Corliss v Adams

[1999] NSWSC 948

CITATION:	Corliss v Adams [1999] NSWSC 948
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	21272/95
HEARING DATE(S):	30-31 August 1999
JUDGMENT DATE:	23 September 1999
PARTIES :	Lorraine Beverley Corliss (Plaintiff) Ken Adams (Defendant)
JUDGMENT OF:	Studdert J

COUNSEL :	A. Lucas (Plaintiff) I.D. Cullen (Defendant)
SOLICITORS:	I. & R. Brydens Law Office (Plaintiff) Ferguson Holz (Defendant)
CATCHWORDS:	Negligence; occupier's liability for condition of grounds surrounding hotel; whether contributory negligence; issue as to accident date; whether plaintiff's claim statute barred.
ACTS CITED:	Choice of Law (Limitation Periods) Act 1993 (NSW) Limitation of Actions Act 1974 (Qld)
DECISION:	See para 95

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Thursday 23 September 1999

21272/95 LORRAINE BEVERLEY CORLISS v KEN ADAMS

JUDGMENT

1   HIS HONOUR: Lorraine Beverley Corliss has sued Ken Adams seeking damages for injury allegedly sustained in a fall at Bucca, near Bundaberg, towards the end of 1992. The precise date of the accident assumes significance for reasons to which I shall presently refer. The plaintiff has sued the defendant as the occupier of the premises where the accident happened. The defendant has pleaded that the action is barred by statute, he has denied negligence and he has raised contributory negligence.

2   The premises in question are known as the Bucca Hotel. The hotel building was described in evidence as having at its rear a grassed area extending to the back fence. There is a gate in that fence affording access to a paddock immediately behind the hotel. This paddock was regularly used for the local horse club’s events and the plaintiff’s case is that her injury was sustained on the day of one of those horse sports carnivals.

3   According to the plaintiff the accident happened at about 2.00 pm on a date which she fixed as being 6 or 7 December 1992. The plaintiff said that after the events had finished she proceeded from the paddock behind the hotel towards the bar area of the hotel, entering the hotel property through the gate to which I referred. The plaintiff said that having passed through the gate it was necessary for her to veer to the left across the grassed area to the bar of the hotel. The plaintiff was familiar with the hotel, having previously visited it many times. She said that on the day of the accident there were a number of cars parked in that grassed area behind the hotel. The plaintiff described her accident as follows (T 4):

“I was walking along and just fell into a hole, or indent in the ground. I thought I’d actually broken my ankle at the time, because I was sure I heard it crack but it turned out that I didn’t. I was in the company of another person who I asked for help. They left me sitting on the ground after they had looked at my ankle, went into the hotel and came out with my husband and another person that was in attendance on the day. The young fellow that I was walking across the paddock with, carried me into the hotel into the bar area, sat me down on a chair. They then got a bucket of ice from behind the door, put my foot in the bucket of ice.”

4   Whilst sitting on the ground immediately after her fall awaiting assistance, the plaintiff looked at the terrain and described the hole as being a round hole approximately 12 x 12 inches, generally circular with grass that had grown over the top of it. The plaintiff described the hole as being some four to five inches deep and said that she stepped into it with her left foot.

5   In cross examination the plaintiff agreed that there were no clear edges to the depression, and said that her observation after the fall was that it was “an indent in the ground that had been covered by grass”.

6   It was put to the plaintiff in cross examination that the area of the accident was one where the grass was long and that she did not know why she fell. The following questions drew the following responses (T 31):

“Q. And you don’t know whether you tripped, or slipped, or how you fell?

A. Yes I do.

Q. Would you tell us how you fell then?

A. I put my foot down and it went from under me. I definitely did not slip and I definitely did not trip.

Q. You see I’m suggesting to you that the area where you were walking, was a small unmown area where the grass was about mid shin height. Mid shin to knee. Would you agree with that?

A. No I wouldn’t.”

7   The plaintiff was further tested about the length of the grass but said she did not remember it as being very long as she sat in it waiting for assistance.

8   It was the plaintiff’s evidence that the person who carried her into the hotel was employed there.

9   The evidence indicated that the plaintiff had since separated from her then husband in circumstances of bitterness and he was not called to give evidence nor was the hotel employee and there was no witness who gave evidence of seeing the plaintiff fall.

10   The defendant was working in the hotel when the accident happened and he became aware of it when, according to him, the plaintiff came into the hotel in a wheelbarrow being pushed by her husband.

11   There was no issue but that the horse sports club used the paddock behind the hotel on a regular basis and there was no issue about there having been a meeting of that club in the paddock behind the hotel on the day of the plaintiff’s accident. There was a very live issue however as to the accident date itself, and that issue I will consider shortly.

