Cox v DAC Finance (NSW/Qld) Pty Limited & Anor

[2024] NSWDC 22

District Court

New South Wales

Medium Neutral Citation:

Cox v DAC Finance (NSW/QLD) Pty Limited & Anor [2024] NSWDC 22

Hearing dates:

23, 24, 26 October 2023
Written submissions concluded on 21 November 2023

Date of orders:

16 February 2024

Decision date:

16 February 2024

Jurisdiction:

Civil

Before:

Acting Judge Levy SC

Decision:

See paragraph [241] for orders

Catchwords:

TORTS – negligence – occupiers’ liability – plaintiff suffered jolting axial injury to her lumbar spine whilst standing in a descending elevator which stopped suddenly without warning following implementation of a planned power interruption to test the functionality of an alternative power supply; EXPERT EVIDENCE – resolution of conflicting opinions by medical experts where not all experts gave oral evidence; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B, s5D, s 13, s 16

District Court Act 1973 (NSW), s 51(2)(b) and s 51(4)

Evidence Act1995 (NSW), s 60

Uniform Civil Procedure Rules 2005 (NSW), r 31.27, Sch 7, cl 3(e) and 5(1)(c), r 42.1

Workers’ Compensation Act 1987 (NSW), s 151Z

Cases Cited:

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479

Cupac v Cannone [2015] NSWCA 114

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25

Hamilton v Nuroof(WA) Pty Ltd (1956) 96 CLR 18; [1956] HCA 42

Larson v Commissioner of Police [2004] NSWCA 126

Majkic v Bonnano [2008] NSWCA 253

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Nadjovski v Crnojlovic [2008] NSWCA 75

Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 529

Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5

Category:

Principal judgment

Parties:

Patricia Cox (Plaintiff)
DAC Finance (NSW/QLD) Pty Limited (First Defendant)
DAC Finance Pty Limited (Second Defendant)

Representation:

Counsel:
Mr M Hammond (Plaintiff)
Mr D Priestley SC (Defendants)

Solicitors:
Sommerville Laundry Lomax Solicitors (Plaintiff)
Gilchrist Connell (Defendants)

File Number(s):

2021/00183201

 Decision under appeal 

Jurisdiction:

[239]

JUDGMENT

Table of Contents

Nature of case	[1] – [2]
The premises	[3]
Parties, entities, a relevant person	[4] – [12]
Pleadings	[13] – [15]
Factual background	[16] – [25]
Evidence overview	[26] – [30]
Liability evidence	[27]
Medical evidence	[28] – [30]
Approach to resolution of conflicting medical opinions	[31] – [33]
Credit	[34] – [42]
The plaintiff	[35] – [40]
Mr Hyndes	[41]
Other factual witnesses	[42]
Issues	[43]
Damages overview	[44] – [47]
Review of liability evidence	[48] – [73]
Plaintiff’s evidence	[49] – [50]
Evidence of Ms Donna Signato	[51] – [52]
Evidence of Mr Stephen Hyndes	[53] – [58]
Evidence of Mr Daniel Sheridan	[59] – [61]
Evidence of Mr Drew Garner	[62] – [64]
Evidence of Mr Scott Hampson	[65] – [73]
Issue 1 – Factual findings	[75] – [163]
Issue 2 – Relevant risk of harm	[164]
Issue 3 – Scope and content of the defendants’ duty of care	[165] – [173]
Issue 4 - Negligence	[174] – [184]
Issue 5 – Causation of harm	[185] – [188]
Issue 6 – Apportionment – s 151Z of WC Act	[189] – [197]
Issue 7 – Assessment of damages	[198] – [237]
Disposition	[238]
Jurisdiction	[239]
Costs	[240]
Orders	[241]

Nature of case

1. On 4 July 2018, the plaintiff, Mrs Patricia Cox, claims she sustained a jolting injury to her lumbar spine whilst travelling in a descending elevator cabin that stopped abruptly, when, without prior notice to her, the power supply was intentionally interrupted to test the functionality of an alternative emergency power supply from a backup generator.

2. The plaintiff claims damages from the defendants as occupiers of the premises in respect of that injury. The defendants do not concede liability and they dispute the nature, extent, and the effect of the plaintiff’s injuries. The proceedings are governed by the provisions of the Civil Liability Act 2005, (NSW) (“CL Act”).

The premises

3. The plaintiff’s injury occurred in multi-storey premises comprising an aged care facility known as Opal Florence Towers located at 7-9 Florence Place, Tweed Heads in New South Wales.

Parties, entities, a relevant person

4. The Opal Group is a group of companies which operate in the healthcare sector.

5. The first defendant, DAC Finance (NSW/QLD) Pty Ltd owned the premises where the plaintiff was injured, and therefore, it was a relevant occupier of the premises.

6. The second defendant, DAC Finance Pty Ltd, operated the business of an aged care facility at the premises. It did so under the business name of Opal Healthcare, and as such, it was also a relevant occupier of the premises. The second defendant is the sole shareholder of the first defendant company.

7. Opal Healthcare is a business name owned by DAC Finance Pty Ltd.

8. The plaintiff was employed to work at the premises as an Assistant in Nursing (AIN) by DPG Services Pty Ltd. That company is not a party to these proceedings.

9. DPG Services Pty Ltd, the holder of the business name Opal Florence Towers, was a corporate conduit structure for the payment of wages to persons working at the premises. The registered office of that company is in Sydney. There is no evidence that company had an office or a supervisory presence at the premises known as Opal Florence Tower.

10. Mr Stephen Hyndes, also not a party to the proceedings, was a person authorised by one or both of the defendants to work at the premises. On the day of the plaintiff’s injury, he intentionally cut off the power supply to the elevator as part of a scheduled maintenance and testing programme.

11. The compelling inference arising from the evidence is that Mr Hyndes shut off the power to the elevator on the authority of the occupiers of the premises.

12. The defendants, who share the same legal representation, claim that if they are found to be liable to the plaintiff for damages, any award in the plaintiff’s favour ought to be reduced on account of an application of s 151Z of the Workers’ Compensation Act 1987 (NSW) (“WC Act”) due to the argued negligence by the plaintiff’s employer, a matter which the plaintiff disputes.

Pleadings

13. Initially, by statement of claim filed on 25 June 2021, the plaintiff only sued the first defendant, citing it as the sole defendant occupier of the premises, claiming negligence.

14. Subsequently, by an amended statement of claim filed on 18 April 2023, the plaintiff joined the second defendant to the proceedings, claiming that each defendant was, relevantly, a negligent occupier of the premises.

15. The defendants dispute those claims made by the plaintiff.

Factual background

16. On 4 July 2018, the plaintiff, when aged 50 years, was lawfully present in the premises in the course of her employment as an AIN with DPG Services Pty Ltd.

17. At about 11:15am on that day, the plaintiff, along with two other employees, entered the passenger cabin of an elevator on level three at the premises, intending to travel to a lower floor for a scheduled meal break.

18. Whilst the plaintiff was standing in the cabin of the descending elevator cabin, without prior warning, it stopped with abrupt suddenness.

19. This occurred when the power supply to the elevator cabin was switched off as a result of intentional interruption to test the operation of the backup generator which was programmed to supply an alternative source of power in the event of a power failure in the building.

20. The plaintiff claims that the sudden arrested descent of the elevator cabin resulted in her sustaining a jolting axial loading injury to her lumbar spine. She also claims that injury has left her with lasting disabilities that have rendered her unfit to resume her pre-injury employment. There is a dispute on the medical evidence in respect of those matters.

21. The interruption to the power supply underlying those events was deliberately designed and timed to test the alternative power supply to the elevator whilst carrying a passenger load under normal operating conditions.

22. For that reason, at the time of the test, the elevator cabin was not isolated from use and intending passengers were neither warned that the test was about to occur, nor that it was intended they would be unwitting participants in that test.

23. Consequently, elevator passengers were not given the option of refraining from entering the elevator cabin during the test. Nor were they warned of the advisability of protectively bracing themselves against the risk of injury in the event that they chose to travel in the elevator cabin under test conditions.

24. The plaintiff claims that as both defendants were relevant occupiers of the premises, including the elevator within the premises, they were duty bound to ensure that the testing procedure was undertaken at a time when the elevator was not being used by passengers.

25. The plaintiff claims that duty extended to an obligation to ensure the elevator cabin was isolated from use. Alternatively, the plaintiff claims the defendants were duty bound to at least warn intending passengers of the risk of injury whilst in an elevator cabin that was about to undergo testing.

Evidence overview

26. The evidence in this case comprised written statements and reports augmented by oral evidence. The bulk of the evidence was in written form within a three-volume court book (Exhibit “A”, Tabs 1 – 41, pp 1 – 1023) supplemented by additional material comprising Exhibit “B” and Exhibit “1”.

Liability evidence

27. The court book contained written statements on factual matters from the plaintiff, Ms Donna Signato, Mr Stephen Hyndes, Mr Daniel Sheridan, and Mr Drew Garner. The court book also contained a liability report and oral evidence from Mr Scott Hampson (a lift installation and maintenance engineer).

