plaintiff's employment with the defendant and the fact that the plaintiff was incapacitated as a result of the alleged injury ["the subject issues"]. The ruling was that both parties would be entitled to address this question during final address and that, reserving to the plaintiff the entitlement to pursue this matter in final address, the defendant would be entitled to cross-examine the plaintiff and otherwise to conduct its case on these issues in such fashion as it saw fit. The matter would be the subject of a reserved ruling to be handed down either during final argument or as part of the final judgment. On a later occasion during the hearing, the plaintiff extended its claim in terms of the conduct of the defendant's or its insurer said to amount to an admission to the same effect, the relevant conduct of the defendant's or their insurer now said to include the continued making of compensation payments. 159 Also during the hearing the plaintiff had applied for there to be removed from the record, all of the defendant's medical reports upon the basis that there had been no challenge on damages to any of the plaintiff's medical evidence. 160 The Court's ruling in relation to the question of admissions is that the defendant was entitled to litigate the subject issues. Conduct said to constitute admissions are capable of explanation by way of evidence in the same way as any other informal admissions are open to such explanation. The defendant remained entitled to litigate the subject issues for the reason that the defendant proposed inter alia to call evidence seeking to explain the alleged admissions. But for that approach to the litigation, the defendant would be pre-empted in terms of a threshold ruling as to the conduct relevantly constituting admissions and further, would be denied its day in Court and improperly fettered in its conduct of the litigation. 161 It was inappropriate to accede to the application to remove all the defendant's medical records and reports from the record. However the defendant's have not during the final hearing litigated the plaintiff's claims in terms of her disabilities and her medical condition. For that reason those claims would have been allowed had the plaintiff established that the accident had taken place on the day claimed.

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Dealing with the case 162 I have come to the very clear conclusion that the plaintiff's case fails and requires to be dismissed for the reason that the plaintiff has not established on the balance of probabilities that the fall which she alleges as the foundation for her case, took place. 163 Having had the benefit of seeing the plaintiff in the witness box over a reasonably extended time, the opportunity of seeing Mr Olsen in the witness box, the opportunity to read the sundry contemporaneous medical histories taken by hospitals and other doctors and having had an opportunity to stand back from all of the evidence in an attempt to follow the whole of the circumstances of the plaintiff and her husband, I am satisfied that she and her husband have not given reliable accounts of what occurred. 164 I am unable to accept the plaintiff as a witness of credit. 165 In contradistinction, I accept as entirely reliable the evidence given by Ms Lovett as to what she was told in relation to the earlier fall and what she observed on the occasion of her discussion with the plaintiff. 166 One begins an examination of the objective facts with the common sense position that anyone who falls down a flight of concrete steps can be expected to tell a number of people about that event and to do so immediately. The first logical person to be so informed would have been Mr Kosyfas. I accept his evidence as reliable. On my findings he was not told about the fall on the day it is alleged to have occurred and it was only weeks after that that he was told that the plaintiff had fallen. He had no independent recollection of seeing the plaintiff sitting on a step (as opposed to this having been suggested to him). There is a world of difference between being unable to emphatically deny a proposition on the one hand and on the other hand having a recollection as to the occurrence of an event. He clearly could not recall the plaintiff telling him that she had fallen. On her evidence she was his assistant in the exercise. The very high probabilities are that had she informed him of this fact, he would be able to recall it. His recollection of only learning of what was said to have happened weeks later has a very confident ring of substance about it. 167 Next there is the circumstance that Dr Kucera was seen very shortly after the alleged fall but her notes make absolutely no reference to that fall. To the contrary, her notes include the words "sudden onset of low back pain two days ago, no precipitating factor". These notes which are before the Court as part of the evidence tendered by the defendant without objection, represent a very significant piece of evidence indeed. One would have thought that it was elementary that the plaintiff would call her treating and family doctor as a witness in her own case. No question of inability by reference to the Supreme Court Rules to call that treating doctor should arise because, regardless of those rules, the Court has power, where appropriate, to dispense with the application of the rules. Having said that I am not satisfied that the plaintiff has in any way, shape or form, provided a sufficient or satisfactory explanation for the failure to call Dr Kucera. Mr Abraham's evidence was totally unsatisfactory if it was being put forward in an attempt to explain the forensic decision not to approach Dr Kucera. During the final address I made quite plain to counsel for the plaintiff that even at that late point in the hearing, it was possible for the plaintiff to seek to reopen the case to call evidence of this important witness. To my mind the rule in Jones v Dunkel (1959) 101 CLR 298 applies so that the appropriate inference is that the evidence of Dr Kucera, if given, would not have assisted the plaintiff's case [per Kitto J at 308, Menzies J at 312]. The rule clearly applies where the plaintiff is required to explain the logical inferences to be drawn from Dr Kucera's notes. It would be natural for the plaintiff to have called Dr Kucera and she might reasonably be expected to have called her. In any event, in the circumstances which obtained, it seems to me quite clear that once Dr Kucera's notes went into evidence, at the very least an evidentiary burden shifted across the bar table requiring the plaintiff to rebut the inferences properly to be drawn from those notes, unless otherwise explained. 168 The principles are generally to be found in Cross on Evidence, 6th Australian edition, paragraph 1215. 169 One then moves on to examine the medical records and histories taken at the Hornsby Hospital and the San. These have already been set out in detail. It seems to me that there is substance in the defendant's general submission that it defies belief that none of these histories referred to the plaintiff falling down the stairs on the occasion in question. The words to be found in the Hornsby Hospital records include: "sudden onset… cause is unknown/woke up with it", "No history of injury. Onset while getting out of bed", "Sciatica pain began three weeks ago-no specific incident", "Had a fall on stairs at work three to four months ago", "nil relevant past history… no event", "had a fall down the stairs three to four months ago."

