Benton v Historic Houses Trust of NSW

[2017] NSWDC 324

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Benton v Historic Houses Trust of NSW [2017] NSWDC 324

Hearing dates:

17, 18, 19, 20, 24 & 25 July 2017 (Final submissions on 25 October 2017)

Date of orders:

17 November 2017

Decision date:

17 November 2017

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict for the plaintiff against the defendant on the plaintiff’s claim;

 

2. The plaintiff’s damages are assessed in the amount of $1,507,674.53;

 

3. After applying the findings made pursuant to s 151Z of the Workers' Compensation Act 1987, the plaintiff’s damages are reduced by 20 per cent to $1,206,139.60;

 

4. After applying the effect of s 51(2) of the District Court Act 1973, judgment for the plaintiff in the sum of $1,125,000;

 

5. The plaintiff’s costs of the proceedings are to be paid by the defendant on the ordinary basis unless otherwise ordered;

 

6. The exhibits may be returned;

 7. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – occupier’s liability claim – negligence – whether obvious risk – whether defendant occupier was negligent – whether plaintiff’s employer was negligent – whether contributory negligence on the part of the plaintiff – application of s 151Z of Workers’ Compensation Act 1987; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002, s 5B, s 5C, s 5D, s 5F, s 5G, s 5H, s 5R, s 5S, s 13, s 15, s 16, Pt 1A Div 2
District Court Act 1973, s 51(2)
Evidence Act 1995, s 60
Historic Houses Act 1980, s 5, s 7, s 8
Interpretation Act 1987, s 21
Motor Accidents Compensation Act 1999
Work Health and Safety Act 2011, s 16, s 19, s 20
Work Health and Safety Regulation 2011
Workers Compensation Act 1987, s 151Z

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Astley v Austrust Ltd [1999] HCA 6; (1999) CLR 1
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139
Carey v Lake Macquarie City Council [2007] NSWCA 4
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18
Hill v Forrester [2010] NSWCA 170; (2010) 79 NSWLR 470
Jackson v McDonalds Australia Ltd [2014] NSWCA 162
Larson v Commissioner of Police [2004] NSWCA 126
Majkic v Bonnano [2008] NSWCA 253
Maricic v Dalma Formwork Australia Pty Ltd [2006] NSWCA 174
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Miller v Galderisi [2009] NSWCA 353
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58
Penrith City Council v Parks [2004] NSWCA 201
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Richards v Cornford [2010] NSWCA 99; (2010) 76 NSWLR 572
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330
Shaw v Thomas [2010] NSWCA 169
Smith v Alone [2017] NSWCA 287
Smith v Broken Hill Co Pty Ltd [1957] HCA 34; (1957) 97 CLR 337
Solomons v Pallier [2015] NSWCA 266
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Vincent v Woolworths Ltd [2016] NSWCA 40

Texts Cited:

2017 Ed Furzer Crestani Assessment Handbook

Category:

Principal judgment

Parties:

Michelle Benton (Plaintiff)
Historic Houses Trust of NSW (Defendant)

Representation:

Counsel:
Mr JS Wheelhouse SC and Mr JE Doyon (Plaintiff)
Ms GF Mahony (Defendant)

  Solicitors:
CMC Lawyers (Plaintiff)
Crown Solicitor for NSW (Defendant)

File Number(s):

2015/39522

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Factual background	[2] – [19]
Issues	[20] – [21]
Evidence overview	[22] – [24]
Credibility and reliability of testimony	[25] – [41]
Plaintiff	[26] – [30]
Mr Bowden	[31]
Mr Poole	[32]
Mr Champion	[33] – [34]
Mr McPherson	[35] – [41]
Facts	[42] – [155]
Plaintiff’s background circumstances and work history	[43] – [53]
The premises	[54] – [55]
Plaintiff’s pre-accident familiarity with the site	[56] – [60]
Circumstances preceding the plaintiff’s fall and injury	[61] – [68]
Fall and rescue	[69] – [73]
Injuries identified and initial treatment received	[74] – [78]
Defendant’s records referring to plaintiff’s fall	[79] – [82]
Subsequent medical and allied treatment and assessments	[83] – [84]
Findings reconciling conflicting medical opinions	[85] – [102]
Disabilities that remain	[103] – [138]
Work effects	[139] – [145]
Domestic effects	[146] – [153]
Mitigation	[154] – [155]
Issue 1 – Relevant risk of harm	[156] – [159]
Issue 2 – Whether voluntarily assumption of risk	[160] – [173]
Issue 3 – Whether materialisation of an obvious risk	[174] – [215]
Consideration of s 5F – Obvious risk	[183] – [207]
Consideration of s 5G(1) – Rebuttable presumed awareness	[208] – [211]
Consideration of s 5H – Whether there was a duty to warn	[212] – [214]
Conclusions on obvious risk	[215]
Issue 4 – Duty of care owed by the defendant	[216] – [240]
Issue 5 – Whether there was negligence	[241] – [289]
Plaintiff’s particularised case	[242]
Expert opinion	[243] – [249]
Consideration of the three pre-conditions required by s 5B(1)	[250] – [269]
Consideration required by s 5B(2)	[270] – [283]
Consideration required by s 5C	[284] – [288]
Conclusion on breach of duty of care	[289]
Issue 6 – Causation of the harm suffered by the plaintiff	[290] – [295]
Consideration of the requirements of s 5D(1)(a)	[291] – [292]
Consideration of the requirements of s 5D(1)(b)	[293]
Consideration of the requirements of s 5D(2) - (4)	[294]
Conclusion on causation	[295]
Issue 7 – Whether there was contributory negligence	[296] – [324]
Contributory negligence submissions and legislation	[297] – [309]
Consideration of whether there was contributory negligence	[310] – [321]
Conclusion on contributory negligence	[322] – [324]
Issue 8 – Nature and extent of employer’s liability	[325] – [338]
Concession by plaintiff	[330]
Consideration of s 151Z apportionment	[331] – [338]
Issue 9 – Assessment of damages	[339] – [461]
Non-economic loss	[340] – [349]
Past economic loss	[350] – [360]
Fox v Wood damages	[361]
Future loss of earning capacity	[362] – [392]
Past loss of superannuation	[393]
Future loss of superannuation	[394]
Past domestic assistance	[395] – [430]
Future domestic assistance	[431] – [444]
Future treatment expenses	[445] – [459]
Past out-of-pocket expenses	[460]
Summary of damages assessment	[461]
Disposition	[462] – [464]
Costs	[465]
Orders	[466]

Nature of case

1. The plaintiff, Ms Michelle Benton, brings these proceedings against the defendant, the Historic Houses Trust of New South Wales, a body incorporated pursuant to s 5 of the Historic Houses Act 1980, claiming damages for personal injuries for alleged breach of the duty of care the defendant owed as the occupier of premises known as Vaucluse House, at Vaucluse, New South Wales. The Civil Liability Act 2002 (the “CL Act”) and s 151Z of the Workers Compensation Act 1987 (the “WC Act”) apply to these proceedings.

Factual background

2. At about 6.00pm on the evening of Saturday 31 May 2014, in the course of her employment for a catering company providing services at a wedding function which was in progress in the grounds of Vaucluse House, the plaintiff suffered a fall and sustained a fractured right wrist, a laceration to her forehead, and related soft tissue injures. These injuries have had lasting adverse physical, psychological and practical day-to-day effects on the plaintiff.

3. The plaintiff’s fall occurred when, in darkness, she walked from a gravel pathway onto an adjacent brick paved area located in an unlit portion of the grounds. This occurred after she had mistaken that paved area for a pathway. The plaintiff then fell down the precipice of an embankment, into what has been variously described as a ravine, ditch, or gully of a creek, located near the Vaucluse House Tearooms within the grounds of Vaucluse House.

4. The plaintiff was on the premises in her capacity as a venue manager for her employer, Fresh Catering Pty Ltd, a company which held a longstanding licence issued by the defendant for that company to provide catering services for the wedding function that was in progress in the grounds on the day in question. The plaintiff’s role at that function was generally of a supervisory nature, which required her to do what was necessary to ensure the function ran smoothly.

5. The licence held by the plaintiff’s employer enabled it to serve food and drinks at pre-booked functions at the premises, including at the wedding function in question. The contractual arrangements provided that the defendant was to be paid an agreed percentage of the revenue the caterer would derive from the function.

6. The defendant had hired out specific portions of the Vaucluse House premises for that wedding function. The first part of the function took place on that part of the premises known as the Lone Pine Lawn, between the hours of 3.30pm and about 5.30pm. The second part of the function followed in the form of a reception convened from about 5.30pm to 6.00pm in another part of the premises, namely at the Tearooms.

7. These two segments of the function took place on opposite sides of a creek that coursed through the grounds. Access between the Lone Pine Lawn area and the Tearooms was by means of various pathways and bridges that spanned across the ravine and the creek. In between the first and the second parts of the wedding function, atmospheric darkness was descending: T31.4 – T31.7.

8. In the course of the outdoor part of the function on the lawn, the staff of the plaintiff’s employer had been serving canapés and drinks to the guests who were in attendance on the lawn. Between about 5.15pm and 5.30pm, those guests were then encouraged to start to move from the Lone Pine Lawn area, across a bridge spanning the ravine and creek, to go to the terrace area of the Tearooms for the second part of the function.

9. In those events, some of the plaintiff’s co-workers were engaged in packing up glassware, platters and other catering items, and carrying them away from the lawn area, and towards the kitchen area at the rear of the Tearooms.

10. Shortly before her injury, as the venue manager at the time, the plaintiff found that she needed to walk from the Tearooms to the lawn area to secure the assistance of staff who were engaged in packing up items relating to the function on the lawn, as those staff members needed to be re-deployed for the next phase of the function on the terrace of the Tearooms. In those events, to get to the Lone Pine Lawn area she crossed the ravine and creek by means of the nearby pathway and bridge which spanned that area.

11. After arranging for staff re-deployment as was required, the plaintiff then proceeded to walk back towards the Tearooms, at which time she was carrying a few items away from the lawn area, and to the kitchen of the Tearooms.

12. At the time, in determining which route she would take when walking back to the Tearooms, the plaintiff decided that, rather than detracting from the aesthetic appearance of the function by mingling with guests whilst carrying items from the lawn, onto the access pathway and bridge across the ravine and onto the Terrace amongst guests, instead, she would take what she believed to have been an available alternative route to the kitchen area so as not to detract from the function.

13. At that time, the plaintiff was not fully familiar with the layout of the grounds. It transpired that part of the alternative route that she had chosen had only limited areas of direct outdoor lighting during the hours of darkness.

14. At the time it was drizzling with light rain and it had become dark. In taking that alternative route, the plaintiff had decided to follow the route to the kitchen taken by a fellow employee, Mr Keriakos, who had greater experience of the site than did the plaintiff. In those circumstances, that employee had been walking more quickly than the plaintiff towards the Tearooms, and he soon disappeared from her view in the surrounding darkness.

15. Soon after losing sight of that employee, the plaintiff then stepped from a gravel pathway onto a brick paved area located in an unlit area of the grounds, unwittingly thinking the brick paved area was a pathway which she could follow to get to the kitchen area. There were lights in the area, but they were not switched on, and they were not wired to be activated by motion sensors.

16. The plaintiff then took a few steps along that brick paved area not realising that at the time she was near the precipice of the creek embankment. In taking those steps, she then fell some 2 – 3 metres into the creek bed below, and found herself in the creek at the bottom of the ravine.

17. It later transpired that the brick paved area in question, which was located near the western wall of a nearby toilet block, was not a pathway but was by design intended to have a drainage function in order to channel rainwater from the roof of an adjacent building and drain any run-off rainwater towards the edge of the ravine, and into the creek in times of wet weather.

18. After the plaintiff fell, she became greatly distressed over her situation and her isolated circumstances, and because of the effects of her injury. At that time, she found that she was unable to extricate herself from the bottom of the ravine.

19. The plaintiff’s initial calls for help were not heard because of the loud music emanating from the nearby function. It was not until some time had passed before other staff noticed that she was missing, and she was then found in the creek by a co-worker, and she was then given assistance. In those circumstances the plaintiff was experiencing feelings of anxiety and of terror.