Medical evidence

28. The court book also included compendious medical records, correspondence, and reports. The plaintiff’s treating orthopaedic surgeon Dr Neil Cleaver, gave explanatory oral evidence to augment his correspondence and reports. The documentary medical evidence relied upon by the plaintiff in this case comprised the following material:

1. A copy bundle of the clinical notes of the plaintiff’s general practitioner, Dr Ramesh Singh: Exhibit “A”, Tab 20, pp 277 – 294;

2. Copies of correspondence from her treating orthopaedic surgeon, Dr Neil Cleaver, dated 27 March 2019, 29 May 2019: Exhibit “A”, Tab 19, pp 268 – 269, p 273, p 276;

3. Copies of expert reports containing opinions from Dr Cleaver, dated 4 and 6 December 2019: Exhibit “A”, Tab 15, pp 232 – 246;

4. Copies of radiological imaging reports dated 10 July 2018, 1 August 2018, 29 August 2018: Exhibit “A”, Tab 19, pp 270 – 272;

5. Copies of request for radiological imaging dated 6 August 2018, 21 August 2018: Exhibit “A”, Tab 19, pp 274 – 275;

6. A copy of an expert opinion from Dr Andrew Porteous, consultant occupational physician, dated 4 September 2021: Exhibit “A”, Tab 16, pp 247 – 252;

7. A copy of a further expert opinion from Dr Andrew Porteous, dated 15 August 2023: Exhibit “A”, Tab 17, pp 253 – 258;

8. An occupational therapy assessment report dated 9 December 2021 from Ms Carolyn Grinter: Exhibit “A”, Tab 18, pp 259 – 267.

29. The documentary medical evidence relied upon by the defendant in this case comprised the following material:

1. A copy of an historical report dated 24 July 2019 which the workers’ compensation insurer, GIO, obtained from Dr Michael Coroneos, a consultant neurosurgeon: Exhibit “A”, Tab 24, pp 885 – 898;

2. A copy of a report dated 26 June 2022 which the defendants’ solicitor obtained from Dr Vidyasagar Casikar, a consultant neurosurgeon: Exhibit “A”, Tab 223, pp 875 – 884.

30. Significantly, some of the material provided to the medical experts relied upon by the defendants was not the subject of tender into evidence in these proceedings. This is a matter that has an impact on the reliability of those opinions.

Approach to resolution of conflicting medical opinions

31. The expert medical opinions differed. Those differences must be resolved by findings as to which opinions should be preferred as the most useful guidance for determining the nature and extent of the plaintiff’s injuries, and the effect of those injuries, for the purpose of assessing the plaintiff’s entitlement to damages.

32. In cases involving differing medical opinions, where a Court is required to make such findings, where some of the opinion givers have not been called to give explanatory oral evidence to explain or justify their opinions, the outcome of the required analysis must be dependent upon the persuasive cogency and acceptability of the supporting reasons for such opinions. That consideration must proceed according to the onus of proof on particular issues: Majkic v Bonnano [2008] NSWCA 253, at [26], citing Larson v Commissioner of Police [2004] NSWCA 126, at [48]; Cupac v Cannone [2015] NSWCA 114, at [17] – [18].

33. In that process, the guiding procedural requirement necessitates an examination of the reasons provided by the experts for their respective opinions: UCPR r 31.27(1)(c); Sch 7, cl 5(c); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21.

Credit

34. The oral evidence on relevant factual matters is reviewed in the paragraphs that follow.

The Plaintiff

35. In cross-examination of the plaintiff, Senior Counsel for the defendants suggested to the plaintiff, somewhat tentatively, that she might be exaggerating her complaints of disability: T47.36. The plaintiff’s denial of that suggestion was restrained and dignified.

36. In final submissions, Senior Counsel for the defendants was invited to identify a rational basis from within the evidence to support the assertion of exaggeration. The defendants’ credit challenge to the plaintiff’s evidence was not sustained by any reliable medical or counterfactual evidence.

37. In my assessment, the plaintiff presented as a straightforward witness who gave her evidence without embellishment. If anything, her evidence was restrained, stoically understated, and was confined to factual matters within her own actual knowledge. She was careful not to gratuitously add to her answers in order to assist her case when the opportunity to do so arose. I saw no evidence of embellishment or exaggeration in her evidence.

38. Significantly, the plaintiff’s treating orthopaedic surgeon, Dr Cleaver, was asked whether he had seen any inconsistencies in the plaintiff’s complaints and presentation. He unhesitatingly answered that question in the negative: T34.32 – T34.40.

39. I found the plaintiff to be a truthful witness. There was nothing inherently improbable in her evidence. I have accepted her evidence in its entirety. I also accept that she gave a truthful account of relevant matters to the medical practitioners whom she saw for assessment and treatment.

40. In my view, in light of those assessments, I consider that the plaintiff’s recorded medical histories provide a satisfactory basis for arriving at findings on matters of injury and disability: Daw v Toyworld (NSW) Pty Ltd[2001] NSWCA 25; s 60 of the Evidence Act1995 (NSW).

Mr Hyndes

41. Mr Hyndes, the on-site maintenance employee at the time of the plaintiff’s injury, had cut the power supply to the elevator in the premises as part of the programmed testing procedure. Whilst there were no challenges made to his credit as a witness, the content of his evidence nevertheless requires evaluation with regard to its probative weight.

Other factual witnesses

42. There were no credit challenges made to the reliability of the evidence of Ms Signato, Mr Sheridan, or Mr Garner. The reliability of their evidence must be evaluated according to its content.

Issues

43. The first and second defendants prepared a lengthy list of issues calling for decision: Exhibit “A’, Tab 6, pp 137 – 138. Having reviewed the pleadings, the evidence, and the submissions, in my view, the essential issues calling for decision may be more narrowly and conveniently condensed, as follows:

1. Identification of the relevant findings of fact concerning: (a) the plaintiff’s pre-injury health; (b) the circumstances of her injury; (c) her injuries; (d) her treatment; (e) the assessment of preferred expert medical opinions; (f) her claim of residual disabilities; (g) the impact on her capacity to work; (h) the effect on her domestic activities; (i) her efforts at mitigation of loss; and (j) her most likely circumstances but for her injury. Those findings appear between paragraphs [75] to [163] below;

2. Identification of the relevant risk of harm within the meaning of s 5B of the CL Act. That finding appears at paragraph [164] below;

3. Identification of scope and content of the duty of care owed by the respective defendants within the meaning of s 5B of the CL Act. Those findings appear between paragraphs [165] to [173] below;

4. Whether, within the meaning of s 5B and s 5C of the CL Act, the defendants were relevantly in breach of the duty of care owed to the plaintiff, and whether they were therefore negligent. Those findings appear between paragraphs [174] to [184] below;

5. Whether, within the meaning of s 5D of the CL Act, were the plaintiff’s injuries and disabilities were relevantly caused by the negligence of the defendants. Those findings appear between paragraphs [185] to [188] below;

6. Whether a finding of apportionment is required concerning the plaintiff’s damages as between the defendants and the plaintiff’s employer, pursuant to s 151Z of the Workers’ Compensation Act, 1987 (NSW). My findings on that issue appear between paragraphs [189] to [197] below;

7. Assessment of the plaintiff’s entitlement to damages. Those assessments appear between paragraphs [198] to [237] below;

Damages overview

44. The parties produced disparate estimates of the plaintiff’s entitlement to damages.

45. The plaintiff’s initial schedule of damages was in the amount of $1,221,754.62: Exhibit “A”, Tab 8, pp 147 – 156. In the course of opening address, the plaintiff abandoned her earlier particularised damages claims for past and future domestic assistance. This was in recognition of applicable statutory thresholds for such claims. This had the effect of reducing the amount of her damages schedule to $1,010,918.62.

46. The defendants initially declined to produce a damages schedule on the basis of a foreshadowed submission that the plaintiff should not be awarded any damages. Ultimately, the defendants presented an alternative damages schedule in the amount of $85,567.57: MFI “2”.

47. The disparity of those respective positions stand to be resolved by reasoned findings on contested matters of fact and expert opinion.

Review of liability evidence

48. In the paragraphs that follow, the evidence of the plaintiff, Ms Signato, Mr Hyndes, Mr Sheridan, Mr Garner, and Mr Hampson is reviewed.

Plaintiff’s evidence

49. The plaintiff’s statement dated 27 July 2018 was obtained by the workers’ compensation insurer as part of its investigation of her claim for workers’ compensation benefits.

50. In these proceedings the plaintiff relied upon that statement as setting out the bulk of her evidence in chief: Exhibit “A”, Tab 10, pp 204 – 210, paragraphs 1 – 96. The plaintiff’s oral evidence augmented her statement: T37 – T53. That evidence will be referred to in relation to the factual findings set out in relation to Issue 1 below.