12   Mr Adams said that on the day of the accident the grass behind the hotel was cut. He cut it with a slasher and he said he cut it down to about an inch in height over the cut area but he did not cut all the grass. He said there was an area which he did not mow and he refrained from mowing it deliberately. Mr Adams gave this evidence (T 53:-54):

“Yes, we mowed the back paddock and we mowed round where the old garage, where the cars are parked in the old garage house round there. I especially saw that it was mowed as a track, so anyone could see that it goes straight through the gate beside where that little shed was, because that was a bad little spot there. I kept that reasonably high. You could see a definite mark round where the mower went round.”

13   In the unmown area there was what Mr Adams described as a gentle sloping depression which was three feet long and about four inches deep. That was an area about which Mr Adams expressed himself as being “a bit worried” (T 55):

“I was a bit worried about that area myself because it had the dip in it. But it also had a pipe which was close to the shed, which was an old bore in the hotel and it was up so high of course and I was worried about someone tripping over the [bore] pipe.”

14   His evidence was that he deliberately did not mow this area to discourage anyone from walking in it but he also acknowledged in his evidence that it would have been “just natural” for someone in a hurry to “just cut straight across”, which as I understand the evidence of the witness, would have involved crossing the area of long grass.

15   Two other witnesses were called in the case for the defendant, namely Richard Sammon and Colin Scott. Their evidence was really directed to the issue of the date of the accident rather than the circumstances of it and I shall refer to the evidence that these two witnesses gave shortly.

16   Mr Cullen, who appeared for the defendant, submitted that I would not be satisfied on the evidence that the plaintiff had established negligence. However I reject that submission.

17   The plaintiff’s evidence that she fell having entered on to the defendant’s premises was not challenged and I accept that the plaintiff fell when her left foot gave way after the plaintiff stepped with that foot into a depression. I am also satisfied that the existence of that depression was concealed by grass that covered it and that such depression and its concealment was causative of the accident.

18   The defendant’s evidence establishes that the defendant was aware of the danger which the depression presented for those crossing the grassed area. It was foreseeable that harm could be occasioned to a pedestrian in that area in the precise manner in which the plaintiff came to grief.

19   It seems to me that in the circumstances the defendant owed a duty of reasonable care towards the plaintiff and that in the discharge of that duty the defendant ought to have taken reasonable precautions to avoid the exposure of the plaintiff to the very risk which caused her injury. It does not seem to me that the defendant discharged this duty merely by not cutting the grass over the depression in question, whether the depression was as described by the plaintiff or by the defendant. It is common ground that there was no warning notice and that there was no fencing or other deterrent to anyone crossing over that depression. Accordingly I am satisfied on the balance of probabilities that the plaintiff has proved negligence by the defendant causative of her fall and the injury then sustained.

20   Mr Cullen submitted that the plaintiff was guilty of contributory negligence. His submission was in effect that the plaintiff ought not to have walked in an area where the grass had not been cut or cut as low as in the balance of the grassed area. It is, of course, for the defendant to prove contributory negligence and I am not persuaded that he has done so. The plaintiff denied that the grass was noticeably longer in the area where the depression was located. Her evidence about this conflicts with that of Mr Adams. However even if the grass was somewhat longer as described by Mr Adams, and I am not satisfied that it was, the defendant has not proved to my satisfaction that the plaintiff failed to exercise reasonable care in placing her left foot where she did. I am satisfied that the depression was masked by the grass covering it, whether that grass was longer in the general area surrounding the depression or not.

21   Accordingly I am satisfied that negligence has been proved but I do not find contributory negligence.

22   This brings me to the defence that the claim is statute barred.

23 The statement of claim was filed on 5 December 1995. It is accordingly common ground that if the accident happened on 6 December 1992 the defence in reliance on s 5 of the Choice of Law (Limitation Periods) Act 1993 (NSW), in conjunction with s 11 of the Limitation of Actions Act 1974 (Qld), would fail. If, however, the accident happened, as the defendant contends, one week earlier then the plaintiff’s claim would be statute barred.

24   Mr Adams’ recollection is that the accident happened on the day that the area experienced a “twister”. He said that there was a “twister” on a horse sports day, and he has concluded that the date both these events coincided was 29 November 1992. He said he worked that date out following discussions with his wife.

25   A photocopy of a local newspaper item of 30 November 1992 was tendered which described the occurrence of “a tornado” on the previous day “through the small rural area of Bucca”. On the following day there was a second item described that same tornado and hail storm damage to crops in the Bundaberg area.

26   In cross examination Mr Adams conceded he had some memory difficulties and he said that he was not asked to think back for the first time as to when it was that the plaintiff had had her fall until about three years ago.