Issues

20. My review of the pleadings, the evidence and the submissions, identifies the following issues that arise for determination after making relevant findings of fact. Those issues are set out in the following convenient order:

Issue 1 -   The identification of the relevant risk of harm in relation to the defendant’s occupation of the premises;

Issue 2 -   Whether, in the circumstances, the plaintiff had voluntarily assumed the risk of injury, as was pleaded by the defendant in answer to the plaintiff’s claim;

Issue 3 - Whether the pleaded defence of obvious risk, pursuant to s 5F, s 5G and s 5H of the CL Act, provides an exculpatory benefit to the defendant in this case;

Issue 4 -   The nature, scope or content of the duty of care owed by the defendant as occupier of the premises;

Issue 5 - Whether the defendant was in breach of the duty of care it owed to the plaintiff, such that findings of negligence should be made in favour of the plaintiff, having regard to the requirements of s 5B, and s 5C of the CL Act;

Issue 6 - Whether causation of harm has been established according to the requirements of s 5D of the CL Act;

Issue 7 -   Whether, in the circumstances, there was contributory negligence on the plaintiff’s part, and if so, to what extent;

Issue 8 - Whether, for the purpose of s 151Z of the WC Act, there should be a finding of notional negligence in respect of the plaintiff’s employer, and if so, to what extent should the plaintiff’s entitlement to damages be reduced on that account;

Issue 9 -   The assessment of the plaintiff’s entitlement to damages.

21. Before identifying any findings of fact and addressing the issues, it is necessary to say something about the credibility and the reliability of the testimony given by the respective witnesses.

Evidence overview

22. The oral evidence in the plaintiff’s case comprised the plaintiff’s own evidence, and that of her partner, Mr Adam Bowden, whose evidence was limited to damages issues.

23. In the defendant’s case, oral evidence was given by Mr Damien Poole, the defendant’s venue manager, and head of commercial services, who was responsible for booking the premises for hired events, Mr Edward Champion, the defendant’s Visitor Services Co-ordinator for the Vaucluse and other historic sites, who fulfilled the role of property manager, and Mr Stuart McPherson, the defendant’s team leader of horticulture, or head gardener, at the site.

24. The parties tendered several evidence bundles. The detail of these voluminous bundles, documents and photographs, will be referred to where it becomes relevant to do so.

Credibility and reliability of testimony

25. In the paragraphs that follow, I set out my conclusions on matters concerning the credibility and the reliability of the testimony of the witnesses who gave oral evidence.

Plaintiff

26. I considered that the plaintiff gave her evidence carefully, accurately, and in a truthful and forthright manner. She was plainly very stressed by the subject matter when she gave her evidence. She was also obviously embarrassed over her occasional and intrusive involuntary facial grimaces and tics. These had emerged following her injury, and according to un-contradicted medical evidence, they were related to her post-injury disabilities.

27. The defendant conceded that the plaintiff gave her evidence in a forthright manner except, it was submitted, in relation to her awareness of the creek on the property, and in relation to the justification given by the plaintiff for taking the route she did immediately prior to her injury. The defendant submitted that the plaintiff’s evidence on those matters should be rejected: Defendant’s written submissions, par 38 – par 44.

28. In oral submissions the defendant submitted that the plaintiff’s evidence to the effect that she felt the need to avoid walking amongst the guests on the terrace on the day of the accident, on account of aesthetic reasons due to the presence of those guests, because to take that route, carrying items amongst the guests, would be “tacky”, should be viewed with some scepticism: T32.22; T104.29; T348.16. This was in the context where the expectation of the defendant was that the presentation should be in good taste, and not “tacky”: T221.30 – T222.1.

29. In view of those submissions, I have considered the plaintiff’s account with care, and for the reasons that will be identified in the appropriate context, I have reached a conclusion that is contrary to the force of the defendant’s submission critical of the evidence given by the plaintiff on these points. I record my conclusion that I held no concerns over the credibility or the reliability of her evidence.

30. I considered the plaintiff’s evidence was characterised by an air of stoicism, reserve and understatement, even at the times when she was visibly distressed and embarrassed at the subject matter of her evidence. The defendant made no significant challenges to the plaintiff’s evidence concerning her post-injury disabilities, or to the summarised accounts of those matters as set out in the various medical reports that were tendered.

Mr Bowden

31. Mr Bowden is the partner of the plaintiff. They commenced their relationship after the plaintiff’s accident, namely about 18 months before the hearing. The focus of his evidence was to describe the process and the pattern for the carrying out of domestic tasks in their joint household as part of the claim made by the plaintiff for the value of past domestic assistance that had been gratuitously provided to her, and to provide some insight into the plaintiff’s future needs for domestic assistance. No issues emerged from his evidence concerning either the credibility or the reliability of his testimony.

Mr Poole

32. Mr Poole gave evidence as to the general layout of the grounds, and the terms upon which the premises were hired for functions, and the basis for the provision of catering. His evidence went to explaining the administrative matters to do with the site, and the contractual arrangements and documentation that had passed between the defendant and the plaintiff’s employer. No issues emerged from his evidence concerning either the credibility or the reliability of his testimony.

Mr Champion

33. Mr Champion’s evidence related to the topography, lighting, layout and the accessibility of the site, including its natural and built landmarks. His evidence included reference to markings made on various photographic exhibits. He also gave evidence concerning his understanding of the content of historical records relating to the site.

34. The plaintiff’s criticism of Mr Champion’s evidence was that he was reluctant to make due concessions on the effectiveness of a deployment of warning signs. In his evidence, he conceded that in considering the potential hazard posed by the presence of the creek on the property, as was pointed out, he did not make any distinction between day time and night time considerations as was acknowledged in the defendant’s written submissions, at par 84 and par 89. I considered that Mr Champion’s evidence was given in a guarded and defensive manner, where concessions along the lines cited were due.

Mr McPherson

35. Mr McPherson had been a gardener at the Vaucluse House site since January 2007. By the time of the plaintiff’s accident, he had been promoted to the position of head gardener or team leader. He was very familiar with the site, its structures, including the creek and environs, as well as the state of vegetation on the site, and the purpose of placement of that vegetation.

36. Mr McPherson described the concave laid patterns of bricks on the property, and of the kind the plaintiff had walked upon just before her fall, as culverts, comprising three parallel bricks laid in a concave fashion, which acted as drains: T315.25 – T315.48.

37. Mr McPherson gave undisputed evidence in which he stated that the plantings around the brick drainage culvert were intended “as much of a visual barrier as possible”: T316.20. He said that the aim was to keep those plantings as lush as possible to hide (the creek) as much as possible and to give the appearance of a garden bed and a visual barrier to deter people from continuing to walk through that part of the property: T316.22 – T316.38.

38. After Mr McPherson had heard about the plaintiff’s fall, he arranged to plant a tall thin shrub, an umbrella tree, to be placed on a ledge of the embankment about half a metre below near where the brick paving drain meets the embankment, so that the trunk of that plant, and its foliage, would serve as a greater visual barrier to deter pedestrians from proceeding further in that vicinity: T317.35 – T317.49; T321.25 – T321.45; T323.10. Those extra plantings took place about 6 weeks after the plaintiff’s accident: T325.20.

39. Mr McPherson described the purpose of the plantings at the edge of the creek as being to delineate the difference between a path and a garden bed without blocking the space for the flow of water at ground level: T324.32 – T325.2. It is of some significance that this area was in the vicinity of the laid pattern of brickwork.

40. Mr McPherson’s evidence on those matters must be read in the context of the prevailing conditions that applied in the hours of darkness when the plaintiff was injured, where there was no outdoor artificial illumination at the scene.

41. There were no concerns over the credibility or the reliability of the testimony of Mr McPherson.

Facts

42. I now turn to a more detailed consideration of the facts. Unless otherwise stated, my findings of fact now follow concerning the plaintiff’s background circumstances, her employment history, her familiarity with the site, the events leading to her fall, the injuries she sustained, the initial treatment she received, the further medical and allied reviews she had attended, the reconciliation of conflicting opinions in the expert medical evidence, the nature of her disabilities, the effect of those disabilities upon her work, and upon her domestic activities, and on the question of mitigation.

Plaintiff’s background circumstances and work history

43. At the time of the accident the plaintiff was aged 41 years. She is presently aged 44 years. She had completed her schooling to Year 12 in Queensland and then proceeded to pursue tertiary studies. In 1993 she graduated with a Bachelor of Arts degree. In 1995, she moved to Sydney from Queensland, and obtained work in the hospitality industry, initially commencing as a bar attendant, by 1996, she had quickly progressed to a management role.

44. The plaintiff had an impressive pre-accident work history which demonstrated a capacity to successfully change employers and employment situations when it suited her to do so. Whilst there was no dispute as to the details of the plaintiff’s work history, it is necessary to set out some of the detail of that history for the purpose of identifying some later findings that are required by s 13 of the CL Act concerning the plaintiff’s claim for damages for future loss of earning capacity.

45. The plaintiff had changed employers a number of times between 1996 and 2013, working in various capacities in the hospitality industry, including in the roles of a hotel duty manager for a 24 hour venue offering alcohol, food and gaming services.

46. In about 2000, she became general manager of another hotel owned and operated by her previous employer. Her responsibilities in that job included ensuring compliance with late trading obligations, gaming, financial control, overseeing functions, and overseeing staff management. In the same year, she changed her employment to work for another hotel organisation, and was promoted to a senior position as general manager, with associated significant financial and supervisory responsibilities.

47. The plaintiff continued in that employment until 2005, at which time, for a period of about 6 months, she left and worked as a self-employed gaming consultant. In the course of the plaintiff’s work as a gaming consultant, one of her hotel clients asked her to become the licensee of one of his city hotels. She took on that role for about 12 months, before changing her employment to another hotel in Sydney, where she continued to work in a senior role between 2006 and 2009.

48. In 2009, the plaintiff moved her employment to another hospitality group, for which she ran venues in Balmain and in Chinatown. In that position, the plaintiff’s roles were financial, overseeing staff and customers, as well as overseeing gaming and food services. It transpired that employer had encountered some financial difficulty, so in 2010, the plaintiff then changed her employment to return to work with a previous employer, and in that situation she became the licensee of a hotel in Chinatown. In that role, apart from fulfilling management duties, her responsibilities included overseeing renovations to the premises.

49. Between 2011 and 2013, the plaintiff worked as a manager for a bakery company. In 2013, she left that employment to work with another hospitality group, initially in sales and marketing, and then as the licensee of licensed premises.

50. By the end of 2013, the plaintiff had been working in licensed premises for many years, sometimes for up to 12 hours per day, and on call, with full responsibility on behalf of the owners of those businesses. Without challenge, she described her pre-injury disposition as being a person who was confident, outgoing, tenacious and sociable, strong, and without any mental health issues of the kind she subsequently encountered with her post-accident problems of anxiety or depression: T26.30 – T26.45.

51. In November 2013, in seeking to achieve a change in her work-life balance, the plaintiff decided to take a break from the pressures and demands of working in licensed premises, and she then obtained employment with Fresh Catering Pty Ltd, a successful catering company that catered for big events and private functions at various premises.

52. In that employment, the plaintiff managed the Vaucluse House Tearooms on behalf of that employer. Her duties as manager in that role included staff management, customer relations which included the handling of complaints, rostering duties, budgeting, hands on waitressing when required, as well as overseeing and supervising functions. The Vaucluse venue was open 5 days per week from 10.00am to 4.30pm, and 7 days per week at school holiday times.

53. At the time of the plaintiff’s injury, in that employment, she was earning $75,000 per annum gross, plus superannuation entitlements. I accept that before the subject accident, the plaintiff was due to have a discussion with her employer about her role with that company, and concerning her remuneration. That decision was to be in the context of a scheduled pay review, and where the plaintiff found that she was doing more waitressing duties than she had anticipated, and she had wanted to discuss her future options with her employer: T160.5 – T160.41.

The premises

54. The following copy photograph, extracted from Exhibit “8”, gives an indication of the nature of the brick paved area adjacent to the edge of the creek embankment within the premises. In my view the defendant’s description of that structure as being a culvert is somewhat inapt.

[Exhibit “8” & Exhibit “1”, Tab 25, p 95]

55. The following copy photograph, extracted from Exhibit “B”, although not showing the precise location, gives an indication of the nature and the depth of the embankment down which the plaintiff fell into the ravine and creek bed below, when she sustained her injuries.