Evidence of Ms Donna Signato

51. Ms Signato’s statement dated 22 May 2023 obtained by the employer’s workers’ compensation insurer in relation to her own workers’ compensation claim was tendered without the requirement for her to attend for cross-examination: Exhibit “A”, Tab 11, pp 211 – 214, paragraphs 1 – 21.

52. In essence, Ms Signato, who also worked as an AIN at the same aged care facility, described the elevator descent from level 3 as a free fall incident that to her, seemed to have lasted for about 5 seconds, following which she experienced severe pain in the whole of her back. That evidence provides some inferential support for the claimed mechanism for the plaintiff’s injury.

Evidence of Mr Stephen Hyndes

53. Mr Hyndes’ statement dated 31 July 2018 was tendered without the requirement for him to attend for cross-examination: Exhibit “A”, Tab 12, pp 215 – 219, paragraphs 1 – 37.

54. At the time of the incident Mr Hyndes was employed as the Maintenance Officer at the premises. He had been in that position for about 18 months. His duties included attending to routine maintenance and repair issues as required.

55. On the day in question, unbeknown to the plaintiff, at about 11:15am, as part of a 3 monthly scheduled maintenance task, Mr Hyndes turned the power off to test whether the back-up generator would operate. After that test was carried out, he reconnected the power supply. He stated that the reason staff in the premises were not given advance warning of such testing was to obtain “accurate load readings” from the test procedure.

56. Mr Hyndes arranged for lift maintenance personnel from Thyssenkrupp to later attend the site in view of the injuries reported by the plaintiff and Ms Signato.

57. Eight days later, on 12 July 2018, maintenance personnel arrived on site and Mr Hyndes volunteered to travel in the elevator cabin when a repeat test was carried out. At that time, when the brake on the elevator was disengaged, he estimated the drop to have been between 6 and 8 inches in the course of “a quick dropping sensation”. His subjective interpretation of that event was that the nature of the quick stop “was very mild.”

58. In my view, as will be explained, Mr Hyndes’ statement included some unreliable elements of hearsay. Consequently, that evidence must be significantly discounted as to its probative weight.

Evidence of Mr Daniel Sheridan

59. Mr Sheridan’s statement dated 31 July 2018 was tendered without the requirement for him to attend for cross-examination: Exhibit “A”, Tab 13, pp 220 – 225, paragraphs 1 – 60.

60. Mr Sheridan was employed at the aged care facility as an endorsed Enrolled Nurse. He entered the elevator cabin at the same time as the plaintiff and Ms Signato on their way to a lunchbreak. He described the elevator as descending slowly until he felt a “quick drop” after what seemed to him to be about 5 or 6 seconds. His perception was that the elevator had dropped about one or two feet.

61. Mr Sheridan described a subsequent conversation he had with Mr Hyndes who said to him: “We wanted to test it with a full load”. He also said that Mr Hyndes had said of himself that “I shouldn’t have done that.” That evidence was not challenged or contradicted.

Evidence of Mr Drew Garner

62. Mr Garner’s statement dated 31 July 2018 was tendered without the requirement for him to attend for cross-examination: Exhibit “A”, Tab 14, pp 216 – 230, paragraphs 1 – 56.

63. Mr Garner was the Facility Manager at the aged care facility. He was on duty on the day of the incident. His duties included ensuring that “all the equipment is working.”

64. Mr Garner had instructed Mr Hyndes to carry out the scheduled elevator test. He described the power as being off for “a split second.” He claimed a recollection that the plaintiff had informed him that “the lift dropped slightly” and this was for “a couple of feet.” In my view, the description within that evidence was characterised by inherent imprecision.

Evidence of Mr Scott Hampson

65. Mr Hampson is a specialist engineering technician with 35 years’ experience in the field of vertical mechanical transportation, including with regard to elevators. He holds a masters degree in mechanical engineering. His qualifications and experience were not the subject of challenge.

66. At the request of the solicitor for the plaintiff he prepared an expert report dated 26 May 2022: Exhibit “A”, pp 157 – 203. He augmented his report with oral evidence: T20 – T26.

67. In essence, Mr Hampson’s report stated that the generator test which involved cutting off the power supply to the elevator was not carried out with safe and proper planning.

68. In Mr Hampson’s opinion, staff working in the premises should have been given timely notification of what was proposed. He also stated the elevator cabins should have been isolated and locked at the ground floor level where they could have been rendered safe by preventing staff and visitors to the premises from using the elevators whilst the testing was underway.

69. Mr Hampson also explained that an emergency stop, such as would occur if the power supply was interrupted, would result in a harsher than normal rate of deceleration which could cause an elevator passenger to experience injury if not warned to brace themselves in anticipation of the intended sudden stoppage.

70. In oral evidence, Mr Hampson explained that he has in the past experienced what occurs in the event described by the plaintiff. However, in contrast, his experience was derived from the context of an event that had been planned and anticipated, where he had prepared himself by bending his knees and by holding onto the handrail within the compartment with his back braced against the wall of the cabin in order to avoid injury. He said that without those precautions, a fall and injury was a predictable occurrence.

71. Mr Hampson described the effect of an emergency stop due to interruption of the power supply as distinct from a normal stoppage. He described a normal stoppage as involving a controlled deceleration over about 1.5 metres, whereas an emergency stop due to an interruption to the power supply as being a more abrupt stop within 200 mm to 300 mm of travel.

72. Mr Hampson identified the simple common sense precautions against the risk of injury in simple terms, comprising normal practice, namely, informing people of the impending test, making the compartment safe by ensuring the elevator was stopped, and ensuring no-one entered the elevator when the testing was to be carried out.

73. The defendants did not call any factual or expert evidence to contradict the evidence of Mr Hampson.

74. I now turn to consider the issues calling for decision as identified at paragraph [43] above.

Issue 1 – Factual findings

75. In the paragraphs that now follow, before addressing the liability issues calling for decision, I set out my findings on factual matters on the topics identified at sub-paragraphs (1)(a) to (1)(j) of paragraph [43] above.

(a) Plaintiff’s pre-injury health

76. The records copied and reproduced within Exhibit “A” show that the plaintiff left school after completing Year 10. She is married with two adult children. The records tendered do not describe her early employment history. This was not explored in the oral evidence. Her income tax returns since 2013 up until the time of her injury show a consistent pattern of employment in her profession as an AIN.

77. In the course of cross-examination, the plaintiff was taken to a copy from an assessment report of a physiotherapist who examined her for the purpose of a pre-employment check on 13 March 2017, some 16 months before her subject injury.

78. That document stated that the plaintiff had a prior history of lower back discomfort with prolonged sitting and lifting, where it was also recorded that she had a pre-existing kyphosis of the spine: Exhibit “A”, p 1011.

79. The plaintiff expressly rejected the accuracy of that recorded history and confirmed that she did not have prior back problems. When she was challenged on that rejection, she emphatically maintained that rejection. The defendant has not adduced any reliable evidence to contradict the plaintiff’s evidence.

80. I accept the plaintiff’s rejection of the proposition that she had prior back problems. The suggestion of prior back problems was based on what appears to be an inaccurate record, possibly involving a word processing or template error.

81. Part of the plaintiff’s pre-injury medical records was printed in gibberish form and as a result, was not amenable to analysis: Exhibit “A”, Volume 2, Tab 22, pp 572 – 581.

82. The plaintiff acknowledged she had a prior history of depression. The records show that history commenced from about 2000. She also had a prior history of asthma. There was no evidence to suggest that those conditions were debilitating to the extent of impairing her earning capacity as an AIN or significantly impeding her ability to enjoy the amenity of her life.

83. The plaintiff’s medical records (comprising Exhibit “A”, Volume 3, Tab 22, pp 449 – 874) reveal a number of pre-injury health issues for which she sought medical consultations and treatment, as follows:

1. In 1998 she was diagnosed as having a hiatus hernia: Exhibit “A”, Volume 3, p 756. In August 2017 this was noted to have become larger, causing pain and reflux: Exhibit “A”, Volume 3, p 584;

2. At some stage she received laser surgery treatment for suspected cervical cancer: Exhibit “A”, Volume 3, p 684;

3. In 2008 she suffered a fractured ankle: Exhibit “A”, Volume 3, p 756;

4. Since early 2017 she has been under cardiological supervision: Exhibit “A”, Volume 3, p 696;

5. On 23 April 2017, she was involved in a 100 kph motor vehicle accident whilst on her way to work. In that accident air bags were deployed following which she complained of central chest pain and pain in her right hand: Exhibit “A”, Volume 3, pp 698 – 691;

6. In November 2017 she was being treated for tachycardia. Exhibit “A”, Volume 3, p 756;

7. On 23 January 2018 she was being treated for the skin condition of seborrheic keratoses: Exhibit “A”, Volume 3, p 756;

84. The evidence did not suggest that those prior health issues or events had a significant impact on her earning capacity as an AIN.