27   Mr Sammon took over as licensee of the Bucca hotel from the defendant on 15 December 1992 and he gave evidence that he had worked there for some four to five months before that. He recalled seeing the plaintiff wheeled into the hotel and he placed that incident as having occurred on the same day as the tornado, which I am satisfied was on Sunday 29 November 1992. Mr Sammon was first asked to recall the date of the plaintiff’s accident about a month prior to giving evidence. He said he fixed the date as being three weeks before he took over. He said he was the treasurer of the horse sports club and he considers it to be highly unlikely that he has arrived at the wrong date.

28   Colin Scott gave evidence that for many years he lived in a caravan in the paddock behind the Bucca Hotel and he used to man the barbecue at the hotel on sports club days. He said that he still does so. He remembers the occasion that the plaintiff was injured. He recalls seeing her in a wheelbarrow in the bar of the hotel and he places that happening as being on the day that the tornado struck in late November. Mr Scott said that he was first asked to recall when the plaintiff’s accident had happened three years after the event.

29   Each of the witnesses called in the case for the defendant placed the plaintiff’s injury as having occurred on the same day as the tornado, and if this evidence is correct then the accident happened on 29 November 1992 and the plaintiff cannot maintain her claim.

30   I accept the defendant, Mr Sammon and Mr Scott as witnesses who were endeavouring to tell to the truth. I am satisfied that each of them believes that the plaintiff’s fall was on 29 November 1992. However I find on the balance of probabilities that the accident happened one week later.

31   It was the plaintiff’s evidence that when she left the hotel after her fall she went to the hospital at Bundaberg in the company of her husband. The plaintiff said that she drove to the hospital because her husband had been consuming alcohol. The defendant’s understanding was that when the plaintiff left the hotel her husband was taking her to hospital. Mr Sammon’s recollection was also that when the plaintiff left the hotel she went off to hospital.

32   It is in this context that the hospital records which were tendered as Exhibit A tip the balance on this issue as to the accident date in favour of the plaintiff. The Bundaberg hospital notes have this entry for the plaintiff on 6 December 1992:

“Fall over inj[ury] L ankle
O/E [On examination] tender lat[eral] malleolus & bruised
Can’t WB [weight bear]
For strap
RICE [rest, ice, compression, elevation]
crutches
Aspalgin
XR [x-ray] in am”

33   There follows an entry for 7 December 1992:

“XR NBI [no bony injury]”

34   Having considered the hospital notes I am satisfied by their content that the plaintiff did seek treatment at the Bundaberg Hospital on 6 December 1992. Mr Cullen submitted that notwithstanding those notes the explanation may be that the plaintiff did not go to the hospital for treatment until the lapse of one week from the date of her mishap. That, of course, is possible but I consider it to be much more likely that the plaintiff went to hospital immediately after she left the hotel. The evidence is uncontradicted that she was moved out of the hotel in the wheelbarrow and that before this her injured ankle was packed in ice in the hotel. I am satisfied by these circumstances and by the plaintiff’s specific evidence that she went from the hotel to the hospital that this is what happened in fact.

35   Accordingly I find on the balance of probabilities that the accident happened on 6 December 1992 and in the result the defence under the Limitations Act fails.

36   I should add that the plaintiff was cross examined about the tornado. The plaintiff agreed that there was a tornado on the occasion of a horse sports carnival but she said that this was before the day of her fall. The plaintiff was at that carnival and said that she remembered what happened. Roofs were blown from several houses and the plaintiff recalled waiting anxiously in the hotel for news of friends who occupied one of those houses. The plaintiff also remembered bringing some children into the hotel and putting them underneath the pool tables. I accept her evidence about the tornado.

37   The probable explanation for the misapprehension shared by Mr Adams, Mr Sammon and Mr Scott is that casting their minds back so long after the event they have mistakenly placed the plaintiff’s misfortune as having occurred on the very same day as the tornado.

38   I am satisfied that the plaintiff has established an entitlement to damages and I now turn to a consideration of their assessment.

39   The plaintiff was born on 23 February 1950 so that when the subject fall happened the plaintiff was forty-two years of age and she is presently forty-nine years old.

40   The plaintiff said, and I accept, that she experienced pain in the left ankle immediately after the fall and found she was unable to place weight on it. The plaintiff was unable to enter the hotel without assistance. When helped into the hotel the injured ankle was placed in a bucket of iced water and subsequently the ankle was bandaged. The plaintiff then went to hospital where the ankle was strapped and the plaintiff was discharged on crutches, returning the next day to the hospital where x-rays disclosed there had been no bony injury.

41   The swelling subsided shortly after the fall and the bruising that appeared went away over the course of the next ten days. The ankle gradually settled down and the plaintiff said she was on crutches for one week only.

42   The plaintiff said that within a reasonably short period she began to resume her normal activities but was hesitant about putting weight on the ankle and said indeed that the ankle was at times unstable and she said it was very painful if she stood on it for long periods or walked any distance.