[239]

These histories are not only inconsistent with the plaintiff having had the fall on which she sues, but are consistent with her having had a fall three to four months earlier. This of course is four square with the evidence of Ms Lovett as to what she was told by the plaintiff at about that point in time. 170 The medical records and histories taken at the San continue in like vein. Importantly the last entry in the Hornsby Hospital records entered at 1.00pm on 28 August 1998 which was exactly when the plaintiff was transferred to the San, includes the words "Patient looking well, alert and orientated at the time of transfer". One would not expect there to be any particular difficulty in the plaintiff giving such medical history as was necessary upon her arrival at the San. But the notes apparently taken by Dr Singer had no reference to a fall down the stairs at work on the occasion in question but to the contrary refer to such a fall "three months ago". When it was put to the plaintiff that it is clear that on 28 August she appears to have told Dr Singer that she fell down the stairs at work not on the occasion in question, but some "three months ago", her answer was: "That is what it would appear, yes". The other records of the San have already been referred to, again and again referring to the fall three months ago. 171 As to the plaintiff's counsel's final submissions seeking to put that the initial history given at the Hornsby Hospital was then simply perpetuated, it seems to me that the very high probabilities are against such an explanation. Further I accept as of substance the submission by the defendant's counsel that what is fatal to the plaintiff is the detail to be found in the sundry histories. One has to recall for example, the fact that the physiotherapist at the Hornsby hospital had seen the plaintiff during three sessions. It might seem surprising that the plaintiff would not at one of those sessions have made the point that she had fallen down the stairs three weeks earlier. 172 Next one has the evidence of Ms Lovett whom I accept as a reliable witness whose recollection was documented in early 1999. She was quite clear that the plaintiff in early 1998, possibly in the first three months in that year, had told her that she had fallen down the stairs leading to the car park. She saw how the plaintiff was walking and at that time the plaintiff was also holding her back and it was obvious that the plaintiff was in a lot of pain. The reason why Ms Lovett was so confident about the plaintiff having told her about the earlier fall was quite simply because of Ms Lovett's concern for the plaintiff by reason of the plaintiff appearing to be in pain. She was flinching in certain positions. Ms Lovett recommended that the plaintiff see a doctor. The subsequent telephone information from the plaintiff in the call from New York must be weighed in the balance but is of insufficient weight to overcome the compelling documentary evidence to which reference has been made when added to Mr Kosyfas' evidence. The high probabilities are that the discussion in Ms Lovett's call from the United States represented a fabrication by the plaintiff. 173 To my mind the circumstances in which Dr Dixon had the Workers Compensation Form completed logically explain what the plaintiff then told him-the express purpose of the completion of the document being obvious. The history, if such is an appropriate description, given to Dr Dixon in that mode, cannot be accepted as reliable. 174 It cannot be suggested that Dr Kucera's notes do not point up back pain some months prior to the commencement of August 1998. Dr Kucera recorded on 4 June 1998 that the patient had "noticed back pain". She also recorded on 5 June 1998, that pressure on the sacro-iliac joint was causing pain. 175 In the result I am quite clear that the plaintiff has not established on the balance of probabilities that she fell down the stairs in question on 4 August 1998. 176 Amongst the many other parameters which mandate such a finding is the plaintiff's denial of the earlier fall in respect of which Ms Lovett has given evidence. My finding is that such a fall did take place. This finding reflects adversely upon the plaintiff's credit, she having steadfastly maintained that no such fall ever took place. 