[Exhibit “B”, p 52]

Plaintiff’s pre-accident familiarity with the site

56. The plaintiff had commenced her employment with Fresh Catering Pty Ltd on 11 November 2013, which was about six months before her injury. Apart from being shown the actual Tearooms location and layout before her injury, the plaintiff had not received an on-site induction from her employer concerning the general layout of the Vaucluse House premises: T80.50; T83.8; T84.38; T86.5.

57. Historically, the plaintiff’s employer provided catering services at the Vaucluse House location for booked reception functions at the premises “fairly infrequently”: T28.18; T29.23. The plaintiff’s primary role was to manage the Vaucluse House Tearooms: T28.26.

58. In the months before her injury, the plaintiff’s experience in that employment was that functions of the kind in question on the lawn of the Vaucluse House grounds were relatively infrequent, and relatively small in number, being on about 14 occasions, or averaging about once per fortnight: T100.29; T100.43; T100.46.

59. In that period, the plaintiff had only been to the lawn area on about 2 – 3 occasions, including for the function during which she was injured: T101.15 – T101.39. The plaintiff’s experience on those prior occasions was that those functions on the lawn had been held during the hours of daylight saving, and the functions were mostly completed by 6.00pm, which therefore meant she had not previously gone to the lawn area, or used nearby access routes, in darkness, or in low light conditions: T130.48.

60. Although the plaintiff had received only limited training from her employer concerning matters of site orientation at the Vaucluse premises, she had a general awareness of the presence of the ravine, the creek, and the related bridges on the premises: T28.47 – T29.9. She had an actual awareness that there was a bridge enabling access to and from the Lone Pine Lawn area, and she also had a general awareness that there was another bridge located somewhere towards the back of the Vaucluse House grounds.

Circumstances preceding the plaintiff’s fall and injury

61. At the time of the accident, the plaintiff had only limited awareness of the extent and the depth of the ravine and the creek that ran through the premises. She said, and I accept, that she had not had occasion to give those matters much prior consideration. In that regard, she was not aware as to whether the ravine was continuous. She knew the ravine was not very deep at the location of the bridge which provided access to the lawn area, but she did not know of its depth or of its continuity elsewhere on the grounds: T29.1 – T29.8.

62. The creek and the associated ravine, and the surrounding vegetation, comprised a natural feature of the land: T276.50 – T288.36. The Vaucluse House premises and land comprising those premises covered an extensive area that was accessible to the public at all hours of the day or night, including permitting access for persons walking their unleashed dogs at night, and the defendant was aware of that fact: T289.1 – T289.2; T293.19; T311.2. Not all of the grounds, which included some undulating grassed areas, and some buildings, were lit during the night time hours of darkness.

63. Just before her fall, the plaintiff had gone to the lawn area of the grounds to send some of the staff there back to the Tearooms where they were needed to be re-deployed to assist with the next phase of the function.

64. Whilst the plaintiff was at the lawn area, she had gathered a couple of items, including a metal jug and a guest’s camera, and she then followed her fellow employee Mr Keriakos, down the hill in the belief that by doing so, she was walking on a back route to the kitchen at the rear of the Tearooms: T33.5. To the knowledge of the plaintiff, Mr Keriakos was a co-employee with greater experience of the site: T31.20 – T31.40; T32.8 – T32.12.

65. The plaintiff considered that the back route she thought she was following to the Tearooms, and which was to where Mr Keriakos appeared to be walking at the time, was a reasonable course to take because she did not think it was appropriate or congenial to the ambience of the function to mingle with the guests whilst carrying items back to the Tearooms: T32.15 – T32.26. The general items on the lawn that had to be carried back to the kitchen of the Tearooms from the lawn area comprised glassware, canapés, trays of food, serviettes, beverages and ice: T33.35 – T33.50.

66. The plaintiff formed the understanding that Mr Keriakos was in the course of proceeding towards the back bridge on the grounds. After she had followed him and had lost sight of him, she found herself walking on a stony or gravel path from the lawn: T32.48. She had lost sight of him near an out-house toilet block that was located near the side of the house within the grounds: T34.10 – T34.29.

67. At that point, the plaintiff observed the presence of an adjacent brick paved area which she perceived to be a path, and she then turned to walk to the right on that brick paved area, intending that she would continue along that course (T34.31 – T34.35), thinking that it was in fact a walking path available for use. In those events the plaintiff had observed that there was a clear opening in what appeared to be the otherwise dense ground vegetation at that point, which led her to think she was on a path that would lead her back to the Tearooms: T35.1 – T35.5.

68. In those circumstances, that area was not lit by direct lighting: T34.38. However, immediately beforehand, the plaintiff could see some lights from the Tearooms in the distance: T34.47. In those events, the plaintiff thought she was on the correct path towards the kitchen of the Tearooms because she had seen Mr Keriakos in that general area directly in front of her before she had lost sight of him: T34.48.

Fall and rescue

69. The plaintiff’s next recollection was that when she stepped to the right on the paved area, she then stumbled and fell, and she then woke up to find that she was located in the creek bed, thinking that she had knocked her head on the way down to the bottom of the ditch, where she found herself in deep water in the creek: T35.6 – T35.44.

70. The plaintiff then began calling out for help. At that time she was in a state of shock, panic, disorientation and confusion, and she felt petrified because she could not get up because of the height of the embankment. She was disoriented and scared, and she felt that she could not make herself heard because of the loud music being played at the function: T35.8 – T35.36; T36.18.

71. In the unchallenged history obtained by an examining psychiatrist, the plaintiff described her feeling of terror from being in that situation at that time. That item of the plaintiff’s history is of some significance to resolving a conflict within the medical opinions as to whether or not she in fact suffers from the condition of post-traumatic stress disorder.

72. Eventually, Mr Keriakos found the plaintiff in the creek. He then led her to a shallower portion of the ditch or creek, and he helped her to get out, whereupon he escorted her back to the Tearooms: T36.20 – T36.28.

73. At that time, the plaintiff was bleeding profusely, she felt something was amiss with her right arm and her right wrist, she was in shock, and felt dazed and confused: T36.33 – T36.44. The plaintiff was embarrassed by the events, and she didn’t want a fuss made: T36.44. She declined to have an ambulance called, but she called a friend who was nearby, and he came to the scene and took her to the Prince of Wales Hospital at Randwick, where her injuries were identified, documented and treated.

Injuries identified and initial treatment received

74. At 18:52 hours on that evening, the plaintiff attended at the Prince of Wales Emergency Department for the assessment of her injuries. In hospital, the plaintiff found that the pain she was experiencing was excruciating: T41.10.

75. The plaintiff’s injuries and the related problems were identified in the hospital notes as comprising a deformed right wrist, with associated discomfort, a 1cm cut to the right forehead, and a pins and needles sensation to the fingers of the right hand with swelling, and a right palmar abrasion: Exhibit “D”, pp 4, 8 – 10.

76. On that occasion, an x-ray of the plaintiff’s right wrist was performed, which showed a markedly comminuted transverse fracture involving the distal radius of that wrist, with associated dorsal and ulnar deviation and dorsal displacement, with a small degree of bony shortening. There was also an extension of that fracture to the articular surface, with overlying soft tissue swelling seen to be present: Exhibit “D”, p 10.

77. On 1 June 2014, the plaintiff underwent an orthopaedic surgical procedure for open reduction and internal fixation of the radial fracture with the insertion of a plate and screws, performed by Dr Schick: Exhibit “D”, p 6. After 3 nights in hospital, the plaintiff was discharged home on 3 June 2014, with antibiotic and analgesic medication, and with arrangements for her to be followed-up by Dr Schick in his private rooms. At that time, there was a risk of the plaintiff developing a related pain syndrome: Exhibit “D”, p1.

78. Thereafter the plaintiff’s right arm remained in a cast for about 6 – 8 weeks: T42.1. She took painkilling medication to control her significant pain levels: T42.5. In that time, she felt helpless, frustrated, teary, experiencing panic and she had anxiety that she did not understand: T42.18 – T42.26. She rated her pain as being moderate to severe (T42.47) and she described this pain as having persisted over the last 3 years: T42.41.

Defendant’s records referring to plaintiff’s fall

79. The defendant’s after-the-event records contain two significant references to the fall suffered by the plaintiff.

80. The first such record comprised an emailed report from Ms Irene Hunter, the defendant’s events manager, about the way the function on 31 May 2014 had progressed. That report made no mention of the plaintiff’s accident. However, it made reference to the fact that “it was very dark” when she had arrived at the function, and that it was “pitch black” when the equipment was packed down, that it was “not particularly safe in the dark” and that it was “slippery underfoot” at the place the ceremony had taken place on the lawn. She was in a position to know those matters. Ms Hunter’s stated assessment was that a work light was needed in that area because “at this time of year [it was] very dark”: Exhibit “1”, Tab 34, p 157.

79. It would appear from Ms Hunter’s note, as cited above, that since she arrived when it was already “very dark”, this suggests she was not present until there was a need to “pack down” the event on the Lone Pine Lawn. Since that point was not explored in the evidence or the submissions, the timing of Ms Hunter’s arrival is non-determinative.

80. The second such record comprised some minutes dated 3 September 2014. Those minutes related to the defendant’s Work, Health and Safety Committee and they noted that “A staff member of the Fresh catering contractor fell into the creek late one evening at Vaucluse House. In the low light she walked through the one small gap in the plants, mistakenly thinking that it led to the bridge and fell into the creek. No SLM staff were onsite at the time. She later discovered that she had broken her arm, and it was only some time later that Fresh reported this to SLM. Neil Piper reported that the bridge was not well illuminated, but that a couple of bulbs that were out around the property have been replaced. Stuart Macpherson notes that it is not a main thoroughfare and that some additional plants have been planted in the gap to try to prevent it from happening again”: Exhibit “1”, Tab 32, p 112; Exhibit “B”, p 58.

Subsequent medical and allied treatment and assessments

83. Subsequent to her initial treatment, the plaintiff underwent a long series of medical, allied and related reviews, as well as conservative and surgical treatments.

84. The following summary extracted from the evidence of those extensive instances is set out below as a framework for resolving disputed matters within the conflicting medico-legal opinions, and for determining the plaintiff’s ongoing disabilities, as well as assessing the plaintiff’s damages for non-economic loss, and other heads of claimed damage. The chronological sequence of those numerous events is set out as follows:

1. On 12 June 2014, the plaintiff was reviewed by Dr Schick who viewed a post-operative x-ray and noted the reduction was well fixed and in a good position. He advised the plaintiff to avoid lifting weights of more than 1kg with the right hand, and he suggested a further x-ray and review in a further 5 weeks: Exhibit “D”, p 13;

2. On 9 July 2014, the plaintiff was again reviewed by Dr Schick, who noted the plaintiff was still in significant pain, with sensitivity and stiffness of the right fingers and wrist. At that time he considered the plaintiff had a mild pain syndrome (CRPS). That was a perspicacious observation in light of subsequent developments. He referred her for hand therapy, prescribed Endep, and suggested a further review of progress: Exhibit “D”, p 14;

3. On 31 July 2014, the plaintiff was again reviewed by Dr Schick, who noted much improvement, with the CRPS being described as mild. The plaintiff reported being able to tolerate only small doses of Endep, she had scar sensitivity, and she noticed a dorsal wrist clicking sensation. Hand therapy and pain management were suggested, with a review scheduled in a further 6 weeks: Exhibit “D”, p 15;

4. On 29 August 2014, the plaintiff was examined by Dr James Yu, a pain management specialist, who noted complaints of sharp right wrist pain, occasional radiation of pain to the right elbow and right thumb, tingling sensation in the second and third right fingers, with pain rated at 5-6/10. The plaintiff also reported erratic sleep patterns, she was teary, and a diagnosis of a post-traumatic stress disorder was then identified. A multidisciplinary approach to treatment was recommended: Exhibit “D”, pp 16 – 17;

5. On 19 September 2014, the plaintiff was again reviewed by Dr Schick, who noted a clawed posture of the right little finger, with some clicking of the wrist in the region of the distal radial ulnar joint, which he did not consider to be grossly unstable. He provided the plaintiff with reassurance and arranged a further review: Exhibit “D”, p 18;

6. On 22 September and 22 October 2014, the plaintiff was re-assessed by Dr Yu, who reviewed the plaintiff’s anti-neuropathic medications and symptoms, and the hand and psychological treatments the plaintiff had been receiving: Exhibit “D”, pp 19 – 20;