43   There was a period during which the plaintiff was cared for by Dr Dipold and his records were admitted into evidence. His notes disclose that at a consultation prior to 2 November 1993 the plaintiff gave him a history of having injured her left ankle in December 1992 and of complaining that since that time the ankle had given way three times. He apparently prescribed physiotherapy and the wearing of an ankle guard.

44   The plaintiff subsequently came under the care of an orthopaedic surgeon, Dr Sherry, and he operated on the ankle at the Nepean Hospital on 21 July 1995. His diagnosis of the injury responsible for the plaintiff’s systems was that she had sustained a lateral ligament injury that had resulted in chronic laxity and the procedure which Dr Sherry carried out was a ligament reconstruction procedure. It appears that following that procedure the plaintiff was in a half slab for two weeks and then a full plaster of Paris below the knee for six weeks. Dr Sherry reported in June 1997 that the plaintiff had obtained an excellent result and had mobilised well. That assessment was apparently based on the doctor’s last examination on 12 September 1995.

45   According to the plaintiff however the procedure carried out by Dr Sherry has not proved successful and the ankle has remained unstable. The plaintiff described her ongoing problems in response to the following questions:

“Q. May I ask you about the problems that you are experiencing in your left ankle at the moment? Can you give his Honour, please, a summary of those problems that you are now having?

A. Your Honour my ankle can be fine for a few weeks at a time. Sometimes it can be fine for a month, and I will be walking along and it seems to give away. It is very unstable. When that happens I experience pain in my ankle area. It bruises and becomes swollen and that takes seven days, eight days for the pain to be completely gone and the bruising to be gone and then I will be fairly normal, or my ankle will be fairly normal until the same thing occurs again and that could be two weeks, it could be two months. It is very hard to predict.

I feel there are a lot of things that I am cautious of because of it. I still attempt to do just about everything I can, but I am cautious a lot of times of jumping. I make sure that if I step down steps I always land on my right ankle, not my left one. I can’t carry any weights and put my left ankle down first. If I am carrying anything heavy I need to put my weight on my right ankle before my left ankle otherwise it becomes unstable.


Q. Apart from the instability in the ankle, do you have pain from time to time?

A. I have a lot of pain if I have been standing on it for a long time or if I have been walking any distance. If I have been riding for any amount of time it becomes very painful. It gets sore in the winter, in the cold it is always sorer.

Q. Does that prevent you doing things?

A. It doesn’t really prevent me doing things, it just limits the amount of time that I can do things for and it limits the quality of the things that I do, I suppose.”

46   The plaintiff has been examined twice by a specialist, Dr Conrad. On 12 November 1997 the plaintiff presented to that doctor complaining of pain and stiffness in the left ankle and difficulty standing or walking and going up and down stairs. She complained that the ankle tends to give way. On examination the doctor found some degree of instability and ten degrees loss of flexion, extension and internal rotation.

47   Dr Conrad saw the plaintiff again on 12 November 1998. On examination he found some slight tenderness in the ankle, a slight degree of instability, and ten degrees of loss of flexion, extension and internal rotation. It was his opinion that the plaintiff had sustained a partial or complete rupture of the lateral co-lateral ligament of the left ankle with resulting stiffness and instability.

48   Dr Ellis assessed the plaintiff on 9 July 1999. This was for the purposes of a medico-legal report. The plaintiff gave the doctor a history which was consistent with the evidence given in this Court. Dr Ellis on examination found a loss of half the normal range of extension but flexion, inversion and eversion were full. He detected no localised tenderness. The doctor reported:

“As a result of the fall in the hotel grounds in Bucca in 1991, Mrs Corliss suffered lateral ligament tear affecting her left ankle with subsequent instability requiring reconstructive surgery.
The results of this have been indifferent and pain and disability persist in the ankle and her leg as a result. This has prevented her from continuing her work with horses in dressage, competition and instruction and in work as track work rider. Her other avenues of employment in bar work and in disabled childcare are similarly compromised.
This is no evidence of psychosomatic illness.
Continued medical supervision and conservative treatment, the wearing of custom made orthotics and shoe adjustment may give her some relief. There is a 20% permanent loss of efficient use of her left foot and a 20% permanent loss of efficient use of her left lower limb at and above and below the knee as a result of these injuries.
There is no evidence of pre-existing abnormality or debility affecting this assessment.”

49   There was also tendered in the plaintiff’s case a psychologist’s report from Mr Glancey. The plaintiff did not understand why she had been sent to the psychologist and I do not find myself to be assisted by the report, except in one respect to which I shall presently refer.

50   None of the doctors upon whom the plaintiff relied and whose evidence I have reviewed was required for cross examination.