177 I am quite unable to accept Mr Olsen as a witness of credit. His evidence on my findings was unreliable. My finding is based upon a number of factors, including his demeanour in the witness box. Clearly he has a very strong interest in the plaintiff's success in these proceedings. He was argumentative in giving evidence. His recollection is entirely inconsistent with the contemporaneous medical records. Notwithstanding the fact that his background in terms of work and consultancy is in a particular area, his evidence was that he has not endeavoured to obtain work outside of that area. This, notwithstanding his desire to be present in assisting at home, is very surprising in terms of an able-bodied and apparently healthy husband and father. 178 I come then to examine the submissions in relation to admissions and some other matters. 179 To my mind there is no special significance to be attributed to the suggested failure by the defendant to call Mr Parselle. On the evidence he is no longer an employee of the defendant and is in the United Kingdom. No evidence was adduced from the plaintiff to the effect that he had witnessed the fall. All that one has is evidence given by Mr Olsen to the effect that Mr Parselle telephoned him. The substance of Mr Olsen's evidence as to this telephone call has already been set out. I reject that evidence as unreliable and do so albeit that Mr Parselle was not called. Secondly the plaintiff seeks to rely upon the fact that Mr Parselle is shown on the employers Report of Injury form as being the person to whom the complaint was reported. Here again the failure of the defendant to call Mr Parselle seems to me to be of very little weight in the scheme of things bearing in mind the totality of the evidence before the Court. 180 In terms of the plaintiff's attempt to rely upon admissions, the submission was that admissions had been made by the defendant itself, where Mr Bruce-Smith had signed the Employer's Declaration part of Exhibit P17 and further that admissions had been made by the Workers Compensation Insurer by the continuance of compensation payments throughout and particularly following the insurer having learnt of Dr Kucera's notes. 181 It is common ground that admissions or acts which are put forward as being admissions, are to be weighed against the whole of the evidence. To my mind the signing of the Employer's Declaration is clearly capable of being explained. The document was signed on 26 August 1998. Mr Bruce-Smith gave evidence that he had not been present when the accident occurred and that others had told him that there had been an accident. The point in time at which the document was signed and the emergence only much later of, for example, Dr Kucera's notes, serve to adequately explain how it had come about that the employer's declaration was completed in the way in which it was completed, very early in the peace. 182 The continuance of the payment of benefits in accordance with the Workers Compensation Act has been adequately explained by the evidence of Mr Young and Mr Rooney. Evidence of an informal admission or of conduct amounting to an admission may always be explained. Hunt J in Heuston v Yore Contractors Pty Ltd (unreported 9 March 1992) made plain that in a context where continued payment of workers compensation may be admissible against the defendant in whose name an insurer defended common law proceedings as an admission that the worker was still incapacitated, that form of admission was always "open to explanation by way of evidence in the same way as any other informal admission is open to explanation". The explanation proffered by the insurer is clear and satisfactorily explains how it came about that the payments continued in the circumstances. 183 For those reasons a verdict for the defendant will be entered when short minutes of order are brought in. Costs may be argued. 184 Had I been satisfied of the plaintiff's evidence to the effect that the accident took place upon the date and in the circumstances which the plaintiff alleges, I would undoubtedly have found a verdict for the plaintiff in terms of the cause of action and made a finding of contributory negligence. 