(b) Circumstances of the plaintiff’s injury

85. The plaintiff is presently aged almost 56 years. At the time of her injury on 4 July 2018, she was aged 50 years. She was working at the Opal Florence Towers aged care facility as an AIN, having commenced that employment in March 2017.

86. At the time of her injury, in the course of her employment, the plaintiff and two other employees entered an available elevator cabin at the premises and stood in the centre during its descent. There was no apparent reason for her to take a handhold on any handrails in the cabin. Her intention was to proceed to level one for her lunch break.

87. The plaintiff described how, after a few seconds of steady descent of the elevator cabin, there was a cessation of its power supply, resulting in it stopping with a sudden vertical jolt whilst she was standing in the centre. In those events, she lost her balance as she reached to grab a handrail within the cabin to prevent her from falling over.

88. In those events, the plaintiff became airborne to a height of what seemed to her to be about a centimetre or two before landing on her feet, whereupon she experienced a jolting injury to her back. She felt shocked and stressed by the experience.

89. The plaintiff’s evidence in which she described the drop of the cabin was an estimate. I consider Mr Hampson’s considered estimate of some 200mm to 300mm based on his technical knowledge to be more reliable.

90. The elevator cabin remained in darkness for several minutes. In that time, the plaintiff was trapped in the cabin until the power was restored. At that stage the cabin was at level one. It then restarted with a jolting movement, upwards, to travel up to level four, where the doors opened. At that time the plaintiff and the other passengers made their exit and walked down the fire stairs.

91. A few minutes later, when the plaintiff sat down to compose herself, she experienced significant pain in her lower back. She realised she had been injured but she continued to work for the remainder of her shift that day. She did so with the aid of painkilling medication. Her back pain continued and did not settle as she had expected.

(c) Injuries

92. The plaintiff experienced back pain and emotional shock associated with the circumstances of her injury, it was later ascertained that she incurred soft tissue musculoskeletal injuries to her lumbar spine. Those musculoskeletal injuries were superimposed upon pre-existing degenerative changes in that region.

(d) Treatment

93. On 4 July 2018, the same day she was injured, the plaintiff attended her general practitioner at the time, Dr Ramesh Singh. At that time he recorded her history of lower back pain, with pain radiating to her anterior left thigh: Dr Singh referred the plaintiff to the Accident and Emergency Department at Tweed Heads Hospital: Exhibit “A’, Tab 20, p 277.

94. On 9 July 2018, she again saw her general practitioner because her back pain had continued to the point where she experienced difficulty in getting out of bed. He initiated referrals for her to have a CT scan, a CT guided steroid injection, and he also provided her with certificates supporting her ensuing absence from work.

95. On 10 July 2018, the plaintiff underwent a CT scan of her lumbar spine to investigate her back pain, which was stated to have followed a sudden fall. The report identified severe lumbar facet joint degenerative changes, focally worse at L3 – L4, without compressive discopathy or evidence of a vertebral injury. An MRI scan was suggested for diagnostic/therapeutic CT guided epidural steroid injections: Exhibit “A”, Tab 20, p 279.

96. On 1 August 2018, the plaintiff underwent a CT-guided injection of local anaesthetic and steroid to the L4/L5 and L5/S1 facet joints. It was noted that the stimulation applied during that procedure produced identifiable symptoms which lead to the inference that the procedure was justified: Exhibit “A”, Tab 20, p 278.

97. On 29 August 2018, the plaintiff underwent an MRI scan of the lumbar spine which was reported as showing lower lumbar spine degenerative changes including florid facet joint osteoarthritis at the level of L4/L5 without focal disc herniation or neural compromise: Exhibit “A”, Tab 20, p 282.

98. For a time, the employer’s workers’ compensation insurer paid for her treatment and provided her with her statutory entitlements to weekly payments. Those payments continued until a medical expert retained by the workers’ compensation insurer provided it with an opinion on her condition which led to the cessation of those payments and benefits.

99. The plaintiff said she felt neglected and let down by the workers’ compensation insurer and by WorkCover concerning the cessation of those benefits and payments. Since then, on account of her impecuniosity, she has had only limited recourse to treatment. That treatment involved medication, hydrotherapy, physiotherapy, acupuncture, and spinal injections.

100. The documentary evidence shows that the plaintiff’s post-accident medical treatments included the following events:

1. On 6 August 2018, her general practitioner reported on her low back pain which was preventing her return to work pending medical investigations: Exhibit “A”, Volume 2, Tab 22, pp 716 – 717;

2. On 1 November 2019, a neurosurgical assessment at the Gold Coast Hospital noted that her workers’ compensation payments had ceased which interrupted the specialist treatment of facet joint arthropathy at the levels L4/5 and L5/S1: Exhibit “A”, Volume 2, Tab 22, p 623;

3. On 4 December 2019, she was assessed at the Lismore Base Hospital pain management clinic for eligibility for treatment of her chronic pain. Following that assessment her name was placed on a waiting list: Exhibit “A”, Volume 2, Tab 22, p 767;

4. On 5 May 2020, during the time of COVID, she underwent a telephone assessment at the pain management clinic at Lismore Hospital for consideration of how her chronic pain and chronic sleep deprivation and associated opioid induced hyperalgesia should be managed: Exhibit “A”, Volume 2, Tab 22, pp 789 – 793;

5. On 16 August 2022, she underwent unrelated abdominal surgery for incarcerated repair: Exhibit “A”, Volume 2, Tab 22, pp 847 – 848. There is no evidence to suggest this procedure, which was not injury-related, had caused any long-term restrictions in her earning capacity.

101. In those times the effect of the travel restrictions imposed by the COVID-19 pandemic would also have had an impact on the plaintiff’s ability to obtain treatment.

102. Subsequently, the plaintiff has moved away from the Gold Coast to southern New South Wales where she has a greater network of family support.

103. Because of financial constraints, the plaintiff now only sees a general practitioner occasionally for prescriptions. She takes various prescribed combinations of Tramadol, Endep, Endone, and Panadol Osteo. She said that the pain medications make her feel “fuzzy headed all of the time”.

(e) Assessment of the preferred expert medical opinions

104. In view of the divergent conflict within the respective medical opinions and the need to reach a reasoned resolution of that conflict it is convenient to consider each of those medical assessments of the plaintiff’s condition in the sequence in which they evolved, followed by a consideration of Dr Cleaver’s explanatory oral evidence that supplemented his report.

Medico-legal report of Dr Michael Coroneos – 24 July 2019

105. The defendants relied upon a medico-legal report of Dr Michael Coroneos, a consultant neurosurgeon who examined the plaintiff on 24 July 2019 at the request of the workers’ compensation insurer for the plaintiff’s employer: Exhibit “A”, Tab 24, pp 885 – 898.

106. Dr Coroneos’ examination of the plaintiff did not get off to a smooth start as she arrived 10 minutes late for her 11.00am appointment in Sydney. The first page of the report of Dr Coroneos was largely taken up with the minutiae concerning those circumstances which appeared to have frustrated him at the time. It is unnecessary to inquire into or resolve the surrounding circumstances.

107. Dr Coroneos took a detailed history from the plaintiff, including her health, occupational and social history. He took a detailed list of her medications. He took a careful history of the precipitating event (at Exhibit “A”, Tab 24, pp 887 – 888), and proceeded to take a history of the plaintiff’s current symptoms, the treatment she has received, and then (at Exhibit “A”, Tab 24, pp 889 – 893), he set out his detailed clinical findings on examination of the plaintiff following his review of the serial imaging studies that had been taken of the plaintiff’s spine between 10 July 2018 and 3 July 2019.

108. Before Dr Corneous addressed the 5 questions posed to him by the workers’ compensation insurer’s case manager (at Exhibit “A”, Tab 24, pp 893 – 895), he set out a summary of his file review of the documents that had been provided to him.

109. Significantly, some of those documents have not been tendered in evidence in these proceedings, for example, a report from a rehabilitation provider, Mr Drew Singleton, of Core Injury Management dated 10 May 2019, “multiple NSW WorkCover Certificates”, and a report dated 9 January 2019 from Dr Val Kirychenko, an occupational physician who had been engaged by the plaintiff’s employer. Absent the opportunity to review the documents described above, it is difficult to achieve a full analysis and understanding of the basis for Dr Coroneos’ opinions, which (at Exhibit “A”, Tab 24, pp 895 – 896), he has expressed as follows:

1. When asked for his diagnosis of the plaintiff’s presenting problems, he said he was unable to determine any evidence of a significant neurosurgical or spinal injury having occurred in the subject incident. However, he conceded that the plaintiff might have experienced a lumbar soft tissue strain. He based that view on his interpretation of the imaging he had seen and commented upon;

2. When asked whether the plaintiff’s current presentation was consistent with the mechanism of injury, with adjectival opacity, he answered that it was not consistent because, from a neurosurgical perspective, there was no evidence of any significant neurosurgical or spinal injury having occurred;

3. When asked whether there were any non-work factors causing the plaintiff’s symptoms, he answered that he was unaware of any non-work factors, and he went on to say that from a neurosurgical perspective, he believed that the neurosurgical effects of the plaintiff’s work injury had ceased, which at face value, seemed to be contradictory of the answer he gave to the immediately preceding question;

1. When asked the question: “Regarding Ms Cox’s work capacity, how is this affected by her work-related and non-work-related condition”, he gave a bifurcated answer. The first element of that answer was that he could not determine any significant neurosurgical spinal injury as having occurred. The second element of his answer was the suggestion that the insurer seek guidance from Dr Kirychenko and Mr Singleton because the question of work capacity was outside his remit;

2. When asked for an opinion on the plaintiff’s work capacity, he reverted to the same answer he gave to the preceding question.