7. On 31 October 2014, Dr Schick conducted a further review of the plaintiff’s right upper limb, at which time he noted that the plaintiff was experiencing some tendon clicking and a lump on the back of the distal radius. Dr Schick was reluctant to re-operate because of the plaintiff’s complex regional pain syndrome, and instead suggested an ultrasound guided steroid injection: Exhibit “D”, p 21;

8. On 21 November 2014, the plaintiff was reviewed by Dr Yu, who noted continuing complaints of right arm neuropathic pain, sleep disturbance requiring medication, PTSD, anxiety and stress. Dr Yu noted a limited attempt at return to work. Continued exercises and psychological treatment was recommended: Exhibit “D”, p 22 – 23;

9. On 27 November 2014, Dr John Korber, a radiologist, undertook an ultrasound study of the plaintiff’s right wrist, at which time he performed an ultrasound guided steroid injection with local anaesthetic. The ultrasound study identified some abnormalities, which included a mild tenosynovitis: Exhibit “D”, p 24;

10. On 11 December 2014, the plaintiff was again reviewed by Dr Yu, who noted minimal improvement following the recent steroid injection. He noted that in addition to continuing her therapies, the plaintiff had been working 4 hours per day three days per week: Exhibit “D”, p 25;

11. On 18 December 2014, the plaintiff was again reviewed by Dr Schick, who noted an ongoing CRPS, and he recommended and MRI scan of the triangular fibro cartilage complex (TFCC) and possible surgical intervention in the event of a tear being found in the TFCC : Exhibit “D”, p 26;

12. On 9 January 2015, the plaintiff underwent a high resolution MRI of her right wrist which revealed a mid-circumference tear of the TFCC insertion to the radius, with some joint effusion and synovial thickening, focal tendinopathy and related findings: Exhibit “D”, pp 27 – 28;

13. On 15 January 2015, the plaintiff was re-assessed by Dr Yu, who noted that she was quite depressed in her mood. He planned a further review and for the plaintiff to have continued treatment in the interim: Exhibit “D”, p 29;

14. On 28 January 2015, the plaintiff was again reviewed by Dr Schick, who interpreted the MRI findings to represent a probable granuloma, and he recommended surgery to treat the lump in the plaintiff’s right wrist: Exhibit “D”, p 30;

15. On 12 February 2015, the plaintiff was re-assessed by Dr Yu, who adjusted the medications and noted Dr Schick’s plan for further surgical treatment: Exhibit “D”, p 31;

16. On 11 March 2015, Dr Schick again reviewed the plaintiff one week post plate and screw removal, and post removal of the right wrist granuloma, which was considered to have been due to a foreign body in the form of gauze, stitch material or a drill bit tip introduced at the time of surgery: Exhibit “D”, p 33;

17. On 12 March 2015, the plaintiff was again reviewed by Dr Yu following the recent surgical procedure: Exhibit “D”, p 34;

18. On 2 April 2015, at the request of her solicitor, the plaintiff underwent a vocational assessment by Dr James Athanasou, a consultant vocational psychologist. Dr Athanasou expressed the opinion that the plaintiff had, as a result of her accident, lost the potential to continue working as a venue manager and an events organiser which were avenues of employment she had already had a record of achievement. He also expressed the opinion that she may be limited in working at a managerial level in a hands-on role, and that her employment prospects were restricted by her age, a relative lack of transferrable skills, her prolonged absence from the labour market, and any negative employer perceptions of her ability: Exhibit “C”, Tab 1, pp 1 – 14;

19. On 10 April 2015, the plaintiff was again reviewed by Dr Schick, who noted the continued presence of CRPS symptoms: Exhibit “D”, p 35;

20. On 16 April 2015, the plaintiff was again reviewed by Dr Yu, who noted increasing pain, and adjusted the medication regime: Exhibit “D”, p 36;

21. On 8 May 2015, the plaintiff was again reviewed by Dr Schick who noted a history of some painful clicking in the right wrist: Exhibit “D”, p 37;

22. On 18 May 2015, the plaintiff was re-assessed by Dr Yu, who noted the plaintiff was extremely depressed and anxious, in the context of the continued presence of pain, albeit with some noted improvement: Exhibit “D”, p 38;

23. On 5 June 2015, the plaintiff was again reviewed by Dr Schick, who noted continued pain and a clunking sensation in the right wrist. He suggested an MRI as an investigatory step: Exhibit “D”, p 39;

24. On 9 June 2015, the plaintiff underwent an MRI of the right wrist which was reported by Dr Ron Schnier using the 9 January MRI scan as a comparison. He noted the previously evident dorsal wrist lump had been removed, as well as some surgical changes, and a tear in the radial attachment of the mid-circumference of the TFCC: Exhibit “D”, p 40;

25. On 18 June 2015, the plaintiff was re-assessed by Dr Yu, who noted the plaintiff was working 6.5 hours per day, 4 days per week. He supported the continued hand therapy, medication and psychological treatment: Exhibit “D”, p 41;

26. On 26 June 2015, the plaintiff was again reviewed by Dr Schick with some focus on the impact of the plaintiff’s CRPS upon her, and a discussion on the need for further x-rays and a possible further attempt at a TFCC repair: Exhibit “D”, pp 42 – 43;

27. On 30 June 2015, the plaintiff underwent a psychological assessment by Ms Carol Manns, who noted the reports she had reviewed, and she recorded a history from the plaintiff of right hand restrictions, apprehensiveness, and increased anxiety about her future, previous panic attacks, psychomotor retardation, nightmares about falling, and a sense of a foreshortened future. Ms Manns made a provisional diagnosis of PTSD, major depressive episode, somatic symptom disorder and predominant pain, for which she recommended a series of 12 cognitive behaviour therapy sessions: Exhibit “D”, pp 44 – 47;

28. On 7 July 2015, at the request of Dr Schick, the plaintiff was assessed by Dr Stuart Myers, a consultant hand and wrist surgeon, who, after recounting the history, the medications taken by the plaintiff, and after considering surgical options, recommended an ultrasound guided steroid injection to the right wrist. He also noted significant psychological distress in the plaintiff, which indicated that the approach to surgery should hasten slowly: Exhibit “D”, pp 48 – 49;

29. On 7 July 2015, the plaintiff underwent bilateral x-rays of her wrists which Dr O’Connell reported as raising a concern over avascular necrosis of the trapezoid bone of the right wrist: Exhibit “D”, p 50;

30. On 15 July 2015, Dr Schick carried out a right wrist arthroscopy and TFCC repair, a tendon stabilisation procedure, and the excision of a dorsal wrist lump: Exhibit “D”, p 32;

31. On 16 July 2015, the plaintiff was re-assessed by Dr Yu for persistent right arm pain with neuropathic features. He suggested a stellate ganglion block injection and the provision of guidance regarding work matters, followed by a further review: Exhibit “D”, p 51;

32. On 17 July 2015, Dr Yu convened a multidisciplinary case conference meeting to discuss treatment and management options in advance of the plaintiff’s next attendance at the clinic on 3 September 2015: Exhibit “D”, p 52;

33. On 24 July 2015, the plaintiff was again reviewed by Dr Schick in light of the earlier consultation the plaintiff had with Dr Myers, and his recommendations. Dr Schick determined that in light of the plaintiff’s worsening symptoms of wrist irritability, he arranged for the plaintiff to have a steroid injection into her right wrist: Exhibit “D”, p 53;

34. On 30 July 2015, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Yvonne Skinner, a consultant psychiatrist. Dr Skinner reviewed the plaintiff’s history, and her complaints elicited at that time, noting the complaints of symptoms of anxiety, depression, panic attacks and cognitive dysfunction, and expressed the opinion that the plaintiff was suffering from a generalised anxiety disorder which probably explained the plaintiff’s memory and concentration problems. Dr Skinner also stated that the plaintiff’s “underlying anxiety disorder … is causing an aggravation of pain symptoms and concerns about her future”. Dr Skinner also identified the possibility of medication being a contributing factor to those problems. Dr Skinner was of the opinion the plaintiff was not suffering from a psychiatric disorder that would prevent her from working, although she acknowledged that the plaintiff’s prognosis remained guarded because of the duration of her symptoms and the aggravating effects of her most recent surgery: Exhibit “10”, p 8;

35. On 30 July 2015, Dr Korber carried out an ultrasound guided steroid injection into the plaintiff’s right wrist as suggested by Dr Schick: Exhibit “D”, p 54;

36. On 3 September 2015, the plaintiff was reviewed by Dr Yu, who noted the fact of his negotiations with the workers’ compensation insurer to approve further treatment for the plaintiff, including seeking approval for an appointment for the plaintiff to see an occupational physician: Exhibit “D”, p 56;

37. On 14 September 2015, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr David Dilley, a consultant hand surgeon: Exhibit “C”, Tab 10, pp 130 – 134;

38. On 21 September 2015, at the request of her solicitor, the plaintiff was assessed by Professor David Champion, a consultant rheumatologist. Professor Champion noted that following her fall, the plaintiff went on to develop the majority of the essential elements of post-traumatic stress disorder, some adjustment symptoms, and an adverse chronic pain experience, with a relatively severe post-traumatic chronic regional pain syndrome at the right distal forearm, wrist and hand, with an unfavourable prognosis: Exhibit “C”, Tab 3, pp 38 – 47;

39. On 28 September 2015, the plaintiff’s wrist issues were the subject of an assessment and presentation meeting and discussion amongst a group of hand surgeons at a Sydney Hospital clinical meeting. The consensus was that the plaintiff had a mechanical instability problem with her right wrist, including a CRPS which was secondary to the fracture injury. The consensus of that meeting was that it was appropriate for the plaintiff to undergo a repeat TFCC repair, as well as an ulnar joint stabilisation procedure, but not an ulnar shortening osteotomy. The workers’ compensation insurer was asked to approve the cost of the procedure: Exhibit “D”, p 57;

40. On 28 September 2015, at the request of her solicitor, the plaintiff was assessed by Ms Trudie Warner, a consultant occupational therapist. Ms Warner concluded the plaintiff was a genuine person with significant ongoing functional restrictions resulting from her injuries in the fall. She referred to the physical and psychological problems diagnosed by the other experts who had issued reports. Ms Warner’s assessment identified permanent restrictions in performing heavier household domestic tasks, requiring long term support services to maximise independence in the activities of daily living whilst minimising the likelihood of aggravating symptoms: Exhibit “C”, Tab 4, pp 50 – 94;

41. On 1 October 2015, the plaintiff was reviewed by Dr Yu, who noted the plaintiff’s pain levels had diminished, and that she was seeing two clinical psychologists as part of her treatment. The result of the hand surgeon’s review was still awaited: Exhibit “D”, p 58;

42. On 12 November 2015, the plaintiff was reviewed by Dr Yu. He recorded that she rated her pain as being 5-9/10. He continued her medications pending further surgery, which was awaited: Exhibit “D”, p 59;

43. On 19 November 2015, the plaintiff was again reviewed by Dr Schick. He noted she was more depressed lately. Surgery was being planned for when her emotional state had improved: Exhibit “D”, p 60;

44. On 17 December 2015, the plaintiff was reviewed by Dr Yu, who urged a multidisciplinary approach to the management of the plaintiff’s complex pain condition and related psychological issues: Exhibit “D”, p 61;

45. On 14 January and 26 February 2016, the plaintiff was again reviewed by Dr Yu, who encouraged a regime of home exercises and a stellate ganglion block injection for the neuropathic pain. He pursued the insurer for approval of that treatment: Exhibit “D”, pp 62 – 63;

46. On 21 January 2016, at the request of her solicitor, the plaintiff was assessed by Dr Jonathan Phillips, a consultant psychiatrist. Dr Phillips identified the important observation of the evolution of the plaintiff’s symptoms over time to the point that they had become chronic and pervasive. After reviewing the DSM criteria, he considered that following the accident the plaintiff had suffered a post-traumatic stress disorder and a major depressive disorder, which he characterised as co-existing major depressive symptoms. He predicted that with treatment, the plaintiff would make slow but useful progress with her symptoms, but she would remain vulnerable to future stressors, with re-activation of her symptoms. He agreed with Professor Champion’s opinion that the plaintiff would be restricted to part-time work in a low stress environment: Exhibit “C”, Tab 5, pp 95 – 110;