51   The plaintiff was assessed by an orthopaedic specialist, Dr Cummine, on behalf of the defendant. Dr Cummine examined the plaintiff on 21 February 1997 and on examination he detected no restriction of ankle movements but he did observe slight swelling anterior to the lateral malleolus when compared with the other side. Dr Cummine concluded that the accident at the Bucca Hotel had resulted in a rupture of the lateral ligament of the ankle but that the rupture had responded “extremely well to surgical repair”. It was the opinion of Dr Cummine that the plaintiff was fit to continue indefinitely in the occupation she was following when he saw her, which the doctor understood to be a part time position in the hospital system.

52   Dr Cummine considered it highly unlikely that the plaintiff would develop post traumatic osteoarthritis and he later reviewed an x-ray dated 7 December 1992. That, of course, was the x-ray taken when the plaintiff first presented at hospital after the accident. As I understand the doctor’s report of 4 August 1997, commenting on the x-ray, he did not regard this x-ray as being particularly helpful for the purpose of assessing the risk of arthritic changes developing but that x-ray did not change his opinion that it was highly unlikely that this complication would develop.

53   Dr Lee conducted a psychiatric assessment for the defendant and his report is dated 16 April 1999. The doctor concluded that the plaintiff has no psychological injuries sustained as a result directly of her ankle injury. Having considered Dr Lee’s report and the psychological report previously mentioned, namely that of Mr Glancey, I accept that conclusion expressed by Dr Lee.

54   The defendant introduced into evidence some handwritten notes produced by Dr Whittle. Dr Whittle was the plaintiff’s general practitioner after the plaintiff went to Queensland and the notes produced indicate that Dr Whittle first saw the plaintiff on 14 February 1990 and that he last saw the plaintiff on 25 November 1992. The introduction of these notes has brought into question the reliability of the evidence given by the plaintiff. In cross-examination the plaintiff said that she had had no problems with her left ankle before this incident and denied having presented to Dr Whittle complaining of problems in the ankle. The doctor’s notes however indicate otherwise. In particular there are three entries relating to the ankle:

“25/6/90 Left ankle unstable. Twists internally with no provocation since injury - 10 years with lateral ligament sprain… Advice re footwear, ankle guards, strapping etc….
4/10/90 Left ankle sore…
24/1/91 Left ankle more troublesome…for opinion x-ray.”

55   The plaintiff was directly cross-examined about what appears in Dr Whittle’s notes. She directly denied that she had ever had a problem with her ankle prior to her fall in December 1992.

56   The plaintiff did acknowledge that there were other entries in the doctor’s notes which related to her and it seems to me that the entries concerning the ankle in Dr Whittle’s notes do relate to the plaintiff and lead me to conclude that the plaintiff gave Dr Whittle a history of ankle instability following an injury some ten years previously. There are no notes of a complaint concerning the left ankle in Dr Whittle’s records, other than those I have recorded above. I observe that the doctor saw the plaintiff, according to those records, approximately fifteen times and the last time the left ankle is mentioned is the entry of 24 January 1991. Of those fifteen visits, eight were made after the entry of 24 January 1991.

57   I have approached the assessment of the plaintiff’s evidence with caution, not only because of the notes of Dr Whittle, but also because the plaintiff denied in cross examination that she had spent time in hospital in 1995 and in 1996.

58   The plaintiff was asked the following questions and gave the following answers (T 48):

“Q. During 1995 and 1996, did you have some problems in relation to the breakdown of your marriage?

A. In 1995 and 1996? I didn’t have any severe problems, I had a breakdown of the relationship but I had no severe problems.

Q. Did you have a nervous breakdown during that time?

A. No sir.

Q. Were you hospitalised at Nepean Hospital during 1995 for approximately two weeks after a nervous breakdown due to marriage difficulties?

A. No sir I was not.

Q. Were you hospitalised twice during 1996, the first occasion for about two weeks and then in September and October of 1996 for five to six weeks?

A. No sir, I was not.

Q. Were you ever under the care of a Dr Manning?

A. No sir, I was not.

Q. Psychiatrist?

A. No.

Q. Were you ever under the care of a psychiatrist at Nepean Hospital?

A. No sir, I was not.

Q. Did you tell your solicitors--

A. No, I didn’t.

Q. --In late 1996 or early 1997, those facts?

A. No sir I did not.”

59   The cross examination recorded above was no doubt prompted by the content of the letter which the plaintiff’s solicitors wrote to the defendant’s solicitors on 4 February 1997 (Exhibit 10). That letter reads in part:

“I have now had the opportunity of conferring with my client and have instructions to proceed with the matter.
She suffered a nervous breakdown due to marriage difficulties which lead [sic] to a separation from her husband.
She has been treated by Dr P Gilbertson of St Marys and a psychiatrist Dr Manning at Nepean Hospital.
My client was hospitalised at Nepean District Hospital once during 1995 and twice during 1996. Apparently, the first two occasions were for approximately 2 weeks and the third occasion during September and October 1996 was for 5-6 weeks.”