110. An unexplained matter arising from the 14-page report of Dr Coroneos was that at the top of page 13 (at Exhibit “A”, Tab 24, p 897) as an addendum to his answers to the questions that had been asked of him, he stated: “NB. Please refer to the seven pages of annexures.” Problematically, those seven pages were not copied or included as part of Exhibit “A”. That omission raised questions as to the transparency and acceptability of the report of Dr Coroneos.

Medico-legal report of Dr Cleaver – 6 December 2019

111. In summary, Dr Cleaver expressed the opinion that the plaintiff’s injury on 4 July 2018 brought into clinical relevance the degenerative changes in the facet joints of her lumbar spine, and this has caused her to stop working: Exhibit “A”, Tab 15, pp 232 – 246, at p 235.

112. Dr Cleaver based that opinion on the plaintiff’s account of how the accident occurred, describing it (at Exhibit “A”, Tab 15, p 236), as becoming airborne by a centimetre or two after the lift stopped very suddenly, resulting in an axial compression injury to her spine which has become symptomatic ever since, and which has stopped her from working since February 2019.

113. On the issue of the plaintiff’s pre-existing degenerative arthritis of the lumbar spine, Dr Cleaver noted that (at Exhibit “A”, Tab 15, p 237), consistent with the plaintiff’s evidence of the absence of low back symptoms before the subject accident, that such changes can remain quiescent until an injury brings them into clinical relevance, as was the case in this instance, as he explained.

114. In that context (at Exhibit “A”, Tab 15, p 238), Dr Cleaver expressed an extremely guarded prognosis for the plaintiff, essentially having a zero prognosis for spontaneous improvement or return to her employment.

Medico-legal report of Dr Andrew Porteous – 9 September 2021

115. On 2 September 2021, at the request of her solicitor, the plaintiff was assessed by Dr Andrew Porteous, an occupational physician. The assessment took place by means of a video consultation because of COVID-19 restrictions: Exhibit “A”, Tab 16, pp 247 – 252.

116. After taking a history and reviewing (at Exhibit “A”, Tab 15, p 248), and identifying the clinical materials that he listed, he expressed the opinion (at Exhibit “A”, Tab 15, p 251), that it was more likely than not, that the plaintiff had aggravation, acceleration or exacerbation of pre-existing ageing related degenerative changes in her spine, particularly in her lumbar spine, with symptoms at times being referred to her lower limbs. That evidence must be read in conjunction with the explanatory oral evidence of Dr Cleaver on what differentiates an aggravation from an exacerbation: T28.50 – T29.14. Dr Porteous expressed the opinion (at Exhibit “A”, Tab 15, pp 251 – 252), that her prognosis was guarded, and that she would be off work long term.

Medico-legal report of Dr Vidyasagar Casikar – 29 June 2022

117. On 11 June 2022, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Vidyasagar Casikar, a consultant neurosurgeon, whose report of that examination was dated 29 June 2022: Exhibit “A”, Tab 23, pp 875 – 884.

118. Dr Casikar’s report summarised the plaintiff’s background, her history (which included a brief account of the incident and its aftermath), and her previous medical history of longstanding depression, and her family history. He recorded what appeared to be his rather limited findings on examination, as follows:

“On examination she stood a height of 154 cm and weighed 71 kgs. Her gait was normal. She could not walk on her heels. She could walk on her toes. She could flex the back up to 30 degrees.

The neurological examination suggested SLR ranging between 60 degrees and 70 degrees. There was no evidence of dermatomal hypoesthesia or motor weakness. The deep tendon reflexes were normal.”

[Exhibit “A”, Tab 24, p 877]

119. Dr Casikar noted (at Exhibit “A”, Tab 23, p 877), that he reviewed three imaging reports comprising a lumbar CT scan report dated 10 July 2018, a lumbar MRI report dated 29 August 2018, and a cervical and lumbar MRI report dated 10 May 2022, each of which he briefly summarised.

120. On the above basis (at p 877), Dr Casikar identified his diagnosis to be “Pain Syndrome, Depression, Degenerative disease of the lumbar spine.” He went on to state his opinion that the plaintiff had constitutional degenerative disease of the lumbar spine. He did not refer to evidence of inflammation of the facet joints in the plaintiff’s lumbar spine.

121. Dr Casikar stated that in his view, there was not enough evidence to suggest the plaintiff had an axial loading injury. He also stated that his clinical examination was not consistent with the history provided. He also went on to say that a drop in one lift segment (which I interpret to mean a drop of one floor height) “does not produce axial loading injury.”

122. Curiously (at Exhibit “A”, Tab 23, p 878), Dr Casikar cited a report dated 9 January 2019 from an occupational physician, Dr Kirychenko, which was not otherwise identified in the “documentation”, with which he was provided, where Dr Kirychenko was cited as having expressed the opinion that the sudden lift drop aggravated the pre-existing degenerative disease “at L5/S1 space”.

123. Dr Casikar also stated his agreement with the opinion of Dr Coroneos to the effect that it “merely indicates that [the plaintiff] had a degenerative disease of the lumbar spine” and [he] was “unable to corelate the incident with her clinical presentation”. His qualifications for that view were not identified.

124. On the foregoing basis Dr Casikar concluded that the plaintiff’s presentation was unrelated to the accident, and she had no disability, and that her disabilities “are mainly due to Pain Syndrome and a long history of depression”. Those opinions bear close analysis.

Medico-legal report of Dr Porteous – 14 August 2023

125. On 27 July 2023, at the request of her solicitor, the plaintiff was re-assessed in a video consultation with Dr Porteous, who prepared a further report on the same date: Exhibit “A”, Tab 17, pp 253 – 258.

126. In his report of that consultation, Dr Porteous reviewed the plaintiff’s previous history and noted (at Exhibit “A”, Tab 17, p 257), that her condition was essentially the same as he had assessed her two years earlier. He concluded by re-iterating his earlier opinions formed two years previously.

Dr Cleaver’s oral evidence

127. In his oral evidence given at the hearing, Dr Cleaver made an important distinction between an exacerbating injury and an aggravating injury.

128. He described an aggravation injury as one that worsens an underlying condition with a non-return to baseline: T32.48. He said that in the plaintiff’s case, this involved rendering pre-existing asymptomatic conditions symptomatic (T34.21), where there was radiological evidence of high-grade facet joint arthritis which, in addition to back pain, produced pain in both legs. He identified imaging proof of inflammation in the facet joints as evidence of an aggravation injury: T33.2 – T33.14; T34.9. He said he found no evidence of inconsistencies in his evaluation of the plaintiff: T34.39.

129. Dr Cleaver specifically rejected the suggestion that the plaintiff’s injury was simply a temporary exacerbation of facet joint problems (T35.20), and in doing so, made an important distinction between arthritis and inflammation, the latter being the result of injury: T35.14 – T35.44.

130. In articulating those views, Dr Cleaver disagreed with the findings and conclusions of Dr Coroneos and Dr Casikar. In doing so, he reiterated the distinction between an exacerbation and an aggravation that has not returned to the baseline condition: T28.50 – T29.14.

Conclusions on the assessment of conflicting medical opinions

131. The consideration of the conflicting medical opinions commences with the opinions of Dr Coroneos.

132. I find that the opinions expressed by Dr Coroneos in his report dated 24 July 2019 represent an unacceptable basis for determining matters in dispute in this case. My reasons for that view are as follows.

133. First, Dr Coroneos has relied upon his own file review of documents which the defendants have not introduced into evidence in these proceedings. Therefore, in my view, his analysis remains opaque to transparent analysis, and as such, it would be procedurally unfair to the plaintiff to rely upon the opinions of Dr Coroneos in such circumstances.

134. Secondly, the defendants have not complied with Dr Coroneos’ limiting stipulation concerning the intended use of his report dated 24 July 2019. At Exhibit “A’, Tab 24, p 897, he stated that his entire report and the attachments to it should be provided to any intended recipients. Contrary to that stipulation, the defendants tendered the report of Dr Coroneos without providing copies of what appear to be crucial materials provided to him in the form of material from Mr Drew Singleton dated 10 May 2019 and Dr Val Kirychenko dated 9 January 2019, and “multiple NSW WorkCover Certificates”. The absence of that material precludes a comprehensive and transparent analysis of the opinions expressed by Dr Coroneos.