47. On 17 March 2016, at the request of her general practitioner, the plaintiff underwent a psychiatric assessment by Dr Alex Pilsky. He recorded significant psychological symptoms which included, dysphoric mood, ruminations about the accident, intrusive recollections, nightmares, panic attacks with associated distressing symptoms, anhedonia and feelings of hopelessness, suicidal thoughts, insomnia, increased appetite and weight gain, and significant alcohol consumption for relief of anxiety. He considered the plaintiff was at an increasing risk of suicide and required close psychiatric observation: Exhibit “D”, pp 64 – 65;

48. On 29 March 2016, the plaintiff was again reviewed by Dr Schick, who suggested postponing further surgery for the ongoing wrist clunking problem until the psychological problems receded: Exhibit “D”, p 66;

49. On 8 April 2016, the plaintiff was reviewed by Dr Yu, who noted that the plaintiff was awaiting approval for the surgery, and in the meantime, he recommended the plaintiff continue with psychological and psychiatric treatment: Exhibit “D”, p 67;

50. On 18 April 2016, the plaintiff was reviewed by Dr Pilsky, who noted the plaintiff exhibited abnormal movements consistent with the onset of Tourette’s Syndrome, which was a rare but known co-morbidity of depressive and anxiety disorders and her PTSD, which required observation: Exhibit “D”, p 68;

51. On 11 May 2016, the plaintiff was reviewed by Dr Pilsky, who noted that she continued to struggle with depression and symptoms of PTSD, for which he changed her medication: Exhibit “D”, p 69;

52. On 29 May 2016, the plaintiff was again reviewed by Dr Pilsky, who adjusted her prescribed medications: Exhibit “D”, p 70;

53. On 2 June 2016, at the request of the solicitor for the defendant, Dr Skinner: Exhibit “9”. She prepared a letter of commentary on the report of Dr Phillips dated 21 January 2016: Exhibit “C”, Tab 5. The questions which the defendant had asked of Dr Skinner in this context were not in evidence. Dr Skinner’s commentary was undertaken on the papers without a further examination of the plaintiff. Dr Skinner had last seen the plaintiff on 30 July 2015. After reviewing the report of Dr Phillips, Dr Skinner expressed the opinion that her earlier opinion dated 31 July 2015, which was that the plaintiff’s presentation did not fulfil the criteria for a diagnosis of post-traumatic stress disorder, although the plaintiff had developed symptoms of severe anxiety with occasional panic attacks, remained unchanged. That opinion requires evaluation in the context of the entire body of the medical evidence.

1. On 9 June 2016, the plaintiff was reviewed by Dr Yu, who noted a reduction in the neurological complaints but ongoing mechanical pains in the right wrist: Exhibit “D”, p 71;

2. On 16 June 2016, the plaintiff was again reviewed by Dr Pilsky, who adjusted the plaintiff’s medication regime: Exhibit “D”, p 72;

3. On 26 June 2016, the plaintiff was again reviewed by Dr Pilsky, who adjusted the plaintiff’s medication regime whilst she was awaiting surgery: Exhibit “D”, p 73;

4. On 20 July 2016, Dr Schick re-operated and carried out a series of complex orthopaedic procedures on the plaintiff’s right wrist and upper limb comprising an Adams procedure for revision of previous tendon repairs and a reconstruction of the right radio-ulnar joint: Exhibit “D”, p 74;

5. On 26 July 2016, at the request of the plaintiff’s solicitor, Dr Phillips commented upon the report of Dr Skinner which had been served by the defendant. On comparing the respective histories they obtained, Dr Phillips stood by his earlier opinion, and considered that his views and those of Dr Skinner were not all that far removed from each other. The difference appeared to be one of terminology, in that, whereas Dr Phillips diagnosed a post-traumatic stress disorder, Dr Skinner diagnosed a generalised anxiety disorder, and the difference appeared to be accounted for by the more detailed history obtained by Dr Phillips: Exhibit “C”, Tab 7, pp 117 – 119;

6. On 27 July 2016, the plaintiff was reviewed by Dr Pilsky. He considered that she should be able to engage in more meaningful rehabilitation after her post-operative pain improves: Exhibit “D”, p 75;

7. On 29 July 2016, the plaintiff was again reviewed by Dr Schick following the re-operation and ligament reconstruction procedure. He provided her with reassurance and he referred her back to Dr Yu for pain management: Exhibit “D”, p 76;

8. On 4 August 2016, the plaintiff was reviewed by Dr Yu, who made adjustments to her regime of prescribed medications and encouraged her to continue with psychological treatment: Exhibit “D”, p 77;

9. On 19 August 2016, the plaintiff was again reviewed by Dr Schick, who noted some settling of arm pain, and a reduction in swelling. On this date, the plaintiff’s plaster was changed to a short arm cast: Exhibit “D”, p 78;

10. On 7 September 2016, the plaintiff was reviewed by Dr Pilsky, who adjusted her psychotropic medications in the hope of reducing her vocal and motor tics: Exhibit “D”, p 79;

11. On 8 September 2016, the plaintiff was again reviewed by Dr Schick, who noted the plaintiff’s report of ongoing shooting pain around the ulnar side of the right wrist. He also noted that the plaintiff was quite anxious. He recommended further hand therapy, with care, and further consultation with Dr Yu: Exhibit “D”, p 80;

12. On 15 September 2016, the plaintiff was reviewed by Dr Yu for her continuing right arm pain. He planned to book the plaintiff for a further stellate ganglion block injection under ultrasound guidance: Exhibit “D”, p 81;

13. On 25 September 2016, the plaintiff was reviewed by Dr Pilsky, who noted a degree of subsidence of the earlier described vocal and motor tics. He was uncertain whether this would be a lasting reduction, and he noted that the tic problem was becoming a nuisance for the plaintiff at her work. He made some adjustments to her prescribed medication regime: Exhibit “D”, p 82;

14. On 1 October 2016, Dr Schick wrote to the workers’ compensation insurer to answer questions raised about the plan for the plaintiff to have further surgical treatment following the earlier failed ligament repair. Dr Schick explained that the recommendation for further surgery was as a result of extensive consultation with the plaintiff concerning her case, which he described as complex, and following consultations with his colleagues at the Sydney Hospital Hand Clinic. He noted the indication for further surgery to be a continuing mechanical problem with the right wrist, and secondary CRPS. He noted these problems and the associated wrist instability were impacting upon the plaintiff’s ability to return to a productive working life: Exhibit “D”, p 83;

15. On 23 October 2016, Dr Pilsky reviewed the plaintiff and noted a history of a lot of anxiety, irritability and a lot of mood changes. This seemed to be in part due to the effects of the medication regime, which he reviewed and changed: Exhibit “D”, p 84;

16. On 28 October 2016, the plaintiff was again assessed by Dr Schick, which was 3 months post wrist reconstruction surgery. He noted continuing anxiety about an occasional click in the wrist. He noted the ongoing symptoms were due to post-surgical soreness and the CRPS. He recommended continuing with hand therapy and he noted the plan for a further stellate ganglion block procedure: Exhibit “D”, p 85;

17. On 16 November 2106, the plaintiff was reviewed by Dr Pilsky, who noted a more stable mental state in the plaintiff following cessation of the medication Pristiq, which had resulted in a mixed state of depression and hypomania. He made adjustments to the medication regime and he noted the plaintiff remained impaired both in terms of her physical and mental state. Dr Pilsky tentatively supported the plaintiff’s wish to increase her working hours from 20 to 24 hours per week: Exhibit “D”, p 86;

18. On 18 November 2016, Dr Schick wrote to the workers’ compensation insurer to answer questions about the plaintiff’s progress. He recommended further hand therapy and pain management. He also noted continuing unfitness for pre-injury work, with the barriers being pain and weakness, and he suggested that the residual work activities be according to the plaintiff’s levels of tolerance and comfort: Exhibit “D”, p 87;

19. On 28 November 2016, the plaintiff was reviewed by Dr Yu, who noted he would chase the insurer for approval for a further stellate ganglion block procedure under ultrasound guidance in light of the plaintiff’s persistent right wrist pain. He also recommended continuing with physiotherapy, and consultations with the psychologist and the psychiatrist, along with ongoing analgesic medication: Exhibit “D”, p 88;

20. On 9 December 2016, the plaintiff was again reviewed by Dr Schick five months post TFCC repair and wrist reconstruction surgery. He recorded a history of better hand function and strength, but also occasional clicking, some continuing pain albeit reduced, and a stable distal radial ulnar joint. He noted continuing signs of the pain syndrome previously identified, and emphasised the importance of ongoing hand therapy and pain management treatments: Exhibit “D”, p 89;

21. On 9 December 2016, at the request of the solicitor for the plaintiff, Dr Pilsky wrote a detailed report setting out his involvement in the plaintiff’s treatment, since 17 March 2016, and from the viewpoint of his specialty, identifying his accident-related diagnoses of severe and chronic PTSD, major depression of moderate severity with mixed features, chronic pain, and a traumatic brain injury, distressing vocal and motor tics, anxiety, poor stress control and cognitive difficulties: Exhibit “D”, pp 90 – 98;

22. On 11 December 2016, Dr Pilsky reviewed the plaintiff and provided a short update of her problems, noting that she continued to complain of significant motor and vocal tics, and an increased level of internal agitation and tension, which he said was usual in the case of someone trying to supress tics: Exhibit “D”, p 99;

23. On 13 December 2016, Dr Yu wrote to the workers’ compensation insurer to address questions that were posed to him concerning referrals, treatment, and return to work issues: Exhibit “D”, p 100;

24. On 18 January 2017, the plaintiff was reviewed by Dr Pilsky, who noted that she remained of labile mood, and continued to experience significant agitation, although her previous hypomanic and suicidal thoughts had subsided. He was concerned about the considerable amounts of Endone the plaintiff was taking for her ongoing right wrist pain. He was also concerned about the problems she experienced with antidepressants, which meant these were ceased: Exhibit “D”, p 101;

25. On 18 January 2017, Dr Phillips provided a supplementary report in which he addressed questions that were posed to him by the solicitor for the plaintiff in relation to the reports of Dr Pilsky. Dr Phillips pointed to the fact that the treating psychiatrist and his own opinion coincided, in relation to the diagnosis of a post-traumatic stress disorder, and in respect of the difference between those opinions and that of Dr Skinner, Dr Phillips pointed out that all three psychiatrists shared the view that the plaintiff had anxiety spectrum symptoms, irrespective of the assigned diagnostic label. Dr Phillips summarised the position by stating there was no doubt the plaintiff had ongoing psychopathology as a direct result of the traumatic incident in question: Exhibit “C”, Tab 8, pp 120 – 121;

26. On 23 January 2017, the plaintiff was reviewed by Dr Yu, who noted the plaintiff was working about 16 hours per week. He also noted that due to her persistent right wrist pain, she should continue with physiotherapy, treatment by a psychologist and a psychiatrist, continue with various medications, and have a repeat right stellate ganglion block under ultrasound guidance, with pulsed radiofrequency neurotomy: Exhibit “D”, p 102;

27. On 21 February 2017, the plaintiff was reviewed by Dr Pilsky, who noted the plaintiff’s report of continued quite severe right wrist pain. He also noted that her mood had stabilised and her sleep had improved since ceasing Imovane. He continued other medications, and thought that her work capacity was limited by pain more than psychiatric considerations, although those factors interacted: Exhibit “D”, pp 103 – 104;

28. On 22 March 2017, the plaintiff was reviewed by Dr Pilsky, who noted her mood had stabilised on Quietapine, albeit with some associated tiredness, which indicated she should keep to her work regime of 16 hours per week, subject to further review: Exhibit “D”, p 105;

29. 11 April 2017, the plaintiff was reviewed by Dr Pilsky, who noted her mood was relatively stable, and that there had been some positive developments in her life, including a reduction in the vocal and motor tics, although she still had a tearful presentation: Exhibit “D”, p 106;

30. On 18 April 2017, at the request of her solicitor, the plaintiff was reassessed by Professor Champion, who identified his agreement with the assessment made by Dr Phillips in the report dated 21 January 2016. Professor Champion reiterated his opinion from the viewpoint of his specialty, that the plaintiff had post-traumatic and post-surgical chronic regional pain disorder of the right wrist, with features of a continuing post-traumatic stress disorder, unfavourably interacting with the chronic pain disorder, and ongoing depression, with spin off effects, including in relation to unfitness for employment in a managerial role for the foreseeable future: Exhibit “C”, Tab 9, pp 122 – 129;

31. On 12 May 2017, Dr Schick wrote to Dr Peter Scougall seeking a second opinion regarding the plaintiff’s continuing and persistent severe ulnar sided wrist pain as he was unconvinced of the benefits of a distal ulnar replacement, and he was seeking a fresh perspective: Exhibit “D”, p 107. No further surgery is being planned for the plaintiff’s right wrist following the consultation with Dr Scougall: T55.20 – T55.43;

32. On 24 May 2017, the plaintiff was reviewed by Dr Pilsky, concerning her increasing anxiety and deteriorating sleep, which seemed to have coincided with a cut in her pay at work. The plaintiff also reported nightmares and visual hallucinations from taking Imovane, and he ordered that medication to cease. He noted her mood to be labile, her presentation to be tearful. He indicated the plaintiff required very close monitoring until she returned to her previous baseline state: Exhibit “D”, p 108;

33. On 29 May 2017, the plaintiff was reviewed by Dr Yu, who noted, despite operations to the right wrist, that the plaintiff was experiencing persistent wrist pain and secondary psychological issues. He recommended referral to a multidisciplinary intensive and integrated pain management programme, and he indicated that he would write to the insurer for approval for that course: Exhibit “D”, p 109;

34. The report of Professor Champion dated 18 July 2017 indicates that the solicitor for the plaintiff had been provided with reports from Dr Vijay Maniam, an orthopaedic surgeon (24 June 2015) and Dr Stephen Buckley, a rehabilitation specialist (24 October 2005). Whilst Professor Champion made some reference to the contents of those reports, they were not in evidence, and they did not feature in the submissions of the parties. Therefore, no adverse inferences arise as to the content of those reports.