60   What am I to make of this conflict between the plaintiff’s evidence and the letter which her solicitor’s wrote?

61   The only records tendered in evidence from the Nepean District Hospital relate to the surgery undertaken on the ankle in 1995. There is no reference in those notes to any nervous disorder. No records have been placed before this Court to establish that the plaintiff was treated in the Nepean District Hospital in 1996. There has been no evidence from Dr Manning or Dr Gilbertson. However, I note that when Dr Lee assessed the plaintiff in April 1999, he had available to him clinical notes from the Nepean Hospital of July 1997 and also Dr Gilbertson’s medical records from February 1994 until June 1998. Dr Lee wrote a detailed report and I infer he considered the notes from Nepean Hospital to which he did refer as being available to him. It would have been of significance for the purposes of Dr Lee’s report if the plaintiff had been hospitalised for a psychiatric disorder in 1995 and in 1996 but Dr Lee makes no mention of any such hospitalisations. He did however comment on having reviewed Dr Gilbertson’s notes but made no mention of any treatment by that doctor for a psychiatric condition. I infer that those notes contained no record of any such treatment.

62   Mr Glancey’s report of 19 January 1998 to which I made earlier reference is a very detailed report but the author obtained no history of any psychiatric treatment undergone by the plaintiff in 1995, 1996 or at all. No doctor whose reports have been introduced into evidence has obtained any history corresponding with the content of Exhibit 10.

63   Whatever be the explanation for the content of that document, I do not find on the evidence that the plaintiff did spend time in hospital in 1995, other than for the ankle injury, and I do not find that the plaintiff was hospitalised at all in 1996. The evidence does not support the content of Exhibit 10 which I have extracted above.

64   I do not find that the answers which the plaintiff gave in cross examination as above set out were untruthful.

65   The plaintiff gave her evidence before this Court in a seemingly forthright fashion and I do not find that she has set out to deceive this Court. Generally I accept her evidence as to the nature of the problems that she has been experiencing in her ankle since December 1992 and the evidence the plaintiff gave as to the present position, which I recorded earlier in para 45 of this judgment.

66   However, in view of what is contained in Dr Whittle’s notes I do not regard as reliable the plaintiff’s evidence that she had no trouble with the ankle before December 1992. On the other hand none of the doctors whose reports I have reviewed was required for cross examination. Dr Conrad and Dr Ellis accepted that the plaintiff’s complaints were referable to the fall in December 1992 and Dr Cummine also accepted that the plaintiff sustained a rupture of the lateral ligament of the ankle as a result of the accident at that time. It emerged when Mr Cullen tendered Dr Whittle’s notes that these were produced under subpoena and were available for inspection as long ago as 1996. It was by letter dated 14 October 1996 that the defendant’s solicitors gave notice to the plaintiff’s solicitors that the defendant would seek to rely on those subpoenaed notes.

67   None of the doctors whose reports have been tendered appear to have been asked to consider the significance of the complaints which Dr Whittle had recorded in terms of their bearing upon what necessitated the surgery which the plaintiff underwent or upon the plaintiff’s persisting complaints.

68   Mr Cullen submitted that I should find that the plaintiff suffered no more than a minor strain from which she made a recovery within a few weeks. I have given close consideration to that submission but ultimately I have concluded I should not accept it. Not without hesitation, I find on the balance of probabilities that the plaintiff sustained tearing of the lateral ligament in the accident in December 1992 in an ankle that was already vulnerable and prone to instability. I am satisfied on the balance of probabilities that the complaints the plaintiff made to Dr Dipold in 1993 and the need for the operation in July 1995 arose by reason of the injury sustained in December 1992. I am also satisfied that the tearing that occurred in December 1992 is playing a causative role in such difficulties as the plaintiff has continued to experience since that time.

69   In making those findings I do not overlook the evidence that the plaintiff fell on 20 July 1995, the day before Dr Sherry performed the operation upon her (see Exhibit 8). However Dr Sherry had earlier been consulted by the plaintiff, and I accept that the plaintiff had already been placed on the waiting list for the operation that was undertaken, prior to the fall on 20 July 1995. In Dr Sherry’s report of 23 June 1997 the doctor stated that by 21 July 1995 the plaintiff had developed “chronic laxity requiring surgery”, and I accept that to be the case.

70   It seems to me that the falls that the plaintiff has had since December 1992 are on balance due to the instability in the ankle since then, and that, accordingly, the injury in 1992 has played a causative role in those falls.

71   A period of nearly seven years has now elapsed since the accident in December 1992 and such problems as are persisting are likely to be permanent.

72   I have decided that an appropriate allowance for the non economic aspects of general damages is $50,000. I propose to include that sum in my assessment.