135. Thirdly Dr Coroneos’ stated view that he was unable to determine any evidence of significant spinal injury other than a soft tissue strain does not assist or contradict the discussion raised by Dr Cleaver on the distinction he made between an aggravating or an exacerbating injury in terms of what is the most likely cause of the plaintiff’s ongoing symptoms. The absence of Dr Coroneos’ reasons on those matters necessarily limits the utility of his report.

136. Fourthly, in Dr Coroneos’ examination of the plaintiff’s spinal imaging scans, he noted the range of available imaging but restricted himself to only commenting upon the 29 August 2018 whole spine scans. He did not comment on the 27 March 2019 EOS scan, which Dr Cleaver identified as revealing inflammation of the facet joints. Dr Coroneos’ opinions did not canvass the finding of inflammation which suggests that his analysis represents an incomplete evaluation of the medical evidence.

137. Fifthly, Dr Coroneos’ commentary on the imaging he examined did not specifically refer to the imaging finding of facet joint inflammation which was identified by Dr Cleaver, and he did not explain the basis for his view that the neurosurgical effects of the plaintiff’s injury ceased. The expression “neurosurgical effects” was an odd expression to be used in this context because the plaintiff has not had neurosurgery. Perhaps Dr Coroneos was referring to neurological effects. That lack of clarity afflicts the report.

138. Sixthly, Dr Coroneos’ conclusion (at Exhibit “A’, Tab 24, p 896), that he could not determine any significant neurosurgical spinal injury, remains inadequately explained and reasoned. In that regard, Dr Coroneos appears to have adjectivally restricted his expert analysis to a framework confined to what he considers might be a “significant neurosurgical or spinal injury” where, unhelpfully, the descriptor “significant” remains undefined by him. This should be seen to be an unexplained and therefore unacceptable ipsedixitism: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87]; UCPR r 31.27(1)(c); Sch 7, cl 5(c).

139. Seventhly, the ultimate and overarching limitation on the report of Dr Coroneos was his statement that the question of the plaintiff’s work capacity was a matter that was outside of the remit of his expertise.

140. For the reasons outlined above, and absent explanatory oral evidence on those matters from the defendants’ experts, I conclude that Dr Coroneos’ report does not form a reliable basis for determining whether the plaintiff has suffered a relevant injury to her spine, or the question of whether there are any lasting effects from such injury. In light of those factors, Dr Coroneos’ expressed opinions should not be seen as displacing or disapplying the analysis identified by the plaintiff’s treating specialist, Dr Cleaver, or the plaintiff’s assessing occupational physician, Dr Porteous.

141. I now turn to the consideration of the opinions expressed by Dr Casikar.

142. I conclude that the opinions of Dr Casikar’s report contains elements of confusion and inadequacy of reasoning such that, absent explanatory oral evidence from him, his opinions must be seen to be unreliable in this case. My reasons for that conclusion are as follows.

143. First, for his analysis, Dr Casikar has considered and commented upon “documentation” which has not been tendered in these proceedings. The opacity of that process is procedurally unfair to the plaintiff, and it is therefore unacceptable.

144. Secondly, it is evident that Dr Casikar’s opinions have been guided if not founded upon the undisclosed 9 January 2019 report of Dr Kirychenko and other undisclosed “documentation” which led him to express his agreement with the assessment of Dr Coroneos. His inability to relate the plaintiff’s degenerative disease of the spine to the subject accident is largely unexplained in that his assessment makes no reference to the factor of inflammation as an aggravating factor perpetuating the plaintiff’s symptoms beyond a baseline of degeneration as was explained by Dr Cleaver.

145. Thirdly, a factor that substantially detracts from the reliability of the report and the opinions of Dr Casikar is the statement by which he discounts the mechanism of axial loading as an explanation for the occurrence of the plaintiff’s injury. The first element of such unreliability is that Dr Casikar’s qualifications for expressing that view have not been demonstrated. The second element is that the cited opinion amounts to no more than an unreasoned ipsedixitism that cannot be taken to be a reliable contradiction of the views expressed by Dr Cleaver: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87]; UCPR r 31.27(1)(c); UCPR Sch 7 cl 3(e).

146. Fourthly, in my view, the second sentence of the opinion section of Dr Casikar’s report (Exhibit “A”, Tab 23, at p 877), appears incomplete and therefore makes no sense. I do not accept the proposition that this was an insignificant typographical error that can be overlooked. A construction of that kind requires either agreement or evidence. Both are absent here. In my view the confusing mode of expression afflicts the acceptability of the report. It is not the function of the Court to cure such a confusing gap in the expert’s syntax. The onus was on the defendants’ solicitors to recognise the problematic nature of the report and take the necessary steps to resolve that issue before the report was tendered, especially in circumstances where the defendants had no intention to call Dr Casikar to give oral evidence.

147. Fifthly, in commenting on the plaintiff’s argued mechanism of injury. Dr Casikar stated: “I do not accept there is enough evidence to suggest an axial loading injury.” He then went on to say, without reasons, that his “clinical examination is not consistent with the history provided.” In my view, those unreasoned statements should be seen as being unacceptable ipsedixitisms: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87] ]; UCPR r 31.27(1)(c); Sch 7, cl 5(c).

148. Finally, and somewhat confusedly, Dr Casikar’s unreasoned statement (at Exhibit “A”, Tab 24, p 881), that he agrees with Dr Coroneos was in irreconcilable tension with his further unreasoned statement (at Exhibit “A”, Tab 23, p 884), where he problematically stated that he agreed with Dr Coroneos and Dr Cleaver, where those two opinions were in discordant conflict.

149. In contrast to the opinions of Dr Coroneos and Dr Casikar, the contrary opinions of Dr Cleaver and Dr Porteous are adequately explained with cogent reasons.

150. Furthermore, as the treating orthopaedic surgeon, Dr Cleaver, has had the material advantage of being the treating specialist who has seen the plaintiff on a number of occasions over the course of time. He was also able to consider and comment upon the opinions of other medical assessors on points in contention, as was explained in his oral evidence which was tested and was not relevantly impugned by cross-examination.

151. In summary, for the above reasons, I consider that the opinions expressed by Dr Cleaver and Dr Porteous should be preferred to the contrary views expressed by Dr Coroneos and Dr Casikar. The findings as to the plaintiff’s ongoing disabilities will proceed upon that basis.

(f) Residual disabilities

152. The plaintiff convincingly rejected the challenge by the defendants to the effect she was exaggerating the effects of her injuries. That challenge was not supported by credible evidence.

153. As recorded at paragraph [40] above, since no adverse credit concerns arose from the plaintiff’s evidence, the following summary of her residual disabilities is taken from her evidence and from the medical histories taken by various medical and allied practitioners who have examined her for the purpose of assessment and treatment. The plaintiff’s extensive medical records produced by her treating general practitioner are similarly informative: Exhibit “A”, Tab 20, pp 277 – 448.

154. In 2020, the plaintiff’s recorded post-injury health issues included insomnia, mechanical back pain and neuropathic pain. Those problems appear to relate to her injuries sustained on 4 July 2018: Exhibit “A”, Volume 3, Tab 22, p 450. She has difficulty sleeping on some nights and feels useless the following day. She now suffers daily debilitating pain in her back which continued down into her legs most days, despite medication, hydrotherapy, physiotherapy, acupuncture, and spinal injections.

155. In 2020 and in 2021, the plaintiff was also noted to have unrelated problems comprising gastro-intestinal reflux disease (GORD), a paraumbilical hernia, type 2 diabetes, elevated blood lipids, restless leg syndrome, and depression. She was also taking hormone replacement therapy: Exhibit “A”, Volume 3, Tab 22, p 450. In 2022, also unrelated to her injuries the plaintiff was noted as having abdominal pain and she underwent a procedure for an epigastric hernia repair: Exhibit “A”, Volume 3, Tab 22, p 450.

156. The plaintiff acknowledged that she had a prior history of depression which related to her grief over the illness and death of her mother. She described the effects of the subject accident as having worsened her depression. There is no credible evidence to suggest that that plaintiff’s pre-existing depression, which was being satisfactorily managed with medication, had any pre-injury adverse impact on her capacity to work.

157. There is no evidence to suggest those unrelated problems had any lasting adverse impact on the plaintiff’s future earning capacity.

(g) Impact on work

158. The plaintiff credibly described the heavy, onerous, and constant nature of the duty requirements of an AIN. That work gave her great personal job satisfaction. She convincingly described how she could no longer carry out that work as a consequence of her back injury and its effects. Her evidence on those matters is supported by the evidence of Dr Porteous and Dr Cleaver. I find that the plaintiff’s earning capacity has been effectively destroyed by the effects of the injury she sustained at the premises on 4 July 2018.