Findings reconciling conflicting medical opinions

85. The only significant emergent matter of medical dispute that requires reconciliation is a diagnostic issue within the expert medical evidence of the consultant psychiatrists who provided medico-legal reports. In my view, this was a terminological dispute between the reports of Dr Phillips, as is relied upon by the plaintiff, and the reports of Dr Skinner, as is relied upon by the defendant.

86. That terminological dispute concerned the use and the technical application of the Diagnostic and Statistical Manual (DSM 5) diagnostic nomenclature, and how the plaintiff’s injury and her related psychological symptoms, which were not in dispute, should be classified for diagnostic purposes.

87. Dr Phillips was of the view that the plaintiff’s symptom’s met the requirements for DSM 5 criteria, for the diagnosis of a post-traumatic stress disorder and a co-existing major depression (Exhibit “C”, Tab 5, p 106), whereas in her report dated 2 June 2016, Dr Skinner was of the view that the plaintiff’s symptoms did not fulfil the diagnostic criteria for post-traumatic stress disorder because the requirements of Criterion A of that manual, namely the requirement of “exposure to actual or threatened death” was absent from the history she obtained from the plaintiff, although Dr Skinner accepted that the plaintiff had developed symptoms of severe anxiety with panic attacks: Exhibit “10”, p 2.

88. It is therefore apparent that this dispute raises a factual matter to be determined concerning the nature of the plaintiff’s psychological reaction to the circumstances of her fall, as was foreshadowed at paragraphs [42], [70] and [73] above.

89. In my assessment, the basis for reconciliation of the divergent opinions is appropriately summed up and explained by Dr Phillips, who in his second report, identified the fact that the psychiatric diagnosis was dependent upon the detail within the history that was obtained by the respective examiners. In that regard, he pointed out, correctly in my view, that the history he obtained from the plaintiff was more comprehensive than that taken by Dr Skinner with regard to matters of psychological and cognitive symptoms.

90. In that regard, in my assessment, Dr Skinner’s summary of the plaintiff’s history of injury was rather bland as to detail, and seemed to be devoid of any description that conveyed the extent of the plaintiff’s experience of shock, alarm, terror, petrification, and distress at the circumstances of her injury, as described in her evidence, and as was recorded by other medical examiners. Dr Skinner’s summation of that history was simply that “… She walked onto a path and fell. She was not sure whether she lost consciousness. She woke in a drain/ravine feeling disoriented”: Exhibit “9”, p 2.

91. The plaintiff’s more graphic and emotion-laden account of those events, as cited in paragraph [90] above, was absent from Dr Skinner’s summary. Furthermore, Dr Skinner’s summary of the plaintiff’s return to work, where she described the plaintiff as feeling like she “was a wreck”, was minimally informative, and conflated.

92. In that regard, Dr Skinner’s summary did not delineate the fact that the plaintiff’s return to work occurred about 6 weeks post-injury and was associated with her experience of coping difficulties, and Dr Skinner’s summary did not refer to the detail of the plaintiff’s physical and psychological suffering in the interim period. I considered Dr Skinner’s account of the plaintiff’s history to be relatively and comparatively superficial in the context of the evaluation of the course of the plaintiff’s psychological problems.

93. Dr Skinner’s evaluation did not refer to the fact that, as was emphasised and reiterated by Dr Phillips, the condition known as post-traumatic stress disorder is usually conceptualised as being a severe and unique form of anxiety disorder, which led Dr Phillips to the view that, amongst all three psychiatric opinions, at the least, there was a shared view that the plaintiff had anxiety spectrum symptoms, irrespective of whether the diagnosis was that of a generalised anxiety disorder, or that of a post-traumatic stress disorder: Exhibit “C”, Tab 8, p 121.

94. That characterisation by Dr Phillips, which I accept, indicates that the distinction sought to be made by Dr Skinner concerning post-traumatic stress disorder and a generalised anxiety disorder, was ultimately immaterial in this case.

95. It is for those reasons that I prefer and accept the opinions of Dr Phillips when compared to those of Dr Skinner. In my view, on a factual basis, the plaintiff’s account, in which she described her experience of distress, petrification and terror at her isolated circumstances when injured, where the plaintiff found that she was unable to extricate herself from the bottom of the ravine, seems sufficiently consistent with the plaintiff having been exposed to a death threatening experience.

96. In arriving at this factual finding on the nature of the plaintiff’s experience at the time of the accident, I am guided by the plaintiff’s factual accounts which I accept, and by the factual descriptions which based the opinions of Dr Pilsky, Dr Phillips and Dr Champion, and the assessing psychologist, Ms Mann.

97. I am also reinforced in the conclusion that the plaintiff suffered post-traumatic stress disorder because Dr Phillips’ opinions are consistent with those of the plaintiff’s treating psychiatrist, Dr Pilsky, where his opinions to that effect, were not the subject of challenge by the defendant. The defendant did not require Dr Pilsky for cross-examination. In those circumstances, the opinions of the treating psychiatrist carry significant persuasive weight.

98. The parties did not require any of the consultant psychiatrists to give oral evidence to further elaborate upon the factual basis and reasons for their respective opinions. Furthermore, the parties did not avail themselves of the readily available procedure for a meeting of experts to take place after preparing a joint report, and for the taking of their evidence concurrently. That process would have enabled the respective experts to each comment on any matters of contention within the opinions expressed by their colleagues: UCPR r 31.35.

99. In those circumstances, where, by reason of the operation of UCPR r 31.30 in the District Court, the respective expert opinions remain in a state of conflict, such conflict stands to be resolved according to whether or not the onus of proof on a particular factual question has been discharged by the party relying upon a particular opinion: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].

100. In the present case, although Dr Skinner and Dr Phillips obtained histories of broadly similar content concerning the manner and the circumstances of the plaintiff’s injury, as cited at paragraphs [90] – [95] above, the more detailed exposition of the plaintiff’s history, as set out in the reports and the opinions of Dr Phillips, as was commented upon by Dr Champion, persuades me that the opinions of Dr Phillips should be preferred and accepted compared to those of Dr Skinner which are less descriptive, where those opinions remain in unresolved conflict.

370. Dr Athanasou’s opinion included the following summation of the plaintiff’s situation:

“Her employment prospects are restricted by her age, a relative lack of transferable skills, her prolonged absence from the labour market, limitations in the labour market and any negative employer perceptions of her ability. She could expect to face a prolonged duration of unemployment prior to obtaining any job.

…

On the basis of the information available to me, it would appear that had the accident not occurred then this woman had the potential to continue in the workforce at a managerial level. At the time of the accident, she was a permanent employee with varied skills. As a result of the accident she has lost the capacity to continue working and it is possible that her future working capacity will be restricted. She has lost the capacity to work in occupations with average weekly total earnings in the range $1102.70 p.w. to $1689.00 p.w. (gross).”

[Exhibit “C”, Tab 1, pp 11 – 12]

386. In my opinion, the combined effect of the opinions I have cited, including Dr Athanasou’s opinion cited at sub-paragraph (18) of paragraph [84] above, including the guarded prognoses, even as expressed by Dr Skinner, as cited at sub-paragraph (34) of paragraph [84] above, the functional restrictions identified by Ms Warner, and the plaintiff’s own account which bases those opinions, does not auger well for the plaintiff exercising a significant and sustained residual earning capacity for the remainder of her working life. The defendant called no satisfactory evidence to contradict the plaintiff’s case in that regard: Smith v Alone [2017] NSWCA 287, at [46].

387. In striking a balance between the competing positions advanced in the submissions of the parties as summarised at paragraphs [363] to [368] above, and in making due allowance for the above factors, I consider that long term, and for the next 23 years, the plaintiff’s future loss of earning capacity should be assessed on the basis of an ongoing loss of $950 per week net over the remainder of her working life.

388. This assumes a weekly rate of $1250 net, which equates to $31.25 per hour, and a residual earning capacity of just under 10 hours per week in a 40 hour working week. In my view, that assessment pays proper regard to the cited and realistic views of Dr Champion and Dr Pilsky. This amounts to a loss of earning capacity of a little over 30 hours per week.

389. I consider that approach to be a conservative one in view of the plaintiff’s pre-accident work having been predominantly more senior and responsible in management roles, which obviously involved more than a 40 hour week, and given that at the time of the accident, she was taking a temporary break from the intensity of that type of work.

390. In my assessment, the impairments comprising the plaintiff’s disabilities, as summarised at paragraphs [103] to [138] above, taken together with the medical opinions cited in the preceding paragraphs, indicate that the plaintiff has not only suffered an impairment in her earning capacity, but that impairment is also having the ongoing deleterious effect of causing her to suffer financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; Graham v Baker [1961] HCA 48; (1961) 106 CLR 340.

391. Accordingly, the projection of a loss of $950 per week net, at 5 per cent, over 23 years (x 721.2) yields the sum of $685,140.

392. Although the evidence discloses no sound reason from within the plaintiff’s pre-accident situation to indicate or apply a higher discount for possible adverse vicissitudes, I consider the 20 per cent discount conceded by the plaintiff to be reasonable in the circumstances. In my view, that increased measure of discount adequately takes into account the possibility that at some time in the future there may be some increase, whether intermittent or temporary, in the plaintiff’s capacity to derive mitigatory earnings. Accordingly, applying that discount to the projected sum of $685,140, yields the discounted amount of $548,112. I therefore assess the plaintiff’s damages for future loss of earning capacity in the amount of $548,112.

Past loss of superannuation

393. The plaintiff’s damages for past loss of employer funded superannuation benefits are assessed at 9 per cent of the amount assessed in respect of past economic loss of $152,500, in the sum of $13,725.

Future loss of superannuation

394. The plaintiff’s damages for future loss of employer funded superannuation benefits are assessed at 11 per cent of the amount assessed in respect of past economic loss of $548,112, in the sum of $60,292.

Past domestic assistance

395. On behalf of the plaintiff it was initially submitted that damages for the injury-related past gratuitous domestic assistance that had been provided to her following the subject accident should be assessed in the amount of $14,400: MFI “2”. That submission was subsequently modified to a claim for $17,988, being for 6 hours per week of such services, over 100 weeks, at the submitted rate of $29.98 per hour.

396. The defendant maintained that the evidence called by the plaintiff was not sufficient to meet the required minimum threshold of 6 hours per week for 6 months, for there to be an assessment of damages for past domestic assistance: T382.27 – T382.29; s 15(3) of the CL Act.

397. Whilst there was no direct evidence of the precise number of hours for such attendances on the plaintiff each week in respect of particular tasks of domestic assistance, and the plaintiff’s evidence on those matters comprised estimates, there is little room for doubt that, as a result of her injuries and treatment, she both needed and received such assistance. This was initially provided to the plaintiff by her flatmate when they lived in shared accommodation between June 2014 and December 2015, and then more recently, since March 2017, which is the time from when the plaintiff received domestic assistance from her partner, Mr Bowden.