73   I apportion $25,000 of that amount to the past and I allow interest on that sum at two percent, so I calculate interest at $3375, rounding the calculation off.

74   The parties are agreed on the out of pocket expenses in the sum of $2145. Most of that sum is referable to the surgery and it would seem from Exhibit M only $320 has been paid to date. No part of the out of pocket expenses have been paid by the plaintiff. No claim has been made for interest on the out of pocket expenses and it does not seem to me that it would be appropriate to allow any interest on them.

75   There remains for consideration the claim for loss of earnings and loss of earning capacity. That claim I have found to present considerable difficulty.

76   I note that the claim found expression in the Pt 33 r 8A statement attached to the letter from the plaintiff’s solicitors to the defendant’s solicitors dated 15 April 1996. In those particulars a claim was made on the basis of what the plaintiff would have earned in working as a barmaid from January 1993 onwards. However when Exhibit 10 was written in February 1997 a claim was made that the plaintiff intended to return to work training show horses and that this would have earned her $35 per half hour. It was alleged that due to the ankle injury the plaintiff was no longer able to attend to such employment and that “an economic buffer” would be claimed for this lost ability. It was also asserted that the plaintiff would be unable to obtain employment in a position “that required standing, walking and such like” and that once again “an economic buffer” would be claimed for that lost ability. It was again asserted in conclusion that the plaintiff was no longer able to do work as a barmaid or a shop assistant.

77   At the hearing in the course of his final address Mr Lucas first submitted that it would be appropriate to measure the plaintiff’s current earning capacity uninjured at $1155 per week. He based this submission upon some evidence to which I shall presently refer as to what the plaintiff asserted that she could earn teaching riding. That claim bore no resemblance to any stage of the plaintiff’s pre injury working history. Finally Mr Lucas restated the claim for loss of earning capacity, making a claim that the loss of capacity should be measured at $180 per week for the past and for the future, based upon what the plaintiff could have earned training horses.

78   Obviously the plaintiff’s claim for loss of earnings and loss of earning capacity calls for close scrutiny.

79   The plaintiff gave evidence that before the accident she had worked as a barmaid and in numerous capacities handling horses. The plaintiff said she had a ticket as a licensed strapper and stable hand, and she still does. She said she also worked giving riding lessons.

80   At the time of the accident the plaintiff does not appear to have been in gainful employment. The plaintiff did help her son by assisting him in a general store but she was not paid for this. The plaintiff said that she was assisting her husband on a property holding thoroughbred racing stables and claimed that she and her husband were jointly drawing $450 per week but the plaintiff has available no records concerning any income from that venture and, according to the Australian Taxation Office, the plaintiff did not lodge income tax returns for the years ending 30 June 1992 to 30 June 1997 inclusive (see Exhibit L). I find no useful measure of the plaintiff’s earning capacity in what work she was doing at the time of the accident.

81   After the accident the plaintiff continued to reside in the Bundaberg area until the property was sold. The plaintiff was vague about when this was but following the sale the plaintiff went to Nowra and, as best I can determine on the evidence, remained there until the beginning of 1995. Whilst in Nowra the plaintiff did not seek work and explained this was due to “family reasons”. The plaintiff endured what I accept was an unpleasant separation from her husband following the breakdown of the marriage and this may well have distracted the plaintiff from gainful employment. The plaintiff said that the marriage ended in 1995.

82   On the evidence before me, I am not satisfied that the plaintiff would have sought gainful employment at any time before she did in 1995, whether she had injured her ankle or not.

83   In 1995 the plaintiff sought and obtained employment at the Nepean Hospital. Group certificates (part of Exhibit L) first record evidence of the plaintiff’s employment at the hospital as commencing on 1 July 1995 but the plaintiff said, and I accept, that she was already employed there before that. In any event, the plaintiff had continuous employment at the hospital from 1995 until early in 1999 when the plaintiff resigned for personal reasons. At that time she gained custody of her son and because of this found the hours at the hospital unsuitable.

84   The work carried out by the plaintiff at the hospital was varied. To begin with the plaintiff had a position in the medical imaging department and this involved computer work. The second position was as a receptionist and the plaintiff described this as a front desk position directing visitors and members of the public to various areas of the hospital. Eventually the plaintiff was required to re-apply for that position when it became a part-time permanent position and her application was successful. The plaintiff worked in the hospital for four hours in the afternoon and evening seven days per fortnight. I am satisfied the plaintiff was physically capable of performing that sort of work and would have been capable of doing it on a full-time basis.

85   Whilst working at the hospital however the plaintiff was also occupied in voluntary work with Riding for the Disabled Association. The nature of the work done for that organisation is described in a document comprising part of Exhibit K. The work was voluntary but the plaintiff was provided with accommodation. The letter from the Association describes the plaintiff’s position as a caretaker and the plaintiff’s duties required her to feed, exercise and look after some fourteen horses. The plaintiff had maintenance responsibilities for the caretaker’s cottage and grounds. The plaintiff was capable of carrying on that work whilst working at the hospital at the same time.