(h) Impact on domestic activities

159. The plaintiff’s ability to carry out her usual pre-injury housework has been impaired by the disabling effects of her injuries. The burden of those tasks has therefore fallen upon her husband. In view of her abandonment of a claim for damages for domestic assistance on account of statutory threshold limitations placed upon such claims, it is no longer relevant to consider this topic.

(i) Mitigation of loss

160. The plaintiff was under a common law duty to mitigate her injury related losses. The interruption to her intensive treatment coincided with the decision of the workers’ compensation insurer, apparently based on questionable medical advice, to cease paying for her treatment, and this was complicated by the effects of the COVID-19 pandemic. Her financial circumstances precluded her from continuing to pursue treatment at her own cost. Her impecuniosity cannot properly base a suggestion that she had in any relevant way unreasonably failed to mitigate her losses.

(j) Most likely circumstances but for the injury

161. In view of the plaintiff’s claim for substantial damages it is necessary to record my findings as to her most likely circumstances but for her injury: s 16 of the CL Act.

162. The evidence indicates that it was most likely that the plaintiff would have continued to have her pre-accident problems with depression and GORD and would have still had degenerative changes to her lumbar spine.

163. Although it was likely that those problems would have continued, it was much less likely that those matters would have had a significant adverse impact on her earning capacity other than in respect of the occasional possible need to take sick leave for possible random instances of flare ups. Absent specific evidence of likely incapacity on account of pre-injury health issues, I consider that those matters are effectively accommodated by a conventional allowance for possible adverse vicissitudes.

Issue 2 – Relevant risk of harm

164. The plaintiff identified the relevant risk of harm for the purposes of s 5B of the CL Act as being the risk of a person becoming injured from an elevator dropping or stopping without notice: T67.18. The defendants accepted the aptness of that formulation: T81.11.

Issue 3 – Scope and content of the defendants’ duty of care

165. There is no dispute that the duty of an occupier towards entrants onto premises is to exercise reasonable care to avoid foreseeable risks of injury: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, at p 488.

166. In this case that duty must be seen to have extended to the consideration of matters of safety with regard to scheduled maintenance of fixtures within the premises, including passenger elevators

167. In my view, both defendants were relevant occupiers of the premises where the plaintiff was injured.

168. There was no evidence to suggest that the first defendant’s presence and involvement in the premises was simply limited to the fact of ownership without the burden of discharging the duty of care owed to persons within the premises.

169. In final submissions the first defendant unsuccessfully sought to disavow the admission it made on the pleadings by which it conceded it owed a relevant duty of care in relation to activities such as the testing of the power generator for proper functioning.

170. The elevators and the power equipment on site were fixtures of the premises. As owner of the premises, the first defendant cannot reasonably maintain that it was not a relevant occupier and therefore had no duty of care arising out of the use and testing of those items of equipment at the premises.

171. The second defendant had its head office in Sydney. The second defendant conceded it may have contracted with service providers in relation to the premises.

172. In view of that concession, the second defendant cannot reasonably maintain that it was not a relevant occupier of the premises, or that it did not conduct any business or any activities on the premises.

173. Accordingly, each of the defendants owed the plaintiff the duty of care ordinarily owed by occupiers of premises where elevators were used to move about the building, such as in this case.

Issue 4 – Negligence

174. The plaintiff must satisfy the requirements of s 5B(1), s 5B(2), and s 5C of the CL Act in order to sustain her claim that the defendants were negligent in the circumstances in which she was injured.

175. In this case it was plainly foreseeable that there was a real risk of injury to a passenger travelling in a descending elevator cabin in circumstances where the plan was to bring the descent of the cabin to an abrupt halt as a result of an interruption to the power supply: s 5B(1)(a) of the CL Act.

176. Given that an unexpected sudden stoppage of the elevator cabin was planned, the risk of injury to passengers was not insignificant, especially where they had not been warned to take precautions: s 5B(1)(b) of the CL Act.

177. In circumstances where the interruption to the power supply was planned for testing purposes, a reasonable person in the position of the defendants would have taken the precautions identified by Mr Hampson, namely, to isolate the elevator cabin into a parked position, or alternatively, to warn persons who were in or who were about to enter the elevator cabin as to what was about to happen so that they had the choice of either refraining from entering or leaving the cabin until the intended testing had been completed: s 5B(1)(c) of the CL Act.

178. The evidence of Mr Hampson satisfies me that there was a high probability of harm to the plaintiff if the precautions identified in the preceding paragraph were not taken: s 5B(2)(a) of the CL Act.

179. The risk of injury to un-warned passengers due to an unexpected abrupt stoppage of a descending elevator cabin was very likely to include the risk of potentially serious injuries, especially if a fall was to occur as a result of such stoppage: s 5B(2)(b) of the CL Act.

180. It is plain from the evidence of Mr Hampson that the burden on the defendants in taking the identified precautions would have been negligible: s 5B(2)(c) of the CL Act.

181. There was no relevant social utility to be achieved in subjecting unsuspecting elevator passengers to the risk of injury from the testing procedure where, without their consent, they would in effect be used as laboratory rats for testing purposes: s 5B(2)(d) of the CL Act.

182. The evidence of Mr Hampson provides satisfactory proof that the precautions he identified would have applied to similar circumstances where the identified risk of injury was foreseeable without undue burden: s 5C(a) of the CL Act.

183. No disentitling factors arise for consideration pursuant to s 5C(b) and s 5C(c) of the CL Act.

184. Accordingly, I find both defendants were negligent in the circumstances in which the plaintiff was injured.

Issue 5 – Causation of harm

185. It is plain from the circumstances that the plaintiff’s injury would not have occurred but for the negligence of the defendants: s5D(1)(a) of the CL Act; Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [32].

186. In those circumstances, where the defendants were conducting commercial activity on the premises, it is only appropriate that the scope of their liability ought be extended to the circumstances of the plaintiff’s injury: s 5D(1)(b) of the CL Act.

187. No exceptional circumstances have been shown to have prevailed and no exclusionary matters of public policy arise for consideration: s 5D(2) and (4) of the CL Act.

188. Accordingly, the plaintiff has satisfied the statutory requirements for a causation finding in her favour.

Issue 6 – Apportionment – s 151Z

189. The defendants seek a finding that, in the event they are found liable to the plaintiff in negligence, the plaintiff’s damages should be deductibly apportioned against her interests, to the extent of at least 90 per cent if not 100 per cent on a just and equitable basis as between themselves and the plaintiff’s employer. That argument is made on account of an alleged liability of the employer, a non-party to the proceedings: s 151Z(2)(c) of the Workers’ Compensation Act 1987 (NSW); Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 529, at [8] and [10].

190. To sustain findings along those lines the defendants must establish that the plaintiff’s employer had breached the non-delegable common law duty it owed to the plaintiff to take reasonable care for her safety by avoiding exposing her to unnecessary risks of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; [1956] HCA 42, at p 25.

191. In my view, those findings sought by the defendants are unsustainable on the evidence adduced in this case.

192. The first defendant owned the premises. The second defendant operated an aged care business at the premises. The plaintiff’s employer provided the plaintiff’s services as an AIN. There is no reliable evidence to show that the employer had actual or imputed notice of the timing of the interruption and testing of the power supply in this case.

193. Therefore, the plaintiff’s employer had no reason to take precautionary steps to avoid its employees being exposed to the testing of the elevators whilst carrying passengers.

194. The testing of the power supply was a matter that fell within the particular responsibilities of the owner of the premises and operator of the business on the premises. The interruption to the power supply was a matter the defendants needed to consider in terms of resident welfare and safety. This had nothing to do with the provision of nursing staff on the premises by the plaintiff’s employer.

195. The testing procedure was deliberately planned to occur under normal loading conditions. This was a function of the way in which the premises were maintained and operated. It had nothing to do with the way in which the employer’s staff were deployed at the premises.

196. In view of the intention to conduct the testing under normal conditions of elevator use, the compelling inference that arises is that persons such as the plaintiff were intentionally left uninformed about what was about to happen where they would be part of a test that could foreseeably result in injury to them. Those circumstances have not been shown to have been due to any fault on the part of the plaintiff’s employer.

197. Accordingly, the claim for apportionment of the plaintiff’s entitlement to damages pursuant to s 151Z of the WC Act, based on the notion of an argued breach of the employer’s duty of care, must be rejected.

Issue 7 – Assessment of damages

198. The plaintiff claims the following heads of damage for assessment:

1. Non-economic loss;

2. Past economic loss;

3. Past loss of superannuation;

4. Future economic loss;

5. Future loss of superannuation;

6. Future expenses;

7. Past out-of-pocket expenses;

199. My assessments of those heads of damage now follows.

Non-economic loss

200. On behalf of the plaintiff it was initially submitted that her damages for non-economic loss pursuant to s 16 of the CL Act should be assessed at 30 per cent of a most extreme case. In final submissions, that submission was expanded to be in the range of between 30 and 40 per cent of a most extreme case.

201. In contrast, on behalf of the defendant, it was submitted that s 16 damages should be assessed at 20 per cent of a most extreme case.