398. In the intervening period, between those two periods, the plaintiff fended for herself, albeit inadequately (T51.30 –T51.35), with some tasks either being left unattended, or not well performed, and where the plaintiff somehow managed (T46.8) and did her best in the circumstances: T51.33.

399. The question to be determined here, despite the absence of precise evidence of the hours per week of domestic assistance provided to the plaintiff in respect of particular domestic tasks, is whether it might be reasonably inferred from the totality of the evidence on this topic, that the plaintiff has satisfied the threshold requirements of s 15 of the CL Act: T344.4 – T344.10.

400. This question arises in the context where, following the plaintiff’s accident and during the phases of her various surgical and post-surgical treatments, she was significantly affected, including with psychological problems, and she was taking medication which affected her functioning. Understandably, with her dominant right wrist and upper limb affected, the plaintiff kept no records in relation to the domestic assistance she received on a gratuitous basis.

401. There are four relevant periods that arise for consideration:

1. The initial period of approximately 6 weeks from the plaintiff’s post-operative discharge from hospital on 3 June 2014, to say, 15 July 2014;

2. The subsequent period of approximately 72 weeks between 16 July 2014 and the time when the plaintiff’s flatmate moved overseas, and which was when her shared accommodation arrangements changed, on say 1 December 2015: T50.49;

3. The further period between say 2 December 2015 and 1 March 2017 during which time the plaintiff lived in an apartment on her own and somehow managed without assistance: T51.19;

4. The most recent period from say 2 March 2017, when the plaintiff commenced her relationship with Mr Bowden, and where the domestic arrangements that prevailed in that period, have continued up until the time of the hearing: T58.32

402. Each of those separate periods must be considered following a review of the evidence of the plaintiff, Mr Bowden, and Ms Warner concerning the provision of past domestic assistance.

Plaintiff’s evidence on past domestic assistance

403. The plaintiff’s accident-related disabilities, including the effects on ability to work, as surveyed between paragraphs [103] to [145] above, have had an inevitable carry-over effect on her ability to perform common place tasks in the domestic setting, as summarised at paragraphs [146] to [153] above.

404. Also relevant to a consideration of the plaintiff’s evidence on this topic is the content of histories recorded at the various post-accident assessments of the condition of the plaintiff, and at the frequent and numerous medical and allied assessments she has attended, as well as the multiple surgeries she had, and from which she had to recuperate, as has been chronologically laid out at sub-paragraphs (1) to (86) of paragraph [84] above, relating to the period being 12 June 2014 and 29 May 2017.

405. In analysing those matters, it is relevant to observe that the plaintiff had a significant and painful restriction in the use of her dominant right wrist, and therefore regarding the use of her right upper limb. This would have undoubtedly affected her ability to perform her ordinary share of the many commonplace household tasks that were required of her, as well as some aspects of self-care, where manual activity of her right hand, wrist and arm would have been required.

406. As at September 2014, the plaintiff’s right wrist was clicking, and was to a degree unstable, albeit not grossly unstable, and her right little finger was clawed: Exhibit “D”, p 89. She needed further surgery which also had disabling effects.

407. It is also relevant to note that in November 2014, or the end of 2014, the plaintiff was not using her right arm, she was not doing any lifting, she had little capacity for the common household task of scrubbing the bath or shower, and did very little cooking, and chopping for meal preparation, and her flatmate undertook the significant tasks: T45.17 – T46.17.

408. The medical evidence which I have cited has documented the continuation of the plaintiff’s pain, her chronic complex regional pain syndrome, her physically restricted ability to fully use her right wrist, and her ongoing psychological problems, as has already been described. Those problems did not lessen, and they have continued up until December 2015, and also beyond that date.

409. The plaintiff’s ability to sustain meal preparation and domestic tasks requiring use of her right upper limb has been, and continues to be limited for periods of about 5 – 10 minutes before the condition of her right wrist becomes aggravated: T61.14 – T61.49. She has struggled with pain when she undertakes activities with her right arm: T62.4. She leaves the heavier aspects of housework: T62.18. She has limited grip and ability for pressured use of her right arm before the activity becomes too painful to continue: T62.39 – T62.50. She cannot lift clothing onto the clothes line (T63.6) and she can only undertake small gardening tasks: T63.9. The tasks she does undertake (T165.3 – T165.36) are more laborious and discomforting: T61.17; T165.40. Those problems have continued to beset her since her injury, and they continue to do so.

410. Also relevant to the consideration are the various further surgical procedures the plaintiff underwent on 27 November 2014 (ultrasound guided injection), 25 February 2015 (revision: T152.2), 15 July 2015 (right wrist arthroscopy with cartilage and tendon repair), 30 July 2015 (ultrasound guided injection), and 20 July 2017 (Adams procedure revising previous tendon repairs and wrist joint reconstruction), the majority of which would have resulted in further periods of significant added incapacity for manual tasks during recuperation.

Mr Bowden’s evidence on past domestic assistance

411. The plaintiff’s partner, Mr Bowden, who has a demanding job outside the home, described the limited nature and extent of the plaintiff’s meal preparation activities: T177.45 – T177.50. His evidence between T177.10 to T182.1, when analysed, indicates that he spends about 3 hours per week in providing the plaintiff with domestic assistance concerning the activities of cooking, cleaning, washing and drying. This is less than the statutory threshold of 6 hours per week.

Ms Warner’s analysis on past domestic assistance

412. In support of this head of damage, the plaintiff relied on the analysis of the consultant occupational therapist, Ms Warner who estimated that the past domestic assistance provided to the plaintiff was for 6.5 hours per week: Exhibit “C”, Tab 4, pp 48 – 94. Although the defendant acknowledged Ms Warner’s qualifications, which were not challenged, the defendant claimed there were deficiencies in Ms Warner’s report which undermined the acceptability of her opinion: T382.31 – T382.32. I shall return to consider the validity of that submission.

413. In her report, Ms Warner summarised the plaintiff’s post-accident history and treatment (at p 51 of Exhibit “C”) and she identified relevant aspects of the plaintiff’s post-accident physical and psychological complaints (at p 53 of Exhibit “C”), which, from her perspective as an occupational therapist, included difficulty for the plaintiff with a range of manual domestic tasks in respect of which she required assistance after her injury.

414. Since Ms Warner’s report was dated 6 October 2015, it only dealt with the plaintiff’s living arrangements whilst she continued to share a house with her flatmate. Ms Warner noted the plaintiff relied upon her flatmate for practical and emotional support (at p 55 of Exhibit “C”). The practical tasks were not fully defined in the report.

415. Ms Warner (at pp 55 – 56 of Exhibit “C”), set out her assessment of the property where the plaintiff lived at that time. She identified the need for housework to be carried out in respect of two carpeted bedrooms, a shared bathroom and shower, a courtyard and terrace, a hedge, potted plants, a shared kitchen with related cupboards, a shared laundry and clothesline.

416. Ms Warner (at p 56 of Exhibit “C”), noted the plaintiff’s history of becoming rapidly fatigued with any activities. That account she obtained from the plaintiff, and her summaries of the plaintiff’s disabilities, as related to Ms Warner, were not challenged, and I accept those matters as being the important underlying basis for her evaluation: s 60 of the Evidence Act 1995; Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25.

417. Ms Warner (at p 57 of Exhibit “C”) noted that, given the plaintiff’s functional restrictions, it was likely that the plaintiff would have required assistance with self-care tasks, which she identified as washing and styling her hair, dressing and grooming, to the order of 30 minutes per day. This equates to 3.5 hours per week, which was separate from assistance with the plaintiff’s share of the housework.

418. It appears that the plaintiff’s memory, to a degree, has been affected by the effects of her injury and she had difficulty recalling and quantifying the precise details of the household tasks for which she was provided with domestic assistance in the relevant periods that require consideration: T45.26.

419. Ms Warner (at p 58 of Exhibit “C”), identified the applicable post-accident statutory rate for the assessment of past domestic assistance as being $27.96 per hour. The plaintiff’s submissions identified the rate at $29.98 per hour. Neither of those rates is correct. According to the 2017 Edition of the Furzer Crestani Assessment Handbook, at p 4, the correct hourly rate in respect of the immediate post-accident period is $28.24 per hour.

420. It is clear from Ms Warner’s report that she undertook a process of estimation of the past domestic assistance provided to the plaintiff. I infer that she did so in the absence of the plaintiff’s ability to recall and to precisely recall and quantify those matters.

421. In doing so, she estimated that apart from two periods of 6 weeks post-operatively in which time the plaintiff received 7 hours per week of domestic assistance, the plaintiff was provided with 6.5 hours of domestic assistance per week from 6 June 2014 to the time of her report, and an extra one hour per week for 12 weeks during the periods of post-operative recovery. Given the timing of Ms Warner’s report, as at October 2015, it would be reasonable to infer that her analysis was also applicable to 1 December 2015.

422. I now turn to deal with the defendant’s objection to the claim and quantification of an award of damages for past domestic assistance.

Whether damages should be awarded for past domestic assistance

423. In essence, the defendant points to the fact that in relation to the activities described and estimated by Ms Warner, being domestic assistance for 6.5 hours per week in the period between June 2014 and December 2015, apart from an initial 6 weeks at 7 hours per week, the ensuing time within that period involved services provided to the plaintiff by her flatmate, for less than 6 hours per week. This was because the element of gardening had to be excluded, and some of the tasks undertaken by the plaintiff’s flatmate were performed by the flatmate for her own benefit, and not exclusively for the plaintiff. The defendant consequently submitted that the statutory 6 hour threshold for 6 consecutive months has not been met.

424. In my view, on the evidence, that submission by the defendant must be accepted. Although the plaintiff has established a reasonable need for the services provided to her (s 15(2)(a) of the CL Act), the evidence does not permit a positive finding that the plaintiff has received such services for at least 6 hours per week for a period of 6 consecutive months (s 15(3) of the CL Act) in respect of services that were needed solely because of the injuries relating to the proceedings, and not otherwise: s 15(2)(b) and (c) of the CL Act. The evidence does not permit an inference that this mandatory statutory provision has been satisfied.

425. I therefore find the plaintiff has not established an entitlement to damages for the value of past gratuitously provided domestic assistance. I therefore decline to award the plaintiff damages for past gratuitously provided domestic assistance.

426. If I had come to a contrary conclusion on the question of whether the threshold of s 15 of the CL Act had been met, I would have awarded the plaintiff damages for past domestic assistance in the amount of $17,034, for the reasons that now follow.

427. Taking a broad-brush approach for present purposes, in the period 3 June 2014 to 1 December 2015, a period of approximately 78 weeks, at the flat rate of $28.24 per hour (without attempting to apply quarterly increments), giving effect to Ms Warner’s estimates, this amounts to $15,249: ($28.24 x 6 hours per week x 78 weeks = $13,216) + ($28.24 x 6 hours per week x 12 weeks = $2033).

428. In addition to the amount identified in the preceding paragraph, if it is assumed that, contrary to my finding, the plaintiff had in fact satisfied the initial qualifying threshold requirements of s 15 of the CL Act in relation to the initial period of 6 months following 3 June 2014, then the 3 hours of assistance provided to the plaintiff by Mr Bowden from March 2017 to the time of the hearing would also become assessable even though this was for less than 6 hours per week for 6 consecutive months: Hill v Forrester [2010] NSWCA 170; (2010) 79 NSWLR 470, at [2] and [100] – [112].

429. Accordingly, applying the more current hourly rate of $29.98 to the period from 1 March 2017 to the commencement of the hearing on 17 July 2017 this relates to a period of 19.85 weeks. The assessed value of domestic assistance of 3 hours per week for 19.85 weeks at that rate is $1785.

430. If the plaintiff had satisfied the requirements of s 15 of the CL Act, in her case, the combined total amount claimable for past domestic assistance is the total of $15,249 and $1785, namely $17,034.

Future domestic assistance

431. On behalf of the plaintiff it was initially submitted that damages for the injury-related future domestic assistance that the plaintiff would require in the future, should be assessed on a commercially paid basis in the amount of $255,015, comprising 6 hours per week at approximately $45 per hour projected at 5 per cent over the plaintiff’s remaining life span of 44 years (x 944.5): MFI “2’.

432. In final submissions, this aspect of the plaintiff’s claim was subsequently modified to the sum of $188,900, being for 4 hours per week of paid assistance, at $50 per hour, projected at 5 per cent over 44 years (x 944.5) without further discount: MFI “9”. Ultimately, there was no dispute as to the rate of $50 per hour for that projection: T385.13.