86   After leaving the hospital the plaintiff obtained a position with Inghams as a stable hand and track work rider. In this capacity the plaintiff worked five days per week five hours per day. Some of the work was heavy as a stable hand and the plaintiff was required to carry out track work as well. The plaintiff said that she found the work physically too demanding from the point of view of her ankle and gave up this work on 18 May 1999. Since then the plaintiff has done some part-time work as a shop assistant.

87   I accept that the plaintiff found it difficult to continue with the work at Inghams but the position there was only a casual one, and the evidence does not establish that the work there was better paid than the work the plaintiff was able to do as a hospital employee. The evidence does not satisfy me that if the plaintiff put her present ability to work to full use as a receptionist or in clerical work for which she is suited that she would earn less in that sort of work than in the sort of work she did for a time at Inghams.

88   The submissions made by counsel in support of the claim for loss of earning capacity find their origin in evidence that the plaintiff gave to the following effect: that she was aware of jobs available in the community for horse trainers, that the plaintiff had trained horses for other people and that if she did train horses for somebody else, the going rate is $180 per week, presumably gross. The plaintiff said that if she was teaching riding the rate of pay would be $50 to $55 per hour and that a teacher could expect to be teaching three or four hours per day maximum over a seven day week. The plaintiff said that she considered herself now to be incapable of horse training, certainly of training thoroughbreds. This was because she was not balanced well enough and she attributed that loss of balance to her ankle. The plaintiff said that she could teach riding and that she has done so. The plaintiff did not say when and provided no evidence of any earnings from that source. The plaintiff said that because of her ankle she felt that she would be limited to an hour per day if she undertook teaching.

89   It is on the basis of the above answers that Mr Lucas expressed the claim, later abandoned, for a loss of earning capacity of $1155 per week (from teaching) and the claim finally pursued for a loss of $180 per week in training a horse.

90   No evidence was forthcoming other than from the plaintiff about the availability of teaching work or horse training work. Whilst I would accept that the plaintiff’s ankle would prevent her from teaching riding on a full-time basis three hours per day seven days per week, I am not persuaded that work has been available in the past or present to allow the plaintiff to do that amount of work as a teacher. Moreover it has not been established to my satisfaction that the plaintiff ever taught riding so intensively. In addition the plaintiff said that she could teach for an hour or so per day, but the plaintiff has not attempted to do that kind of work even on a limited basis, so I am unpersuaded that were it not for her ankle, the plaintiff would have been teaching three hours per day seven days per week, or on any other regular basis.

91   So far as the claim for training a horse is concerned, the plaintiff is well able to earn more in work for which she remains physically capable.

92   I accept that the persisting problems with the injured ankle are such as since the accident would have limited the plaintiff’s capacity for work as a barmaid and for work that required her to be on her feet continuously. I accept that her ability to teach riding would be limited in the manner I have indicated. I accept that these restrictions would have placed the plaintiff at a disadvantage on the labour market. However, I am not satisfied by the evidence that the plaintiff has sustained any measurable economic loss between the date of the accident and the present time by reason of such physical restriction as I find the plaintiff to have. The claim for loss to date fails.

93   For the future, I am satisfied that the plaintiff remains capable of full time clerical or receptionist type work, and indeed all such work that does not require her to be constantly on her feet, or moving about on uneven ground. The sort of restrictions I have defined as resulting from the plaintiff’s injury to the present time will however persist in the future. It follows that the plaintiff’s disadvantaged position on the labour market will persist in the future. I think it probable that the plaintiff would have continued to work to age sixty-five but for this accident and that she will continue to work to age sixty-five in spite of that accident. However in the remainder of her working life the plaintiff will be restricted in the type of work she can undertake. This need not necessarily result in economic loss but there is the possibility by reason of her disadvantaged position that the plaintiff may suffer loss of earnings from time to time. I consider it therefore appropriate to make some provision to compensate the plaintiff for this. In arriving at a figure I do not lose sight of the contingency that whether this accident had happened or not, the pre-existing weakness in the ankle may at some time have interfered with the plaintiff’s ability to earn in any event. I propose to allow the plaintiff for the claim I am presently considering the sum of $25,000.

94   I summarise my assessment as follows:

General damages - non economic aspects $50,000

Interest for the past 3,375

Out of pocket expenses 2,145

Loss of earning capacity 25,000

$80,520

95   There will be judgment for the plaintiff in the sum of $80,520.

96   I reserve the question of costs to afford the parties the opportunity of making appropriate submissions.

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Last Modified: 09/23/1999