185 The employer's duty of care is a very heavy one and is non-delegable:- "The employer has the exclusive responsibility for the safety of the appliances, the premises and system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in the relevant respect the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work." (per Mason J at 687 in Kondis v State Transit Authority (1984) 154 CLR 672) 186 The test in relation to negligence is still that as set out in the case of Wyong Shire Council v Shirt (1980) 146 CLR 40 essentially as follows:- · Was there a foreseeable risk of injury to the plaintiff or a class of person similar to the plaintiff; and · What was a reasonable response to the foreseeable risk of injury. In assessing the "reasonable response", the magnitude of the risk and the cost involved in forestalling the risk should be weighed up. 187 It is clear that the subject staircase had been a hazard for months prior to 4 August 1998. On the evidence, the anti-slip guard, had come off the top step several months before 4 August. The plaintiff was not the only one who gave evidence in relation to the subject stairwell. Ms Lovett gave evidence that as at August 1998 there was a tread missing on one of the stairs. Ms Lam gave evidence that the anti slip guard had been missing for many months before her husband fixed it, although she was not certain as to the date on which he had fixed it. Ms Lovett herself had slipped at some time on the stairs. Mr Kosyfas gave evidence that as at the time when the plaintiff stopped coming to work (being sometime after 4 August 1998) it was pointed out to him that the slip-tread was missing. . 188 As to the allegation of negligence in respect of the lighting in the stairwell, the plaintiff's evidence has already been set out. Mr Bruce-Smith gave evidence that the area in question was dimly lit although it was sufficient to walk up and down the stairs. Mr Kosyfas also gave evidence that in about August 1998 the stairwell was not brightly lit. 189 Clearly the plaintiff was expressly charged with duties which included building maintenance and management. On my findings the problems which are shown to have arisen in relation to both the stair-slip guard as well as the lighting represented extremely simple maintenance issues well and truly within the experience and competence of the plaintiff in so far as arranging for the reinstatement of the strip and the replacement of such fluorescent light bulbs as were necessary. The petty cash float was available and should clearly have sufficed for the purpose. The plaintiff herself personally attended to the Exit Sign. 190 I reject as unreliable: (a) the plaintiff's evidence of having contacted Mr Bruce-Smith about the need for repairs; and (b) the plaintiff's evidence of contacting Mr Niven and then attempting to again obtain a response from Mr Bruce-Smith. 191 In those circumstances had the holding been that the plaintiff had had the accident which was sued upon, it would have been appropriate to find 50% contributory negligence. In this regard the range put forward by the defendant was between an upward limit of 70 % and a lower limit of 30% against the plaintiff. The submissions of the plaintiff had been for either a 'nil' finding or a very modest finding. 192 As to the substance of the plaintiff's claims, on the basis that the accident had taken place in the fashion sued upon, I emphasise that the defendant clearly elected to litigate the final hearing upon the basis that the plaintiff was as significantly incapacitated as claimed. Mr Williams for the defendant put the matter as follows: "I do not wish to make submissions on damage beyond a very short compass in this case. We have tested the plaintiff's evidence over her condition only peripherally with regard to the improvement she had had in respect of [the epidural stimulator], and we do that in this way, to found a submission that, as is not uncommon in these cases, the plaintiff's put their best foot forward in the witness box." [transcript 104 -105]. 193 There was no cross-examination of the plaintiff's medical experts.

Trudy Olsen v Identix Australia Pty Limited

At a glance

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Judgment (284 paragraphs)

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Legislation Cited (2)

Cases Cited (6)

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