433. In contrast, the defendant submitted that there should be no award of damages for future domestic assistance. The defendant made that submission on the basis that the plaintiff’s need for domestic assistance was very minimal, and that this is unlikely to change in the future: T385.5. That submission was in part based on the generalised proposition that the plaintiff has been managing to do some work, and was also capable of doing some domestic work: T384.35 – T384.40.

434. I do not accept the defendant’s submission in that regard as it glosses over relevant detail within the evidence. In my view, that submission is based on a superficial and unduly narrow interpretation of both the plaintiff’s evidence, and the medical evidence as to her ongoing disabilities as has already been reviewed in detail, especially at paragraphs [74] to [102], and [103] to [138] above.

435. When those latter matters are properly taken into account, I consider it is reasonable that the plaintiff should be compensated for some hours per week of domestic assistance concerning a number of predictably recurring domestic tasks.

436. These tasks include her share of the heavier housework involved in cleaning and maintaining her home, managing aspects of the laundry, some aspects of meal preparation which the plaintiff finds difficult, being driven to various appointments, some aspects of gardening, the carrying of shopping, and like tasks. In view of the plaintiff’s only relatively recent formed relationship with her partner, it cannot be reasonably inferred that her partner would indefinitely continue to carry out the domestic tasks he presently performs in lieu of the plaintiff, and to an extent that is below the level of the minimum assessable threshold, along the lines discussed in Miller v Galderisi [2009] NSWCA 353.

437. Taking into account the matters referred to in paragraph [436] above, and in light of Ms Warner’s recommendations in relation to such matters (at Exhibit “C”, Tab 4, at paragraphs 3.2 – 3.9, pp 57 – 72), I consider that an assessment of 4 hours per week of commercial domestic assistance, would be reasonable and fair to both the plaintiff and to the defendant.

438. In arriving at that assessment, which is less than the time estimates aggregated from the elements comprising the recommendations within the report of Ms Warner, I consider that an assessment of 4 hours per week also makes due allowance for the domestic tasks the plaintiff’s partner presently performs in her stead, and on a gratuitous basis, as distinct from things he does for his own benefit.

439. The projection of the value of $50 per hour, for 4 hours per week, which is the equivalent of $200 per week, over the assessment period of 44 years at 5 per cent (x 944.5) yields the amount of $188,440, as was submitted on behalf of the plaintiff.

440. A further matter which needs to be taken into account in assessing this head of damage is the question of whether a discount should be applied for possible adverse vicissitudes, or other life events. That consideration now follows.

441. On the one hand, pre-accident, the plaintiff was in robust good health and it would have been unlikely that in the long term, in the ordinary course of events, and not until she reached a well advanced age, that she might otherwise have had to engage domestic assistance for household tasks. Those matters militate against a discount greater than the conventional discount of 15 per cent.

442. On the other hand, there is the distinct possibility that, against the interests of the defendant, the plaintiff’s present limited abilities to carry out physical tasks, which must include domestic tasks may undergo a decline as a consequence of her accident-related disabilities, either on account of physical issues, psychological issues, or a combination of these matters, as was foreshadowed by Dr Champion and by Dr Pilsky. Those possibilities militate against applying any significant discount to this component of the damages.

443. In balancing these factors with the concept of the vicissitudes generally, and recognising the exercise is incapable of precision, I consider that the interests of both parties are fairly served if the period for projection for this head of damage was reduced to 40 years, without further discount. This reduced period of 40 years requires that the lesser 5 per cent multiplier of 917.5 should be applied.

444. The projection of $200 per week at that rate and over that period yields the amount of $183,500. I therefore assess the plaintiff’s damages for future paid domestic assistance in the amount of $183,500.

Future treatment expenses

445. It was initially submitted on behalf of the plaintiff that damages for her likely future treatment needs and expenses should be assessed in the amount of $133,280, being the projection of an amount of $200 per week at 5 per cent over a limited period of 20 years (x 666.4). That sum included allowances for future attendances on general practitioners, rehabilitation physicians, physiotherapists, psychologists, psychiatrists, as well as pharmaceutical expenses: MFI “2’.

446. In final submissions on behalf of the plaintiff, this aspect of her claim was subsequently modified to the sum of $141,675, being the projection of a weekly amount of $150 at 5 per cent over the period of 44 years (x 944.5): MFI “9”.

447. In contrast, the defendant submitted that the appropriate allowance for the plaintiff’s future treatment or out-of-pocket expenses should be in the rounded amount of $60,000: MFI “6”; T386.21.

448. The defendant approached the future treatment issue on the basis that the treating doctors and the medical experts make reference to the need for certain periods of specific treatment over time. The defendant submitted that such damages should be allowed at a particular level for a number of years, but then reducing over time, as set out in the sliding scale within the defendant’s schedule: T385.30 – T386.25. In my view, the evidence does not satisfactorily identify a meaningful sliding scale upon which to base such a calculation.

449. In reply to the defendant’s submissions cited in the preceding paragraph, the plaintiff submitted that the future treatment regime which was advanced and relied upon in her case was for recurring lifelong treatment, as was identified in the opinions of relevant practitioners: T386.48.

450. In assessing the plaintiff’s future medical and pharmaceutical expenses it is relevant to note that over the past 3 years, those expenses have been continuing at about $40,000 per annum: Exhibit “K”.

451. Whilst those expenses are unlikely to continue to accrue at that rate, in my assessment, the plaintiff’s ongoing accident-related disabilities and problems justify her continuing to seek out medical advice as she has done to date, and for monitoring her regime of medication for her pain management and for her psychological condition, as has been complicated by the unfortunate but injury-related development of a complex regional pain syndrome, which in combination with her other disabilities, has proved difficult to treat. In my view, these matters indicate that an allowance should be made for a more intensive regime of treatment and monitoring than that which was submitted on behalf of the defendant.

452. On account of those matters, the plaintiff still regularly sees Dr Parish, her general practitioner, Dr Pilsky, her treating psychiatrist, and Ms Wild, her treating psychologist, at approximately monthly intervals. She also consults Dr Schick regularly, and although further surgery has for the present been ruled out of consideration, this might change in the future. She continues to see Dr Yu, her pain management specialist about every 2 months, and she continues to take varied prescribed medications, including trials of different medications, in various combinations that are adjusted from time to time by her treating doctors.

453. Plainly, with the plaintiff’s guarded medical prognosis, that regime is unlikely to materially change or lessen in its intensity in the foreseeable future. My reading of the evidence of Dr Champion and Dr Pilsky indicates the plaintiff’s needs for medical and psychiatric treatment, with monitoring of her condition, and her continuing need for medications, will be a life-long requirement, albeit with possible variations or fluctuating intensities over the course of time.

454. Also relevant to this aspect of the consideration is the pessimistic prospect that the plaintiff may require additional treatment in the event that she experiences exacerbations of her physical and psychological conditions, which as Dr Champion explained, could readily occur with relatively minor physical stressors: Exhibit “C”, Tab 9, p 129.

455. Whilst the incidence and the cost of the various treatments under consideration are difficult matters to predict, useful guidance is available in the form of the unchallenged opinion of Dr Champion who suggests that a reasonable method of assessing these future costs is to determine the costs incurred for the last 12 months (excluding the cost of surgery), and to project those costs for some years, at a gradually declining rate: Exhibit “C”, Tab 9, p 129. That approach is also difficult to quantify.

456. At the same cited place in his report, Dr Champion also draws attention to the long-term risk carried by the plaintiff of incurring aggravation of her right wrist and upper limb symptoms from relatively minor or moderate biomechanical stressors, for example, from a fall, or, I would add, from a fair reading of his report, over-exertion with relatively minor tasks. That risk adds a further level of imponderability and therefore difficulty to the exercise of estimating the plaintiff’s future treatment costs.

457. The plaintiff’s submissions which quantify the sum of $141,675, identify a figure of $150 per week for projection. This is based on an analysis of general practitioner costs of $75 per month, Dr Pilsky at $250 per month, Ms Wild at $200 per month, Dr Yu at $125 per month, and pharmaceutical costs of $100 per week, which analyses at $180 per week, and which was then rounded down to $150 per week.

458. In my assessment, the many treatment imponderables facing the plaintiff in the future make it difficult to approach the exercise as one of the projection of a reliably precise weekly sum. Instead, as is the case where economic loss may be difficult to quantify, I consider the correct approach in this case is to allow a substantial buffer sum that allows for the plaintiff’s likely significant treatment costs, on a continuing basis, although not attempting arithmetic precision: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

459. On that approach, on balance, doing the best I can to be fair to the plaintiff and not unfair to the defendant, I consider the appropriate buffer sum to be $125,000. I therefore assess the plaintiff’s damages for future treatment expenses in the amount of $125,000.

Past out-of-pocket expenses

460. Past out-of-pocket expenses, including medical, hospital, rehabilitation and allied expenses, which appear to have in large part been paid by the workers’ compensation insurer, have been agreed in the amount of $129,806.60: MFI “9”: T387.3 – T387.15. This figure was updated the day before delivery of these reasons, to the amount of $133,199.30. I therefore assess the plaintiff’s out of pocket expenses in the sum of $133,199.30.

Summary of damages assessment

461. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non economic loss	$269,500
(b) Past economic loss	$152,500
(c) Fox v Wood damages	$21,846.23
(d) Future loss of earning capacity	$548,112
(e) Past loss of superannuation	$13,725
(f) Future loss of superannuation	$60,292
(g) Past domestic assistance	$Nil
(h) Future domestic assistance	$183,500
(i) Future treatment expenses	$125,000
(j) Past out-of-pocket expenses	$133,199.30
Total	$1,507,674.53

Disposition

462. The plaintiff has succeeded in establishing that the defendant was negligent as alleged. The plaintiff’s damages are assessed in the amount of $1,507,674.53. The defendant’s claimed defence of contributory negligence has been rejected. Pursuant to s 151Z of the WC Act, the notional negligence of the plaintiff’s employer is assessed at 20 per cent. Applying the effect of those findings, the plaintiff is therefore entitled to a verdict in the sum of $1,206,139.60.

463. Absent the filing of a memorandum of consent to unlimited jurisdiction, the effect of s 51(2) of the District Court Act 1973 is that in this case, which involves a claim for occupiers’ liability assessed pursuant to the provisions of the Civil Liability Act 2002, the plaintiff may only maximally recover an amount of $750,000, or alternatively, an amount which is the equivalent to 50 per cent more than the court’s jurisdictional limit of $750,000 for such cases, namely $1,125,000, where the exceptional conditions identified in that section are shown to be applicable: Richards v Cornford [2010] NSWCA 99; (2010) 76 NSWLR 572. Accordingly, applying the provisions of s 51(2) of the District Court Act 1973, i.e. the amount of the judgment in favour of the plaintiff must be limited to $1,125,000.

464. In respect of cases of like injuries for which damages are awardable, if the claim was being assessed pursuant to the provisions of the Motor Accidents Compensation Act 1999, or the Workers’ Compensation Act 1987, the assessment of such damages in this court would be without such limits. This longstanding apparently discordant jurisdictional anomaly between compensation schemes deserves remedial consideration by the legislature.

Costs

465. The consequence of the above findings is that the plaintiff is entitled to have the costs she has incurred in these proceedings paid by the defendant on the ordinary basis unless a party can demonstrate an entitlement to some other order for costs.

Orders

466. I make the following orders:

1. Verdict for the plaintiff against the defendant on the plaintiff’s claim;

2. The plaintiff’s damages are assessed in the amount of $1,507,674.53;

3. After applying the findings made pursuant to s 151Z of the Workers' Compensation Act 1987, the plaintiff’s damages are reduced by 20 per cent to $1,206,139.60;

4. After applying the effect of s 51(2) of the District Court Act 1973, judgment for the plaintiff in the sum of $1,125,000;

5. The plaintiff’s costs of the proceedings are to be paid by the defendant on the ordinary basis unless otherwise ordered;

6. The exhibits may be returned;

7. Liberty to apply on 7 days’ notice if further or other orders are required.

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Amendments

20 November 2017 - Coversheet "Decision" and paragraphs [462], [463] and [466] - applying s 51(2) of the District Court Act 1973, correcting the amount of the judgment from $1,206,139.60 to $1,125,000.

Decision last updated: 22 November 2017