202. The assessment of non-economic damages is an evaluative exercise which in part involves assessing the subjective effects of the plaintiff’s restrictions measured against the more objective statutory yardstick of s 16. The parties did not refer to comparative cases for that purpose. Such analogies are necessarily imperfect because of differences in personal circumstances.

203. The plaintiff’s ongoing injury-related disabilities have already been outlined between paragraphs [152] to [157] above. Those problems have been visited upon the plaintiff in addition to her underlying depression and gastrointestinal problems, which of themselves, were not causing any major interference with her ability to enjoy the amenity of her life or to pursue her chosen field of work as an AIN.

204. If anything, the added injury-related problems represent further burdens which the plaintiff could ill-afford. They have significantly diminished her ability to enjoy the amenity of her life. In that regard, in accordance with principle, the defendants must take the plaintiff as she is found.

205. In my assessment, the ill-effects of the plaintiff’s injury have been substantial and persisting. The pre-existing quiescent age-related degenerative changes in her lumbar spine have been rendered permanently symptomatic as a result of an aggravating injury causing inflammation of the facet joints, as distinct from a temporary exacerbation, as was explained by Dr Cleaver in his oral evidence: T32.48.

206. The effect has been that the plaintiff must continue to take significant pain killing medications to manage her pain and she requires ongoing medical management and review. She has been rendered unemployable in her chosen vocation from which she had hitherto derived substantial satisfaction.

207. The plaintiff has endured those problems for the past 5 years. She has a statistically estimated median lifespan of the order of a further 32 years, during which she will continue to suffer significant injury-related interference with the amenity and enjoyment of her life.

208. In my view, in those circumstances, the fair and appropriate evaluative assessment required pursuant to s 16 of the CL Act, indicates that the sum of those detriments should be assessed at 35 per cent of a most extreme case. The monetary equivalent of that assessment is $246,500.

209. I therefore assess the plaintiff’s damages for non-economic loss in the amount of $246,500.

Past economic loss

210. On behalf of the plaintiff, it was submitted that damages for past economic loss should be assessed in the discounted sum of $188,828.

211. In contrast, on behalf of the defendant, it was submitted that such damages should be assessed at $32,771.15, this being the amount paid by the workers’ compensation insurer.

212. I reject that submitted assessment because although it has the appearance of precision, it was based on unsound arbitrary factors that are not sustained on the medical evidence. In my view, that approach represents inadequate compensation for the plaintiff’s past loss of income.

213. At the time of her injury, and since 2007, the plaintiff had been appropriately trained and experienced in her chosen vocation as an Assistant in Nursing. It was a role that she enjoyed, and which she pursued with dedication until the time of her incapacitating injury which has prevented her from continuing with that work, or any other form of work to which she was educationally and physically suited.

214. The plaintiff’s pre-injury income tax return for the year ended June 30^th, 2018, shows a gross income of $51,639, which is roughly the equivalent of $800 per week net.

215. Despite her injury, in early 2019 the plaintiff attempted to resume her work approximately six months post-injury. She found that she could not continue with that work because she experienced severe exacerbating pain in her back, which necessitated that she cease working.

216. The preponderance of the body of acceptable medical opinion from Dr Cleaver and from Dr Porteous is that she has been unable to return to her work in nursing and she is now incapacitated for all work for which she has been trained, experienced, and qualified.

217. The plaintiff has been off work for a period of 277 weeks. At the plaintiff’s net pre-accident rate of earnings of $800 per week the plaintiff’s past loss of income is assessed at $221,600. In my view, that calculation is conservative as it does not include any allowance for periodic increments, whether CPI or by industry agreements.

218. I therefore assess the plaintiff’s damages for past economic loss in the amount of $221,600.

Past loss of superannuation

219. Pursuant to the decision in Nadjovski v Crnojlovic [2008] NSWCA 75, on behalf of the plaintiff, it was submitted that damages for loss of past superannuation should be conventionally assessed at 9 per cent of the amount awarded for past economic loss. This amounts to the sum of $19,994.

220. In contrast, on behalf of the defendant, it was submitted that no damages should be awarded for past loss of superannuation. In light of the authority cited by the plaintiff, the defendants’ submission is not justifiable.

221. I therefore assess the plaintiff’s damages for past loss of superannuation in the amount of $19,994.

Future economic loss

222. On behalf of the plaintiff, it was submitted that the assessment of the plaintiff’s damages for future economic loss should be in the sum of $382,500.

223. In contrast, on behalf of the defendants, it was submitted that no such damages should be awarded. In light of my earlier findings as to the nature and the effect of the plaintiff’s injuries and resultant disabilities, the defendants’ future economic loss submission should not be accepted.

224. The plaintiff has an ongoing incapacity for her pre-accident work. It is improbable that she will ever be able to gain and sustain remunerative employment in the future, whereas uninjured, she would most probably have worked until her projected retirement for another 11 years to the age of 67 years. Her pre-existing depressive illness and GORD would have been unlikely impediments to sustained future employment.

225. Allowing for increments to past rates of earnings over the previous 6 years, the ongoing net weekly loss of income of $850 per week, which, if projected over 11 years on the 5 per cent discount tables (x 450) less a conventional 15 per cent for the potential impact of conventional adverse vicissitudes, yields a loss of $325,125.

226. I therefore assess the plaintiff’s damages for future economic loss in the amount of $325,125.

Future loss of superannuation

227. On behalf of the plaintiff, in accordance with the previously cited authority, it was submitted that the plaintiff’s damages for loss of future superannuation should be assessed in the sum of $55,003.50.

228. In contrast, on behalf of the defendants, it was submitted, unacceptably, that no such damages should be awarded.

229. On the basis of the discounted assessment of future economic loss of $325,125, applying a percentage assessment factor of 14.38 per cent, this yields the amount of $46,752.97. That assessment should be conventionally discounted by 15 per cent.

230. I therefore assess the plaintiff’s damages for future loss of superannuation in the amount of $39,740.

Future expenses

231. On behalf of the plaintiff it was submitted that the plaintiff’s damages for future treatment and out-of-pocket expenses should be assessed in the sum of $167,075.50.

232. In contrast, on behalf of the defendants, it was submitted that no damages should be awarded for future treatment and out-of-pocket expenses. In light of the plaintiff’s chronic injury-related disabilities, the defendants’ submission on future treatment expenses is untenable.

233. The plaintiff’s claim for future treatment expenses comprised the following elements:

1. Dr Cleaver’s recommendations for pain management;

2. Pharmaceutical expenses;

3. General practitioner visits;

4. Psychologist;

5. Occupational therapist;

6. Comprehensive multidisciplinary hospital based pain management programme.

234. Those treatment modalities are not readily assessable because of the uncertain variabilities of timing, frequency, and cost of the individual elements. In such circumstances, it would be inappropriate to project a precise weekly amount using the actuarial tables. Instead, I consider that the assessment of a lump sum buffer amount is the appropriate method of compensating the plaintiff for this head of damage. Taking that approach, whilst being fair to the plaintiff and not unfair to the defendants, I consider the appropriate buffer to be $45,000.

235. I therefore assess the plaintiff’s damages for future treatment and out-of-pocket expenses in the amount of $45,000.

Past out-of-pocket expenses

236. Out-of-pocket expenses have been agreed in the sum of $27,526.42.

Summary of damages expenses

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

(a) Non-economic loss	$246,500
(b) Past economic loss	$221,600
(c) Past loss of superannuation	$19,944
(d) Future economic loss	$325,125
(e) Future loss of superannuation	$39,740
(f) Future expenses	$45,000
(g) Past out-of-pocket expenses	$27,526.42
Total	$925,435.42

Disposition

238. The plaintiff has established her claim for damages against both defendants in the assessed sum of $925,435.42.

Jurisdiction

239. Since 16 December 2022, the civil jurisdiction of the Court for claims for damages has been $1,250,000. At the time the plaintiff commenced her claim against the first defendant on 25 June 2021, the Court’s jurisdiction for such cases was limited to $750,000 subject to a potential extension by 50 per cent on certain conditions being satisfied: s 51(2)(b) and s 51(4)of the District Court Act 1973 (NSW). At the time the plaintiff joined the second defendant to the proceedings on 18 April 2023, the jurisdictional limit of $1,250,000 applied to the claim against that defendant. The parties should have liberty to apply if any adjustments are required on account of jurisdictional questions.

Costs

240. Subject to any special cost order arguments that the parties may wish to raise, it seems to me that the appropriate order for costs for these proceedings is that costs should follow the general rule of following the event: UCPR r 42.1. Accordingly, the plaintiff should have the benefit of a compensatory order that the defendants pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

241. I make the following orders:

1. Verdict and judgment for the plaintiff against both defendants jointly and severally in the sum of $925,435.42;

2. The defendants are to pay the plaintiff’s costs on the ordinary basis unless a party can show an entitlement to some other costs order;

3. The exhibits may be returned;

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

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Decision last updated: 16 February 2024